[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Rules and Regulations]
[Pages 4820-4860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00484]
[[Page 4819]]
Vol. 86
Friday,
No. 10
January 15, 2021
Part XI
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
-----------------------------------------------------------------------
50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Revised Designation of
Critical Habitat for the Northern Spotted Owl; Final Rule
Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules
and Regulations
[[Page 4820]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2020-0050; FF09E21000 FXES11110900000 212]
RIN 1018-BF01
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for the Northern Spotted Owl
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), revise the
designation of critical habitat for the northern spotted owl (Strix
occidentalis caurina) under the Endangered Species Act of 1973, as
amended (Act) by excluding approximately 3,472,064 acres (1,405,094
hectares) in Whatcom, Okanogan, Skagit, Chelan, Snohomish, King,
Kittitas, Pierce, Yakima, Lewis, Cowlitz, Skamania, Clark, and
Klickitat Counties in Washington; Tillamook, Washington, Multnomah,
Hood River, Wasco, Yamhill, Clackamas, Marion, Polk, Lincoln, Linn,
Jefferson, Benton, Lane, Deschutes, Douglas, Coos, Klamath, Curry,
Jackson, and Josephine Counties in Oregon; and Del Norte, Siskiyou,
Humboldt, Trinity, Shasta, Tehama, Mendocino, Glenn, Lake, and Colusa
Counties in California, under section 4(b)(2) of the Act. These
exclusions are based on a reconsideration of the relevant impacts under
section 4(b)(2) of the Act as well as new information since our 2012
revised critical habitat designation for the northern spotted owl. This
final rule focuses only on new exclusions under section 4(b)(2) of the
Act; we are not making any other revisions to the northern spotted owl
critical habitat designation.
DATES: This rule is effective March 16, 2021.
ADDRESSES: This final rule is available on the internet at http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050 and at http://www.fws.gov/oregonfwo. Comments and materials we received, as well as
some supporting documentation we used in preparing this rule, are
available for public inspection at http://www.regulations.gov under
Docket No. FWS-R1-ES-2020-0050.
The coordinates from which the Service generated the maps are
included in the administrative record for this critical habitat
designation and are available at http://www.regulations.gov at Docket
No. FWS-R1-ES-2020-0050 and at http://www.fws.gov/oregonfwo. The GIS
data reflecting the revised critical habitat units can be downloaded at
https://ecos.fws.gov/ecp0/profile/speciesProfile.action?spcode=B08B
under the heading Critical Habitat Spatial Extents. Any additional
tools or supporting information that we developed for this critical
habitat designation will also be available at the Service website and
in the preamble at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Gary Frazer, U.S. Fish and Wildlife
Service, Department of the Interior, Washington, DC 20240, telephone
202/208-4646. Persons who use a telecommunications device for the deaf
(TDD) may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. In settlement of litigation
challenging the critical habitat rule, the Service agreed to submit a
proposed revised rule to the Federal Register that identifies proposed
exclusions under section 4(b)(2) of the Endangered Species Act of 1973,
as amended (16 U.S.C. 1531 et seq.; hereafter, Act or ESA) by July 15,
2020, and to submit to the Federal Register a final revised critical
habitat rule on or before January 6, 2021, or withdraw the proposed
rule by that date if we determined not to exclude any areas from the
designation under ESA section 4(b)(2). We delivered a proposed rule to
the Federal Register on July 15, 2020, which was published on August
11, 2020 (85 FR 48487).
What this rule does. We revise the designation of critical habitat
for the northern spotted owl by excluding additional areas.
Basis for this rule. Under section 4(b)(2) of the Act, 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. This revision to critical habitat excludes 3,472,064 acres
(1,405,094 hectares) in Whatcom, Okanogan, Skagit, Chelan, Snohomish,
King, Kittitas, Pierce, Yakima, Lewis, Cowlitz, Skamania, Clark, and
Klickitat Counties in Washington; Tillamook, Washington, Multnomah,
Hood River, Wasco, Yamhill, Clackamas, Marion, Polk, Lincoln, Linn,
Jefferson, Benton, Lane, Deschutes, Douglas, Coos, Klamath, Curry,
Jackson, and Josephine Counties in Oregon; and Del Norte, Siskiyou,
Humboldt, Trinity, Shasta, Tehama, Mendocino, Glenn, Lake, and Colusa
Counties in California, under section 4(b)(2) of the Act.
This rule revises the 2012 critical habitat designation based upon
the Secretary's determination that the benefits of exclusion of
particular areas of critical habitat outweigh the benefits of
designation of particular areas of critical habitat based on economic,
national security and other relevant impacts. Based upon the best
scientific and commercial data available, the Secretary has not
concluded that these exclusions will result in extinction of the
species.
Previous Federal Actions
On December 4, 2012, we published in the Federal Register (77 FR
71876) a final rule designating revised critical habitat for the
northern spotted owl and announced the availability of the associated
economic analysis and environmental assessment. For additional
information on previous Federal actions concerning the northern spotted
owl, refer to that December 4, 2012, final rule.
In 2013, the December 4, 2012, revised critical habitat designation
was challenged in court in Carpenters Industrial Council et al. v.
Bernhardt et al., No. 13-361-RJL (D.D.C.) (now retitled Pacific
Northwest Regional Council of Carpenters et al. v. Bernhardt et al.
with the substitution of named parties). In 2015, the district court
ruled that the plaintiffs lacked standing. The D.C. Circuit Court of
Appeals reversed and remanded, and the case remained pending before the
district court. In December of 2019, the plaintiffs filed a motion with
the district court seeking permission to file a supplemental brief
regarding the United States Supreme Court's decision in Weyerhaeuser
Co. v. U.S. Fish and Wildlife Service, 139 S. Ct. 361 (2018),
concerning the designation of critical habitat for the dusky gopher
frog. The plaintiffs asserted that supplemental briefing on the
Weyerhaeuser decision would benefit the district court's consideration
of two of their arguments regarding the 2012 northern spotted owl
critical habitat designation: That the Service unlawfully designated
areas that are not northern spotted owl habitat, and that the Service
failed to weigh the designation's economic impacts and consider other
relevant factors when excluding lands under section 4(b)(2).
On April 13, 2020, we entered into a stipulated settlement
agreement
[[Page 4821]]
resolving the litigation. The settlement agreement was approved and
ordered by the court on April 26, 2020. Under the terms of the
settlement agreement, the Service agreed to submit a proposed revised
critical habitat rule to the Federal Register that identifies proposed
exclusions under section 4(b)(2) of the Act by July 15, 2020, and to
submit to the Federal Register a final revised critical habitat rule on
or before December 23, 2020, subsequently extended by agreement to
January 6, 2021, or withdraw the proposed rule by that date if we
determined not to exclude any areas from the designation under ESA
section 4(b)(2). We delivered a proposed rule to the Federal Register
on July 15, 2020, which was published on August 11, 2020 (85 FR 48487),
and by this final rule we exclude the particular areas described below
from the designation.
Summary of Comments and Recommendations
In the August 11, 2020, proposed revised critical habitat rule (85
FR 48487), we requested that all interested parties submit written
comments on the proposed revision by October 13, 2020. We requested
comments on the exclusions discussed in the proposed rule and invited
comments on any additional proposed exclusions the public requested we
consider. We also contacted appropriate Federal, State, and local
agencies, scientific organizations, and other interested parties and
invited them to comment on the proposed rule. A newspaper notice
inviting general public comment was published in The Oregonian on
August 16, 2020, and in the Medford Mail Tribune on August 17, 2020. We
did not receive any requests for a public hearing.
During the comment period, we received 572 public comment letters
addressing the proposed revised critical habitat designation. Many
comments were non-substantive in nature, expressing either general
support for or opposition to provisions of the proposed revised rule
with no supporting information or analysis, or expressing opinions
regarding topics not covered within the proposed revised regulation. We
also received many detailed substantive comments with specific
rationale for support of or opposition to specific portions of the
proposed revised rule as well as specific comments requesting
additional exclusions. Below, we summarize and respond to the
substantive comments on the proposed revised regulation. Comments
received were grouped into general categories specifically relating to
the proposed revised critical habitat designation (85 FR 48487, August
11, 2020), and are addressed in the following summary.
Comments From Federal Agencies
Comment (1): The U.S. Department of Agriculture Forest Service
(USFS) Region 6 expressed neither support for nor opposition against
the proposed critical habitat revision. It noted however that, as
critical habitat in southern Oregon and northern California becomes
more fire prone, as evidenced by the 2020 fire season, the USFS
continues to be concerned for the persistence of the northern spotted
owl in the Pacific Northwest. The USFS encouraged connectivity between
existing critical habitat units. In particular, the USFS commented that
the Service should consider the probability of wildfire events, the
effect of climate change, and projected fire behavior as tools for
determining where critical habitat designations should be revised
throughout the range of the northern spotted owl. Additionally, we
received a comment letter from the Under Secretary, Natural Resources
and Environment, Department of Agriculture supporting Interior's
efforts to ``right size'' the northern spotted owl critical habitat
designation because of the difficulties encountered by the Forest
Service in achieving its statutory mission for managing the National
forests. The letter discussed the devastation to the spotted owl
habitat and to other property caused by wildfire in general, using the
2020 wildfire season as an example. The letter requested that the
Forest Service and the FWS work together in protecting the northern
spotted owl and lowering the risks of catastrophic wildfire.
Our response: We thank the Forest Service for its response and
recognize that the exclusion of particular areas from critical habitat
may lessen one of the regulatory burdens for the Forest Service in
carrying out its statutory mission. We also agree that good management
of the Forest Service lands may provide additional environmental
benefits including possibly reducing the risk of catastrophic wildfire,
which may benefit for the northern spotted owl by protecting its
habitat from destruction. Because ESA section 7 consultation will be
completed for discretionary Federal actions and decisions where
northern spotted owls are present, the additional benefit of ESA
section 7 consultation for adverse modification of critical habitat is
minimal compared with the environmental benefits of additional forest
management. For example, we recognize that having more lands in the
potential timber harvest base may permit the Bureau of Land Management
(BLM) and U.S. Forest Service (USFS) to allow longer cycles between
timber harvests. Longer cycles between timber harvests can have many
environmental benefits, including ensuring a mix of tree ages, which
can be used by the northern spotted owl for connectivity between
nesting areas, and lessening the risk of catastrophic wildfire, which
harms the northern spotted owl and puts rural communities, private
property and lives at risk.
Comments From States
Section 4(b)(5)(A)(ii) of the Act requires the Service to give
actual notice of any designation of lands that are considered to be
critical habitat to the appropriate agency of each State in which the
species is believed to occur, and to invite each such agency to comment
on the proposed regulation. Section 4(i) of the Act states: ``the
Secretary shall submit to the State agency a written justification for
his failure to adopt regulations consistent with the agency's comments
or petition.'' We notified the States of Washington, Oregon, and
California of the proposed critical habitat designation. We did not
receive comments from any State or State agency.
Comments From Counties
We received comments from Lewis, Klickitat, and Skamania Counties
in Washington; from Douglas and Harney Counties in Oregon; and from
Siskiyou County in California. All comments from counties pertained to
either the economic or environmental analysis and requested additional
exclusions based on economic or environmental factors; see Economic
Analysis Comments and Exclusions Comments below for County comments and
our responses.
Comments From Tribes
We received comments from the Confederated Tribes of Coos, Lower
Umpqua, and Siuslaw Indians; the Cow Creek Band of Umpqua Tribe of
Indians; and the Coquille Indian Tribe.
Comment (2): The Confederated Tribes of Coos, Lower Umpqua, and
Siuslaw Indians and the Cow Creek Band of Umpqua Tribe of Indians
commented in support of the proposed exclusion of lands recently
transferred to them in trust. The Cow Creek Band of Umpqua Tribe of
Indians expressed concern, however, that the proposed rule did not
consider Tribal management plans and objectives for Indian forest land
as a basis for the exclusions. The Coquille Tribe similarly
[[Page 4822]]
commented in general that the rule should include a statement that
recognizes the dominant purpose of the Coquille Forest to generate
sustainable revenues sufficient to support the Coquille Tribal
government's ability to provide services to Coquille Tribal members,
and ensure that the resulting critical habitat designation avoids
burdening the Coquille Forest's dominant purpose.
Our response: No Indian lands were designated in the December 4,
2012, critical habitat rule (77 FR 71876). Since 2012, Federal lands
managed by the BLM were transferred in trust to the Confederated Tribes
of Coos, Lower Umpqua, and Siuslaw Indians (CTCLUSI) and the Cow Creek
Band of Umpqua Tribe of Indians (CCBUTI) pursuant to the Western Oregon
Tribal Fairness Act (Pub. L. 115-103). This revised rule excludes those
recently transferred lands from critical habitat designation, which
were referred to as ``Tribal lands'' in the proposed rule but which we
now refer to as ``Indian lands'' as defined in the 2012 critical
habitat rule. We considered Tribal management plans in our analysis of
these exclusions, see Consideration of Impacts under Section 4(b)(2) of
the Act.
We have not designated critical habitat within the Coquille Forest.
Should we consider revisions to the critical habitat designation in the
future, the Service will coordinate with the Coquille Tribe to address
effects to the Forest and its dominant use as managed by the Tribe.
Public Comments
Public Comments on Critical Habitat Boundaries
Comment (3): Commenters expressed concern that the areas proposed
for exclusion provide important connectivity between the Coast Range,
Cascades, and Klamath/Siskiyou Mountains Populations and that exclusion
could reduce gene flow, cause further isolation, and increase the
probability of extinction of the northern spotted owl.
Our response: We have thoroughly examined each of the particular
areas described in this final rule, weighing the benefits of exclusion
with the benefits of inclusion as critical habitat. We then examined
the totality of the excluded areas and, based on the best scientific
and commercial data available and have not concluded that the
exclusions will result in the extinction of the northern spotted owl.
As noted in the preamble to this rule, the standard against which to
measure exclusions under section 4(b)(2) is whether the exclusions
``will'' result in extinction. With regard to the connectivity
concerns, all discretionary Federal actions and decisions that ``may
affect'' the northern spotted owl where it is found will be subject to
section 7 consultation to ensure that the continued existence of the
northern spotted owl is not jeopardized. This includes those owls using
excluded areas for connectivity between critical habitat designations.
This should ensure that populations will not become isolated because
owls will continue to be protected as they migrate from one range to
another. Additionally, the northern spotted owl will also be protected
by the prohibition against ``take'' of the species under ESA section 9.
Thus, we have not concluded that these exclusions will result in the
extinction of the northern spotted owl. Some of the areas used by the
northern spotted owl for migration are secondary growth forests. The
Service anticipates that excluding such areas from critical habitat
will not change their characteristics as secondary growth forests;
therefore, the Service anticipates the areas will continue to function
as habitat for migratory purposes.
Comment (4): Commenters noted that the lands proposed for exclusion
met the definition of critical habitat for the northern spotted owl and
were determined to be essential in our 2012 critical habitat
designation (77 FR 71876, December 4, 2012), and so questioned how
those lands could now be appropriate for exclusion from designation.
Our response: Areas that are found essential to the conservation of
the species are appropriate to considered for exclusion from a critical
habitat designation under section 4(b)(2) of the Act. 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 designation, 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. We found the areas we designated in 2012 to be
essential to the conservation of the northern spotted owl. However, the
Secretary has the discretion to consider these exclusions in light of
either new information that has come about since the 2012 rule, as well
as a consideration of relevant factors not considered in 2012. See our
analysis under Consideration of Impacts under Section 4(b)(2) of the
Act. Because exclusions of these particular areas will not result in
the extinction of the northern spotted owl, based upon our
consideration of the best scientific and commercial data available, we
are making the exclusions set forth in this rule.
Comment (5): A commenter stated that smaller blocks of northern
spotted owl critical habitat, such as those areas in the Harvest Land
Base proposed for exclusion, are also important for the following
reasons: They are migration/dispersal corridors linking larger habitat
blocks; they link the Coast Range province with the Cascade Range
province; and they provide migration corridors that allow a species to
adapt to climate (and habitat) change by relocating to more suitable
habitat.
Our response: See our response to Comment (3).
Comment (6): Commenters stated that we failed to explain why the
Service no longer believes that Oregon and California Railroad Revested
Lands (O&C lands) make a significant contribution toward meeting the
conservation objectives for the northern spotted owl and that we cannot
attain recovery without them.
