Rule2021-24365
Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Northern Spotted Owl
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 10, 2021
Effective
December 10, 2021
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
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 (ESA or Act), by withdrawing the January 15, 2021, final rule that would have been effective December 15, 2021, and which would have excluded approximately 3.4 million acres (1.4 million hectares) of designated critical habitat for the northern spotted owl (January Exclusions Rule); and instead as we proposed on July 20, 2021, we now exclude approximately 204,294 acres (82,675 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.
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[Federal Register Volume 86, Number 215 (Wednesday, November 10, 2021)]
[Rules and Regulations]
[Pages 62606-62666]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-24365]
[[Page 62605]]
Vol. 86
Wednesday,
No. 215
November 10, 2021
Part II
Department of the Interior
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Fish and Wildlife Service
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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. 215 / Wednesday, November 10, 2021 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2020-0050; FF09E21000 FXES1111090FEDR 223]
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; withdrawal and revision.
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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 (ESA or Act), by withdrawing the January 15, 2021, final rule
that would have been effective December 15, 2021, and which would have
excluded approximately 3.4 million acres (1.4 million hectares) of
designated critical habitat for the northern spotted owl (January
Exclusions Rule); and instead as we proposed on July 20, 2021, we now
exclude approximately 204,294 acres (82,675 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.
DATES: As of November 10, 2021, FWS is withdrawing the final rule
published January 15, 2021, at 86 FR 4820, delayed on March 1, 2021, at
86 FR 11892, and further delayed on April 30, 2021 at 86 FR 22876. This
rule is effective December 10, 2021.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R1-ES-2020-0050 and at <a href="https://www.fws.gov/oregonfwo">https://www.fws.gov/oregonfwo</a>.
<bullet> Comments and materials we received, as well as supporting
documentation we used in preparing this rule, are available for public
inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R1-ES-
2020-0050.
<bullet> The coordinates from which the Service generated the maps
are included in the decision file for the rulemaking and are available
at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R1-ES-2020-0050 and at
<a href="https://www.fws.gov/oregonfwo">https://www.fws.gov/oregonfwo</a>.
<bullet> The Geographic Information System data reflecting the
revised critical habitat units can be downloaded at <a href="https://ecos.fws.gov/ecp/species/1123#crithab">https://ecos.fws.gov/ecp/species/1123#crithab</a> under the heading Critical
Habitat Spatial Extents.
FOR FURTHER INFORMATION CONTACT: Paul Henson, Ph.D., State Supervisor,
U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600
SE 98th Avenue, Portland, OR 97266; telephone 503-231-6179. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. We need to publish a rule in order
to exclude areas from northern spotted owl designated critical habitat
under section 4(b)(2) of the Act.
What this rule does. This rule revises the designation of critical
habitat for the northern spotted owl by withdrawing the exclusion of
approximately 3.4 million acres as set forth in the January Exclusions
Rule, and excluding instead approximately 204,294 acres (82,675
hectares).
Basis for this rule. Under section 4(b)(2) of the Act, the
Secretary may exclude an area from critical habitat if she determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless she 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 204,294 acres
(82,675 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.
The Service is excluding lands that are within the Harvest Land
Base land-use allocation described by the U.S. Department of the
Interior Bureau of Land Management (BLM) in two recently revised
resource management plans (RMPs) for areas it manages in Oregon: 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). The BLM consulted
with the Service on the effects of those RMPs, and in our resulting
Biological Opinion, we found the BLM's proposed harvest over time of
those areas allocated to the Harvest Land Base would not result in
destruction or adverse modification of northern spotted owl critical
habitat (FWS 2016, pp. 626-703). We are also excluding lands that were
previously managed by the BLM under the RMPs but were subsequently
transferred in trust to certain Indian Tribes pursuant to Federal
legislation.
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. 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.
