[Federal Register Volume 65, Number 141 (Friday, July 21, 2000)]
[Proposed Rules]
[Pages 45336-45353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18407]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AG29
Endangered and Threatened Wildlife and Plants; Proposed
Designation of Critical Habitat for the Mexican Spotted Owl
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; availability of supplementary information.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose the
designation of critical habitat pursuant to the Endangered Species Act
of 1973, as amended (Act), for the Mexican spotted owl (Strix
occidentalis lucida) (owl). The owl inhabits canyon and montane forest
habitats across a range that extends from southern Utah and Colorado,
through Arizona, New Mexico, and west Texas, to the mountains of
central Mexico. We propose to designate approximately 5.5 million
hectares (ha) (13.5 million acres (ac)) of critical habitat in Arizona,
Colorado, New Mexico, and Utah, mostly on federal lands.
If this proposed rule is finalized, section 7(a)(2) of the Act
would require that Federal agencies ensure that actions they fund,
authorize, or carry out are not likely to result in the ``destruction
or adverse modification'' of critical habitat. Section 4 of the Act
requires us to consider economic and other relevant impacts of
specifying any particular area as critical habitat. We request data and
comments from the public and all interested parties on all aspects of
this proposal, including data on economic and other impacts of the
designation. A draft analysis of the economic and other relevant
impacts of this proposal that will be available for review and comments
on during the public comment period for this proposal. We will announce
the availability of this analysis in a future Federal Register notice
and local newspapers. We also have prepared a draft environmental
assessment for this proposal and are accepting public comments on the
draft document.
DATES: We will consider all comments on the proposed rule, the draft
economic analysis, and draft Environmental Assessment received from
interested parties by September 19, 2000. We will hold six public
hearings (see Public Hearings in the SUPPLEMENTARY INFORMATION section
of this rule for dates).
ADDRESSES: 1. Send your comments on this proposed rule, draft economic
analysis, and draft environmental assessment to the New Mexico
Ecological Services Field Office, 2105 Osuna Road NE, Albuquerque, New
Mexico 87113.
2. The complete file for this proposed rule will be available for
public inspection, by appointment, during normal business hours at the
New Mexico Ecological Services Field Office, 2105 Osuna Road NE,
Albuquerque, New Mexico 87113. The draft environmental assessment is
available by writing to the above address. We will specify the
availability of the draft economic analysis in local newspapers and
through a notice in the Federal Register once it has been completed.
3. For locations of the public hearings, see Public Hearings in the
SUPPLEMENTARY INFORMATION section of this rule.
FOR FURTHER INFORMATION CONTACT: Joy Nicholopoulos, Field Supervisor,
New Mexico Ecological Services Field Office, at the above address;
telephone 505/346-2525, facsimile 505/346-2542.
SUPPLEMENTARY INFORMATION:
Background
The Mexican spotted owl (Strix occidentalis lucida) is one of three
subspecies of spotted owl occurring in the United States; the other two
are the northern spotted owl (S. o. caurina) and the California spotted
owl (S. o. occidentalis). The Mexican spotted owl is distinguished from
the California and northern subspecies chiefly by geographic
distribution and plumage. The Mexican spotted owl is mottled in
appearance with irregular white and brown spots on its abdomen, back,
and head. The spots of the Mexican spotted owl are larger and more
numerous than in the other two subspecies, giving it a lighter
appearance.
The Mexican spotted owl has the largest geographic range of the
three subspecies. The range extends north from Aguascalientes, Mexico,
through the mountains of Arizona, New Mexico, and western Texas, to the
canyons of southern Utah and southwestern Colorado, and the Front Range
of central Colorado. Much remains unknown about the species'
distribution in Mexico, where much of the owl's range has not been
surveyed. The owl occupies a fragmented distribution throughout its
United States range, corresponding to the availability of forested
mountains and canyons, and in some cases, rocky canyonlands. Although
there are no estimates of the owl's historical population size, its
[[Page 45337]]
historical range and present distribution are thought to be similar.
According to the Recovery Plan for the Mexican Spotted Owl (USDI
1995) (Recovery Plan), 91 percent of owls known to exist in the United
States between 1990 and 1993 occurred on land administered by the U.S.
Forest Service (FS); therefore, the primary administrator of lands
supporting owls in the United States is the FS. Most owls have been
found within Region 3 of the FS, which includes 11 National Forests in
New Mexico and Arizona. FS Regions 2 and 4, including two National
Forests in Colorado and three in Utah, support fewer owls. The range of
the owl is divided into 11 Recovery Units (RU), 5 in Mexico and 6 in
the United States, as identified in the Recovery Plan. The Recovery
Plan also identifies recovery criteria and provides distribution,
abundance, and density estimates by RU. Of the RUs in the United
States, the Upper Gila Mountain RU, located in the central portion of
the species' U.S. range in central Arizona and west-central New Mexico,
has the greatest known concentration of owl sites (55.9 percent of U.S.
population). Owls here use a wide variety of habitat types, but are
most commonly found inhabiting mature mixed-conifer and ponderosa pine-
Gambel oak forests. The Basin and Range-East RU, with 16.0 percent of
the U.S. population, encompassing central and southern New Mexico, and
includes numerous parallel mountain ranges separated by alluvial
valleys and broad, flat basins. Most breeding spotted owls occur in
mature mixed-conifer forest. The Basin and Range-West RU contains
mountain ranges separated by non-forested habitat. These ``sky island''
mountains of southern Arizona and far-western New Mexico contain mid-
elevation mixed-conifer forest and lower elevation Madrean pine-oak
woodlands that supports 13.6 percent of the spotted owls. Colorado
Plateau RU contains 8.2 percent of the U.S. population of Mexican
spotted owls. This large unit includes northern Arizona, southern Utah,
southwestern Colorado, and northwestern New Mexico, with owls generally
confined to deeply incised canyon systems and wooded areas of isolated
mountain ranges. Southern Rocky Mountains-New Mexico RU, with 4.5
percent of the population, consists of the mountain ranges of northern
New Mexico. Owls in this unit typically inhabit mature mixed-conifer
forest in steep canyons. The smallest percentage of spotted owls (1.8
percent) occurs in the Southern Rocky Mountains-Colorado RU. This unit
includes the southern Rocky Mountains in Colorado, where spotted owls
are largely confined to steep canyons, generally with significant rock
faces and various amounts of mature coniferous forest. The critical
habitat units identified in this proposal are all within these RUs.
A reliable estimate of the numbers of owls throughout its entire
range is not currently available. Using information gathered by Region
3 of the FS, Fletcher (1990) calculated that 2,074 owls existed in
Arizona and New Mexico in 1990. Based on more up-to-date information,
we subsequently modified Fletcher's calculations and estimated a total
of 2,160 owls throughout the United States (USDI 1991). However, these
numbers are not considered reliable estimates of current population
size for a variety of statistical reasons. While the number of owls
throughout the range is currently not available, the Recovery Plan
reports an estimate of owl sites based on 1990-1993 data. Surveys from
1990 through 1993 indicate one or more owls have been observed at a
minimum of 758 sites in the United States and 19 sites in Mexico. In
addition, these surveys indicate that the species persists in most
locations reported prior to 1989, with the exception of riparian
habitats in the lowlands of Arizona and New Mexico, and all previously
occupied areas in the southern States of Mexico. Owl surveys since 1993
have provided new location data, increasing the knowledge of owl
distribution and abundance. However, information summarized within the
Recovery Plan was the last comprehensive effort to estimate the total
number of owls.
Mexican spotted owls nest, roost, forage, and disperse in a diverse
array of biotic communities. Nesting habitat is typically in areas with
complex forest structure or rocky canyons, and contains uneven-aged,
multi-storied mature or old-growth stands that have high canopy closure
(Ganey and Balda 1989, USDI 1991). In the northern portion of the range
(southern Utah and Colorado), most nests are in caves or on cliff
ledges in steep-walled canyons. Elsewhere, the majority of nests appear
to be in Douglas fir (Pseudotsuga menziesii) trees (Fletcher and Hollis
1994, Seamans and Gutierrez 1995). A wide variety of tree species is
used for roosting; however, Douglas fir is the most commonly used
species (Ganey 1988, Fletcher and Hollis 1994, Young et al. 1998). Owls
generally use a wider variety of forest conditions for foraging than
they use for nesting/roosting.