Our response: The O&C lands were revested to the Federal Government
under the Chamberlin-Ferris Act of 1916 (39 Stat. 218). The Oregon and
California Revested Lands Sustained Yield Management Act of 1937 (O&C
Act; Pub. L. 75-405) addresses the management of O&C lands. The O&C Act
provides, and the courts have confirmed, that the primary use of these
revested timberlands is for permanent forest production on a sustained
yield basis. The Supreme Court has additionally determined that the ESA
does not take precedence over an agency's mandatory (non-discretionary)
statutory mission. Based on these court rulings, we have determined
that exclusion of the O&C lands as critical habitat is proper in this
case.
Second, all discretionary Federal actions where northern spotted
owls are found will be subject to section 7 consultation to ensure that
the continued existence of the northern spotted owl is not jeopardized.
This should ensure that populations will not become isolated because
owls will continue to be protected as they migrate from one range to
another. Third, the northern spotted owl will also be protected by the
prohibition against ``take'' of the species under ESA section 9.
Finally, once the Secretary determines that the benefits of excluding a
particular area outweigh the benefits of including that area, the
remaining legal standard governing whether the Secretary can exclude
that area from critical habitat is whether exclusion of the area will
result in extinction of the species. Although there
[[Page 4823]]
are no cases directly on point, the two cases that have discussed
``extinction'' have done so with reference to the ``survival'' of the
species rather than recovery of the species. See Northern New Mexico
Stockman's Association v. United States Fish and Wildlife Service, _F.
Supp.3d_ , 2020 WL 6048149, 117 (D.N.M. 2020); Gifford Pinchot Task
Force v. USFWS, 378 F.3d 1059, 1069-71 (9th Cir. 2004) (rejecting the
previous FWS ESA section 7 regulation defining ``destruction or adverse
modification'' because the regulation improperly conflated survival and
recovery). Thus, the correct analysis for purposes of section 4(b)(2)
is whether the Secretary concludes that the specific exclusion of these
areas of critical habitat will result in the extinction of the species.
Public Comments Regarding the Northwest Forest Plan (NWFP) or the BLM
Revised Resource Management Plans (RMPs)
Comment (7): Commenters expressed concern that exclusions would
allow BLM to harvest timber without project-specific consultation under
Endangered Species Act section 7.
Our response: We completed a programmatic section 7 consultation on
the BLM RMPs in 2016 under the assumption that BLM will implement its
actions consistent with the RMPs over an analytical timeframe of 50
years (FWS 2016, p. 2). This approach allowed us to evaluate at a broad
scale BLM's plans to ensure that the management direction and
objectives are consistent with the conservation of listed species. We
found that the BLM's plans, at the programmatic scale, were not likely
to jeopardize the continued existence of the northern spotted owl, or
destroy or adversely modify the owl's designated critical habitat (FWS
2016).
Additionally, even on excluded lands, all discretionary Federal
actions and decisions on areas that are occupied by the species will be
required to undergo section 7 consultation if such action or decision
``may affect'' the northern spotted owl. Such consultation will ensure
that the continued existence of the northern spotted owl is not
jeopardized. Thus, we have determined that additional consultation
addressing effects to designated critical habitat provide little
incremental conservation benefit and thus would not be an efficient use
of limited consultation and administrative resources. Given this, in
conjunction with all of the other considerations discussed in
Consideration of Impacts under Section 4(b)(2) of the Act, we conclude
that the benefits of including these particular areas as critical
habitat are relatively minor when compared to the benefits of excluding
them from critical habitat.
Comment (8): Commenters expressed concern that wildlife provisions
in the BLM RMPs do not apply in the Harvest Land Base and that the
exclusion of critical habitat would remove overlapping protections.
Our response: According to the 2016 BLM RMPs for western Oregon,
the management objectives and management direction described for
resource programs (including wildlife) apply across all land use
allocations, unless otherwise noted (BLM 2016a, p. 47, BLM 2016b, p.
47). Regarding overlapping protections, see our response to Comment (7)
for our rationale for excluding these lands from critical habitat for
the northern spotted owl.
Comment (9): Commenters stated that we should consider the impact
of recent fires that have occurred in Washington, Oregon, and
California on the northern spotted owl and its habitat since the 2016
BLM RMPs were finalized, and that recent events make the modeling and
analyses in the RMPs ineffective and obsolete. Commenters noted that
the number of acres burned has exceeded the number of acres affected by
wildfire that were modeled for the first decade in the BLM RMPs.
Our response: We recognize that wildfire can be detrimental to the
northern spotted owl and its habitat and that the number of burned
acres far exceeded modeled numbers. Commenters also noted that in
September 2020, several major wildfires burned across portions of the
range of the northern spotted owl in Washington, Oregon, and
California, negatively affecting habitat conditions. The fires impacted
multiple ownerships, including Federal lands managed by the BLM and
USFS, State lands, and private lands. As part of our balancing of the
benefits of inclusion with the benefits of exclusion of critical
habitat, we considered that one benefit of exclusion could be a
lessening of the regulatory burdens for discretionary Federal decisions
when considering management practices to protect forested lands from
catastrophic wildfire. Although the commenters suggest that higher than
projected wildfires necessitate designating more area as critical
habitat, the Service notes that removing the obligation to consult on
certain areas may facilitate wildfire management, possibly protecting
these areas from wildfire destruction. Thus, we have included a
consideration of wildfire management as part of the balancing for
excluding particular areas from the critical habitat designation.
Comment (10): A commenter expressed concern that habitat for the
northern spotted owl will not grow as projected in the Recovery Plan
and the BLM RMPs due to climate change and the combined effects of
increased fire, insects, disease, storms, and carbon enrichment. The
commenter stated that mitigating the risks of climate change require
greater conservation of northern spotted owl habitat and, therefore,
that these additional exclusions should not be made.
Our response: We analyzed climate change and its potential impact
on northern spotted owl recovery in the Revised Recovery Plan for the
Northern Spotted Owl (FWS 2011). We noted that the combined effects of
climate change and past management practices are altering forest
ecosystem processes and dynamics (including patterns of wildfires,
insect outbreaks, and disease) to a degree greater than anticipated in
the NWFP. The Recovery Plan encourages land managers to consider this
uncertainty and how best to integrate knowledge of management-induced
landscape pattern and disturbance regime changes with climate change
when making spotted owl management decisions. The Recovery Plan further
recommended an adaptive management approach to reduce scientific
uncertainties. Recovery Action 5 in the Recovery Plan for the Northern
Spotted Owl states: ``Consistent with Secretarial Order 3226, as
amended, the Service will consider, analyze and incorporate as
appropriate potential climate change impacts in long-range planning,
setting priorities for scientific research and investigations, and/or
when making major decisions affecting the spotted owl'' (FWS 2011, p.
III-11). The Plan acknowledged the uncertainty associated with
estimating rates of habitat recruitment (FWS 2011, p. B-8).
The BLM did not incorporate projections of climate change into the
simulation of the growth of stands through time in its 2016 RMPs
because of the uncertainty in climate change predictions and
limitations in downscaling the available climate predictions for use in
forest stand growth and harvesting models (BLM 2016c, p. 89). However,
the BLM RMPs state that if the need for adaptive management to address
changes in the climate would so alter the implementation of actions
consistent with the RMPs that the environmental consequences would be
substantially different than those anticipated in the Proposed RMP/
Final EIS, then the BLM would engage in additional planning
[[Page 4824]]
steps and NEPA procedures (BLM 2016a, p. 111).
The BLM may also apply adaptive management by acting on information
found through the monitoring questions (Appendix B) (BLM 2016a, p. 111;
BLM 2016b, p. 133).
Comment (11): Commenters asserted that our statement in the
proposed rule that the designation of the areas proposed for exclusion
provided ``no incremental conservation benefit over what is already
provided for in the RMPs'' conflicts with the Service's prior finding
that the owl ``fared very poorly'' on reserves within the NWFP compared
to designated critical habitat.
Our response: The statement concerning ``reserves faring very
poorly'' in the 2012 critical habitat rule was in reference to a
modeling scenario where we tested population performance of a potential
critical habitat designation based on only NWFP reserves. Our 2012
designation was not based on this modeling scenario.
Comment (12): Commenters expressed concern that the BLM RMPs that
we rely on for our basis for exclusions could be vacated due to current
litigation and that the protection in place under the 2016 RMPs would
no longer apply.
Our response: In the U.S. District Court for the District of
Columbia, in a consolidated set of cases, the court found that the BLM
RMPs violate the O&C Act because BLM excluded portions of O&C
timberland from sustained yield harvest (i.e., the BLM allocated some
timberlands to reserves instead of the Harvest Land Base); see, e.g.,
American Forest Resource Council et al. v. Steed (No. 16-1599-RJL)
(Memorandum Opinion, November 22, 2019). Although we will not speculate
on the future resolution of this litigation, we have excluded the O&C
lands because the benefits of exclusion outweigh the benefits of
inclusion and, based on the best scientific and commercial data
available, the Secretary has not concluded that the exclusions of these
areas will result in extinction of the species. See our response to
Comment 25.
Public Comments on Competition From Barred Owls
Comment (13): Commenters expressed the importance of preserving
mature and old-growth forest for spotted owls in light of competition
with barred owls and stated that the Service has not fully explored how
much more habitat needs to be conserved to mitigate for northern
spotted owl habitat occupied by barred owls.
Our response: The northern spotted owl faces a significant and
complex threat in the form of competition from the congeneric
(referring to a member of the same genus) barred owl (FWS 2011, pp. I-7
to I-8). Even despite the significant acreages of critical habitat that
have been set aside for the northern spotted owl since 1990, estimated
populations of northern spotted owl have declined more than 70% since
the listing of the northern spotted owl. 85 FR at 81145, December 15,
2020. A recent published demographic study for the northern spotted owl
(Dugger et al. 2016, entire) found that the nonnative barred owl that
is invading northern spotted owl habitat was currently the stressor
with the largest negative impact on the northern spotted owl through
competition for resources. Thus, the current best available scientific
and commercial data indicate that the largest negative contributing
impact on northern spotted owl population is the invasive barred owl.
Mitigation for the barred owl is currently being analyzed through the
barred owl removal experiment that has been underway since 2013.
According to the recently completed species assessment for the northern
spotted owl, the northern spotted owl is showing a positive response to
the removal of the barred owl on some of the study areas. Further, the
study areas occur in both areas that have previously been designated as
critical habitat and areas that have not been included. This supports
our understanding that exclusions of critical habitat designations in
these areas will not result in the extinction of the northern spotted
owl.
Other Public Comments
Comment (14): Commenters asked why regulatory oversight of critical
habitat is no longer necessary in light of the Service's previous
position that old-growth reserves of the Northwest Forest Plan ``are
plan-level designations with less assurance of long-term persistence
than areas designated by Congress. Designation of LSRs (late-
successional reserves) as critical habitat complements and supports the
Northwest Forest Plan and helps to ensure persistence of this
management directive over time'' as well as the Service's prior
statements that critical habitat has significant additional value to
listed species separate from any value provided by land management
plans. Commenters further stated that our previous position is in
contrast to our statement in the proposed rule that these exclusions
are to ``clarify the primary role of these lands in relation to
northern spotted owl conservation,'' and ``eliminat[e] any unnecessary
regulatory oversight.''
Our response: Our exclusion of the areas described in this rule is
based on our reevaluation of the benefits of exclusion of particular
areas as critical habitat with the benefits of inclusion of particular
areas as critical habitat. That reanalysis along with the consideration
of the other relevant impacts of a critical habitat designation support
our decision. We also note that even on excluded lands, all
discretionary Federal actions and decisions on areas that are occupied
by the species will be required to undergo section 7 consultation if
such action or decision ``may affect'' the northern spotted owl. Such
consultation will ensure that the continued existence of the northern
spotted owl is not jeopardized. Likewise, the prohibitions of ESA
section 9 continue to be applicable.
Comment (15): A commenter stated that when the critical habitat
designation was originally established, it was understood that much of
the old forest reserves would require considerable time to recover old-
growth characteristics and support northern spotted owl reproduction,
having been subject to logging prior to 1990. The commenter asserted
that much of the occupied habitat in the Harvest Land Base would need
to be left unlogged during the intervening time, to assure an
ecologically sustainable continuity of old-growth forest, with no
significant net loss.
Our response: In our 2016 Biological Opinion on the BLM RMPs, we
concluded that there will be a net increase in habitat for northern
spotted owls during the life of the RMPs due to forest ingrowth
outpacing harvest, and the RMPs contain more reserve acres and habitat
than the NWFP (FWS 2016, p. 5). During the first 5 to 8 years of the
RMPs, the BLM will take measures to avoid take of northern spotted owls
until implementation of a barred owl management program has begun. In
addition, subsequent effects to northern spotted owls would be meted
out over time. These measures in the BLM RMPs, which are unchanged by
the exclusions made under section 4(b)(2) in this rule, will minimize
near-term negative effects to occupied northern spotted owl habitat as
habitat continues to further develop late-successional characteristics
in the reserve land use allocations.
Comment (16): Commenters stated that our proposal ignores the
northern spotted owl Recovery Plan recommendation to protect older,
complex forests on Federal lands west of the crest of the Cascades
range.
[[Page 4825]]
Our response: Although the ESA requires completion of a recovery
plan for species listed under the ESA, the legal standards for a
recovery plan are statutorily different than those Congress developed
for consideration of exclusions under section 4(b)(2). While the
Recovery Plan properly focuses on recovery, the consideration of
critical habitat exclusions under section 4(b)(2) focus on the
prevention of extinction. The courts that have discussed ``extinction''
have done so with references to the ``survival'' of the species rather
than recovery of the species. See Northern New Mexico Stockman's
Association v. United States Fish and Wildlife Service, F. Supp.3d ,
2020 WL 6048149, 117 (D.N.M. 2020); Gifford Pinchot Task Force v.
USFWS, 378 F.3d 1059, 1069-71 (9th Cir. 2004) (rejecting the previous
FWS ESA section 7 regulation defining ``destruction or adverse
modification'' because the regulation improperly conflated survival and
recovery). Thus, the correct analysis for purposes of section 4(b)(2)
is whether the Secretary concludes that the specific exclusion of these
areas of critical habitat will result in the extinction of the species.
Even with these exclusions, the total designated critical habitat
includes 6,105,279 acres (2,470,719 hectares) of designated critical
habitat as well as several million additionally protected acres of
habitat for the northern spotted owl in designated wilderness and
National Parks (see 77 FR 1876 at 71986)
Comment (17): Commenters expressed concern that excluding critical
habitat will impede recovery of the northern spotted owl.
Our response: We considered the effects of exclusion of these
particular areas of critical habitat on recovery of the species in our
analysis of the benefits of exclusion against the benefits of inclusion
but nonetheless concluded that the benefits of exclusion outweighed the
benefits of inclusion as described in this rule. The correct analysis
for a determination of whether to exclude particular areas from
critical habitat is whether the exclusions will result in extinction of
the species. As stated above, the courts that have discussed
``extinction'' have done so with references to the ``survival'' of the
species rather than recovery of the species. See Northern New Mexico
Stockman's Association v. United States Fish and Wildlife Service, _F.
Supp.3d _, 2020 WL 6048149, 117 (D.N.M. 2020); Gifford Pinchot Task
Force v. USFWS, 378 F.3d 1059, 1069-71 (9th Cir. 2004) (rejecting the
previous FWS ESA section 7 regulation defining ``destruction or adverse
modification'' because the regulation improperly conflated survival and
recovery). Thus, the correct analysis for purposes of section 4(b)(2)
is whether the Secretary concludes that the specific exclusion of these
areas of critical habitat will result in the extinction of the species.
It is against this correct legal backdrop that we have determined that
the exclusion of these particular areas of critical habitat outweighs
the benefits of inclusion, and that, based upon the best scientific and
commercial data available, we have not concluded that exclusion of
these areas will result in extinction of the species.
Comment (18): Commenters expressed concern that the downward trend
in northern spotted owl populations has continued since the 2016 BLM
RMPs were finalized, and that we should evaluate the 2020 meta-analysis
(demographic analyses that are performed every five years under the
NWFP) prior to making changes in the critical habitat designation.
Our response: The northern spotted owl continues to suffer a
significant population decline across its range, due primarily in
recent years to increasing competition from the invasive and aggressive
barred owl. The impact of barred owls is expected to grow unless
proactively managed. To that end, our recent Species Status Report
notes the preliminary positive response that northern spotted owls have
in certain areas where we have implemented the experimental barred owl
removal program. For example, in the most recent Species Status Report,
the FWS noted:
The Barred Owl Removal Experiment has been underway since 2013.