On April 13, 2020, we entered into a stipulated settlement
agreement resolving the litigation. The settlement agreement was
approved and ordered by the court on April 26, 2020, and the case
dismissed. Under the terms of the settlement agreement, the Service
agreed to submit a proposed revised critical habitat rule to the
Federal Register that identified 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, or withdraw the proposed rule by that date if we determined
not to exclude any areas from the designation under section 4(b)(2) of
the Act. We delivered a proposed rule to the Federal Register on July
15, 2020, which was published on August 11, 2020 (85 FR 48487),
proposing to exclude 204,653 acres (82,820 hectares) within 15 counties
in Oregon under section 4(b)(2) of the Act. We opened a 60-day comment
period on the August 11, 2020, proposed rule, which closed on October
13, 2020. On January 15, 2021, we published in the Federal Register the
January Exclusions Rule (86 FR 4820), excluding approximately 3,472,064
acres (1,405,094 hectares) within 45 counties in Washington, Oregon,
and California under section 4(b)(2) of the Act. Our August 11, 2020,
proposed rule (85 FR 48487) and the January Exclusions Rule met the
stipulations of the settlement agreement.
[[Page 62607]]
The initial effective date of the January Exclusions Rule was March
16, 2021. On March 1, 2021, we extended the effective date of the
January Exclusions Rule to April 30, 2021 (86 FR 11892). At that time,
we also opened a 30-day comment period, inviting comments on the impact
of the delay of the effective date of the January Exclusions Rule, as
well as comments on issues of fact, law, and policy raised by that
final rule. After considering comments received in response to our
March 1, 2021, final rule delaying the effective date, on April 30,
2021, we again extended the effective date of the January Exclusions
Rule to December 15, 2021 (86 FR 22876).
On July 20, 2021, we published in the Federal Register a proposed
revised critical habitat rule in which we proposed to withdraw the
January Exclusions Rule, and to exclude 204,797 acres (82,879 hectares)
within 15 counties in Oregon (86 FR 38246). The lands proposed for
exclusion are the same lands we proposed for exclusion on August 11,
2020, with minor corrections in the number of acres.
For the convenience of the reader, the list below provides some
Federal Register citations of prior rulemaking documents pertaining to
the northern spotted owl. This list is not a comprehensive list of all
pertinent prior rulemaking documents; instead, it contains only those
documents that are referenced frequently in this final rule:
<bullet> Final rule to revise the designation of critical habitat:
December 4, 2012, 77 FR 71876
<bullet> Proposed rule to revise the designation of critical habitat:
August 11, 2020, 85 FR 48487
<bullet> Final rule to revise the designation of critical habitat:
January 15, 2021, 86 FR 4820 (January Exclusions Rule)
<bullet> Final rule to delay the effective date of the January
Exclusions Rule and to request comments: March 1, 2021, 86 FR 11892
<bullet> Final rule to further delay the effective date of the January
Exclusions Rule: April 30, 2021, 86 FR 22876
<bullet> Proposed rule to revise the designation of critical habitat:
July 20, 2021, 86 FR 38246
Summary of Factors Affecting the Northern Spotted Owl
Habitat loss was the primary factor leading to the listing of the
northern spotted owl as a threatened subspecies in 1990 (55 FR 16114,
June 26, 1990), and it continues to be a stressor on the subspecies due
to the lag effects of past habitat loss, continued timber harvest,
wildfire, and a minor amount from insect and forest disease outbreaks.
The most recent rangewide northern spotted owl demographic study
(Franklin et al. 2021, entire) found that nonnative barred owls are
currently the stressor with the largest negative impact on northern
spotted owls through competition for resources. The study emphasized
the importance of addressing barred owl management and also the
importance of maintaining habitat across the range of the northern
spotted owl regardless of occupancy to provide areas for recolonization
and dispersal (Franklin et al. 2021, p. 18). The study also found a
significant rate of population decline in northern spotted owls, a rate
of 6 to 9 percent annually on 6 demographic study areas, and 2 to 5
percent annually on 5 study areas. Populations dropped to or below 35
percent of historical population numbers on 7 of the study areas, and
to or below 50 percent on the remaining 3 areas over a 22-year period
(1995-2017).
On non-Federal lands, State regulatory mechanisms have not
prevented the continued decline of nesting, roosting and foraging
habitat of the northern spotted owl; the amount of northern spotted owl
habitat on these lands has decreased considerably over the past two
decades, including in geographic areas where Federal lands are lacking.
On Federal lands, the Northwest Forest Plan has reduced habitat loss
and allowed for the regrowth of northern spotted owl habitat; however,
the combined effects of climate change, high-severity wildfire, and
past management practices are changing forest ecosystem processes and
dynamics.