Seasonal movement patterns of Mexican spotted owls are variable.
Some individuals are year-round residents within an area, some remain
in the same general area but show shifts in habitat use patterns, and
some migrate considerable distances (20-50 kilometers (km)) (12-31
miles (mi)) during the winter, generally migrating to more open habitat
at lower elevations (Ganey and Balda 1989b, Willey 1993, Ganey et al.
1998). The home-range size of Mexican spotted owls appears to vary
considerably among habitats and/or geographic areas (USDI 1995),
ranging in size from 261-1,487 ha (647-3,688 ac) for individuals birds,
and 381-1,551 ha (945-3,846 ac) for pairs (Ganey and Balda 1989b, Ganey
et al. 1999). Little is known about habitat use by juveniles dispersing
soon after fledging. Ganey et al. (1998) found dispersing juveniles in
a variety of habitats ranging from high-elevation forests to pinon-
juniper woodlands and riparian areas surrounded by desert grasslands.
Mexican spotted owls do not nest every year. The owl's reproductive
pattern varies somewhat across its range. In Arizona, courtship usually
begins in March with pairs roosting together during the day and calling
to each other at dusk (Ganey 1988). Eggs are typically laid in late
March or early April. Incubation begins shortly after the first egg is
laid, and is performed entirely by the female (Ganey 1988). The
incubation period is about 30 days (Ganey 1988). During incubation and
the first half of the brooding period, the female leaves the nest only
to defecate, regurgitate pellets, or receive prey from the male, who
does all or most of the hunting (Forsman et al. 1984, Ganey 1988). Eggs
usually hatch in early May, with nestling owls fledging 4 to 5 weeks
later, and then dispersing in mid-September to early October (Ganey
1988).
Little is known about the reproductive output for the spotted owl.
It varies both spatially and temporally (White et al. 1995), but the
subspecies demonstrates an average annual rate of about one young per
pair. Based on short-term population and radio tracking studies, and
longer-term monitoring studies, the probability of an adult owl
surviving from 1 year to the next is 80 to 90 percent. Average annual
juvenile survival is considerably lower, at 6 to 29 percent, although
it is believed these estimates may be artificially low due to the high
likelihood of permanent dispersal from the study area, and the lag of
several years before marked juveniles reappear as territory holders and
are detected as survivors through recapture efforts (White et al.
1995). Little research has been conducted on the causes of mortality,
but predation by great horned owls (Bubo virginianus), northern
goshawks (Accipter gentilis),
[[Page 45338]]
red-tailed hawks (Buteo jamaicensis), and golden eagles (Aquila
chrysaetos), as well as starvation, and collisions (e.g., with cars,
powerlines), may all be contributing factors.
Mexican spotted owls consume a variety of prey throughout their
range, but commonly eat small- and medium-sized rodents such as
woodrats (Neotoma spp.), peromyscid mice (Peromyscus spp.), and
microtine voles (Microtus spp.). Owls also may consume bats, birds,
reptiles, and arthropods (Ward and Block 1995). Each prey species uses
a unique habitat, so that the differences in the owl's diet across its
range likely reflect geographic variation in population densities and
habitats of both the prey and the owl (Ward and Block 1995). Deer mice
(P. maniculatus) are widespread in distribution in comparison to brush
mice (P. boylei), which are restricted to drier, rockier substrates,
with sparse tree cover. Mexican woodrats (N. mexicana) are typically
found in areas with considerable shrub or understory tree cover and
high log volumes or rocky outcrops. Mexican voles (M. mexicanus) are
associated with high herbaceous cover, primarily grasses, whereas long-
tailed voles (M. longicaudus) are found in dense herbaceous cover,
primarily forbs, with many shrubs and limited tree cover.
Two primary reasons were cited for listing the owl as threatened in
1993: (1) Historical alteration of its habitat as the result of timber
management practices, specifically the use of even-aged silviculture,
and the threat of these practices continuing; and (2) the danger of
catastrophic wildfire. The Recovery Plan for the owl outlines
management actions that land management agencies and Indian tribes
should undertake to remove recognized threats and recover the spotted
owl. This critical habitat designation is based on recovery needs
identified in the Recovery Plan.
Previous Federal Actions
The entire spotted owl species (Strix occidentalis) was classified
in the January 6, 1989, Animal Notice of Review (54 FR 554) as a
category 2 candidate species. A category 2 candidate species was one
for which listing may have been appropriate, but for which additional
biological information was needed to support a proposed rule.
On December 22, 1989, we received a petition submitted by Dr. Robin
D. Silver requesting the listing of the Mexican spotted owl as an
endangered or threatened species. On February 27, 1990, we found that
the petition presented substantial information indicating that listing
may be warranted and initiated a status review. In conducting our
review, we published a notice in the Federal Register (55 FR 11413) on
March 28, 1990, requesting public comments and biological data on the
status of the Mexican spotted owl. On February 20, 1991, we made a
finding, based on the contents of the status review, that listing the
Mexican spotted owl under section 4(b)(3)(B)(I) of the Act was
warranted. Notice of this finding was published in the Federal Register
on April 11, 1991 (56 FR 14678). We published a proposed rule to list
the Mexican spotted owl as threatened without critical habitat in the
Federal Register on November 4, 1991 (56 FR 56344).
We published a final rule listing the Mexican spotted owl as a
threatened species on March 16, 1993 (58 FR 14248). Section 4(a)(3) of
the Act requires that, to the maximum extent prudent and determinable,
we designate critical habitat at the time a species is determined to be
endangered or threatened. The Act's implementing regulations (50 CFR
424.12(a)(2)) state that critical habitat is not determinable if
information sufficient to perform required analyses of the impacts of
the designation is lacking or if the biological needs of the species
are not sufficiently well known to permit identification of an area as
critical habitat. At the time of listing, we found that, although
considerable knowledge of owl habitat needs had been gathered in recent
years, habitat maps in sufficient detail to accurately delineate these
areas were not available. After the listing, we began gathering the
data necessary to develop a proposed rule to designate critical
habitat.
On June 23, 1993, and again on August 16, 1993, we received
petitions to remove the Mexican spotted owl from the List of Endangered
and Threatened Wildlife. In subsequent petition findings published in
the Federal Register (58 FR 49467, 59 FR 15361), we addressed the
issues raised in the petitions and determined that the delisting
petitions did not present substantial information indicating that
delisting the Mexican spotted owl was warranted. The petitioners
challenged this decision in Federal District Court in New Mexico in
Coalition of Arizona/New Mexico Counties for Stable Economic Growth v.
United States Fish and Wildlife Service, et al., CIV 94-1058-MV. The
district court held that the Coalition failed to show that the Service
violated any procedural rules that amounted to more than harmless error
and failed to demonstrate that the Service acted arbitrarily or
capriciously in listing or refusing to delist the Mexican spotted owl.
A judgment was issued by the district court denying the plaintiff's
petition to delist the owl.
On February 14, 1994, a lawsuit was filed in Federal District Court
in Arizona against the Department of the Interior for failure to
designate critical habitat for the owl (Dr. Robin Silver, et al. v.
Bruce Babbitt, et al., CIV-94-0337-PHX-CAM). On October 6, 1994, the
Court ordered us to ``* * * publish a proposed designation of critical
habitat, including economic exclusion pursuant to 16 U.S.C. Sec.
1533(b)(2), no later than December 1, 1994, [and] publish its final
designation of critical habitat, following the procedure required by
statute and Federal regulations for notice and comment,'' by submitting
the final rule to the Federal Register no later than May 27, 1995.
Under an extension granted by the court, we issued the proposed rule to
designate critical habitat on December 7, 1994 (59 FR 63162).