There are encouraging signs of a positive spotted owl response to
the removal of barred owls on some study areas. For example, on all
study areas the number of occupied sites on the treatment areas
(where barred owls are removed) have been maintained while the
number of occupied sites on the control area continue to decline. On
the Hoopa treatment area, the apparent survival rate of spotted owls
has increased by almost 10 percent compared to the period
immediately before removal began. Species Status Report, at page 91.
Report is published at https://www.regulations.gov/document?D=FWS-R1-ES-2014-0061-0030
Regarding a 2020 meta-analysis, the latest 5-year demographic
analysis is still in process and not yet available for our review. The
most current demographic analysis was published in 2016 and was
considered in the BLM RMPs' analyses and our 2016 Biological Opinion.
Comment (19): Commenters stated that the BLM and Service cannot
avoid their duties under the ESA simply because the area in question
involves O&C lands and that section 4(b)(2) exclusions should not be
used as a tool to circumvent section 7 consultation recommendations.
Our response: The ESA was written by members of Congress. They
conveyed a powerful tool on the Secretary of the Interior by giving him
the authority to exclude areas unless he determined that exclusion will
result in extinction of the species. Our rationale for excluding the
critical habitat exclusions is not to circumvent section 7
consultation. Rather, because there will continue to be section 7
consultations for discretionary actions in areas where the spotted owl
occurs, we have concluded that the additional regulatory requirement
related to review for adverse modification is outweighed by other
relevant factors.
Economic Analysis Comments
Comments From Counties
Comment (20): Several counties requested that the Service undertake
a new economic analysis to consider the economic impacts of the
designation on local communities and natural resource-based economies.
Our response: We reviewed the 2012 final economic analysis (IEc
2012) conducted for the December 4, 2012, critical habitat designation
(77 FR 71876) as well as additional information submitted during the
public comment period. We also conferred with the consultants who
prepared the final economic analysis regarding the additional
information submitted (IEc 2020). See response to Comment 21 below for
further detail. In general, we found that the commenters disagree with
the Service's incremental methodology used to analyze the economic
effects of the critical habitat designation for northern spotted owl,
although that approach was the Service's policy at the time and has
since been codified in its regulations (see 50 CFR 424.19(b)). As
explained in response to Comment 21, the information in the IEc 2012
report in combination with the Brattle Report continues to be the best
scientific and commercial data available. Were we to be adding
additional lands to this critical habitat designation, we agree that a
new economic analysis would be required.
Comment (21): The American Forest Resource Council (AFRC 2020)
provided public comments requesting that the Service exclude at least
2,506,890 additional acres in addition to the 204,653 acres proposed
for exclusion. It
[[Page 4826]]
provided a new report prepared by The Brattle Group (2020) (Brattle
report) critiquing the 2012 Critical Habitat economic analysis (IEc
2012). The Brattle report included updated estimates of the economic
impacts of the 2012 rule using more recent data and/or different
assumptions. The Oregon Farm Bureau and Oregon Cattlemen's Association;
California Farm Bureau Federation; Lewis, Skamania, and Klickitat
Counties in Washington; and Douglas County in Oregon also cited the
Brattle report in their comment letters as justification for additional
exclusions. We summarize AFRC and other comments pertaining to economic
analysis issues in the following:
(a) A focus of the Brattle report is a review of our analysis of
potential timber harvest losses attributable to northern spotted owl
critical habitat designation in 2012. The Brattle report follows the
same analytic approach for measuring timber harvest impacts as employed
in the economic analysis for the critical habitat designation, but uses
alternative assumptions or updated data. These adjustments yield the
following differences when compared to the results of the 2012 economic
analysis (see IEc 2020 for more details):
The number of acres where incremental harvest impacts may
occur is higher;
The baseline annual harvest potential is higher;
The potential reductions in harvest volumes due to the
impact of critical habitat are larger;
The estimated stumpage values are lower.
As described by IEc in their review of this information, the effect
of these changes in inputs by the Brattle report results in a higher
measure of the negative annualized timber harvest impacts across the
affected acres. The Brattle report asserts that across 1.7 million
acres, the critical habitat designation greatly diminishes harvest and
causes losses to the market of between $66.4 million and $77.2 million
on an annualized basis, and between $753 million and $1.18 billion over
20 years on a net present value (NPV) basis. AFRC and others suggest
that the results of the Brattle report support their request for
exclusion of additional acres based on economic impacts.
Our Response: Section 4(b)(2) of the ESA gives the Secretary
discretion on how to weigh economic impacts in addressing the benefits
of exclusion against the benefits of inclusion of particular areas of
critical habitat. Thus, while we find several issues with the analysis
provided in the Brattle report, specifically the assumptions or data
used to produce the estimate of negative annualized timber harvest
impacts and their numeric conclusions due to the critical habitat
designation, we agree that there is an incremental negative economic
impact associated with the designation of critical habitat for the
northern spotted owl.
First, the Brattle report states that the higher number of acres
where incremental impacts may occur (1.7 million acres) is based upon a
review of GIS files and other related information. However, the report
provides no clear basis for this increase. We asked IEc to review the
Brattle report and they concluded that they could not replicate the
result. Additionally, the Brattle report does not evaluate the
potential incremental effects as it may occur across the geographic
area of the designation, by critical habitat units and subunits. In
contrast, our 2012 economic analysis included an analysis of acreages
by subunit where impacts may occur, scored these areas by the potential
extent of impact, and then ranked each subunit according to a composite
score against all other subunits (see Section 4.3 of IEc 2012). The
Brattle report provides no such analysis and simply provides gross
measures of potential impact across approximately 1.7 million acres.
Second, the Brattle report assumes a higher baseline annual harvest
potential on USFS and BLM lands (a 9-fold increase on lands managed by
USFS and a 4-fold increase on lands managed by BLM). We understand that
the report relied on average yields from 2018-2020 harvest data on
lands managed by BLM for moist and dry forests and then translates
these harvest levels into estimates of long-term annual yields across
the acres where the report assumes incremental impacts may occur. The
report also assumes similar yields on BLM and USFS lands, a standard
rotation age of 100 years where one percent of the land would be
regeneration harvested and one percent would be thinned. The
assumptions are hypothetical, however, as the BLM and USFS are unlikely
to have similar yields generally for a variety of reasons; there is no
standard of a 100-year rotation age or one percent regeneration harvest
used by either agency for all of their managed lands. Under the RMPs,
the BLM assumed harvest of 8 percent of forested land base per decade
within all land use allocations (Hooper 2020, pers. comm.). This is
significantly lower than the assumptions made in the Brattle report. In
contrast, we based our yield rates on actual harvest data provided by
the BLM and USFS over an extended period. For lands managed by BLM, the
2012 economic analysis used data BLM provided on 30 years of planned
timber harvest by land allocation type (reserve/matrix), forest
conditions (nesting/roosting habitat, predominantly younger forests),
and harvest type (thinning, regeneration) at the critical habitat
subunit level. For lands managed by USFS, the 2012 economic analysis
used projected yield rates provided by the USFS for each critical
habitat unit.
Third, the Brattle report assumes an 80 percent reduction in
harvest volumes due to the critical habitat designation versus the 20
percent used in the 2012 economic analysis high impact scenario.
Specific information supporting the assumption of an 80 percent
reduction in harvest volumes was not provided in the report; rather,
the report indicates that this assumption is based on discussions with
AFRC and unspecified comments provided by the USFS and BLM on the 2012
economic analysis. Additionally, the Brattle report notes that it
``cannot model the timber markets that influence the demand for timber
in the Pacific Northwest,'' to test the reasonableness of its
assumption concerning timber harvest effects (The Brattle Group 2020,
p. 17).
The potential incremental effect of critical habitat on harvest
levels was a point of significant debate for the 2012 critical habitat
designation, see section 4.4.2 of the 2012 economic analysis. As IEc
notes in its assessment of the Brattle report, ``Various land managers,
Service experts, and other commenters concluded that the direction and
magnitude of effect due to critical habitat was uncertain, noting that
harvest levels could be higher or lower depending on a variety of land
management considerations and harvest factors. In addition, the
implementation of critical habitat occurs within a complex set of
factors, including volatility in global demand for wood products,
general timber industry transformation, and existing regulatory and
statutory requirements, among other factors.'' The 2012 economic
analysis used three separate scenarios, along with additional
sensitivity analysis to capture this uncertainty and the concerns of
multiple stakeholders, including BLM and USFS. ``The Brattle report
does not endeavor to model markets or other factors that influence the
demand for timber in the Pacific Northwest'' (IEc 2020). The Brattle
report did not include a sensitivity analysis to address the
uncertainty of effects associated with critical habitat.
Fourth, concerning estimated stumpage values, as IEc noted in their
review, our 2012 economic analysis
[[Page 4827]]
``recognized that prices vary across forest, land manager, and year,
and that future prices were uncertain. The analysis captured annual
average prices from Federal timber sales on BLM and USFS managed lands
between 2000 and 2011. The low-end price ($100 per thousand board feet
(mbf))) was similar to more recent prices (as of 2012) from Federal
timber sales, which had been below historical averages. The higher end
was selected to purposely capture the highest price received since the
year 2000. This high price, therefore, served as a conservative
approach, meaning it would yield the highest negative impacts from any
constraints on timber harvest volumes due to critical habitat
designation. Beyond this range, the 2012 economic analysis conducted a
further sensitivity analysis based upon a comment received from AFRC.
In this scenario, an even higher price of $350 per mbf was analyzed for
its effect and included in the economic analysis. Thus, the original
range and further sensitivity analysis captured a reasonable upper and
lower bound of the role of timber prices on potential impacts. In
contrast, the Brattle report uses similar average stumpage prices from
similar sources, but only from 2018 to 2020, a much shorter time frame.
In addition, its price range of $83 to $191 per mbf is consistent with
the price range used in the 2012 report, especially when considering
the passage of eight years and the general market volatility of lumber
prices.'' (IEc 2020).
In sum, the Brattle report and associated commenters concluded that
the total effect of these alternative inputs is a higher measure of
negative annualized timber harvest impacts across the total of
potentially affected acres compared to what was estimated in the 2012
economic analysis (IEc 2012) ($66 to $77 million versus $6.5 million).
As noted above, the Brattle report does not distribute its overall
measure of impacts across the designation's subunits. We note that the
Brattle report included additional conclusions, such as effects on
Gross Domestic Product and employment. However, these conclusions are
based on the assumptions we discuss above which are misapplied or
cannot be confirmed with the methods provided. Therefore, for the
reasons discussed above, we are unable to confirm the economic
conclusions in the Brattle report.
Despite these concerns with the Brattle Report, even the economic
study in 2012 by IEc notes a negative incremental impact because of the
designation of critical habitat for the northern spotted owl. Our
weighing of the benefits of exclusion against the benefits of inclusion
considers these negative economic impacts. We have reevaluated the
relative impact of even an economic loss for rural communities already
faced with impacts including the initial listing of the species as well
as the unquantified effects in the 2012 analysis that have taken on
increasing importance due to more recent economic trends. See
Consideration of Economic Impacts.
(b) The Brattle report included information on annual timber
harvest levels on Federal lands in 18 counties within California,
Oregon, and Washington, from 2002-2018. The report concluded that these
data demonstrate that timber harvest in these counties declined as a
direct consequence of the 2012 critical habitat designation.
Our Response: We reviewed this information and found errors and
assumptions in the Brattle report. First, four of the 18 counties cited
in the analysis (Calaveras, Riverside, and Mono in California, and
Morrow in Oregon) are located outside of the range of the northern
spotted owl and do not contain designated northern spotted owl critical
habitat, so the designation would not have impacted timber harvest in
these counties. Second, of the remaining 14 counties cited in the
report that contain some spotted owl critical habitat, the commenter
reports timber harvest declines occurring in seven counties somewhere
around (i.e., proximally before and after) the year 2012, stable or
flat trends in three counties, and increased harvest levels in four
counties.
Of the declines highlighted by the commenter, several began prior
to the designation in December 2012, casting doubt on the potential
direct impact of the 2012 designation. Almost all of these counties
also show large fluctuations in the harvest levels between years going
back to 2002. Third, the analysis did not include all of the counties
within the critical habitat designation. A rapid assessment of the same
data source cited by the commenter, but evaluating a random number of
additional counties in Oregon, Washington, and California in the range
of the northern spotted owl, revealed no discernible pattern in timber
harvest declines that could reasonably be attributed to the 2012
critical habitat designation. Some counties experienced general
increases in timber harvest after 2012, some declined, and some were
relatively flat when compared to long-term trends. A similar pattern of
fluctuation exists for individual counties located outside of the range
of the spotted owl but within Oregon, Washington, and California, as
well as in other western States.
Using the same data source cited by this commenter (with 2019 data
from BLM and USFS on timber volume offered for sale), we reviewed
Federal lands harvest data in Oregon counties with northern spotted owl
critical habitat. The annual average harvest from 2002-2012 on BLM
lands in the range of the spotted owl was approximately 159 million
board feet per year prior to the 2012 critical habitat designation. The
annual average harvest on BLM lands located in the range of the spotted
owl from 2013-2019, after the 2012 critical rule was published, was 235
million board feet; the total in 2019 was 272 million board feet
offered for sale. Thus, annual harvest appears to have increased
subsequent to the 2012 designation of critical habitat. Likewise, the
annual average harvest from 2002-2012 on USFS lands located within the
range of the spotted owl was approximately 196 million board feet per
year prior to the 2012 critical habitat designation. The annual average
harvest on USFS land from 2013-2019, after the 2012 critical rule was
published, was 288 million board feet. We also reviewed Federal harvest
data in Oregon counties outside the range of the spotted owl (and
therefore in counties with no spotted owl critical habitat or
obligation for Federal agencies to consult under ESA section 7) and saw
harvest volume fluctuations similar to those in counties located within
critical habitat. Based on these data it does not appear that
designation of critical habitat in 2012 had a significant incremental
depressive effect on subsequent Federal timber harvest. However, we
also agree that the relative impact of even a ``relatively small''
economic loss for rural communities already faced with impacts
including the initial listing of the species can economically impact
that rural community. Thus, as part of our analysis of the particular
areas in this case and based on the totality of the circumstances, we
have determined the benefits of exclusions of these particular areas
outweigh the benefits of inclusion.
Comment (22): Douglas County requested that the Service exclude all
land within Douglas County from the critical habitat designation due to
severe and disproportionate economic impacts. The County provided a
2007 report that discusses the negative economic impacts of reduced
harvest on Federal lands. Additionally, Douglas County asserted that
our 2012 economic analysis is flawed with respect to Douglas County and
should be revised.
[[Page 4828]]
Our response: The report provided by Douglas County focuses on the
impact that termination of ``safety net'' payments under the Secure
Rural Schools and Community Self-Determination Act would have on
counties in western Oregon. The report discusses reductions in harvest
on Federal lands in the O&C counties attributable to a range of
factors, resulting in a loss of revenue sharing that limited county
budgets and rapid contractions of the wood products sector as logging
declined and mills closed or reduced shifts. The report, prepared in
2007, does not discuss impacts of the critical habitat designation
(which came afterwards, in late 2012) but describes general pressures
on the timber industry.
Our 2012 economic analysis (IEc 2012) addressed the incremental
effects of critical habitat within the area proposed for designation
for the northern spotted owl. Consistent with our practice at the time
(now codified in regulations) the economic analysis quantifies the
economic impacts that may be directly attributable to the designation
of critical habitat, comparing scenarios both ``with critical habitat''
and ``without critical habitat.'' Our incremental analysis did not
consider the economic impact of changes other than from the proposed
critical habitat designation, and did not evaluate the economic
condition or status of the timber industry at large. Rather, it
addressed the effects related to the impacts to Federal agencies and
their activities, because Federal agencies are the only entities
directly subject to the requirement to evaluate and consider effects of
their actions on designated critical habitat.
Nonetheless, we acknowledged that, ``[m]ultiple forces have
contributed to the recent changes in the Pacific Northwest timber
industry. In general, the timber industry is characterized as being
highly competitive; there is a relatively low degree of concentration
of production among the largest producers and there is essentially a
single national price for commodity grades of lumber. In recent
decades, competition has intensified with increased harvesting in the
U.S. South and interior Canadian Provinces. New technologies and
increased mechanization have led to mill closures; generally, less
efficient mills located near Federal forests have been closed in favor
of larger more advanced facilities closer to major transportation
corridors or private timberlands. In addition, other forces such as
endangered species protections, fluctuations in domestic consumption,
shifts in international trade, and changes in timberland ownership,
have all contributed to changes in the Pacific Northwest timber
industry'' (IEc 2012, p. 3-17).