Summary of Comments and Recommendations
In our July 20, 2021, proposed rule (86 FR 38246), we requested
that all interested parties submit written comments by September 20,
2021. We also contacted appropriate Federal, State, and local agencies,
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 July 25, 2021, in the Eureka Times-
Standard on July 30, 2021, and in The Olympian on August 6, 2021. We
did not receive any requests for a public hearing. We noted in the
proposed rule that comments previously submitted in response to our
August 11, 2020, proposed revision to critical habitat for the northern
spotted owl (85 FR 48487) did not need to be resubmitted, as we would
consider them in producing this final rule. We also noted that parties
who wanted comments they submitted in response to our March 1, 2021,
rule extending the effective date of the January Exclusions Rule
considered in this final rule should resubmit their comments.
During the comment period, we received 48 new public comment
submissions addressing the proposed withdrawal of the January
Exclusions Rule and revised critical habitat designation, in addition
to the 572 public comments submitted in response to our original August
11, 2020 proposal to exclude approximately 204,653 acres (82,820
hectares). In addition, one commenter resubmitted their comments in
response to our March 1, 2021, rule. Among the submissions on the July
20, 2021, proposed rule were letters from organizations signed by
thousands of individuals expressing general support for our proposed
rule. Many comments were nonsubstantive in nature, expressing either
general support for or opposition to our proposal to withdraw the
January Exclusions Rule and exclude 204,797 acres (82,879 hectares),
with no supporting information or analysis, or expressing opinions
regarding topics not covered within the proposed revised critical
habitat rule. We also received many detailed substantive comments with
specific rationale for support of or opposition to specific portions of
the proposed revised rule.
Below, we summarize and respond to: The substantive comments on the
July 20, 2021, proposed rule that were received by the September 20,
2021, deadline; substantive comments we received in response to the
August 11, 2020, proposed rule; and resubmitted comments in response to
our March 1, 2021, rule. Additionally, we provide explanations when our
responses to comments received on our August 11, 2020, proposed rule
differ substantially from responses we provided to those same comments
in the January Exclusions Rule. Comments received were grouped into
general categories and are addressed in the following summary.
Comments on the Withdrawal of the January Exclusions Rule
In order to facilitate the ability to cross-reference our previous
responses to comments in the January Exclusions Rule, new and
resubmitted comments received by September 21, 2021, on the proposed
withdrawal of the January Exclusions Rule and the March 1, 2021, rule
delaying the effective date of the January Exclusions Rule until April
30, 2021, are identified alphabetically; comments received on the
proposed exclusions and other issues received in
[[Page 62608]]
response to both the August 11, 2020, proposed rule and new comments
received for the July 20, 2021, proposed rule are identified
numerically and follow the same relevant grouping of issues as in the
January Exclusions Rule. We did not receive comments concerning the
proposed withdrawal of the January Exclusions Rule from Federal
agencies, the States, or Tribes.
Comments From Counties
Jackson County (Oregon) submitted a comment letter expressing their
support and concurrence with the comment letter submitted by the
Association of O&C Counties (AOCC); see Comment (B) for a summary of
those comments.
Douglas County (Oregon) submitted a comment letter incorporating
the American Forest Resource Council (AFRC)'s September 20, 2021,
comment letter by reference and provided additional comments urging the
Service not to rescind the January Exclusions Rule. Issues raised by
Douglas County are incorporated and grouped with similar comments
within this rule.
Harney County (Oregon) submitted a comment letter urging the
Service not to rescind the January Exclusions Rule. Issues raised by
Harney County are incorporated and grouped with similar comments within
this rule.
Lewis and Skamania Counties (Washington) submitted a comment letter
incorporating the September 20, 2021, comment letter of the AFRC by
reference and provided other comments that are incorporated and grouped
with similar comments within this rule.
Klickitat County (Washington) submitted a comment letter
incorporating Lewis and Skamania Counties' comment letter by reference
and provided other comments that are incorporated and grouped with
similar comments within this rule.
Public Comments
Comment (A): Commenters that opposed any exclusions from critical
habitat stated that retaining and expanding critical habitat and
conserving mature forests will provide significant economic benefits to
communities by providing ecosystem services such as: Clean water,
climate stability, fire resilience, fish and wildlife, recreation, and
other services that serve as a stabilizing force for community
development.