We prepared a draft economic analysis, and notice of its
availability was published in the Federal Register on March 8, 1995 (60
FR 12728; 60 FR 12730). The publication also proposed several revisions
to the original proposal, solicited additional information and
comments, opened an additional 60-day comment period extending to May
8, 1995, and announced the schedule and location of public hearings. We
published a final rule designating critical habitat for the Mexican
spotted owl on June 6, 1995 (60 FR 29914).
After the listing of the Mexican spotted owl, a Recovery Team was
appointed by our Southwestern Regional Director to develop a Recovery
Plan in March 1993. The Team assembled all available data on Mexican
spotted owl biology, the threats faced across the subspecies' range,
current protection afforded the subspecies, and other pertinent
information. Using that information, the Team developed the Recovery
Plan, which was finalized in the fall of 1995. In 1996, the Southwest
Region of the Forest Service incorporated elements of the Mexican
Spotted Owl Recovery Plan within their Forest Plan Amendments.
In 1996, the Tenth Circuit Court of Appeals in Catron County Board
of Commissioners v. United States Fish and Wildlife Service, 75 F.3d
1429, 1439 (10th Cir. 1996), ruled that the Service had to comply with
the National Environmental Policy Act (NEPA) before designating
critical habitat for two desert fish, the spikedace and loach minnow.
In addition, a federal district court in New Mexico later set aside the
[[Page 45339]]
final rule designating critical habitat for the owl and forbid the
Service from enforcing critical habitat for the owl (Coalition of
Arizona-New Mexico Counties for Stable Economic Growth v. U.S. Fish and
Wildlife Service, No. 95-1285-M Civil). As a result of these court
rulings, we removed the critical habitat designation for the owl from
the Code of Federal Regulations on March 25, 1998 (63 FR 14378).
On March 13, 2000, the United States District Court for the
District of New Mexico, (Southwest Center for Biological Diversity and
Silver v. Babbitt and Clark, CIV 99-519 LFG/LCS-ACE), ordered us to
propose critical habitat within 4 months of the court order, and to
complete and publish a final designation of critical habitat for the
Mexican spotted owl by January 15, 2001.
Critical Habitat
Critical habitat is defined in section 3(5)(A) of the Act as--(i)
The specific areas within the geographic area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) Essential to the conservation
of the species and (II) that may require special management
considerations or protection and; (ii) specific areas outside the
geographic area occupied by a species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The term ``conservation,'' as defined in section 3(3) of the
Act, means ``to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this Act are no longer
necessary'' (i.e., the species is recovered and removed from the list
of endangered and threatened species).
Section 4(b)(2) of the Act requires that we base critical habitat
designation on the best scientific and commercial data available,
taking into consideration the economic impact, and any other relevant
impact, of specifying any particular area as critical habitat. We may
exclude areas from critical habitat designation if we determine that
the benefits of exclusion outweigh the benefits of including the areas
as critical habitat, provided the exclusion will not result in the
extinction of the species.
Designation of critical habitat helps focus conservation activities
by identifying areas that are essential to the conservation of the
species, regardless of whether they are currently occupied by the
listed species, thus alerting the public and land managing agencies to
the importance of an area to conservation. Critical habitat also
identifies areas that may require special management or protection.
Critical habitat receives protection from destruction or adverse
modification through required consultation under section 7 of the Act
with regard to actions carried out, funded, or authorized by a Federal
agency. Aside from the added protection provided under section 7, the
Act does not provide other forms of protection to lands designated as
critical habitat.
Section 7(a)(2) of the Act requires Federal agencies to consult
with us to ensure that any action they authorize, fund, or carry out is
not likely to jeopardize the continued existence of a threatened or
endangered species, or result in the destruction or adverse
modification of critical habitat. In 50 CFR 402.02, ``jeopardize the
continued existence'' (of a species) is defined as engaging in an
activity likely to result in an appreciable reduction in the likelihood
of survival and recovery of a listed species. ``Destruction or adverse
modification'' (of critical habitat) is defined as a direct or indirect
alteration that appreciably diminishes the value of the entire critical
habitat designation for the survival and recovery of the listed species
for which critical habitat was designated. Thus, the definitions of
``jeopardy'' to the species and ``adverse modification'' of critical
habitat are nearly identical.
Designating critical habitat does not, in itself, lead to recovery
of a listed species. Designation does not create a management plan,
establish numerical population goals, prescribe specific management
actions (inside or outside of critical habitat), or directly affect
areas not designated as critical habitat. Specific management
recommendations for areas designated as critical habitat are most
appropriately addressed in recovery, conservation and management plans,
and through section 7 consultations and section 10 permits.
Primary Constituent Elements
In accordance with section 3(5)(A)(I) of the Act and regulations at
50 CFR 424.12, in determining which areas to propose as critical
habitat, we are required to base critical habitat designation on the
best scientific and commercial data available and to consider those
physical and biological features (primary constitute elements) that are
essential to conservation of the species and that may require special
management considerations or protection. Such requirements include, but
are not limited to--space for individual and population growth, and for
normal behavior; food, water, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing of offspring; and habitats that are protected from disturbance
or are representative of the historic geographical and ecological
distributions of a species.
The primary constituent elements essential to the conservation of
the Mexican spotted owl include those physical and biological features
that support nesting, roosting, and foraging. These elements were
determined from studies of Mexican spotted owl behavior and habitat use
throughout the range of the owl. Although the vegetative communities
and structural attributes used by the owl vary across the range of the
subspecies, they consist primarily of warm-temperate and cold-temperate
forests, and, to a lesser extent, woodlands and riparian deciduous
forests. The mixed-conifer community appears to be most frequently used
community throughout most portions of the subspecies' range (Skaggs and
Raitt 1988; Ganey and Balda 1989, 1994; USDI 1995). Although the
structural characteristics of Mexican spotted owl habitat varies
depending on uses of the habitat (e.g., nesting, roosting, foraging)
and variations in the plant communities over the range of the
subspecies, some general attributes are common to the subspecies' life-
history requirements throughout its range.
We determined the primary constituent elements for Mexican spotted
owl from studies of their habitat requirements and the information
provided in the Recovery Plan (USDI 1995 and references therein). Since
owl habitat can include both canyon and forested areas, we identified
primary constituent elements in both areas. The primary constituent
elements that occur in mixed conifer, pine-oak, and riparian forest
types, as described in the Recovery Plan, have the following
attributes:
--High basal area of large diameter trees;
--Moderate to high canopy closure;
--Wide range of tree sizes suggestive of uneven-age stands;
--Multi-layered canopy with large overstory trees of various species;
--High snag basal area;
--High volumes of fallen trees and other woody debris;
--High plant species richness, including hardwoods;
--Adequate levels of residual plant cover to maintain fruits, seeds,
and regeneration to provide for the needs of Mexican spotted owl prey
species.
[[Page 45340]]
For canyon habitat, the primary constituent elements include the
following attributes:
--Cooler and often more humid conditions than the surrounding area;
--Clumps or stringers of trees and/or canyon wall containing crevices,
ledges, or caves;
--High percent of ground litter and woody debris;
--Riparian or woody vegetation (although not at all sites).
The forest habitat attributes listed above usually develop with
increasing forest age, but their occurrence may vary by location, past
forest management practices or natural disturbance events, forest type,
and productivity. These characteristics may also develop in younger
stands, especially when the stands contain remnant large trees or
patches of large trees from earlier stands. Certain forest management
practices may also enhance tree growth and mature stand characteristics
where the older, larger trees are allowed to persist.
Canyon habitats used for nesting and roosting are typically
characterized by cooler conditions found in steep, narrow canyons,
often containing crevices, ledges, and/or caves. These canyons
frequently contain small clumps or stringers of ponderosa pine, Douglas
fir, white fir, and/or pinon-juniper. Deciduous riparian and upland
tree species may also be present. Adjacent uplands are usually
vegetated by a variety of plant associations including pinon-juniper
woodland, desert scrub vegetation, ponderosa pine-Gambel oak, ponderosa
pine, or mixed conifer. Owl habitat may also exhibit a combination of
attributes between the forested and canyon types.