Comment (23): One commenter noted that a 2012 economic analysis
from the Sierra Institute, ``Response to the Economic Analysis of
Critical Habitat Designation for the Northern Spotted Owl by Industrial
Economics'' (Kusel and Saah 2012), was not fully considered in the 2012
designation and that a new economic analysis should be conducted.
Our Response: The Service fully considered the content of the Kusel
and Saah report and found a great deal of overlap between that economic
analysis and the economic analysis contracted by the Service and
written by Industrial Economics (IEc 2012), even incorporating a
summary of the Kusel and Saah report (see our response to Comment (201)
in the December 4, 2012, critical habitat rule (77 FR 71876, p.
72040)). The Service believes the 2012 economic analysis (IEc 2012) is
a reasonable assessment of the quantified costs related to timber
harvest. We have reviewed other aspects of the 2012 final economic
analysis (IEc 2012) and determined the unquantified effects, including
the effects associated with ``linear projects'' have become more
significant due to recent economic trends that were not foreseen in
2012. In 2012, we acknowledged that ``considerable uncertainty
surrounds the future level of construction of natural gas pipelines and
electric transmission lines as significant uncertainty exists related
to the level of demand for natural gas and electricity from hydropower
sources. Due to this uncertainty, this analysis does not attempt to
forecast activity associated with the construction of new natural gas
pipelines and storage facilities or transmission lines related to
hydro-power generation based on historical activity levels within the
proposed critical habitat area in the foreseeable future.'' (IEc 2012)
The uncertainty continues to persist but the recent trends in the
electricity power sector makes these unquantified effects more
important and significant. However, the persisting uncertainty makes
new analysis difficult.
Environmental Analysis Comments
Comment (24): Commenters expressed that the Service must conduct a
NEPA analysis and evaluate the exclusions in a biological opinion
before finalizing exclusions.
Our response: It is our position that, outside the jurisdiction of
the U.S. Court of Appeals for the Tenth Circuit (see Catron County
Board of Commissioners, New Mexico v. U.S. Fish and Wildlife Service,
75 F.3d 1429 (10th Cir. 1996), we do not need to prepare environmental
analyses pursuant to NEPA (42 U.S.C. 4321 et seq.) in connection with
designating critical habitat under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit in Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995). All of the States impacted by the critical
habitat designation for the northern spotted owl are located within the
jurisdiction of the Ninth Circuit Court. Therefore, consistent with the
ruling in Douglas County, conducting a NEPA analysis and completion of
a biological opinion on the proposed exclusions would be redundant, and
an inefficient use of limited government resources.
Section 4(b)(2) Exclusions Comments
Comment (25): Commenters variously requested that we exclude all
O&C lands, all USFS matrix lands, all USFS lands, BLM lands outside the
Harvest Land Base, and all Douglas County lands. We respond separately
to each reason provided for these suggested exclusion requests first
(except for assertions of economic impacts, which are addressed above
in response to Comments 20-23), and then provide a collective summary:
(a) Commenters asserted that critical habitat conflicts with BLM
and USFS management direction and constrains timber harvest on O&C
lands and matrix lands.
Our Response: We have analyzed the statutory basis for the O&C
lands and the USFS matrix lands in the section entitled Exclusion of
Additional Federal Lands. Please see that section for a response.
(b) There are conflicting principles between the O&C Act and the
Endangered Species Act, and the Service should consider the pending
court remedy on O&C lands.
Our Response: We note that there is ongoing litigation challenging
BLM's management of O&C lands under the 2016 RMPs (BLM 2016a, 2016b).
As we described in the proposed rule, one district court has concluded
the 2016 RMPs (including their consideration of the Endangered Species
Act) does not conflict with the O&C Act, a conclusion affirmed by an
appellate court (see Pacific Rivers v. BLM (No. 19-35384) (Memorandum,
May 15, 2020)). In a separate proceeding, the U.S. District Court for
the District of Columbia, in a
[[Page 4829]]
consolidated set of cases, found that the BLM RMPs violate the O&C Act
because BLM excluded portions of O&C timberland from sustained yield
harvest (i.e., the BLM allocated some timberlands to reserves instead
of the Harvest Land Base); see, e.g., American Forest Resource Council
et al. v. Steed (No. 16-1599-RJL) (Memorandum Opinion, November 22,
2019). The parties briefed the court on the appropriate remedy, but the
court has not yet issued an order. We considered this information in
developing the proposed rule, and sought comment specifically on how we
should address this information in the final rule. One commenter
suggested that we wait for the outcome of that proceeding before
revising critical habitat; another commenter indicated that the court
ruling, even without the remedy order, supported the exclusion of all
O&C lands from designated critical habitat.
As stated in the section entitled Consideration of Impacts under
Section 4(b)(2) of the Act, we have considered the statutory mandates
for the lands mandated by the BLM and USFS as part of our exclusion
analysis. The Secretary's decision in this case was not based on
speculation about the outcome of a particular case but upon a weighing
of the benefits of inclusion against the benefits of exclusion of
particular areas of critical habitat. Because, based on the best
scientific and commercial data available, the Secretary has not
concluded that the exclusions will result in extinction of the species,
we are granting the request to exclude the O&C lands and NWFP matrix
lands from this critical habitat designation.
(c) A commenter asserted that O&C lands managed by the BLM and land
managed by the USFS should be excluded because the NWFP and RMPs should
guide management on Federal lands since they are consistent with the
Recovery Plan for the Northern Spotted Owl (FWS 2011).
Our Response: The Service agrees that the NWFP and RMPs guide
management on Federal lands, as informed by other plans, laws,
designations, and input. Federal land managers are skilled at
incorporating a wide variety of required inputs and feedback when
planning and carrying out land management actions, including public
comment under the National Environmental Policy Act, recommendations
from listed species' recovery plans, input from the Service and
National Marine Fisheries Service through the section 7 consultation
process, growth and yield models, and critical habitat designations, to
name just a few. The BLM RMPs have undergone section 7 consultation
recently, in 2016, with the 2012 spotted owl critical habitat rule in
place and were found to be consistent with the Endangered Species Act,
including our determination that the management direction of the plans
is consistent with the critical habitat designation. All USFS actions
carried out under the NWFP since the 2012 designation of critical
habitat that have undergone section 7 consultation have also resulted
in our determination that there was no destruction or adverse
modification of critical habitat, affirming that the management of
these lands is consistent with the critical habitat designation.
Additionally, all discretionary USFS and BLM actions carried out
under the NWFP since the 2012 designation of critical habitat have
undergone section 7 consultation on a project-by-project basis and have
been found to be consistent with the Endangered Species Act. The
determination of whether to exclude particular areas from a critical
habitat designation is whether the benefits of exclusion outweigh the
benefit of inclusion, so long as, based on the best scientific and
commercial data available, unless the Secretary concludes that the
extinction of the species will result from the exclusions. Our
considered analysis of the statutory requirements for a critical
habitat designation has been fully documented and discussed in this
rule.
(d) Non-O&C BLM lands should be excluded for ease of
administration.
Our Response: We are excluding all BLM Harvest Land Base lands
addressed in the 2016 RMPs (referred to as ``matrix lands'' prior to
the 2016 RMPs) that are not managed under the O&C Act (approximately
12,000 acres) from critical habitat for the northern spotted owl. See
Consideration of Impacts under Section 4(b)(2) of the Act.
(e) Commenters stated that our reliance on the management under the
BLM RMPs (BLM 2016a, 2016b), as a rationale for excluding the Harvest
Land Base in those plans, should also be applied to considering all O&C
lands addressed in those plans and that we should also rely on a
similar rationale for excluding O&C lands and matrix lands managed by
the USFS under the protections of the NWFP for exclusions.
Our response: See our response to Comment 25(b), (c) and (e) above.
Comment (26): Commenters requested that we exclude: All unoccupied
areas; areas of younger forests; all critical habitat subunits that
have 50 percent or more younger forests; areas described as dispersal
habitat; ``habitat capable'' lands; stands under 80 years old; and low-
quality habitat.
Our Response: We decline to revisit whether younger forests,
including stands under 80 years old, habitat capable lands, stands
under 80 years old and low-quality habitat fit within the definitions
of habitat or critical habitat for the northern spotted owl. As stated
in our proposed rule, the purpose of this rule was to consider
exclusion of particular areas based on section 4(b)(2) of the ESA. The
determination of whether younger forests, including stands under 80
years old, areas for dispersal habitat, habitat capable lands and low-
quality habitat falls outside the definitions of habitat and critical
habitat is not contemplated by this rulemaking.
Comment (27): Commenters requested that we exclude all California
lands, areas of high or moderately high fire hazard risk or fire-prone
forests, dry forest in California, dry forest in the Eastern Washington
Cascades, and previously burned Late Successional Reserves, citing the
following rationale:
(a) Commenters stated that a conflict exists between critical
habitat and management objectives for fuels reduction and active
management, and that wildfire suppression costs are immense. They
asserted that exclusion of certain lands would facilitate density
management, dry forest restoration, and fuels reduction on the most
vulnerable acres and prevent loss of northern spotted owl habitat.
Our Response: Both the Forest Service and the BLM are required to
manage the lands under their jurisdictions in compliance with the
statutory mandates of their organic statutes. Since the 2012 rule, the
courts have provided additional guidance on those mandates. This final
rule recognizes the courts' guidance as discussed in the Consideration
of Impacts under Section 4(b)(2) of the Act. In the 2012 critical
habitat rule, the Service accounted for the drier provinces and parts
of the range and recognized that forest management needs to be tailored
to the forest type and climatic conditions, including the dry forests
in California and the Eastern Washington Cascades. As part of the
critical habitat rule, the Service expressly encourages land managers
to consider implementation of active forest management, utilizing
``ecological forestry'' practices, to restore natural ecological
processes where they have been disrupted or suppressed (e.g., natural
fire regimes). In this rule we continue to encourage these practices as
well as recognizing the statutory requirements for providing sustained
yield timber harvest on O&C lands and multiple use management on Forest
Service matrix lands.
[[Page 4830]]
On page 71908 of the December 4, 2012, critical habitat rule (77 FR
71876) we stated that, in drier, more fire-prone regions of the owl's
range, habitat conditions will likely be more dynamic, and more active
management may be required to reduce the risk to the essential physical
or biological features from fire, insects, disease, and climate change,
as well as to promote regeneration following disturbance.
The Service recognizes that land managers have a variety of forest
management goals, including maintaining or improving ecological
conditions where the intent is to provide long-term benefits to forest
resiliency and restore natural forest dynamic processes (USDI FWS 2011,
III-45).
The Service has consulted under section 7 with Federal agencies on
their fuels reduction, stand resiliency, and pine restoration projects
in dry forest systems within the range of the northern spotted owl. For
example, we have consulted with the BLM and the USFS on such actions in
the Klamath Province of southern Oregon. The proposed actions may
include treatment areas that reduce forest canopy to obtain desired
silvicultural outcomes and meet the purpose and need of the project,
including timber production. They can also promote ecological
restoration and are expected to reduce future losses of spotted owl
habitat and improve overall forest ecosystem resilience to climate
change.
In the 2012 critical habitat rule, we repeatedly reference the need
and appropriateness for conducting forest health treatments in spotted
owl habitat, including designated critical habitat. Likewise, the
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011)
encourages application of active forest management within spotted owl
habitat to address forest health, wildfire risk, and impacts of climate
change. Lastly, the 2016 Biological Opinion on the BLM's 2016 RMPs
generally supports this need as well.
(b) Commenters requested the exclusion of burned areas to allow
reforestation and fuels treatments to occur.
Our Response: To the extent the commenters are suggesting that
burned areas do not fit within the definition of critical habitat,
those determinations are not contemplated by this rulemaking.
(c) Commenters asserted that ``habitat capable'' lands do not meet
the definition of critical habitat.
Our Response: To the extent the commenters are suggesting that
habitat capable lands do not fit within the definition of critical
habitat, those determinations are not contemplated by this rulemaking.
Comment (28): Commenters requested that we exclude areas of less
than 3,000 contiguous acres because areas this small cannot support
northern spotted owls.
Our Response: To the extent the commenters are suggesting that
areas of less than 3,000 contiguous areas do not fit within the
definition of critical habitat, we decline to address those comments as
outside the scope of this rulemaking.
Comment (29): Commenters requested that we exclude the White Pass
Ski Area in Washington to avoid any ambiguity because this acreage does
not function as northern spotted owl habitat.
Our Response: We have excluded the critical habitat within the
White Pass ski area as part of this critical habitat determination. See
Exclusion of the White Pass Ski Area.
Comment (30): Certain Tribes requested that Federal lands within 5
miles of Indian land be excluded from critical habitat due to economic
impacts, the need to maintain road infrastructure to access Indian land
in checkerboard ownership, and to provide greater management
flexibility to maintain forest health and prevent wildfires.
Our Response: The Service recognizes in the critical habitat rule
the need to actively manage forests, particularly in the drier
provinces, to increase their resiliency to wildfires, including
reducing ladder fuels, uneven age management, and prescribed burning.
This recognition includes the forests that are within 5 miles of Indian
lands. Roads are not considered critical habitat, and thus the
designation should not hinder road maintenance anywhere, including
access across Federal lands. Because the critical habitat designation
does not preclude active management or road maintenance of the lands
adjacent to Indian lands, we do not find a basis for exclusion of
additional Federal lands adjacent to Indian land.
Comment (31): Commenters requested we exclude Adaptive Management
Areas and Experimental Forests because placing additional constraints
on actions in these areas will limit the ability to conduct
scientifically credible work.
Our Response: To the extent that Adaptive Management Areas and
Experimental Forests are included within the exclusions discussed on
BLM and Forest Service lands as part of this rule, they are excluded
from the critical habitat designation. To the extent they are not
within the excluded portion of critical habitat discussed in this rule,
the opportunities for scientific research and management
experimentation associated with experimental forests and Adaptive
Management Areas lend themselves to putting into practice the types of
timber management that the critical habitat rule recommends, thereby
serving as a type of field laboratory to try new and alternative
approaches that could prove useful in applying those approaches across
a greater landscape. Additionally, there is enough flexibility built
into the recommendations in the critical habitat rule that Experimental
Forests and Adaptive Management Areas can continue to conduct their
valuable work on their landscapes.
Comment (32): Commenters asserted that because the barred owl is
now widespread and competes with the northern spotted owl, the
designated critical habitat lacks the biological features necessary to
restore northern spotted owl breeding populations and recover the
species.
Our Response: The barred owl poses a tremendous challenge to the
future of the northern spotted owl. The barred owl impact on spotted
owls is extremely significant. Although the northern spotted owl
Recovery Plan identified two primary threats to spotted owls--habitat
loss and competition from barred owls--and did not recognize either as
preeminent, we now have further research and analysis to determine that
the aggressive and invasive barred owl is the primary threat to the
northern spotted owl. In fact, the recent 12-Month Finding for the
northern spotted owl (85 FR 81144; December 15, 2020) determined that
an uplisting from threatened to endangered was warranted but precluded
by higher priorities. Id. A recent published demographic study for the
northern spotted owl (Dugger et al. 2016, entire) found that the
nonnative barred owl has the largest negative impact on the northern
spotted owl through competition for resources. Based on this
recognition, the Service is currently developing a barred owl
management strategy to help reduce the effect of barred owls on
northern spotted owls.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
[[Page 4831]]
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely, by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Designation also does not allow the government
or public to access private lands, nor does designation require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the Federal agency would be required to consult
with the Service under section 7(a)(2) of the Act. However, even if the
Service were to conclude that the proposed activity would result in
destruction or adverse modification of the critical habitat, the
Federal action agency and the landowner are not required to abandon the
proposed activity, or to restore or recover the species; instead, they
must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known and using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific features that are essential to support the
life-history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, prey, vegetation,
symbiotic species, or other features. A feature may be a single habitat
characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. When designating critical habitat, the Secretary will first
evaluate areas occupied by the species. The Secretary will consider
unoccupied areas to be essential only where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species. In addition,
for an unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species.
In our December 4, 2012, final rule (77 FR 71876), we determined
that all units and subunits met the Act's definition of being within
the geographical area occupied by the species at the time of listing.
This rule does not revisit that determination, and the comments raised
as to whether certain habitats did or did not fit the definition of
critical habitat are outside the scope of this rulemaking. Rather, the
purpose of this rulemaking is to apply the requirements of section
4(b)(2) to the determinations discussed in the 2012 rule to determine
if the benefits of exclusions of particular areas outweigh the benefits
of inclusion of those particular areas. Because we have not concluded,
based on the best scientific and commercial data available, that these
exclusions will result in extinction of the species, we are finalizing
the exclusions in this rule.