Our response: While the designation of critical habitat for the
northern spotted owl does not, in and of itself, change the land-use
allocation for the areas designated (which is ultimately the decision
of the entity managing the land, such as the BLM), we agree that in
addition to its benefits for the northern spotted owl, conserving
mature forests may provide economic benefits to communities through the
ecosystem services described by the commenter. Although the final
economic analysis (FEA) of the critical habitat designation for the
northern spotted owl (IEc 2012) did not quantify these economic
benefits, it qualitatively described the ancillary benefits of
conservation measures that may be implemented to avoid the destruction
or adverse modification of critical habitat. These benefits include
public safety benefits, such as timber management practices that reduce
the threat of catastrophic wildfire, drought, and insect damage;
improved water quality that may reduce water treatment costs and
provide human or ecological health benefits; aesthetic benefits of a
more natural forest landscape that results in increased recreational
use or increases the value of neighboring properties; and carbon
storage that may ameliorate the impacts of climate change.
Comment (B): The AOCC, representing the interests of counties in
western Oregon, as well as other commenters, submitted comments
opposing the withdrawal of the January Exclusions Rule, citing the
following rationales:
(i): The AOCC and others commented that the 2012 critical habitat
designation negatively impacted the ability of BLM to manage certain
former railroad grant lands in Oregon revested to the United States in
1916 (O&C lands) for their statutory purposes under the Oregon and
California Revested Lands Sustained Yield Management Act of 1937,
Public Law 75-405 (O&C Act) and reduced timber harvest and associated
receipts shared with counties. They asserted that the 2012 designation
caused BLM to manage these lands under their revised RMPs for the
benefit of the northern spotted owl instead.
Our response: The BLM developed its 2016 RMPs considering a variety
of authorities and requirements, including the O&C Act, which addresses
the management of O&C lands revested to the Federal Government under
the Chamberlin-Ferris Act of 1916 (39 Stat. 218) and other authorities.
As discussed further in response to Comment 12, we acknowledge that
there is ongoing litigation regarding BLM's authorities and obligations
under the O&C Act and the Endangered Species Act. Once that litigation
is finally resolved, BLM will have to determine what, if any, changes
to make to its management of the O&C lands under applicable law. Until
that time, however, the BLM will, where appropriate, utilize its
authorities in furtherance of the purposes of the Endangered Species
Act. See also our response to Comment (6). See our response to Comments
(21) and (22) for a discussion on the economic impacts of the
designation on timber harvest.
(ii): The AOCC commented that the designation of critical habitat
on O&C lands is contrary to recent rulings that recognize the statutory
requirement that timber on O&C lands is to be ``sold, cut and removed''
according to sustained yield principles and cannot be allocated to
reserves, and that section 7 consultation requirements under the Act do
not apply to the nondiscretionary obligation of BLM to manage these
lands under the principles of sustained yield.
Our response: See our responses to Comments (6), (12), and (25b)
below.
(iii): The AOCC commented that the 2012 critical habitat
designation was flawed in that it did not identify or ``actually'' map
habitat and that the methods used resulted in vast areas being
designated as critical habitat that do not currently have the
attributes of northern spotted owl habitat and therefore do not meet
the statutory requirements for designation as critical habitat.
Our response: This and similar comments that directly address
concerns about our final rule designating critical habitat in 2012 were
raised and addressed in the rulemaking for the 2012 rule, and we refer
to our responses to such issues in that rulemaking, see e.g., Public
Comments on the Modeling Process at 77 FR 71876, December 4, 2012; p.
72020. We address here only those comments relevant to the revisions
proposed in July 20, 2021.
(iv): The AOCC commented that the designation of critical habitat
in 2012 created preserves that prevent sustained yield management and
that actively managing critical habitat to support species recovery is
not the equivalent of sustained yield management under the O&C Act,
further citing the court ruling in Headwaters, Inc. v. BLM, Medford
Dist., 914 F.2d 1174 (9th Cir. 1990) holding that withdrawing lands
from sustained yield timber production for the benefit of wildlife is
not a use recognized in the O&C Act and is inconsistent with sustained
yield management. On this basis, the commenter seeks additional
exclusions from the designated critical habitat.