Criteria for Identifying Critical Habitat Units
The primary objective in designating critical habitat is to
identify existing and potential Mexican spotted owl habitat considered
essential for the conservation of the subspecies, and to highlight
specific areas where management considerations should be given highest
priority. In proposing critical habitat for the owl, we reviewed the
overall approach to the conservation of the species undertaken by
local, State, tribal, and Federal agencies and private individuals and
organizations since the species' listing in 1993. We also considered
the features identified as necessary for recovery, as outlined in the
species' Recovery Plan. We reviewed the previous proposed (59 FR 63162)
and final critical habitat rules (60 FR 29914), new location data,
habitat requirements and definitions described in the Recovery Plan,
and habitat information provided by FS biologists as well as utilized
our own expertise.
The previous critical habitat designation included extensive use
and evaluation of owl habitat and territory maps, vegetation maps,
aerial photography, and field verification to identify areas for
designation as critical habitat. Several qualitative criteria
(currently suitable habitat, large contiguous blocks of habitat,
occupied habitat, rangewide distribution, the need for special
management or protection, adequacy of existing regulatory mechanisms)
were considered when identifying critical habitat areas. The previous
designation was done prior to the completion of the Recovery Plan for
the Mexican Spotted Owl. For this proposal, we examined the previously
designated critical habitat units, but relied primarily on the recovery
plan to provide guidance. We expanded or combined previous units to
comply with the Recovery Plan. In doing so we included wilderness areas
and other areas where additional owls have been located. In addition,
we included areas where owls could occur based on the presence of the
appropriate topography, elevation, and habitat types (protected and
restricted habitat areas as defined in the Recovery Plan).
Proposed Critical Habitat Designation
The proposed critical habitat constitutes our best assessment of
areas needed for the conservation of the owl and is based on the best
scientific and commercial information available. The proposed areas are
essential to the conservation of the species because they either
currently support populations of the owl, or because they currently
support the necessary habitat requirements for nesting, roosting, and
foraging (see description of primary constituent elements). Thus, the
proposed critical habitat is limited to areas within the identified RUs
that meet the definition of protected and restricted habitat, as
described in the Recovery Plan. Although a recovery plan is not a
regulatory document, its management recommendations were considered in
developing this proposed critical habitat rule. Excluded from the
designation are those areas in restricted habitat that do not contain
the primary constituent elements.
The Mexican Spotted Owl Recovery Plan provides for three levels of
habitat management: Protected areas, restricted areas, and other forest
and woodland types. Protected habitat includes all known owl sites, all
areas within mixed conifer or pine-oak types with slopes greater than
40 percent where timber harvest has not occurred in the past 20 years,
and all reserved (designated Wilderness areas) lands. The Recovery Plan
recommends that protected areas, or Protected Activity Centers (PACs),
be designated around known owl sites. A PAC would include an area of at
least 243 ha (600 ac) that includes the best nesting and roosting
habitat in the area. Based on available data, the recommended size for
a PAC includes, on average, 75 percent of the foraging area of an owl.
Restricted habitat includes mixed conifer forest, pine-oak forest,
and riparian areas outside of protected areas described above (i.e.,
areas that do not currently contain owls). These areas are essential to
the conservation of the species because the Recovery Plan identifies
these areas as providing additional owl habitat for future occupancy.
In restricted habitat, only areas that contain the primary constituent
elements are designated as critical habitat. These areas, however, are
important to owl conservation and should continue to be managed to
attain the primary constituent elements.
Other forest and woodland types (ponderosa pine, spruce-fir, pinon-
juniper, and aspen) are not expected to provide nesting or roosting
habitat for the Mexican spotted owl (except when associated with rock
canyons). Thus, these other forest and woodland types are not
considered to be critical habitat unless specifically delineated within
PACs. Although the Recovery Plan does not provide owl-specific
guidelines to managing these areas, these and other habitat types may
provide important foraging and dispersal habitat for the owl,
particularly if adjacent to protected or restricted areas. Therefore,
these areas should be managed for landscape diversity, mimicking
natural disturbance patterns, incorporating natural variation in
stands, and retaining special features such as snags and large trees
(USDI 1995). We anticipate that species concerns in these areas can be
adequately addressed under the Act through section 7 consultation, the
section 9 prohibition against taking listed species, the section 10
habitat conservation planning process, and through other appropriate
State and Federal statutes and regulations.
Critical habitat units are being proposed in portions of
Bernalillo, Catron, Cibola, Colfax, Grant, Hidalgo, Lincoln, Los
Alamos, McKinley, Mora, Otero, Rio Arriba, San Juan, San Miguel,
Sandoval, Santa Fe, Sierra, Socorro, Taos, Torrance, Valencia Counties
in
[[Page 45341]]
New Mexico; Apache, Cochise, Coconino, Gila, Graham, Greenlee,
Maricopa, Mohave, Navajo, Pima, Pinal, Santa Cruz, Yavapai Counties in
Arizona; Carbon, Emery, Garfield, Grand, Iron, Kane, San Juan,
Washington, Wayne Counties in Utah; and Custer, Douglas, El Paso,
Fremont, Huerfano, Jefferson, Pueblo, and Teller Counties in Colorado,
on the maps. Precise legal descriptions of each critical habitat unit
are on file at the New Mexico Ecological Services Field Office.
With the exception of some tribal lands (See discussion under
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act, below) and low-density areas, this
proposed designation includes all habitat on Federal and tribal lands
used by currently known populations of Mexican spotted owls. The
inclusion of both occupied and currently unoccupied areas in this
critical habitat proposal is in accordance with section 3(5)(A)(I) of
the Act, which provides that areas outside the geographical area
currently occupied by the species may meet the definition of critical
habitat upon a determination that they are essential for the
conservation of the species. We find that the inclusion of currently
unoccupied areas identified in this rule as having one or more
constituent elements is essential for conservation of the owl.
We did not designate some areas that are known to have widely
scattered owl sites, low population densities, and/or marginal habitat
quality, which are not considered to be essential to this species'
survival or recovery. These areas include Dinosaur National Park in
northwest Colorado; Mesa Verde National Park, Ute Mountain Ute
Reservation, Southern Ute Reservation, other Forest Service and Bureau
of Land Management land in southwest Colorado; and the Guadalupe and
Davis Mountains in southwest Texas. Isolated mountains on the Arizona
Strip, such as Mount Trumbull, were also not included due to their
small size, isolation, and lack of information about owls in the area.
State and private lands are not included in this proposed
designation. The overwhelming majority of Mexican spotted owl records
are from Federal and Tribal lands, indicating that those lands are
essential to the species' recovery. Some of the State (79,030 ha
(195,288 ac)) and private (257,872 ha (637,216 ac)) parcels within the
critical habitat boundaries likely support mid-and higher-elevation
forests that are capable of providing nesting and roosting habitat.
However, given that the majority of the owl's range occurs on Federal
and tribal lands, we do not feel that State and private lands are
essential to the recovery of the subspecies and should not be
designated as critical habitat.
Given the above, we believe that Mexican spotted owl conservation
can best be achieved by management of Federal and Tribal lands, and
that State and private lands are not essential to the species'
recovery. Where feasible, proposed critical habitat boundaries were
drawn so as to exclude State and private lands. However, the short
amount of time allowed by the court to complete this proposed
designation did not allow us to conduct the fine-scale mapping
necessary to physically exclude the smaller and widely scattered State
and private parcels that remain within the proposed boundaries. Those
areas under State or private ownership are therefore excluded from the
proposed designation by definition.
The approximate gross area of proposed critical habitat by State
and land ownership is shown in Table 1. Actual proposed critical
habitat is limited to areas within the proposed boundaries that meet
the definition of protected and restricted habitat in the Recovery
Plan. Therefore, the area actually proposed as critical habitat is
considerably less than the gross acreage indicated in Table 1.