Final Revised Critical Habitat Designation
Changes From the Proposed Rule
In our proposed rule, we proposed excluding those acres managed by
the BLM under the O&C Act as Harvest Land Base pursuant to BLM's 2016
RMPs, or approximately 204,797 acres (82,809 hectares) in Benton,
Clackamas, Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lane,
Lincoln, Multnomah, Polk, Tillamook, Washington, and Yamhill Counties,
Oregon, under section 4(b)(2) of the Act. With this final rule, we are
excluding (1) all O&C lands, whether managed by the BLM or USFS
(approximately 1,391,714 acres); (2) Forest Service ``matrix lands''
addressed in the NWFP and not already managed under the O&C Act
(approximately 2,047,929 acres); (3) lands managed under the 2016 RMPs
as Harvest Land Base, though not under the O&C Act (referred to as
``matrix'' prior to the 2016 RMPs) (approximately 12,046 acres); (4)
northern spotted owl critical habitat lands within the Forest Service
Special Use Permit for the White Pass Ski Area (approximately 211
acres); and (5) additional Tribal lands (approximately 20,177 acres).
Consistent with the 2012 rule, 6,105,279 ac (2,470,719 ha) are now
identified as critical habitat in 11 units and 60 subunits as meeting
the definition of critical habitat for the northern spotted owl. The 11
units we have identified as critical habitat are: (1) North Coast
Olympics, (2) Oregon Coast Ranges, (3) Redwood Coast, (4) West Cascades
North, (5) West Cascades Central, (6) West Cascades South, (7) East
Cascades North, (8) East Cascades South, (9) Klamath West, (10) Klamath
[[Page 4832]]
East, and (11) Interior California Coast Ranges. All of the critical
habitat units and subunits identified were occupied at the time of
listing; however, some units may include some smaller areas that were
not known to be occupied at the time of listing but have been
determined to be essential to the conservation of the species. Land
ownership of the designated critical habitat includes Federal and State
lands. No Indian lands or private lands are included in the critical
habitat designation. The approximate area of each excluded area within
critical habitat subunits is shown in Table 1. Only the units and
subunits that we have revised in this rule are described below; see the
2012 critical habitat rule for descriptions of the units and subunits
that remain unchanged.
Table 1--Areas Excluded by Critical Habitat Subunit by This Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012 critical habitat Areas excluded in acres Final critical habitat
Subunit in acres (hectares) (hectares) in acres (hectares) Excluded lands
--------------------------------------------------------------------------------------------------------------------------------------------------------
ECN 1....................................... 101,656 (41,139) 22,643 (9,163) 79,013 (31976) USFS Matrix.
ECN 2....................................... 60,087 (24,316) 17,475 (7,072) 42,612 (17244) USFS Matrix.
ECN 3....................................... 301,220 (121,899) 108,367 (43,855) 192,853 (78045) USFS Matrix.
ECN 4....................................... 223,282 (90,359) 8,031 (3,250) 215,251 (87109) USFS Matrix.
ECN 5....................................... 201,140 (81,398) 83,107 (33,632) 118,033 (47766) USFS Matrix.
ECN 6....................................... 81,842 (33,120) 47,896 (19,383) 33,946 (13738) USFS Matrix.
ECN 7....................................... 139,979 (56,647) 96,433 (39,025) 43,546 (17623) USFS Matrix.
ECN 8....................................... 94,622 (38,292) 33,590 (13,593) 61,033 (24699) USFS Matrix.
ECN 9....................................... 155,434 (62,902) 59,264 (23,983) 96,170 (38919) USFS Matrix.
ECS 1....................................... 125,560 (50,812) 68,723 (27,811) 56,837 (23001) BLM Harvest Land Base, BLM O&C,
USFS Matrix.
ECS 2....................................... 66,086 (26,744) 18,209 (7,369) 47,877 (19375) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
ECS 3....................................... 112,179 (45,397) 33,533 (13,571) 78,646 (31827) USFS Matrix.
ICC 1....................................... 332,061 (134,380) 51,308 (20,764) 280,753 (113617) USFS Matrix.
ICC 2....................................... 204,461 (82,742) 107,558 (43,527) 96,903 (39215) USFS Matrix.
ICC 3....................................... 104,813 (42,416) 39,600 (16,025) 65,214 (26391) USFS Matrix.
ICC 4....................................... 119,957 (48,545) 47,256 (19,124) 72,701 (29421) USFS Matrix.
ICC 5....................................... 34,955 (14,146) 6,358 (2,573) 28,597 (11573) USFS Matrix.
ICC 7....................................... 119,729 (48,453) 20,019 (8,101) 99,710 (40351) USFS Matrix.
ICC 8....................................... 83,376 (33,741) 7,100 (2,873) 76,276 (30868) USFS Matrix.
KLE 1....................................... 242,905 (98,300) 130,233 (52,703) 112,672 (45597) BLM Harvest Land Base, Indian,
USFS O&C, BLM O&C, USFS
Matrix.
KLE 2....................................... 100,454 (40,652) 96,490 (39,048) 3,964 (1,604) BLM Harvest Land Base, Indian,
USFS O&C, BLM O&C, USFS
Matrix.
KLE 3....................................... 112,799 (45,648) 105,262 (42,598) 7,537 (3,050) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
KLE 4....................................... 256,079 (103,631) 103,077 (41,714) 153,002 (61,918) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
KLE 5....................................... 38,252 (15,480) 36,567 (14,798) 1,684 (682) BLM Harvest Land Base, BLM O&C,
USFS Matrix.
KLE 6....................................... 167,849 (67,926) 56,161 (22,728) 111,688 (45,198) BLM Harvest Land Base, BLM O&C,
USFS Matrix.
KLE 7....................................... 66,478 (26,903) 22,797 (9,226) 43,681 (17,677) USFS Matrix.
KLW 1....................................... 147,263 (59,595) 130,290 (52,726) 16,973 (6,869) BLM Harvest Land Base, Indian,
BLM O&C, USFS Matrix.
KLW 2....................................... 149,965 (60,689) 105,256 (42,596) 44,709 (18,093) BLM Harvest Land Base, BLM O&C,
USFS Matrix.
KLW 3....................................... 146,092 (59,121) 37,595 (15,214) 108,498 (43,907) BLM Harvest Land Base, BLM O&C,
USFS Matrix.
KLW 4....................................... 158,835 (64,278) 94,360 (38,186) 64,475 (26,092) BLM Harvest Land Base, BLM O&C,
USFS Matrix.
KLW 5....................................... 31,084 (12,579) 5,475 (2,216) 25,610 (10,364) BLM Harvest Land Base, USFS
Matrix.
KLW 6....................................... 117,541 (47,567) 10,289 (4,164) 107,252 (43,404) USFS Matrix.
KLW 7....................................... 254,465 (102,978) 168,854 (68,333) 85,610 (34,645) USFS Matrix.
KLW 8....................................... 114,676 (46,408) 39,225 (15,874) 75,452 (30,534) USFS Matrix.
KLW 9....................................... 149,641 (60,558) 735 (297) 148,906 (60,260) USFS Matrix.
NCO 4....................................... 124,219 (50,270) 2,244 (908) 121,975 (49,362) BLM Harvest Land Base, BLM O&C.
NCO 5....................................... 198,463 (80,315) 57,326 (23,199) 141,137 (57,116) BLM Harvest Land Base, USFS
O&C, BLM O&C.
ORC 1....................................... 110,658 (44,782) 23,538 (9,526) 87,120 (35,256) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
ORC 2....................................... 261,403 (105,786) 83,330 (33,723) 178,073 (72,064) BLM Harvest Land Base, Indian,
USFS O&C, BLM O&C, USFS
Matrix.
ORC 3....................................... 204,185 (82,631) 130,177 (52,681) 74,008 (29,950) BLM Harvest Land Base, Indian,
USFS O&C, BLM O&C, USFS
Matrix.
ORC 4....................................... 8,263 (3,344) 8,202 (3,319) 61 (25) BLM O&C.
ORC 5....................................... 176,402 (71,387) 111,009 (44,924) 65,392 (26,463) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
ORC 6....................................... 81,912 (33,149) 78,257 (31,669) 3,655 (1,479) BLM Harvest Land Base, Indian,
BLM O&C.
RDC 1....................................... 60,766 (24,591) 1,459 (590) 59,307 (24,001) USFS Matrix.
WCC 1....................................... 225,272 (91,164) 12,704 (5,141) 212,568 (86,023) USFS Matrix.
WCC 2....................................... 279,420 (113,077) 88,765 (35,922) 190,655 (77,156) USFS Matrix, White Pass Ski
Area.
[[Page 4833]]
WCC 3....................................... 394,462 (159,633) 122,196 (49,451) 272,266 (110,182) USFS Matrix.
WCN 1....................................... 438,247 (177,352) 4,816 (1,949) 433,431 (175,403) USFS Matrix.
WCN 2....................................... 103,899 (42,046) 318 (129) 103,581 (41,918) USFS Matrix.
WCS 1....................................... 92,586 (37,468) 48,904 (19,791) 43,682 (17,677) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
WCS 2....................................... 151,418 (61,277) 115,898 (46,902) 35,520 (14,374) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
WCS 3....................................... 318,382 (128,845) 99,805 (40,390) 218,577 (88,455) BLM Harvest Land Base, BLM O&C,
USFS Matrix.
WCS 4....................................... 379,023 (153,385) 172,930 (69,982) 206,093 (83,403) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
WCS 5....................................... 356,718 (144,359) 194,057 (78,532) 162,661 (65,827) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
WCS 6....................................... 99,516 (40,273) 96,994 (39,252) 2,522 (1,021) BLM Harvest Land Base, USFS
O&C, BLM O&C, USFS Matrix.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat
designation. 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 designation,
unless he determines, based on the best scientific and commercial data
available, that the failure to designate such area as critical habitat
will result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
The first sentence in section 4(b)(2) of the Act requires that we
take into consideration the economic, national security, or other
relevant impacts of designating any particular area as critical
habitat. We took into consideration the economic and national security
impacts in the 2012 critical habitat designation (77 FR 71876, December
4, 2012; pp. 71944-71947). We are revising the 2012 critical habitat
designation here based on a reconsideration of those economic impacts
combined with a consideration of other relevant factors that were not
discussed in the 2012 rule as well as those raised in the public
comment period.
Process for Consideration of Impacts
When identifying the benefits of inclusion of an area as designated
critical habitat, we primarily consider the additional regulatory
benefits that a species would receive due to the protection of that
area from potential destruction or adverse modification as a result of
actions with a Federal nexus (that is, a discretionary activity or
program authorized, funded, or carried out in whole or in part by a
Federal agency), the educational benefits of mapping the critical
habitat of the listed species, and any benefits that may result from a
designation due to State or Federal laws that may apply to critical
habitat. In the case of the northern spotted owl, the benefits of
including an area as designated critical habitat include public
awareness of the presence of northern spotted owls and the importance
of habitat protection. Another benefit, where a Federal nexus exists,
is increased habitat protection for northern spotted owls through the
Act's section 7(a)(2) mandate that Federal agencies ensure that any
discretionary action they authorize, fund, or carry out is not likely
to result in the destruction or adverse modification of critical
habitat. Although regardless of a critical habitat determination,
Federal agencies will still be required to complete section 7
consultation for the northern spotted owl where the species is present,
we acknowledge that there could be adverse impacts to the habitat if
the species is not present at the time of the consultation. Because the
FWS determined that all 2012 designated critical habitat was
``occupied,'' surveys will occur prior to authorizing any project on
Federal lands to determine if the species is present. Thus, while we
recognize that additional section 7 consultation based on the
destruction or adverse modification standard is a benefit, completion
of section 7 consultation based on the jeopardy standard only will not
result in the extinction of the species. Finally, there may be a
benefit from a critical habitat designation for certain sources of
third-party funding for habitat conservation projects.
When considering the benefits of exclusion, we considered whether
the proposed critical habitat designation conflicts with any statutory
requirements or nondiscretionary mandates for managing any Federal
lands within the critical habitat designation. Second, we considered
whether lessening any of the regulatory burdens that may occur due to
section 7 consultation for habitat modification may provide other
environmental benefits such as lessening the risk of catastrophic
wildfire. Third, we place great value on our relationships with Tribal,
State, and local governments, so we affirmatively consider their
expertise in protecting their local tax base, and the customs and
cultures of those within their jurisdiction. Recognizing the expertise
and comments from our governmental partners is critical in gaining
support for the protection of the northern spotted owl and other listed
species.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. The Secretary may
assign the weight given to any of the benefits of inclusion as critical
habitat as well as the benefits of exclusion from a critical habitat
designation. If our analysis indicates that the benefits of exclusion
outweigh the benefits of inclusion, we then determine whether exclusion
would result in extinction of the species. If
[[Page 4834]]
exclusion of an area from critical habitat designation will result in
extinction of the species, we will not exclude it from the critical
habitat designation under section 4(b)(2) of the Act. The final
decision on whether to exclude any areas under section 4(b)(2) will be
based on the best scientific and commercial data available at the time
of the final designation.
Exclusions
Based on a reanalysis of the 2012 designation, as well as
additional public comments we received, we evaluated whether the areas
proposed for exclusion or additional areas suggested for exclusion were
appropriate to exclude from the final designation under section 4(b)(2)
of the Act. Our analysis indicated that the benefits of excluding
certain lands from the final designation outweigh the benefits of
including those lands as critical habitat; therefore, the Secretary
exercises his discretion to exclude these lands from the final
designation. Accordingly, we exclude the areas identified below in
Table 8 Addendum under section 4(b)(2) of the Act from the critical
habitat designation for the northern spotted owl. (Note that the Table
8 Addendum is an addendum to Table 8 in the 2012 final critical habitat
rule and displays the areas we are further excluding from the December
4, 2012, final critical habitat designation (77 FR 71876, pp. 71948-
71949).) The Table 8 Addendum identifies the specific critical habitat
units from the December 4, 2012, final rule (77 FR 71876), which is
codified in title 50 of the Code of Federal Regulations (CFR) at Sec.
17.95(b), that we are excluding, at least in part; the approximate
areas (ac, ha) of lands involved; and the ownership of the excluded
areas.
Table 8 Addendum--Additional Lands Excluded From the Designation of Critical Habitat Under Section 4(b)(2) of the Act
--------------------------------------------------------------------------------------------------------------------------------------------------------
Type of agreement Critical habitat unit State Land owner/agency Acres Hectares
--------------------------------------------------------------------------------------------------------------------------------------------------------
O&C Lands, NWFP Matrix.............. ECN......................... OR.......................... USFS.................. 476,806 192,957
ECS......................... OR.......................... BLM, USFS............. 120,465 48,751
ICC......................... OR.......................... USFS.................. 279,198 112,987
KLE......................... OR.......................... BLM, USFS............. 539,8003 218,450
KLW......................... OR.......................... BLM, USFS............. 588,258 238,059
NCO......................... OR.......................... BLM, USFS............. 59,570 24,107
ORC......................... ............................ BLM, USFS............. 428,939 173,585
RDC......................... ............................ USFS.................. 1,459 590
WCC......................... ............................ USFS.................. 223,454 90,428
WCN......................... ............................ USFS.................. 5,134 2,078
WCS......................... ............................ BLM, USFS............. 728,588 294,849
Indian lands........................ ORC......................... OR.......................... CTCLUSI \1\........... 5,575 2,256
KLE......................... OR.......................... CCBUTI \2\............ 10,783 4,364
KLW......................... OR.......................... CCBUTI................ 3,821 1,546
White Pass Ski Area................. WCC......................... WA.......................... USFS.................. 211 85
-------------------------------
Total additional lands excluded ............................ ............................ ...................... 3,472,064 1,405,094
under section 4(b)(2) of the
Act.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ CTCLUSI is the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians.
\2\ CCBUTI is the Cow Creek Band of Umpqua Tribe of Indians.
These exclusions are based in part on new information that has
become available since the December 4, 2012, critical habitat
designation for the northern spotted owl (77 FR 71876), including the
Western Oregon Tribal Fairness Act (Pub. L. 115-103), court decisions
regarding the future management of O&C lands, and public comments. The
exclusions also reflect the new conclusions by the Secretary as to the
weight to be accorded to various benefits. In the paragraphs below, we
provide a detailed analysis of our consideration of the lands excluded
under section 4(b)(2) of the Act.
Consideration of Economic Impacts
Although the economic impacts analysis showed economic impacts in
2012, we did not exclude areas from our December 4, 2012, final
critical habitat designation (77 FR 71876) based on those economic
impacts. Refer to the December 4, 2012, rule (77 FR 71876) for a
description of the purpose and process of evaluating the economic
impacts that may result from a designation of critical habitat.