Our response: Critical habitat designations do not establish
specific land-management standards or prescriptions, nor do
designations affect land ownership or establish a refuge, wilderness,
reserve, preserve, sanctuary, or any other conservation area where no
active land management occurs. See our
[[Page 62609]]
responses to Comments (6), (12), and (25b) below.
(v): The AOCC commented that ``creative sustained yield
management'' can contribute substantially to the habitat needs of the
northern spotted owl without the limitations imposed by a critical
habitat designation and that sustained yield management to meet both
the subspecies' needs and the O&C Act requirements has not been
considered in BLM and U.S. Department of Agriculture, Forest Service
(USFS) management plans, northern spotted owl recovery plans, and
critical habitat designations. They provided examples of sustained
yield strategies that could be considered should the BLM be required to
revise their RMPs due to a pending court ruling and suggested that
removing critical habitat is a necessary first step.
Our response: As indicated by the comment, complying with and
achieving the goals of the O&C Act and the Endangered Species Act can
be an extraordinarily complicated task in the forest management arena.
The BLM and USFS are responsible for managing O& C lands, and they do
so by adopting land management plans that provide guidance and
direction for subsequent management actions on those lands. Recovery
plans under the Endangered Species Act provide recommendations for
management actions that meet the recovery needs of listed species; they
are not intended to guide compliance with other statutory requirements.
Critical habitat designations, similarly, are focused on the needs of
the species but take economic and other impacts into consideration.
The Service expressly considered the role of the O&C lands when
revising critical habitat in 2012, but did not consider excluding them
at that time because we concluded they were essential to the
conservation of the subspecies (77 FR 71876, December 4, 2012; p.
72007).
We expressly consider in this rule excluding the O&C lands (outside
of the BLM's Harvest Land Base lands) from the designation based on
requests from the commenter and others, but for the reasons discussed
in our weighing analysis, have determined not to do so (see
Consideration of Impacts Under Section 4(b)(2) of the Act).
We note, however, that the BLM and USFS have proposed harvests from
O&C lands within designated critical habitat, consulting with the
Service on those actions. To date, we have reviewed such proposals on
thousands of acres and have not found that the proposals result in the
destruction or adverse modification of that habitat under the Act.
The critical habitat designation benefits the northern spotted owl
as a landscape-scale conservation strategy that identifies areas on the
landscape that may require special management considerations or
protection. In addition, the designation informs management practices
that contribute to the recovery needs of the subspecies. In both the
critical habitat designation, and in site-specific consultations, the
Service has supported active forest management, where appropriate, to
provide for some timber harvest while also conserving habitat for the
northern spotted owl and reducing the risk of wildfire.
(vi): The AOCC commented that all O&C lands should be excluded from
the critical habitat designation because the benefits of exclusion
outweigh the costs and that there is no benefit to including these
lands in the designation because the O&C Act ``mandates for sustained
yield production control over the ESA section 7(a)(2) consultation.''
Additionally, they commented that the designation has had significant
adverse economic impacts on the counties, affecting their ability to
provide public services and has resulted in mill closures and job
losses.
Our response: As described elsewhere in this document, some timber
harvest does occur within critical habitat, and total annual timber
harvest levels on Federal lands in the range of the northern spotted
owl have actually increased since the revision of critical habitat in
2012; see our response to Comments (21b and 25a). See also our
responses to Comments (6 and 25) concerning O&C lands and our weighing
of the benefits of including O&C lands in the critical habitat
designation versus excluding them in Consideration of Impacts Under
Section 4(b)(2) of the Act.
(vii): The AOCC commented that the economic impact of the critical
habitat designation has not been properly evaluated by the Service and
that these impacts are not solely attributable to the listing decision.
Our response: See our response to Comment (20) below concerning our
review of the FEA (IEc 2012) and our regulation on how economic
analyses are conducted.
Comment (C): The AFRC submitted comments in support of the January
Exclusions Rule and expressed support for the Service's proposal to
exclude the BLM's Harvest Land Base lands and lands 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). The AFRC resubmitted comments they previously provided on our
2007, 2008, and 2012 critical habitat rules. We previously responded to
those comments in our final respective critical habitat rules; see 73
FR 47326, August 13, 2008, and 77 FR 71876, December 4, 2012. The
AFRC's comments on our August 11, 2020, proposed rule (85 FR 48487),
our March 1, 2021, rule delaying the effective date of the January
Exclusions Rule (86 FR 11892), and our July 20, 2021, proposed rule (86
FR 38246) are summarized below. Comments submitted by AFRC that were
similar to comments received on the August 11, 2020, proposed rule have
been incorporated into the comment sections following this section.