[[Page 45342]]
Table 1.--Critical Habitat By Land Ownership and State in Hectares (Acres)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Arizona New Mexico Colorado Utah Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Forest Service..................................................... 1,330,339 (3,287,339) 1,688,295 (4,171,869) 152,096 (375,837) 111,133 (274,616) 3,281,863 (8,109,661)
Bureau of Land Management.......................................... 4,903 (12,115) 5,879 (14,528) 60,255 (148,894) 666,270 (1,646,388) 737,307 (1,821,925)
National Park Service.............................................. 322,069 (795,850) 12,618 (31,179) 0 260,346 (643,328) 595,033 (1,470,357)
Department of Defense.............................................. 9,728 (24,038) 1,682 (4,157) 17,966 (44,394) 0 29,376 (72,589)
Bureau of Reclamation.............................................. 0 0 0 109,610 (270,853) 109,610 (270,853)
Unknown Federal \a\................................................ 0 0 0 156,207 (385,995) 156,207 (385,995)
Tribal............................................................. 342,503 (846,344) 165,333 (408,548) 0 40,983 (101,272) 548,819 (1,356,164)
----------------------------------------------------------------------------------------------------------------------------
Total.......................................................... 2,009,542 (4,630,281) 1,873,807 (4,630,281) 230,317 (569,125) 1,344,549 (3,322,452) 5,458,215 (13,487,544)
Total critical habitat units................................... 37\b\ 31\b\ 2 5 72
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Includes land identified in the current Utah land ownership file as National Recreation Area or National Recreation Area/Power Withdrawal; Federal land ownership is unclear (may be NPS,
BOR, or other).
\b\ Counts three critical habitat units that overlap two states.
[[Page 45343]]
Effect of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out do
not destroy or adversely modify critical habitat to the extent that the
action appreciably diminishes the value of the critical habitat for the
survival and recovery of the species. Individuals, organizations,
States, local governments, and other non-Federal entities are affected
by the designation of critical habitat only if their actions occur on
Federal lands, require a Federal permit, license, or other
authorization, or involve Federal funding.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated or proposed. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act require Federal agencies to confer
with us on any action that is likely to jeopardize the continued
existence of a proposed species or to result in destruction or adverse
modification of proposed critical habitat. Conference reports provide
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The conservation
recommendations in a conference report are advisory.
We may issue a formal conference report if requested by a Federal
agency. Formal conference reports on proposed critical habitat contain
a biological opinion that is prepared according to 50 CFR 402.14, as if
critical habitat were designated. We may adopt the formal conference
report as a biological opinion if the critical habitat is designated,
if no significant new information or changes in the action alter the
content of the opinion (see 50 CFR 402.10(d)).
If a species is subsequently listed or critical habitat is
designated, then section 7(a)(2) requires Federal agencies to ensure
that activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of such a species or destroy or
adversely modify its critical habitat. If a Federal action may affect a
listed species or its critical habitat, the responsible Federal agency
must enter into consultation with us. Regulations at 50 CFR 402.16 also
require Federal agencies to reinitiate consultation in instances where
we have already reviewed an action for its effects on a listed species
if critical habitat is subsequently designated. Consequently, some
Federal agencies may request reinitiation of consultation or
conferencing with us on actions for which formal consultation has been
completed, if those actions may affect designated critical habitat or
adversely modify or destroy proposed critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy or the destruction or adverse modification
of critical habitat, we also provide reasonable and prudent
alternatives to the project, if any are identifiable. Reasonable and
prudent alternatives are defined at 50 CFR 402.02 as alternative
actions identified during consultation that can be implemented in a
manner consistent with the intended purpose of the action, that are
consistent with the scope of the Federal agency's legal authority and
jurisdiction, that are economically and technologically feasible, and
that the Director believes would avoid the likelihood of jeopardizing
the continued existence of listed species or resulting in the
destruction or adverse modification of critical habitat. Reasonable and
prudent alternatives can vary from slight project modifications to
extensive redesign or relocation of the project. Costs associated with
implementing a reasonable and prudent alternative are similarly
variable.
Section 4(b)(8) of the Act requires us to describe in any proposed
or final regulation that designates critical habitat a description and
evaluation of those activities involving a Federal action that may
adversely modify such habitat or that may be affected by such
designation. When determining whether any of these activities may
adversely modify critical habitat, we base our analysis on the effects
of the action on the entire critical habitat area and not just on the
portion where the activity will occur. Adverse effects on constituent
elements or segments of critical habitat generally do not result in an
adverse modification determination unless that loss, when added to the
environmental baseline, is likely to appreciably diminish the
capability of the critical habitat to satisfy essential requirements of
the species. In other words, activities that may destroy or adversely
modify critical habitat include those that alter the primary
constituent elements (defined above) to an extent that the value of
critical habitat for both the survival and recovery of the Mexican
spotted owl is appreciably reduced.
To properly portray the effects of critical habitat designation, we
must first compare the section 7 requirements for actions that may
affect critical habitat with the requirements for actions that may
affect a listed species. Section 7 prohibits actions funded,
authorized, or carried out by Federal agencies from jeopardizing the
continued existence of a listed species or destroying or adversely
modifying the listed species' critical habitat. Actions likely to
``jeopardize the continued existence'' of a species are those that
would appreciably reduce the likelihood of the species' survival and
recovery (50 CFR 402.02). Actions likely to ``destroy or adversely
modify'' critical habitat are those that would appreciably reduce the
value of critical habitat for the survival and recovery of the listed
species (50 CFR 402.02).
Common to both definitions is an appreciable detrimental effect on
both survival and recovery of a listed species. Given the similarity of
these definitions, actions likely to destroy or adversely modify
critical habitat would almost always result in jeopardy to the species
concerned when the habitat is occupied by the species. The purpose of
designating critical habitat is to contribute to a species'
conservation, which by definition equates to survival and recovery.
Section 7 prohibitions against the destruction or adverse modification
of critical habitat apply to actions that would impair survival and
recovery of the listed species, thus providing a regulatory means of
ensuring that Federal actions within critical habitat are considered in
relation to the goals and recommendations of any existing recovery plan
for the species concerned. As a result of the direct link between
critical habitat and recovery, the prohibition against destruction or
adverse modification of the critical habitat should provide for the
protection of the critical habitat's ability to contribute fully to a
species' recovery.
A number of Federal agencies or departments fund, authorize, or
carry out actions that may affect the Mexican spotted owl and proposed
critical habitat. Among these agencies are the Forest Service, Bureau
of Indian Affairs, Bureau of Land Management, Department of Defense,
Department of Energy, National Park Service, and Federal Highway
Administration. We have reviewed and continue to review numerous
activities proposed within the range of the Mexican spotted owl that
are currently the subject of formal or informal section 7
consultations. Actions on Federal lands that we reviewed in past
consultations on effects to the owl include land management plans; land
acquisition and
[[Page 45344]]
disposal; road construction, maintenance, and repair; timber harvest;
livestock grazing and management; fire/ecosystem management projects
(including prescribed natural and management ignited fire); powerline
construction and repair; campground and other recreational
developments; and access easements. We expect that the same types of
activities will be reviewed in section 7 consultation if critical
habitat is designated.
Actions that would be expected to both jeopardize the continued
existence of the Mexican spotted owl and destroy or adversely modify
its critical habitat would include those that significantly and
detrimentally alter the species' habitat over an area large enough that
the likelihood of the Mexican spotted owls' persistence and recovery,
either range-wide or locally, is significantly reduced. Thus, the
likelihood of an adverse modification or jeopardy determination would
depend on the baseline condition of the recovery unit and the baseline
condition of the entire designated critical habitat area. Some recovery
units, such as the Southern Rocky Mountains-New Mexico and Southern
Rocky Mountains-Colorado RUs, support fewer owls and owl habitat than
other RUs and, therefore, may be much less able to withstand habitat-
altering activities than RUs with large contiguous areas of habitat
supporting higher densities of spotted owls.
Actions not likely to destroy or adversely modify critical habitat
include activities that are implemented in compliance with the Recovery
Plan, such as thinning trees less than 9 inches in diameter in PACs;
fuels reduction to abate the risk of catastrophic wildfire; ``personal
use'' commodity collection such as fuelwood, latillas and vigas, and
Christmas tree cutting; livestock grazing in upland habitats; and most
recreational activities including hiking, camping, fishing, hunting,
cross-country skiing, off-road vehicle use, and various activities
associated with nature appreciation. We do not expect any restrictions
to those activities as a result of critical habitat designation. In
addition, some activities may be considered to be of benefit to Mexican
spotted owl habitat and, therefore, would not be expected to adversely
modify critical habitat. Examples of activities that could benefit
critical habitat may include some protective measures such as fire
suppression, prescribed burning, brush control, snag creation, and
certain silvicultural activities such as thinning.