However, we have reconsidered those incremental economic impacts in
light of our commitment to our Tribal, State, and local government
partners and give weight to the needs of the local tax and economic
base as well as the custom and culture of the citizens most impacted by
a critical habitat designation in addition to updated information that
suggests that economic benefits could accrue. We have reevaluated the
relative impact of even a ``relatively small'' economic loss for rural
communities already faced with impacts including the initial listing of
the species. As noted in our 2012 analysis, the direct incremental
effects from the critical habitat designation included: (1) An
increased workload for action agencies, the Service, and third-party
applicants to conduct reinitiated consultations for ongoing actions in
newly designated critical habitat (areas proposed for designation that
were not already included within the then-extant designation); (2) the
cost to action agencies of completing an analysis of the effects to
critical habitat for discretionary new projects occurring in occupied
areas of designated critical habitat; and (3) potential project
alterations in critical habitat areas that are currently unoccupied by
spotted owls, since the critical habitat designation would create a
potential section 7 obligation based on the adverse modification
standard that might not otherwise exist.
In response to the proposed rule, we received submissions of
additional economic information from several commenters, including
Counties, as well as from the American Forest Resource Council. We
reviewed this information carefully, and we also conferred with IEc,
which conducted the economic analysis in the 2012 designation (IEc
2012), regarding
[[Page 4835]]
critiques in the additional materials submitted regarding the 2012
economic analysis. We incorporated our review and consideration of this
information in our response to comments above (See Comments 20-23).
Based on this review, we have concluded that completing a new
economic analysis for these additional critical habitat exclusions is
unnecessary. For further information regarding the 2012 analysis, see
the December 4, 2012, final rule for a summary of the final economic
analysis and our consideration of economic impacts (77 FR 71876, pp.
71878, 71945-71947, 72046-72048). Both the 2012 economic analysis as
well as the additional information we received showed that there is an
incremental economic impact to the critical habitat designation. There
is no minimum statutory economic impact included in the section 4(b)(2)
regulation or the legislative history against which the Secretary is
directed to consider in his exclusion analysis. Thus, the Secretary is
using the wide discretion under the ESA to weigh these economic costs
in favor of exclusion. We reviewed the 2012 final economic analysis
(IEc 2012) as well as comments and additional information received on
the proposed rule. Both the original 2012 economic analysis and the
additional information presented show that there is some monetized
economic cost savings based upon the exclusions undertaken in this
final rule. However, the original 2012 economic analysis did not
provide quantified cost estimates related to consultation and potential
project modifications of ``linear projects,'' including power lines and
natural gas pipe lines. The 2012 economic analysis could not have
foreseen the recent changes in the electricity generating industry that
moved the industry from retiring coal powered plants to natural gas
plants. Because of such changes, the unquantified effects of the 2012
economic analysis takes on more importance in this action, albeit still
unquantified. We have weighed those economic costs, in combination with
the other relevant factors discussed below to determine that the
balance weighs in favor of excluding additional habitat.
Consideration of Impacts on National Security
We did not exclude areas from our December 4, 2012, revised
critical habitat designation based on impacts on national security, but
we did exempt Joint Base Lewis-McChord lands based on the integrated
natural resources management plan under section 4(a)(3) of the Act (77
FR 71876, pp. 71944-71945). We did not receive any comments or
additional information on the impacts of the proposed revised
designation on national security or homeland security. We have
determined not to exclude any additional areas on the basis of impacts
on national security.
Consideration of Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether there are
permitted conservation plans such as habitat conservation plans (HCPs),
safe harbor agreements (SHAs), or candidate conservation agreements
with assurances (CCAAs) covering species in the area, or whether
designation of, or exclusion from, critical habitat would encourage any
non-permitted conservation agreements and partnerships. In addition, we
consider any Tribal forest management plans (FMPs) and partnerships and
consider the government-to-government relationship of the United States
with Tribes. We also considered the requests from the local governments
directly impacted by the northern spotted owl critical habitat
designation based upon our recognition that County Commissions are
elected representatives of their constituents and have knowledge and
expertise in the areas related to the economic well-being, employment,
tax base, and custom and cultures of the citizens within their
jurisdictions. Because we recognize their duty as locally elected
officials to represent the best interests of their citizens and we take
their concerns seriously, we acknowledge the impacts that the northern
spotted owl listing and critical habitat designation has had on their
jurisdictions as part of our balancing of other relevant impacts.
Exclusion of Indian Lands
Several Executive Orders, Secretarial Orders, and policies are
relevant when working with Tribes. These guidance documents generally
confirm our trust responsibilities to Tribes, recognize that Tribes
have sovereign authority to control Indian lands, emphasize the
importance of developing partnerships with Tribal governments, and
direct the Service to consult with Tribes on a government-to-government
basis.
A joint Secretarial Order that applies to both the Service and the
National Marine Fisheries Service, Secretarial Order 3206, American
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act (June 5, 1997) (S.O. 3206), is the most
comprehensive of the various guidance documents related to Tribal
relationships and Act implementation;, it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, S.O. 3206 explicitly
recognizes the right of Tribes to participate fully in the listing
process, including designation of critical habitat. The Order also
states: ``Critical habitat shall not be designated in such areas unless
it is determined essential to conserve a listed species. In designating
critical habitat, the Services shall evaluate and document the extent
to which the conservation needs of the listed species can be achieved
by limiting the designation to other lands.'' In light of this
instruction, when we undertake a discretionary section 4(b)(2)
exclusion analysis, we always consider exclusions of Indian lands under
section 4(b)(2) of the Act prior to finalizing a designation of
critical habitat, and give great weight to Tribal concerns in analyzing
the benefits of exclusion.
In this final designation, the Secretary has exercised his
discretion under section 4(b)(2) of the Act to exclude from this
critical habitat designation 14,605 acres (5,910 hectares) of Indian
lands (in this case, lands held in trust) for Cow Creek Band of Umpqua
Tribe of Indians (CCBUTI) and 5,575 acres (2,256 hectares) of land for
Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians
(CTCLUSI). See Table 1 for the Unit and Subunit location of these
Indian lands.
In our December 4, 2012, final rule (77 FR 71876), we prioritized
areas for critical habitat designation by looking first to Federal
lands, followed by State, private, and Indian lands. No Indian lands
were designated in our final rule because we found that we could
achieve the conservation of the northern spotted owl with limiting the
designation to other lands. However, in 2018, Congress passed and the
President signed the Western Oregon Tribal Fairness Act (Pub. L. 115-
103). This act mandated that certain lands managed by BLM be taken into
trust by the United States for the benefit of the CCBUTI and the
CTCLUSI. In January 2020, BLM released its decision record (BLM 2020)
transferring management authority of approximately 17,800 acres (7,203
hectares) to CCBUTI and 14,700 acres (5,949 hectares) to CTCLUSI. Of
the transferred lands, 20,179 acres (8,166 hectares) are located within
designated critical habitat for the northern spotted owl. We considered
this new
[[Page 4836]]
information, as well as comments received on this proposed exclusion of
these lands, and we are now excluding these Indian lands under section
4(b)(2) of the Act, as explained below.
Benefits of Inclusion--Indian Lands
The CCBUTI and CTCLUSI Indian lands includes areas occupied by the
northern spotted owl. Therefore, even without designating these lands,
Federal agencies would need to consult for jeopardy if they are
considering actions that may affect the species. This would limit the
extent to which designating these areas will incrementally benefit the
species through consultation under section 7. Nevertheless, designating
these areas will have other benefits.
One of the benefits of the designation of critical habitat on
Tribal land is that it may affect the implementation of Federal laws,
such as the Clean Water Act. These laws require analysis of the
potential environmental effects of proposed projects via ESA section 7
consultation, and completion of that consultation on critical habitat
may signal the presence of sensitive habitat that could otherwise be
missed in the review process for these other environmental laws.
Additionally, there is an educational benefit to the inclusion of
land as critical habitat. A critical habitat designation can inform
Tribal members and others about the potential conservation value of the
area for the species.
Another possible benefit is that additional funding could be
generated for habitat improvement by an area being designated as
critical habitat. Some funding sources may rank a project higher if the
area is designated as critical habitat. Tribes often seek additional
sources of funding in order to conduct wildlife-related conservation
activities. Therefore, having an area designated as critical habitat
could improve the chances of receiving funding for northern spotted owl
habitat-related projects.
A final possible benefit is these lands may contribute to the
recovery of the species by providing additional areas of habitat for
breeding, feeding, or connectivity between active home territories.
Benefits of Exclusion--Indian Lands
The benefits of excluding Indian lands from designated critical
habitat are significant. We have determined that the significant
benefits that would be realized by forgoing the designation of critical
habitat on these areas include: (1) Our deference to the Tribes to
develop and implement conservation and natural resource management
plans for their lands and resources, which includes benefits to the
northern spotted owl and its habitat that might not otherwise occur;
and (2) the continuance and strengthening of our effective working
relationships with the Tribes to promote the conservation of the
northern spotted owl and its habitat.
We have determined that the CCBUTI and CTCLUSI should be the
governmental entities to manage and promote the conservation of the
northern spotted owl on their trust land as indicated in Secretarial
Order 3206; Executive Order 13175; and the relevant provision of the
Departmental Manual of the Department of the Interior (512 DM 2).
We find that other conservation benefits are provided to the
affected critical habitat subunits and the northern spotted owl and its
habitat by excluding these lands from the designation. For example, the
Continuous Forestry Management Approach adopted by the CCBUTI in their
forest management plan takes proactive prevention, control, and
recovery actions to mitigate damages and loss of forest values from
wildfire, insects, and disease and other damaging events. Additionally,
the CTCLUSI has committed to coordination with the Service in
developing its approach to conservation of listed species for these
newly acquired lands.
Finally, both Tribes specifically requested these exclusions in
their comment letters on the proposed rule and we evaluated these
exclusions in light of their requests. We place a high value on our
relationship with the Tribes and recognize their expertise in areas
related to the representation of their Tribal members. Because we
recognize our government-to-government relationship, we seriously
consider their requests as part of our balancing of other relevant
impacts as required under ESA section 4(b)(2). For these reasons, we
have determined that excluding these recently transferred lands from
the designation of critical habitat for the northern spotted owl is of
substantial benefit in aid of the unique relationship between the
Federal Government and Tribes and in support of Tribal self-governance.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Indian Lands
The benefits of including Indian lands in the critical habitat
designation are educational awareness, the potential additional grant
funding, and the completion of section 7 based upon the implementation
of other laws and regulations. While there remain some benefits to
these regulatory intersections, the Tribes' commitment to continue to
coordinate with us in conserving habitat for the northern spotted owl
in these newly acquired areas as they manage the landscape is also
significant. Consistent with principles of self-determination and the
unique Federal-Tribal relationship, we conclude that requests from
Tribal governments are important to consider and weigh. We view this as
a substantial benefit since we have developed a cooperative working
relationship for the mutual benefit of endangered and threatened
species, including the northern spotted owl. Because the Tribes will
implement habitat conservation efforts on these newly acquired lands,
and are aware of the value of their lands for northern spotted owl
conservation, the educational benefits of a northern spotted owl
critical habitat designation are also minimized. For these reasons, we
have determined that designation of critical habitat would have few, if
any, additional benefits beyond those that will result from the
presence of the species.
In summary, the benefits of these Indian lands as critical habitat
are low, and are limited to additional regulatory processes and
educational benefits that are insignificant--particularly since the
northern spotted owl listing and past critical habitat needs have been
so well publicized and are known. Additionally, the Tribes have
committed to managing these lands to benefit (which include the
potential recovery of) the northern spotted owl making the additional
benefit of designating these lands as critical habitat for recovery
purposes also minimal. The benefits of excluding these areas from
designation as critical habitat for the northern spotted owl are
significant, and include encouraging the continued development and
implementation of special management measures that the Tribes plan for
the future or are currently implementing. These activities and projects
will allow the Tribes to manage their natural resources to benefit the
northern spotted owl. This approach is consistent with the government-
to-government nature of our working relationship with the Tribes, and
also consistent with our published policies on Native American natural
resource management. The exclusion of these areas will likely also
provide additional benefits to the species that would not otherwise be
available to encourage and maintain cooperative working relationships.
We find that the benefits of excluding these
[[Page 4837]]
areas from critical habitat designation outweigh the benefits of
including these areas as critical habitat.
Exclusion Will Not Result in Extinction of the Species--Indian Lands
We do not conclude that the exclusion of these Indian lands will
result in extinction of the species. First, as discussed under Effects
of Critical Habitat Designation Section 7 Consultation in the 2012
critical habitat rule (77 FR 71876, December 4, 2012, p. 71937), if a
Federal action or permitting occurs, the known presence of northern
spotted owls would require evaluation under the jeopardy standard of
section 7 of the Act, even absent the designation of critical habitat,
and thus will provide the information and means to protect the species
against extinction. Second, the Tribes are committed to protecting and
managing these lands and species found on these lands, according to
their Tribal and cultural management plans and natural resource
management objectives, which provide conservation benefits for the
northern spotted owl and its habitat. Accordingly, we are excluding the
20,179 acres (8,166 hectares) of Indian lands under section 4(b)(2) of
the Act because the benefits of exclusion outweigh the benefits of
inclusion and exclusion will not cause the extinction of the species.
Exclusion of the White Pass Ski Area
The White Pass Ski Area occupies approximately 1,200 acres of
Forest Service lands (211 acres of which are within the 2012 northern
spotted owl critical habitat designation) in the Okanogan/Wenatchee and
Gifford Pinchot National Forests. The Ski Area contains ski lifts and
runs and provides recreational opportunities for approximately 130,076
visitors each year benefitting a county with a population of just over
75,000. Although the 2012 critical habitat rule states that ``meadows
and grasslands . . . and manmade structures and the land on which they
are located'' are not critical habitat, because the part of the area
encompassed by the Ski Area's special use permit with the Forest
Service is within the critical habitat boundaries, the Ski Area owners
and Lewis County have raised concerns as to the Ski Area's future vis-
a-vis the northern spotted owl critical habitat designation. Lewis
County, Washington, is particularly concerned given the Ski Area's
large and positive economic impact for the County.
Benefits of Inclusion--White Pass Ski Area
As noted above, one benefit of inclusion of Federal lands in a
critical habitat designation is that Federal agencies are required to
consult on whether their activity would destroy or adversely modify
critical habitat. In this case, we believe that benefit based both on
the current habitat needs and recovery needs is small considering the
amount of acreage concerned (211 acres) and the remaining requirement
for section 7 consultation should owls be located within the area
impacted by future Forest Service actions regarding the Ski Area. An
additional benefit is public education and awareness of the presence of
northern spotted owls and their habitat and range.
Benefits of Exclusion--White Pass Ski Area
Lewis County, Washington, noted that the ski area provides
significant economic benefit to the County. Although quantification of
these economic impacts may be difficult, minimum estimations based on
the number of annual visitors to the Ski Area; the cost of lift
tickets, equipment rentals, and group and private lessons at the Ski
Area; and related economic benefits from this influx of visitors to the
County are likely in the magnitude of tens of millions of dollars
annually. The Secretary exercises his discretion to give weight to the
economic importance of this continued use of the National Forest lands.
This weight is based on our recognition that County Commissioners are
elected representatives of their constituents and have knowledge and
expertise in the areas related to the economic well-being, employment,
tax base, and custom and cultures of the citizens within their
jurisdictions. Because we recognize their duty as locally elected
officials to represent the best interests of their citizens and we take
their concerns seriously, we acknowledge the impacts that the northern
spotted owl listing and critical habitat designation has had on their
communities as part of our balancing of other relevant impacts. Thus,
we conclude that the benefits of excluding the White Pass Ski Area from
designated critical habitat are significant.
Benefits of Exclusion Outweigh the Benefits of Inclusion--White Pass
Ski Area
Because we conclude that the benefits of exclusion are significant,
and the benefits of inclusion are small, we conclude that the benefits
of exclusion outweigh the benefits of inclusion of 211 acres of
critical habitat in the Ski Areas Special Use Permit. With regard to
the educational benefits of inclusion as critical habitat, because the
spotted owl has been listed as a threatened species since 1990 and the
significant amount of local and national discussion and debate that has
occurred since that time, the public is very aware of the species'
range and habitat needs; thus, any additional educational benefits of
designated critical habitat are limited. With regard to recovery, the
benefits of inclusion are also small because of the small size of the
acreage and because section 7 consultation will still be required for
all discretionary activities if the owl is present.