Several counties incorporated AFRC's comments by reference. In some
instances, other commenters submitted comments similar to the comments
submitted by AFRC; we include those comments in the following
summarized comments.
(i): The AFRC commented that the August 11, 2020, proposed revised
critical habitat rule gave notice to the public that additional areas
may be excluded in the final rule and that the Service (and Secretary)
preserved broad discretion to make additional exclusions such that
there was no ``logical outgrowth'' problem in the change from the
proposed to final exclusions in the January Exclusions Rule.
Our response: We requested comments in our August 11, 2020,
proposed rule on the following: Additional areas, including Federal
lands and specifically National Forest System lands, that should be
considered for exclusion under section 4(b)(2) of the Act and any
probable economic, national security, or other relevant impacts of
excluding those areas. We also requested comments on any significant
new information or analysis concerning economic impacts that we should
consider in the balancing of the benefits of inclusion versus the
benefits of exclusion in the final determination.
While our request indicated that we might consider additional
exclusions, the scale of the final exclusions was much larger and
broader than what the public could reasonably anticipate. In our
proposed rule, we identified 204,653 acres (82,675 hectares) across 15
counties and 26 critical habitat subunits in Oregon for potential
exclusion; the January Exclusions Rule increased the acres excluded by
nearly 17-fold. The final rule included extensive areas that were not
mentioned in the proposed rule, and for which no
[[Page 62610]]
details were provided in the January Exclusions Rule, within the States
of Washington and California, 45 counties across the range, and 55
critical habitat subunits across the designation.
In response to our March 1, 2021, rule delaying the effective date
of the January Exclusions Rule, we received many comments that the
January Exclusions Rule was not a logical outgrowth of the August 11,
2020, proposed rule, including comments from natural resource agencies
in Washington and California opposing the exclusions and expressing
that they were not aware that exclusions were being considered in their
respective States. Additionally, the Washington Department of Fish and
Wildlife comments expressed surprise at the 765,175 acres (309,655
hectares) excluded in their State under the January Exclusions Rule.
Further, the California Department of Fish and Wildlife commented in
response to the March 1, 2021, rule that the January Exclusions Rule
did not identify lands excluded in their State with enough specificity
to provide a meaningful analysis and comment. Conservation groups and
other members of the public commented in response to the March 1, 2021,
rule that they were not given the opportunity to present arguments and
facts contrary to the vast increase in exclusions as presented in the
January Exclusions Rule.
Additionally, the January Exclusions Rule also included new
rationales for the exclusions that were not identified in the August
11, 2020, proposed revised critical habitat rule (85 FR 48487). These
included generalized assumptions about the economic impact of both the
listing of the northern spotted owl and the subsequent designation of
areas as critical habitat; the stability of local economies and
protection of the local custom and culture of counties; the presumption
that exclusions would increase timber harvest and result in longer
cycles between harvest; that timber harvest designs resulting from the
exclusions would benefit the northern spotted owl, and that the
increased harvest would reduce the risk of wildfire; and that northern
spotted owls may use areas that have been harvested if some forest
structure was retained. The public did not have an opportunity to
review or comment on these new rationales.
Further, the January Exclusions Rule failed to reconcile a change
in our prior findings regarding areas managed under the O&C Act. In our
2012 rule revising the critical habitat designation for the owl, we
found that areas managed under the O&C Act were essential to the
conservation of the subspecies and that not including some of these
lands in the critical habitat network resulted in a significant
increase in the risk of extinction. Commenters stated that the
exclusion of these lands in the January Exclusions Rule also conflicted
with our December 15, 2020, finding that the northern spotted owl
warrants reclassification to endangered status given the exacerbation
of the threats it faces. We maintain that the public should have had an
opportunity to comment on the expanded critical habitat exclusions made
in January in light of the information included in the December 15,
2020, finding and supporting species report (85 FR 81144, FWS 2020, p.
83), which were published just 3 weeks before the January Exclusions
Rule.