If you have questions regarding whether specific activities will
likely constitute destruction or adverse modification of critical
habitat, contact the Field Supervisor, New Mexico Ecological Services
Field Office (see ADDRESSES section). If you would like copies of the
regulations on listed wildlife or have questions about prohibitions and
permits, contact the U.S. Fish and Wildlife Service, Division of
Endangered Species, P.O. Box 1306, Albuquerque, New Mexico 87103
(telephone 505-248-6920; facsimile 505-248-6788).
Economic Analysis
Section 4(b)(2) of the Act requires that we designate critical
habitat on the basis of the best scientific and commercial information
available and consider the economic and other relevant impacts of
designating a particular area as critical habitat. We based this
proposal on the best available scientific information, including the
recommendations in the species' recovery plan. We will utilize the
economic analysis and our analysis of other relevant impacts, and take
into consideration all comments and information submitted during the
public hearing and comment period, to make a final critical habitat
designation. We may exclude areas from critical habitat upon a
determination that the benefits of such exclusions outweigh the
benefits of specifying such areas as critical habitat. However, we
cannot exclude these areas from critical habitat when their exclusion
will result in the extinction of the species. We are preparing a draft
economic analysis that will be completed and available for public
review and comment during the comment period for this proposal. Send
your requests for copies of the economic analysis to the New Mexico
Ecological Services Field Office (see ADDRESSES section).
American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act
In accordance with the Presidential Memorandum of April 29, 1994,
we believe that, to the maximum extent possible, tribes should be the
governmental entities to manage their lands and tribal trust resources.
To this end, we support tribal measures that preclude the need for
Federal conservation regulations. We provide technical assistance to
Indian tribes who wish assistance in developing and expanding tribal
programs for the management of healthy ecosystems so that Federal
conservation regulations, such as designation of critical habitat, on
tribal lands are unnecessary.
The Presidential Memorandum of April 29, 1994, also requires us to
consult with the tribes on matters that affect them, and section
4(b)(2) of the Act requires us to gather information regarding the
designation of critical habitat and the effects thereof from all
relevant sources, including the tribes. Recognizing a government-to-
government relationship with tribes and our Federal trust
responsibility, we will consult with the Indian tribes that might be
affected by the designation of critical habitat. We have already held
two meetings with the Mescalero Apache Tribe.
Due to the time constraints imposed by the court order, we will
make every effort to consult with the tribes during the comment period
for this proposal to gain information on--(1) possible effects if
critical habitat were designated on Indian reservation lands; and (2)
possible effects on tribal resources resulting from designation of
critical habitat on non-tribal lands. We will meet with each
potentially affected tribe to ensure that consultation on critical
habitat issues occurs in a timely manner.
Designation of Critical Habitat on Tribal Lands
Section 3(5) of the Act defines critical habitat, in part, as areas
within the geographical area occupied by the species ``on which are
found those physical and biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations and protection.'' In our previous critical
habitat proposal for the owl, we identified lands of the White Mountain
Apache, Jicarilla Apache, Mescalero Apache, San Carlos Apache, Southern
Ute, Ute Mountain Ute, and Navajo Nation Tribes as containing habitat
that may be appropriate for designation of critical habitat. However,
after reevaluating the available data, we no longer feel that
designating all of these areas is appropriate.
Lands of the Mescalero Apache, San Carlos Apache, and Navajo Nation
have areas that meet the definition of critical habitat with respect to
the Mexican spotted owl, and portions of those lands are proposed as
critical habitat. As provided under section 4(b)(2) of the Act, we are
soliciting information on the possible economic and other impacts of
critical habitat designation, and we will continue to work with the
tribes in developing voluntary measures adequate to conserve Mexican
spotted owls on tribal lands. We understand the Navajo Nation is
nearing completion of a Forest Management Plan and the Mescalero Apache
Tribes are working on Mexican Spotted Owl Habitat
[[Page 45345]]
Management Plans. Critical habitat proposed on the San Carlos Apache
Reservation does not include areas covered by the Tribe's Malay Gap
Management Plan. We reviewed this plan in 1996 and determined it to be
adequate for the management of the owl. The San Carlos Apache Tribe is
developing similar management plans for other management units on their
lands. If any of these tribes submit management plans, we will consider
whether these plans provide adequate special management or protection
for the species, or we will weigh the benefits of including versus the
benefits of excluding these areas under section 4(b)(2). We will use
this information in determining which, if any, tribal land should be
included in the final designation as critical habitat for the owl.
Since our previous critical habitat designation, we learned that
the Southern Ute Reservation has not supported spotted owls
historically, and our assessment revealed that the Reservation does not
support habitat essential to the species' conservation. Thus, lands of
the Southern Ute Reservation do not meet part (I) of the definition of
critical habitat stated above; we are, therefore, not proposing to
designate those lands as critical habitat.
Lands of the Ute Mountain Ute Tribe are not being proposed either.
Due to the low population density and isolation from other occupied
areas in Colorado, New Mexico, and Utah, the owls in southwestern
Colorado are not believed to be essential for the survival or recovery
of the species. Thus, these lands do not meet part (I) of the
definition of critical habitat stated above; we are, therefore, not
proposing to designate those lands as critical habitat.
The White Mountain Apache and Jicarilla Apache Tribes completed
Mexican Spotted Owl Habitat Management Plans prior to the previous
critical habitat designation. Since those plans are still valid and in
use, we believe that the lands of the White Mountain Apache and
Jicarilla Apache Tribes are not in need of special management
considerations and protection, and therefore do not meet part (II) of
the definition of critical habitat. Thus, we are not proposing critical
habitat in those areas.
In addition, other tribal lands including the Picuris, Taos, and
Santa Clara Pueblos in New Mexico and the Havasupai Reservation in
Arizona are adjacent to critical habitat units proposed in this rule
and may have potential owl habitat. However, the available information,
although limited, on the habitat quality and current or past owl
occupancy in these areas does not indicate that these areas meet the
definition of critical habitat. Therefore, we are not proposing to
designate these lands as critical habitat.
Effects on Tribal Trust Resources From Critical Habitat Designation on
Non-Tribal Lands
We do not anticipate that proposal of critical habitat on non-
tribal lands will result in any impact on tribal trust resources or the
exercise of tribal rights. However, in complying with our tribal trust
responsibilities, we must communicate with all tribes potentially
affected by the designation. Therefore, we are soliciting information
from the tribes and will arrange meetings with the tribes during the
comment period on potential effects to them or their resources that may
result from critical habitat designation.
Public Comments Solicited and Public Hearings
We intend to make any final action resulting from this proposal to
be as accurate and as effective as possible. Therefore, we are
soliciting comments or suggestions from the public, other concerned
governmental agencies, the scientific community, industry, or any other
interested party concerning this proposed rule. We particularly seek
comments concerning:
(1) The reasons why any habitat should or should not be determined
to be critical habitat as provided by section 4 of the Act, including
whether the benefits of excluding areas will outweigh the benefits of
including areas as critical habitat. Specifically we ask if there is
adequate special management and protection in place on any lands to
allow us not to designate these lands as critical habitat. Further, we
ask whether all areas identified in the Recovery Plan should be
designated as critical habitat;
(2) Specific information on the amount and distribution of Mexican
spotted owl habitat, and what habitat is essential to the conservation
of the species and why;
(3) Land use practices and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other impacts resulting from the
proposed designation of critical habitat, in particular, any impacts on
small entities or families; and
(5) Economic and other values associated with designating critical
habitat for the Mexican spotted owl, such as those derived from
nonconsumptive uses (e.g., hiking, camping, birding, enhanced watershed
protection, increased soil retention, ``existence values,'' and
reductions in administrative costs).