Additionally, as discussed under Effects of Critical Habitat
Designation, Section 7 Consultation, in the 2012 critical habitat rule
(77 FR 71876, December 4, 2012, p. 71937), if a discretionary Federal
action or permitting occurs, the known presence of northern spotted
owls would require evaluation under the jeopardy standard of section 7
of the Act, even absent the designation of critical habitat. Because
the separate requirement of an evaluation under the jeopardy standard
limits the benefits of including the area in the designation of
critical habitat, the benefits of exclusion outweigh the benefits of
inclusion.
Exclusion of the Ski Area Will Not Result in Extinction of the Species
We do not conclude that the exclusion of 211 acres within the White
Pass Ski Area will result in extinction of the species because
exclusion of this area is so small that exclusion will have minimal
impacts on the conservation of the owl. First, because of the
significant development of ski lifts (manmade structures) and the
removal of trees for ski runs, the conservation benefit of this land is
very low. Second, the Forest Service will still be required to consult
on whether renewal of the special use permit or changes to the permit
will jeopardize the continued existence of the species if northern
spotted owls are found to be present in the Ski Area Special Use Permit
boundaries. Ensuring that the proposed action or permitting does not
jeopardize the existence of the species will further ensure that
exclusion will not cause extinction of the species. Therefore, we are
excluding this area from the designation of critical habitat.
Exclusion of Additional Federal Lands
We recognize that, under our 2016 policy regarding implementation
of section 4(b)(2) (81 FR 7226, February 11,
[[Page 4838]]
2016), we generally focus our exclusions on non-Federal lands, as the
2016 policy opined that the benefits of designating Federal lands as
critical habitat are typically greater than the benefits of excluding
Federal lands. This policy was based on Congress's declaration that
``all Federal departments and agencies shall seek to conserve
endangered species and threatened species and shall utilize their
authorities in furtherance of the purposes of this Act.'' (Section
2(c)(1)). Additionally, Congress requires that all Federal agencies
have responsibilities under section 7 of the Act to carry out programs
for the conservation of listed species and to ensure their actions are
not likely to jeopardize the continued existence of listed species or
result in the destruction or adverse modification of critical habitat.
However, for the reasons set forth below, we can comply with these
mandates while still determining that the benefits of exclusion of
critical habitat outweigh the benefit of including these areas as
critical habitat.
As stated above, the Secretary has very broad discretion under the
second sentence of section 4(b)(2) on how to weigh the impacts of a
critical habitat designation. In particular, ``[t]he consideration and
weight given to any particular impact is completely within the
Secretary's discretion.'' (H.R. Rep. No. 95-1625, at 17 (1978)). In
weighing the benefits of inclusion against the benefits of exclusion,
we considered the following general principles. First, we gave
considerable weight to the statute's governing the use and management
of the O&C lands, which specifies that the primary purpose of those
lands is to produce timber on a sustained yield basis.
Second, even if the exclusion of certain Federal lands occurs,
under section 7 of the Act, Federal agencies cannot fund, authorize, or
carry out any discretionary activities that result in jeopardy to a
listed species. This requirement applies regardless of the existence of
designated critical habitat. Additionally, the northern spotted owl
will be protected from ``take'' under section 9 of the ESA. Thus, the
species will be protected regardless of the critical habitat exclusions
discussed in the rule, and the benefits of inclusion are therefore
small. The only direct consequence of critical habitat designation is
to require Federal agencies to ensure that any action they fund,
authorize, or carry out does not destroy or adversely modify designated
critical habitat. The costs that this requirement may impose on Federal
agencies can be divided into two types: (1) The additional
administrative or transactional costs associated with the consultation
process with a Federal agency, and (2) the costs to Federal agencies
and other affected parties, including applicants for Federal
authorizations (e.g., permits, licenses, leases), of any project
modifications necessary to avoid destruction or adverse modification of
critical habitat. These costs may be minimal, however, if the species
occupies the area so that section 7 consultation would occur regardless
of whether the habitat is designated as critical habitat. Nevertheless,
although our original 2012 economic analysis found that the actual
administrative cost with a critical habitat designation is small,
avoidance of that specific cost is not the only measure of benefits of
excluding an area from a critical habitat designation. More recent
information about the transition of the electricity power sector and
well as the potential administrative costs consultation including the
underlying analytic requirements lends more compelling weight to the
previously unquantified effects noted in the 2012 analysis. We have
also considered the great benefits of excluding certain federally owned
areas from critical habitat, and we find that these significant
benefits greatly tip the balance in favor of exclusion.
For example, the additional requirement for completing section 7
consultation and the underlying analytic requirements constitutes a
regulatory hurdle for Federal agencies in completing their duties under
their organic statutes. These costs do not account for the economic
costs associated with potential delay or modification of projects.
Lessening one of the regulatory hurdles could lead to increased timber
production and thereby benefit local counties and communities by
supplying jobs and county revenues for schools and roads, protecting
the local tax base, and protecting the social fabric and customs and
culture of the citizens of the county. These benefits outweigh the
benefits of including the areas in the critical habitat designation
because section 7 consultation will still be completed under the
jeopardy standard even if the areas are excluded from designation.
Moreover, such section 7 consultations based on the jeopardy standard
will ensure that excluding the areas from the designation will not
result in extinction of the species.
Oregon and California Lands (O&C Lands)
In this final designation, the Secretary has exercised his
discretion under section 4(b)(2) of the Act to exclude from this
critical habitat designation 1,373,693 acres (555,913 ha) of lands that
were reserved to the Federal Government under the Chamberlin-Ferris Act
of 1916 (39 Stat. 218) (O&C lands). See Table 1 for the Unit and
Subunit locations of these exclusions.
The O&C lands were revested to the Federal Government under the
Chamberlin-Ferris Act of 1916 (39 Stat. 218). The Oregon and California
Revested Lands Sustained Yield Management Act of 1937 (O&C Act; Pub. L.
75-405) addresses the management of O&C lands. The O&C Act identifies
the primary use of revested timberlands for permanent forest
production. These lands occur in western Oregon in a checkerboard
pattern intermingled with private land across 18 counties. Most of
these lands (82 percent) are administered by BLM (FWS 2019, p. 1). The
remaining lands are administered by the U.S. Forest Service. The
opening statement of the O&C Act provides that these lands are to be
managed ``for permanent forest production, and the timber thereon shall
be sold, cut, and removed in conformity with the principle of sustained
yield for the purpose of providing a permanent source of timber supply,
protecting watersheds, regulating stream flow, and contributing to the
economic stability of local communities and industries, and providing
recreational facilities.'' 43 U.S.C. 2601.
The counties where the O&C lands are located participate in a
revenue-sharing program with the Federal Government wherein the
counties receive 50% of the revenues based on commercial receipts
(e.g., income from commercial timber harvest) generated on these
Federal lands. 43 U.S.C. 2605(a). When timber production on these lands
was severely curtailed by listing of the northern spotted owl among
other things, Congress in 1993 attempted to establish certain safety-
net payments to the affected counties, and in 2000 passed the Secure
Rural Schools and Community Self Determination Act, Public Law 106-393,
16 U.S.C. 500 (SRS) to, among other things, extend the previously
established safety-net payments to try to make up for the economic
devastation of the loss of timber receipts to the impacted counties.
However, because none of the safety-net provisions, including the SRS,
authorizes a permanent fund, the local governments that commented on
this rulemaking do not view it as an equal replacement to the loss
their schools and roads suffered from the loss in their timber receipts
from the O&C lands.
[[Page 4839]]
Since the mid-1970s, scientists and land managers have recognized
the importance of forests located on O&C lands to the conservation of
the northern spotted owl and have attempted to reconcile this
conservation need with other land uses (Thomas et al. 1990, entire).
Starting in 1977, BLM worked closely with scientists and other State
and Federal agencies to implement northern spotted owl conservation
measures on O&C lands. Over the ensuing decades, the northern spotted
owl was listed as a threatened species under the Act, and critical
habitat was designated (57 FR 1796, January 15, 1992) and revised two
times (73 FR 47326, August 13, 2008; 77 FR 71876, December 4, 2012) on
portions of the O&C lands.
An initial Recovery Plan for the owl was completed in 2008 (73 FR
29471, May 21, 2008). In 2011, the Service revised the northern spotted
owl Recovery Plan (see 76 FR 38575, July 1, 2011), and the revised plan
recommended ``continued application of the reserve network of the
[Northwest Forest Plan] NWFP until the 2008 designated spotted owl
critical habitat is revised and/or the land management agencies amend
their land management plans taking into account the guidance in this
Revised Recovery Plan'' (FWS 2011, p. II-3). On December 4, 2012, the
Service published in the Federal Register (77 FR 71876) a final rule
revising the northern spotted owl critical habitat designation, and in
2016, BLM revised its RMPs for western Oregon, resulting in two
separate plans (BLM 2016a, 2016b). These two BLM plans, the
Northwestern Oregon and Coastal Oregon Record of Decision and Resource
Management Plan (BLM 2016a) and the Southwestern Oregon Record of
Decision and Resource Management Plan (BLM 2016b), address all or part
of six BLM districts across western Oregon.
The land and use allocations in the BLM RMPs were challenged in the
Federal District Court for the District of Columbia. The Court
determined that the O&C Act ``plainly requires that timber grown on O&C
land be `sold, cut, and removed in conformity with the princip[le] of
sustained yield.''' American Forest Resource Council v. Hammond, 422 F.
Supp. 3d 184, 189 (D.D.C. 2019) (quoting 43 U.S.C. 2610). The ruling
also calls into question aspects of the legal analysis in the 2012
critical habitat designation that it failed to recognize the statutory
requirement for the management of the O&C lands.
Finally, while the proposed rule only included the Harvest Land
Base portion of the O&C lands for exclusion, we conclude that all O&C
lands should be excluded. First, commenters had requested exclusion of
all O&C lands as part of the public comments on the proposed rule,
illustrating that the public was on fair notice that the exclusions in
the final rule could be expanded. Second, the O&C Act and its mandate
for sustained yield timber harvest applies to all O&C lands, not just
those identified for harvest in the 2016 BLM RMPs. Third, section
4(b)(2) gives the Secretary very broad discretion in weighing the
benefits of inclusion with the benefits of exclusion, so long as he
concludes that the exclusion will not result in extinction of the
species. The Secretary has exercised that extremely broad discretion in
this case as explained below. Thus, the exclusion of the O&C lands in
this case is procedurally and legally supported.
NWFP Matrix Lands
This rule also excludes approximately 2,077,697 acres (840,814 ha)
of Forest Service and BLM matrix lands described in the NWFP. On April
2, 1993, President Clinton convened a Forest Conference in Portland,
Oregon, to discuss the management on over 24 million acres of Federal
lands, in light of the listing of the northern spotted owl in 1990. Out
of that conference and based on an interdisciplinary team effort came
the Northwest Forest Plan. The plan proceeded from the Forest Service's
and BLM's statutory authorities as set forth in the Forest Service
Organic Act, the Multiple-Use Sustained-Yield Act, the Endangered
Species Act, and the Federal Land Policy and Management Act. These
statutes grant the Departments of Agriculture and the Interior broad
discretion to rely upon their expertise to manage the lands under their
authorities in a manner deemed to best meet the purposes Congress has
delineated. The purpose of the O&C lands has been discussed in the
preceding paragraphs. With regard to the Forest Service lands, one of
the purposes of the National Forest organic statutes is to provide for
the long-term sustainability of the forests' many natural resources,
including the species that inhabit them. Another purpose of the Forest
Service Organic Act was to ``to improve and protect the forest within
the reservation, . . . securing favorable conditions of water flows,
and to furnish a continuous supply of timber for the use and
necessities of citizens of the United States.'' 16 U.S.C. 473.
Through its utilization of ecosystem management principles, the
NWFP was designed to balance these mandates more effectively and
efficiently than previous planning efforts associated with management
of Federal old-growth forests. Statutes such as the Forest and
Rangeland Renewable Resources Planning Act, the National Forest
Management Act, and the Federal Land Policy and Management Act, which
outline various procedures to follow in Federal public land planning,
also authorize the employment of principles intrinsic to ecosystem
management. ESA section 7 consultation was completed on the NWFP and we
found that implementation of that plan would not result in jeopardy to
the Northern Spotted Owl. Based on these principles, the Record of
Decision (ROD) for the NWFP was signed on April 13, 1994. The ROD
designated seven land allocations, including:
Congressionally Reserved Areas--7,320,600 acres
Late Successional Reserves--7,430,800 acres
Adaptive Management Areas--1,521,800 acres
Managed Late Successional Areas--102,200 acres
Administratively Withdrawn Areas--1,477,100 acres
Riparian Reserves--2,627,500 acres
Matrix lands--3,975,300 acres
Matrix lands represent just 16% of the Federal land within the
range of the northern spotted owl. According to the Record of Decision,
it was to be in the matrix lands where the most timber harvest and
other silvicultural activities would be conducted.
Finally, while the proposed rule only included the Harvest Land
Base portion of the O&C lands for exclusion, we conclude that the NWFP
matrix lands should also be excluded. First, commenters had requested
exclusion of all NWFP matrix lands as part of the public comments on
the proposed rule, illustrating that the public was on fair notice that
the exclusions in the final rule could be expanded. Second, the NWFP
matrix lands have previously been designated as multiple use lands,
including timber harvest thus, including them here does not change the
character of the prior decisions. Third, makeup and management of these
lands is similar to the O&C lands. Fourth, section 4(b)(2) gives the
Secretary very broad discretion in weighing the benefits of inclusion
with the benefits of exclusion, so long as he does not conclude that
the exclusion will result in extinction of the species. The Secretary
has exercised that extremely broad discretion in this case as explained
below. Thus, the exclusion of the NWFP matrix lands in this case is
procedurally and legally supported.
[[Page 4840]]
Benefits of Inclusion--O&C and NFWP Matrix Lands
As discussed above under Consideration of Impacts under Section
4(b)(2) of the Act, the primary effect of designating any particular
area as critical habitat is the requirement for Federal agencies to
consult with the FWS under section 7 of the Act to ensure discretionary
actions that they carry out, authorize, or fund do not destroy or
adversely modify designated critical habitat. Thus, a benefit of a
critical habitat designation on these lands would be any additional
measures or alternatives required by the FWS as a result of the section
7 consultation if the proposed activity would otherwise destroy or
adversely modify critical habitat.
An additional benefit of including an area as designated critical
habitat includes public awareness of the presence of northern spotted
owls and the importance of habitat protection.
A third benefit of including these lands is the role that they play
in the recovery of the northern spotted owl. According to the guidance
in the 2011 Revised Recovery Plan, the inclusion of these lands is
important for connectivity between the Eastern and Western northern
spotted owl ranges. Additionally, there is benefit of including low-
suitability or marginal lands as critical habitat as these habitats may
be able to grow into ``old growth forests'' at some point in the
future. We also considered whether inclusion of these lands supports
recovery of the northern spotted owl.
Benefits of Excluding--O&C Lands and NWFP Matrix Lands
There are appreciable benefits that will be realized by excluding
O&C and the NWFP matrix lands (including those ``matrix'' lands now
managed by BLM as Harvest Land Base lands under the 2016 RMPs outside
of the O&C lands) from critical habitat. Executive Order 12866 directs
agencies to consider regulatory approaches that reduce burdens and
maintain flexibility and freedom of choice for the public where these
approaches are relevant, feasible, and consistent with regulatory
objectives. Thus, one benefit of excluding these lands from critical
habitat is to remove one of the regulatory burdens in managing these
lands for their original purposes, including sustained yield timber
production. As stated above, O&C lands are to be managed for providing
timber on a sustained-yield basis. NWFP matrix lands are to be managed
for multiple use and sustained yield. Lessening one of the regulatory
hurdles towards that management could lead to increased timber
production that would benefit local counties and communities by
supplying jobs and county revenues for schools and roads, protecting
the local tax base, and protecting the social fabric and customs and
culture of the citizens of the county.
An additional benefit of excluding these lands is that making more
lands available for timber harvest gives land managers a greater
opportunity to allow longer cycles between timber harvests or to design
timber harvests to benefit the northern spotted owl. The northern
spotted owl can use second-growth timber that leaves a few snags or old
trees on the harvested land. The more land that is in the potential
harvest base, the more flexibility the BLM and Forest Service have to
manage for longer cycles between timber harvests, providing
environmental benefits from the resulting mix of tree ages. Authorizing
and conducting more timber sales may also lessen the risk of
catastrophic wildfire that can destroy or degrade northern spotted owl
habitat and puts rural communities, private property, and lives at
great risk.