In summary, it is clear from the public comment record that not
being afforded an opportunity to review and provide comment on the much
larger and broader areas excluded and the rationale for those
exclusions, particularly in light of the December 15, 2020, finding
that the northern spotted owl warranted reclassification to endangered
status, was considered by the public a lack of transparency and
inability to participate in the public process as required under the
Administrative Procedure Act. While our proposed August 11, 2020, rule
and exclusions did signal the potential that the final rule could be
different, on reconsideration we find that it is more prudent and
transparent to conclude that an updated proposed rule and an additional
opportunity to comment would be warranted were we to seek to put the
January Exclusions Rule into effect.
(ii): The AFRC commented that the Service's modeling of extinction
risk in the 2012 critical habitat designation discounted millions of
acres of potentially suitable habitat in national parks and designated
wilderness that are not included in the designation and assert that our
section 4(b)(2) analysis is flawed because the benefits these areas
provide was not considered. The AFRC further commented that our
assertion that these areas are relatively small and widely dispersed
across the range of the northern spotted owl is inaccurate as these
lands cover over 7 million acres (2.8 million hectares).
Our response: We included Congressionally Reserved Lands (e.g.,
designated wilderness and national parks) in our modeling analyses of
the critical habitat network and extinction risk based on the
assumption that habitat quality in these areas would be retained
whether they were designated as critical habitat or not (Dunk et al.
2012, pp. 19, 57). Our section 4(b)(2) analysis in the 2012 critical
habitat rule considered the benefits of including these lands within
the critical habitat designation and found that these areas are
essential to the conservation of the northern spotted owl. However,
unlike other Federal and State lands that have multiple use mandates
that include commercial harvest of timber in the range of the spotted
owl, such as National Forests, State Forests, and public-domain forests
managed by the BLM, these reserved natural areas are unlikely to have
uses that are incompatible with the purposes of critical habitat
because the primary habitat threat to spotted owl critical habitat--
commercial timber harvest--is generally prohibited on these lands.
These natural areas are managed under explicit Federal laws and
policies consistent with the conservation of the northern spotted owl,
and there is generally little or no timber management beyond the
removal of hazard trees or fuels management to protect structures,
roads, human safety, and important natural attributes.
Accordingly, we found that a critical habitat designation of these
reserved areas in the range of the spotted owl would provide no
additional regulatory benefits beyond what is already on these lands
due to their permanent status as protected lands and, importantly, the
fact that commercial timber harvest is generally not permitted on these
lands under Federal and State law and policy. Further, we found that
the designation of these reserve areas would confer little additional
educational benefits associated with the conservation of the spotted
owl, as these educational messages are already being communicated in
many of these areas under existing programs. In sum, although national
parks and designated wilderness were excluded under section 4(b)(2) of
the Act from the 2012 critical habitat designation, the conservation
value of these lands was considered in our analysis and modeling of
which lands were essential to the conservation of the northern spotted
owl and in the design of a critical habitat network.
Regarding the size and distribution of national parks and
designated wilderness, we initially identified and proposed to include
approximately 2.6 million acres (1 million hectares) of these lands in
the 2012 proposed critical habitat revision because they contained
northern spotted owl habitat and were found to be essential to the
conservation of the subspecies. These 2.6 million acres (1 million
hectares), which we identified as habitat essential to the conservation
of the northern spotted
[[Page 62611]]
owl, are the areas we describe as relatively small and widely
dispersed, versus the entire 7 million acres (2.8 million hectares) as
asserted by the AFRC. However, as we noted at the time of listing the
northern spotted owl in 1990, many of these areas are also typically
high-elevation lands and it is unlikely that the owl populations would
be viable if their habitat were restricted to these areas alone (55 FR
26114, June 26, 1990; p. 26177). Additionally, as we stated in our July
20, 2021, proposed revision, some of these areas are widely dispersed
and cannot be relied on to sustain the subspecies unless they are part
of and connected to a wider reserve network as provided by the 2012
critical habitat designation (77 FR 71876, December 4, 2012).
(iii): The AFRC commented that we stated that the barred owl is not
the primary threat to northern spotted owls and that this is
contradicted by the best available science. The AFRC and several
counties stated that there is little to no benefit of including areas
occupied by barred owls because the two species cannot coexist and the
presence of barred owls makes these areas unsuitable for northern
spotted owls. The AFRC commented that our conclusion that habitat
availability is as important as managing the threat of barred owls is
inaccurate.