Executive Order 12866 requires each agency to write regulations and
notices that are easy to understand. We invite your comments on how to
make this proposed rule easier to understand including answers to
questions such as the following: (1) Are the requirements in the
document clearly stated? (2) Does the proposed rule contain technical
language or jargon that interferes with the clarity? (3) Does the
format of the proposed rule (grouping and order of sections, use of
headings, paragraphing, etc.) aid or reduce its clarity? (4) Is the
description of the proposed rule in the SUPPLEMENTARY INFORMATION
section of the preamble helpful in understanding the document? (5) What
else could we do to make the proposed rule easier to understand?
Our practice is to make comments that we receive on this
rulemaking, including names and home addresses of respondents,
available for public review during regular business hours. Individual
respondents may request that we withhold their home address from the
rulemaking record, which we will honor to the extent allowable by law.
In some circumstances, we would withhold from the rulemaking record a
respondent's identity, as allowable by law. If you wish for us to
withhold your name and/or address, you must state this prominently at
the beginning of your comment. However, we will not consider anonymous
comments. We will make all submissions from organizations or
businesses, including individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public inspection in their entirety.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we will seek the expert opinions of at least three appropriate
and independent specialists regarding this proposed rule. The purpose
of such review is to ensure listing decisions are based on
scientifically sound data, assumptions, and analyses. We will send
copies of this proposed rule immediately following publication in the
Federal Register to these peer reviewers. We will invite these peer
reviewers to comment, during the public comment period, on the specific
assumptions and conclusions regarding the proposed designation of
critical habitat.
[[Page 45346]]
We will consider all comments and information received during the
comment period on this proposed rule during preparation of a final
rulemaking. Accordingly, the final decision may differ from this
proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Given the large geographic extent covered by this
proposal, the high likelihood of multiple requests, and the need to
publish a final determination by December 15, 2000, we have scheduled
six public hearings. We will hold the hearings in Santa Fe, New Mexico,
on August 14; Las Cruces, New Mexico, on August 15; Tucson, Arizona, on
August 16, Flagstaff, Arizona, on August 17; Colorado Springs,
Colorado, on August 21, 2000; and Cedar City, Utah, on August 23. We
will hold the hearings at the following locations:
Santa Fe, New Mexico: Morgan Hall, New Mexico State Land
Office, 310 Old Santa Fe Trail, 6:30 to 9:30 p.m.
Las Cruces, New Mexico: Dona Ana Room, Corbett Center
Student Union, New Mexico State University, 6:30 to 9:30 p.m.
Tucson, Arizona: Louis Rich Theater, Tucson Convention
Center, 260 South Church Street, 6:30 to 9:30 p.m.
Flagstaff, Arizona: Flagstaff High School, Main
Auditorium, 400 West Elm Street, 6:30 to 9:30 p.m.
Colorado Springs, Colorado: Pikes Peak Community College,
Cafeteria, 5675 South Academy Boulevard, 6:30 to 9:30 p.m.
Cedar City, Utah: Southern Utah University, Hunter
Conference Center, The Great Hall, 351 West Center Street, 6:30 to 9:30
p.m.
Announcements for the public hearings will be made in local newspapers.
Written comments submitted during the comment period receive equal
consideration with those comments presented at a public hearing.
Required Determinations
Regulatory Planning and Review
In accordance with the criteria in Executive Order 12866, this rule
is a significant regulatory action and has been reviewed by the Office
of Management and Budget. We are preparing a draft analysis of this
proposed action, which will be available during the comment period for
this proposed rule, to determine the economic consequences of
designating the specific areas as critical habitat. The availability of
the draft economic analysis will be announced in the Federal Register
and in local newspapers so that it is available for public review and
comments during the 60-day comment period for this proposed rule.
(a) This rule will not have an annual economic effect of $100
million or adversely affect an economic sector, productivity, jobs, the
environment, or other units of government. A cost-benefit analysis is
not required for purposes of Executive Order 12866. The Mexican spotted
owl was listed as a threatened species in 1993. Since that time, we
have conducted, and will continue to conduct, formal and informal
section 7 consultations with other Federal agencies to ensure that
their actions would not jeopardize the continued existence of the
Mexican spotted owl.
Under the Act, critical habitat may not be adversely modified by a
Federal agency action; critical habitat does not impose any
restrictions on non-Federal persons unless they are conducting
activities funded or otherwise sponsored or permitted by a Federal
agency (see Table 2 below). Section 7 requires Federal agencies to
ensure that they do not jeopardize the continued existence of the
species. Based upon our experience with the species and its needs, we
believe that any Federal action or authorized action that could
potentially cause an adverse modification of the proposed critical
habitat would currently be considered as ``jeopardy'' to the species
under the Act. Accordingly, we do not expect the designation of
currently occupied areas as critical habitat to have any incremental
impacts on what actions may or may not be conducted by Federal agencies
or non-Federal persons that receive Federal authorization or funding.
Non-Federal persons who do not have a Federal ``sponsorship'' of their
actions are not restricted by the designation of critical habitat
(however, they continue to be bound by the provisions of the Act
concerning ``take'' of the species).
Table 2.--Impacts of Designating Critical Habitat for Mexican Spotted Owl
----------------------------------------------------------------------------------------------------------------
Activities potentially
affected by the designation
of critical habitat in Activities potentially affected by the
Categories of activities areas occupied by the designation of critical habitat in
species (in addition to unoccupied areas
those activities affected
from listing the species)
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially Affected None....................... Activities such as those affecting
\1\. protected, restricted, and canyon
habitats by the Forest Service, Bureau
of Indian Affairs, Bureau of Land
Management, Department of Defense,
Department of Energy, National Park
Service, and Federal Highway
Administration; vegetative management
projects (including timber harvest,
timber salvage, and tree density control
activities such as thinning, insect and
disease suppression activities, snag
removal, and certain fire/ecosystem
projects such as prescribed natural and
management ignited fire); livestock
grazing in riparian habitat; land
acquisition and disposal; oil and gas
development; mining and mineral
exploration; military maneuvers; road
development, maintenance, and repair;
utility construction and repair;
construction of campgrounds and other
recreational developments; and access
easements.
Private or other non-Federal Activities None....................... Activities that require a Federal action
Potentially Affected \2\. (permit, authorization, or funding) and
that involve such activities as removing
or destroying Mexican spotted owl
habitat (as defined in the primary
constituent elements discussion),
whether by mechanical or other means
(e.g., timber harvest, right-of-way
access, road construction, development,
etc.), including indirect effects and
that appreciably decrease habitat value
or quality.
----------------------------------------------------------------------------------------------------------------
\1\ Activities initiated by a Federal agency.
\2\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
funding.
[[Page 45347]]
Designation of unoccupied areas as critical habitat may have
impacts on what actions may or may not be conducted by Federal agencies
or non-Federal persons that receive Federal authorization or funding.
In the case of the owl, however, we are already consulting with Federal
agencies on activities that may affect the owl within the Recovery
Units. Since the proposed critical habitat units all occur within the
Recovery Units, we do not anticipate any additional impact due to
designating unoccupied habitat within the Recovery Units. However, we
will evaluate any potential impact through our economic analysis ( see
Economic Analysis section of this rule).
(b) This rule will not create inconsistencies with other agencies'
actions. Federal agencies have been required to ensure that their
actions do not jeopardize the continued existence of the Mexican
spotted owl since its listing in 1993. The prohibition against adverse
modification of critical habitat is not expected to impose any
additional restrictions to those that currently exist in areas of
proposed critical habitat. Because of the potential for impacts on
other Federal agency's activities, we will continue to review this
proposed action for any inconsistencies with other Federal agency's
actions.
(c) The proposed rule, if made final, will not significantly impact
entitlements, grants, user fees, loan programs, or the rights and
obligations of their recipients. Federal agencies are currently
required to ensure that their activities do not jeopardize the
continued existence of the species, and, as discussed above, we do not
anticipate that the adverse modification prohibition (resulting from
critical habitat designation) will have any incremental effects in
areas of proposed critical habitat.