Another important and relevant factor in considering the benefits
of exclusion is the recognition of the expertise of locally elected
governments in areas relating to the stability of the local economy and
protection of the local custom and culture of the county. While the FWS
has expertise in biological matters, our expertise does not extend to
consideration of the local tax base, areas of potential employment, and
the social fabric of communities and counties. We also recognize that
the Federal Government should strongly consider and give weight to the
input of its State and local government partners, and we do so here.
The County Commissions commenting on this rule are also elected
representatives of their constituents and should have a considered
voice in the decisions directly affecting their constituents.
Benefits of Exclusion Outweigh the Benefits of Inclusion--O&C Lands and
NWFP Matrix Lands
The Secretary has determined that the benefits of excluding the O&C
and the NWFP matrix lands from the designation of critical habitat for
the northern spotted owl outweigh the benefits of including these areas
as critical habitat. Even after excluding these lands, there remain
approximately 6,105,279 acres of designated critical habitat as well as
several million additional acres of protected habitat for the northern
spotted owl in designated wilderness and National Parks, throughout the
owl's range. Although the excluded areas provide some conservation
value, the Secretary has determined that the benefits of excluding the
O&C lands, given their mandated primary use for timber harvest, and the
NWFP matrix lands, given their multiple-use values, outweigh the value
of their inclusion as critical habitat. This conclusion is supported by
the northern spotted owl's use of timbered private lands where some
older trees and snags have been retained but timber harvest is allowed.
This also supports our determination that these areas can still be
used for recovery of the northern spotted owl. First, as stated in our
analysis, currently the biggest threat to the recovery of the northern
spotted owl is the invasive barred owl. We are considering the next
steps to implement an aggressive barred owl treatment/management
program with the completion of our experimental study. Additionally,
northern spotted owl can use a variety of timber age classes for
recovery. Simply excluding these lands from critical habitat does not
mean that the owls will abandon these areas or that they will not
contribute, in some manner, to the recovery of the species, assuming an
aggressive barred owl removal program is implemented.
Additionally, where northern spotted owls are present and may be
affected by discretionary Federal actions, any resulting section 7
consultations will determine if the actions jeopardize the continued
existence of the owl; if so, we can work with the Federal agencies and
applicants to develop reasonable and prudent measures or alternatives
that allow the action to go forward without jeopardizing the species.
In other words, for discretionary actions, Federal agencies remain
obligated under section 7 of the Act to consult with us on actions that
may affect a federally listed species where it is present to ensure
such actions do not jeopardize the species' continued existence, even
in the absence of designated critical habitat. On both O&C and matrix
lands to be excluded in this rule, surveys for northern spotted owls
will be completed to determine the presence or absence of owls before
any activity can occur. If the northern spotted owl is present, the
proposed activity cannot jeopardize the continued existence of the
species. Additionally, any programmatic land use plans or amendments
proposed by the BLM and Forest Service will have to be analyzed through
section 7 consultation, further ensuring that the management actions
therein do not jeopardize the species. Thus, the added requirement to
consult on effects to
[[Page 4841]]
designated critical habitat in the O&C and matrix lands is not an
efficient use of limited consultation and administrative resources.
Finally, the informational benefits of including the O&C lands and
matrix lands as critical habitat are minimal given the well-known
history of the northern spotted owl. Because the spotted owl has been
listed since 1990, the public is very aware of its status and any
additional educational benefits are limited.
In sum, the benefits derived from excluding the O&C and the NWFP
matrix lands outweigh the benefit of including these lands in the
designation. Excluding the O&C and the NWFP matrix lands reduces the
unnecessary regulatory burden of additional section 7 consultations on
discretionary activities about adverse modification of designated
critical habitat. Additionally, exclusion of these lands to ease the
process for authorizing Federal timber harvesting reflects our
consideration of the input of the local governments.
Exclusion Will Not Result in Extinction--O&C Lands and NWFP Matrix
Lands
We do not find that excluding the O&C and the NWFP matrix acres, in
addition to the other exclusions discussed above, from the critical
habitat designation will result in extinction of the northern spotted
owl. Our findings are summarized below, and are further described in a
memorandum from the Director to the Secretary (FWS 2021).
The legal standard under which exclusions are evaluated is whether,
based on the best scientific and commercial data available, the
Secretary concludes that the exclusions ``will result in extinction of
the species.'' Although there are no cases directly on point, the two
cases that have discussed ``extinction'' have done so with references
to the ``survival'' of the species rather than recovery of the species.
See Northern New Mexico Stockman's Association v. United States Fish
and Wildlife Service, _F. Supp.3d_, 2020 WL 6048149, 117 (D.N.M. 2020);
Gifford Pinchot Task Force v. USFWS, 378 F.3d 1059 (9th Cir. 2004)
(rejecting the FWS ESA section 7 regulation defining ``destruction or
adverse modification'' for conflating survival and recovery). Thus, the
correct analysis for purposes of section 4(b)(2) is whether the
Secretary concludes that the specific exclusion of these areas of
critical habitat will result in the extinction of the species--that is
whether the species can survive without these particular areas. For the
following reasons, based on the best scientific and commercial data
available, the Secretary has not concluded that excluding these
particular areas will result in extinction of the northern spotted owl.
First, as stated above, the determination to exclude an area from
critical habitat designation does not affect the requirement that
Federal agencies comply with the section 7 obligation to avoid
discretionary actions that may jeopardize the continued existence of a
listed species. Similarly, the decision to exclude an area from
critical habitat does not eliminate the need to comply with the section
9 prohibitions of the Endangered Species Act. Because there is no
section 4(d) rule accompanying the northern spotted owl threatened
listing, the species is treated as if it were endangered and take is
prohibited. Therefore, any assumptions regarding the future activities
that take place on Federal or private lands must recognize the
compliance with those section 7 and section 9 of the ESA, where
applicable.
Second, despite the significant acreages of critical habitat that
have been set aside for the northern spotted owl since 1990, estimated
populations of northern spotted owl have declined more than 70% since
the listing of the species. (85 FR 81145, December 15, 2020.) The
recent 12-Month Finding for the northern spotted owl (85 FR 81144,
December 15, 2020) determined that an uplisting from threatened to
endangered was warranted but precluded by higher priorities. Id. A
recent published demographic study for the northern spotted owl (Dugger
et al. 2016, entire) found that the nonnative barred owl that is
invading northern spotted owl habitat was currently the stressor with
the largest negative impact on the northern spotted owl through
competition for resources. Current best available scientific and
commercial data indicate that the largest negative contributing factor
on the northern spotted owl population is the invasive barred owl.
Thus, in order to protect the northern spotted owl from extinction,
management of the barred owl must occur.
Third, in addition to the critical habitat exclusions finalized
here, there remain several million acres in National Parks, designated
wilderness, and wilderness study areas that contain northern spotted
owl habitat. These areas are not officially designated as critical
habitat because no additional management is needed in these areas to
protect the habitat. Absent invasions by the barred owl or wildfire,
this habitat and the owls living therein will be maintained in their
current state regardless of any critical habitat exclusions. Because
the habitat and owls living in National Parks and wilderness will
continue to be maintained absent barred owl invasions, the proposed
exclusions will not cause the extinction of the northern spotted owl
under the section 4(b)(2) standard.
State Lands
We also evaluated whether additional exclusions from the critical
habitat designation under section 4(b)(2) of the Act should be
considered on State lands. In our December 4, 2012, critical habitat
designation (77 FR 71876), we excluded State lands in Washington and
California that were covered by HCPs and other conservation plans. In
Oregon, State agencies are currently working on HCPs that will address
State forest lands in western Oregon, including the Elliott State
Forest (managed by the Oregon Department of State Lands) and other
State forest lands in western Oregon (managed by the Oregon Department
of Forestry).
HCPs necessary in support of incidental take permits under section
10(a)(1)(B) of the Act provide for partnerships with non-Federal
entities to minimize and mitigate impacts to listed species and their
habitat. In some cases, as a result of their commitments in the HCPs,
incidental take permittees agree to provide more conservation of the
species and their habitats on private lands than designation of
critical habitat would provide alone. We place great value on the
partnerships that are developed during the preparation and
implementation of HCPs.
When we undertake a discretionary section 4(b)(2) exclusion
analysis, we consider areas covered by an approved HCP, and generally
exclude such areas from a designation of critical habitat if three
conditions are met:
(1) The permittee is properly implementing the HCP and is expected
to continue to do so for the term of the agreement. An HCP is properly
implemented if the permittee is, and has been, fully implementing the
commitments and provisions in the HCP, implementing agreement, and
permit.
(2) The species for which critical habitat is designated is a
covered species in the HCP, or very similar in its habitat requirements
to a covered species. The recognition that the Service extends to such
an agreement depends on the degree to which the conservation measures
undertaken in the HCP would also protect the habitat features of the
similar species.
[[Page 4842]]
(3) The HCP specifically addresses the habitat of the species for
which critical habitat is being designated and meets the conservation
needs of the species in the planning area.
The proposed State forest HCPs will not be completed prior to the
publication of this document; thus, they do not yet fulfill the above
criteria. As a result, we are not including additional State lands for
exclusion from the critical habitat designation for the northern
spotted owl.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has identified this rulemaking
action as economically significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in the light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Although the
Service acknowledges that there may be significant economic impacts to
small entities, largely deregulatory, as a result of the Service's
decision to exclude additional area in this rule, there is no
requirement under the RFA to evaluate the potential impacts to entities
that are not directly regulated. The Service has discussed economic
impacts to small entities elsewhere as part of its reasoning with
respect to exclusions considered under section 4(b)2 and the
requirements of E.O. 12866.
Moreover, Federal agencies are not small entities. Therefore,
because no small entities would be directly regulated by this
rulemaking, the Service certifies that the revised critical habitat
designation will not have a significant economic impact on a
substantial number of small entities.
In summary, we have considered whether the revised designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that the revised critical habitat
designation will not have a significant adverse economic impact on a
substantial number of small business entities. Therefore, a regulatory
flexibility analysis is not required.
Executive Order 13771
This rule is an E.O. 13771 (``Reducing Regulation and Controlling
Regulatory Costs'') (82 FR 9339, February 3, 2017) deregulatory action.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis for the December 4, 2012,
revised critical habitat designation for the northern spotted owl (77
FR 71876), we did not find that the critical habitat designation would
significantly affect energy supplies, distribution, or use. Any
administrative costs due to the designation of critical habitat would
be reduced because we are excluding additional lands from the
designation in this final rule. The OIRA Administrator has not
otherwise designated this action as an energy action. Accordingly, no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This final rule will not produce a Federal mandate. In general,
a Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
[[Page 4843]]
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The revised designation of critical habitat does not impose a
legally binding duty on non-Federal Government entities or private
parties. Under the Act, the only regulatory effect is that Federal
agencies must ensure that their actions do not destroy or adversely
modify critical habitat under section 7. While non-Federal entities
that receive Federal funding, assistance, or permits, or that otherwise
require approval or authorization from a Federal agency for an action,
may be indirectly 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 onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because we are only excluding areas
from the northern spotted owl's critical habitat designation; we are
not designating additional lands as critical habitat for the species.
Therefore, a Small Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for northern spotted owl in a takings implications assessment.
The Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
revised designation of critical habitat for northern spotted owl, and
it concludes that, if adopted, this designation of critical habitat
does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this final rule does
not have significant federalism effects that warrant preparation of a
federalism summary impact statement. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of this revised critical habitat
designation with, appropriate State resource agencies. From a
federalism perspective, the designation of critical habitat directly
affects only the responsibilities of Federal agencies. The Act imposes
no other duties with respect to critical habitat, either for States and
local governments, or for anyone else. As a result, this final rule
does not have substantial direct effects on the States, or on the
relationship between the national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. As noted above, the decision set forth in this document
removes areas from the designation.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation with the Federal agency under section 7(a)(2) of the Act
would be required. While non-Federal entities that receive Federal
funding, assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Further, in this document, we are
excluding areas from the northern spotted owl's critical habitat
designation; we are not designating additional lands as critical
habitat for the species.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule would not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are revising critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the northern spotted owl,
the December 4, 2012, final rule (77 FR 71876) identifies the elements
of physical or biological features essential to the conservation of the
species, and we are not making any changes to those elements in this
document. The areas that we are excluding from the designated critical
habitat are described in this rule and the maps and coordinates or plot
points or both of the subject areas are included in the administrative
record and are available at http://www.fws.gov/oregonfwo and at http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0050.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. Seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
[[Page 4844]]
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Indian lands are not subject to the same controls as Federal
public lands, to remain sensitive to Tribal culture, and to make
information available to Tribes. We have also evaluated this rule under
the criteria in Executive Order 13175 and under the Department's Tribal
consultation policy and have determined that this rule may have a
substantial direct effect on federally recognized Indian Tribes. To
fulfill our responsibility under Secretarial Order 3206, we have
consulted with the Cow Creek Band of Umpqua Tribe of Indians and the
Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians, which
both manage Indian land within the areas designated as critical habitat
for the northern spotted owl.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at http://www.regulations.gov and upon request from the
U.S. Fish and Wildlife Service and the Department of the Interior.
Author
The primary author of this final rule was Karen Budd-Falen, Deputy
Solicitor, Parks and Wildlife, Immediate Office of the Solicitor,
Department of the Interior, 1849 C Street NW, Washington, DC 20240.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, for the reasons discussed above in the preamble, we
hereby amend part 17, subchapter B of chapter I, title 50 of the Code
of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citations for part 17 are revised to read as follows:
Authority: 16 U.S.C. 1361-2012;1407; 1531-2012;1544; and 4201-
2012;4245, unless otherwise noted.
0
2. Amend Sec. 17.95(b), the entry for ``Northern Spotted Owl (Strix
occidentalis caurina),'' by revising paragraphs (6) through (8),
introductory text and second map of (9), and (10) through (19) to read
as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Northern Spotted Owl (Strix occidentalis caurina)
* * * * *
(6) Note: Index map of critical habitat units for the northern
spotted owl in the State of Washington follows:
[[Page 4845]]
[GRAPHIC] [TIFF OMITTED] TR15JA21.025
[[Page 4846]]
(7) Note: Index map of critical habitat units for the northern
spotted owl in the State of Oregon follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.026
[[Page 4847]]
(8) Note: Index map of critical habitat units for the northern
spotted owl in the State of California follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.027
[[Page 4848]]
(9) Unit 1: North Coast Ranges and Olympic Peninsula, Oregon and
Washington. Maps of Unit 1: North Coast Ranges and Olympic Peninsula,
Oregon and Washington, follow:
* * * * *
[GRAPHIC] [TIFF OMITTED] TR15JA21.028
[[Page 4849]]
(10) Unit 2: Oregon Coast Ranges, Oregon. Map of Unit 2, Oregon
Coast Ranges, Oregon, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.029
[[Page 4850]]
(11) Unit 3: Redwood Coast, Oregon and California. Map of Unit 3,
Redwood Coast, Oregon and California, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.030
[[Page 4851]]
(12) Unit 4: West Cascades North, Washington. Map of Unit 4, West
Cascades North, Washington, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.031
[[Page 4852]]
(13) Unit 5: West Cascades Central, Washington. Map of Unit 5, West
Cascades Central, Washington, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.032
[[Page 4853]]
(14) Unit 6: West Cascades South, Oregon. Map of Unit 6, West
Cascades South, Oregon, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.033
[[Page 4854]]
(15) Unit 7: East Cascades North, Washington and Oregon. Maps of
Unit 7, East Cascades North, Washington and Oregon, follow:
[GRAPHIC] [TIFF OMITTED] TR15JA21.034
[[Page 4855]]
[GRAPHIC] [TIFF OMITTED] TR15JA21.035
[[Page 4856]]
(16) Unit 8: East Cascades South, California and Oregon. Map of
Unit 8, East Cascades South, California and Oregon, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.036
[[Page 4857]]
(17) Unit 9: Klamath West, Oregon and California. Map of Unit 9:
Klamath West, Oregon and California, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.037
[[Page 4858]]
(18) Unit 10: Klamath East, California and Oregon. Map of Unit 10:
Klamath East, California and Oregon, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.038
[[Page 4859]]
(19) Unit 11: Interior California Coast, California. Map of Unit
11: Interior California Coast, California, follows:
[GRAPHIC] [TIFF OMITTED] TR15JA21.039
[[Page 4860]]
* * * * *
Aurelia Skipwith,
Director,
U.S. Fish and Wildlife Service.
[FR Doc. 2021-00484 Filed 1-13-21; 11:15 am]
BILLING CODE 4333-15-P