(d) This rule will not raise novel legal or policy issues. The
proposed rule follows the requirements for determining critical habitat
contained in the Endangered Species Act.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
In the draft economic analysis, we will determine if designation of
critical habitat will have a significant effect on a substantial number
of small entities. As discussed under Regulatory Planning and Review
above, this rule is not expected to result in any restrictions in
addition to those currently in existence for areas of proposed critical
habitat.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
We do not anticipate that our economic analysis will show that
designation of critical habitat will cause (a) an annual effect on the
economy of $100 million or more, (b) any increases in costs or prices
for consumers; individual industries; Federal, State, or local
government agencies; or geographic regions, or (c) any significant
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of U.S.-based enterprises to compete with
foreign-based enterprises.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act:
a. This rule will not ``significantly or uniquely'' affect small
governments. A Small Government Agency Plan is not required. Small
governments will be affected only to the extent that any programs
involving Federal funds, permits, or other authorized activities must
ensure that their actions will not destroy or adversely modify critical
habitat. However, as discussed above in the Regulatory Planning and
Review section, these actions are currently subject to equivalent
restrictions through the listing protections of the species, and no
further restrictions are anticipated in areas of proposed critical
habitat.
b. This rule will not produce a Federal mandate on State, local, or
tribal governments or the private sector of more than $100 million or
greater in any year, i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act. The designation of
critical habitat imposes no obligations on State or local governments.
Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications, and a takings implication assessment
is not required. This proposed rule, if made final, will not ``take''
private property. However, we will evaluate whether the value of
private property is altered by it being designated as critical habitat
on a case-by-case basis. Critical habitat designation is applicable to
Federal lands and to private lands only if a Federal nexus, through
funding, permitting or licencing of activities, exists. We do not
designate private lands as critical habitat unless the areas are
essential to the conservation of a species.
Federalism
In accordance with Executive Order 13132, this proposed rule, if
made final, will not affect the structure or role of States, and will
not have direct, substantial, or significant effects on States. A
Federalism assessment is not required. As previously stated, critical
habitat is applicable only to Federal lands or to non-Federal lands
only when a Federal nexus exists.
In keeping with Department of the Interior and Department of
Commerce policy, we requested information from and coordinated
development of this critical habitat proposal with appropriate State
resource agencies in Arizona, New Mexico, Colorado, and Utah. In
addition, Arizona and Utah have representatives on the recovery team
for this species. We will continue to coordinate any future designation
of critical habitat for Mexican spotted owl with the appropriate State
agencies.
Civil Justice Reform
In accordance with Executive Order 12988, the Department of the
Interior's Office of the Solicitor determined that this rule does not
unduly burden the judicial system and meets the requirements of
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor
will review the final determination for this proposal. We will make
every effort to ensure that the final determination contains no
drafting errors, provides clear standards, simplifies procedures,
reduces burden, and is clearly written such that litigation risk is
minimized.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any information collection requirements
for which Office of Management and Budget approval under the Paperwork
Reduction Act is required.
National Environmental Policy Act (NEPA)
Our position is that, outside the Tenth Circuit, we do not need to
prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996). However, when the range of the species
includes States within the Tenth Circuit, such as that of the Mexican
spotted owl, pursuant to the Tenth
[[Page 45348]]
Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and
Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA
analysis for critical habitat designation. Send your requests for
copies of the draft environmental assessment for this proposal to the
New Mexico Ecological Services Field Office (see ADDRESSES section).
References Cited
A complete list of all references cited in this proposed rule is
available upon request from the New Mexico Ecological Services Field
Office (see ADDRESSES section).
Authors
The primary authors of this notice are the New Mexico Field Office
staff (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.11(h), by revising the entry for ``Owl, Mexican
spotted'' under ``BIRDS'' to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Owl, Mexican spotted............. Strix occidentalis U.S.A. (AZ, CO, NM, Entire............. T 494 Sec. 17.95 NA
lucida. TX, UT), Mexico. (b)
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.95(b) by adding critical habitat for the Mexican
spotted owl (Strix occidentalis lucida) in the same alphabetical order
as this species occurs in Sec. 17.11(h).
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(b) Birds.
* * * * *
Mexican Spotted Owl (Strix Occidentalis Lucida)
Critical habitat is limited to areas within the proposed
boundaries that meet the definition of protected (600 acres around
known owl sites, mixed conifer or pine-oak forests with slopes
greater than 40 percent where timber harvest has not occurred in the
past 20 years, and all reserved (designated wilderness areas) lands)
and restricted (mixed conifer forest, pine-oak forest, and riparian
areas outside of protected areas) habitat as described in the
Recovery Plan. Restricted habitat is designated only where primary
constituent elements can be found. Private and state lands within
mapped boundaries are not designated as critical habitat. Critical
habitat proposed on the San Carlos Apache Reservation does not
include areas covered by the Tribe's Malay Gap Management Plan. The
lands of the White Mountain Apache, Jicarilla Apache, Ute Mountain
Ute and Southern Ute Tribe are not being designated. Critical
habitat units for the States of Arizona, Colorado, New Mexico, and
Utah are depicted on the maps below. Larger maps for all four States
and maps of critical habitat units in the State of New Mexico are
available at the New Mexico Ecological Services Field Office, 2105
Osuna N.E., Albuquerque, New Mexico 87113, telephone (505) 346-2525.
For the States of Arizona, Colorado, and Utah, maps of the critical
habitat units specific to each State are available at the following
U.S. Fish and Wildlife Service offices--Arizona Ecological Services
Field Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona
85021, telephone (602) 640-2720; Colorado State Sub-Office, 764
Horizon Drive South, Annex A, Grand Junction, Colorado 81506,
telephone (970) 243-2778; and Utah Ecological Services Field Office,
Lincoln Plaza, 145 East 1300 South, Suite 404, Salt Lake City, Utah
84115, telephone (801) 524-5001.
1. Critical habitat units are depicted for portions of
Bernalillo, Catron, Cibola, Colfax, Grant, Hidalgo, Lincoln, Los
Alamos, McKinley, Mora, Otero, Rio Arriba, San Juan, San Miguel,
Sandoval, Santa Fe, Sierra, Socorro, Taos, Torrance, and Valencia
Counties in New Mexico; Apache, Cochise, Coconino, Gila, Graham,
Greenlee, Maricopa, Mohave, Navajo, Pima, Pinal, Santa Cruz, and
Yavapai Counties in Arizona; Carbon, Emery, Garfield, Grand, Iron,
Kane, San Juan, Washington, and Wayne Counties in Utah; and Custer,
Douglas, El Paso, Fremont, Huerfano, Jefferson, Pueblo, and Teller
Counties in Colorado, on the maps. Precise legal descriptions of
each critical habitat unit are on file at the New Mexico Ecological
Services Field Office.
2. Within these areas, the primary constituent elements for
Mexican spotted owl include, but are not limited to, those habitat
components providing for nesting, roosting, or foraging activities.
Primary constituent elements are provided in canyons and mixed
conifer, pine-oak, and riparian habitat types that typically support
nesting and/or roosting. These primary constituent elements include
mixed conifer, pine-oak, and riparian forest types, as described in
the Recovery Plan, that have the following attributes: high basal
area of large-diameter trees; moderate to high canopy closure; wide
range of tree sizes suggestive of uneven-age stands; multi-layered
canopy with large overstory trees of various species; high snag
basal area; high volumes of fallen trees and other woody debris;
high plant species richness, including hardwoods; and adequate
levels of residual plant cover to maintain fruits, seeds, and
regeneration to provide for the needs of Mexican spotted owl prey
species. For canyon habitats, the primary constituent elements
include the following attributes: cooler and often higher humidity
than the surrounding area; clumps or stringers of ponderosa pine,
Douglas-fir, white fir, and/or pinon-juniper trees and/or canyon
wall containing crevices, ledges, or caves; high percent of ground
litter and woody debris; and riparian or woody vegetation (although
not at all sites).
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Dated: July 14, 2000.
Donald J. Barry,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-18407 Filed 7-20-00; 8:45 am]
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