Our response: In our July 20, 2021, proposed rule, we stated that
the large additional exclusions made in the January Exclusions Rule
were premised on inaccurate assumptions about the status of the owl and
its habitat needs particularly in relation to barred owls. The large
additional exclusions were based in part on an assumption that barred
owl control is the fundamental driver of northern spotted owl recovery,
when in fact the best scientific data indicate that protecting late-
successional habitat also remains critical for the conservation of the
spotted owl (FWS 2020, p. 83). We did not intend this statement to be
read to mean that the barred owl is not the primary threat to northern
spotted owls. We meant that recovery of the northern spotted owl will
require management of the barred owl as well as continued habitat
protections. See our response to Comment (13) below for a discussion on
the threat of barred owls to northern spotted owls and the importance
of maintaining habitat in light of competition with barred owls.
Although the northern spotted owl does not coexist well with the
invasive barred owl and the two species have a high degree of overlap
in their habitat preferences (Wiens et al. 2021, p. 2), their presence
does not alter the suitability of the habitat to support northern
spotted owls. In fact, the availability of suitable forest conditions
and addressing habitat loss is needed to work in concert with barred
owl management to reduce population declines of northern spotted owls
(Wiens et al. 2021, pp. 1, 2).
(iv): The AFRC commented that the Service's rationale for
withdrawing the January Exclusions Rule based on the need for
biological redundancy is flawed because critical habitat exacerbates
the wildfire threat to the northern spotted owl and communities by
inhibiting active forest management (other commenters, including
several counties, reiterated this assertion that critical habitat
conflicts with active management aimed at reducing wildfire risk).
Specifically, the AFRC states that forest treatments that remove canopy
cover to such an extent that habitat is ``downgraded'' (e.g., habitat
that supports nesting, roosting, and foraging is removed and the area
can only support dispersal) are avoided or deferred due to regulatory
constraints such as section 7 consultation requirements on critical
habitat for projects that would reduce the risk of wildfire in dry
forest ecosystems. The AFRC provided examples of projects that they
assert were altered due to the critical habitat designation or
litigated and delayed due to issues related to critical habitat.
Our response: See our response to Comment (27a) regarding perceived
conflicts between the critical habitat designation and active forest
management to address risk of wildfire in the dry forest ecosystem. See
also our response to Comment (9) regarding the need for biological
redundancy within the critical habitat designation. In regard to the
specific prescriptions for forest management treatments in dry forest
ecosystems within critical habitat, in the section on Special
Management Considerations or Protection, the 2012 critical habitat rule
referred to the guidance discussed in the Revised Recovery Plan for the
Northern Spotted Owl (Recovery Plan) (FWS 2011, pp. III-11 to III-39).
The Recovery Plan recommended active forest management with the goal of
maintaining or restoring forest ecosystem structure, composition, and
processes that would be sustainable and provide resiliency under
current and future climate conditions. The Recovery Plan acknowledged
that short-term impacts to northern spotted owls and their habitat may
occur due to these actions, but they may be beneficial in the long-term
if they reduce future losses from disturbance events, such as wildfire,
and improve resiliency to climate change (FWS 2011, p. III-14).
Further, the Revised Recovery Plan for the Northern Spotted Owl states
that ``tradeoffs that affect spotted owl recovery will need to be
assessed on the ground, on a case-by-case basis with careful
consideration given to the specific geographical and temporal context
of a proposed action'' and that specific prescriptions to meet the
goals of the recovery plan vary across forest types and the landscape
(FWS 2011, p. III-14). Section 7 consultations conducted on forest
management actions within critical habitat provide the avenue for these
assessments and are one of the benefits of designating these areas.
In response to projects being altered due to the 2012 critical
habitat designation, the examples that AFRC provided were for projects
that were consulted on prior to the critical habitat designation but
had not yet been implemented when the designation was finalized.
Project modifications and additional time to address the effects to the
physical and biological features of critical habitat and to consider
the special management recommendations and protections discussed in the
recently published critical habitat designation is a reasonable
expectation for such projects. In response to projects being avoided or
deferred within critical habitat, contrary to AFRC's assertion,
projects to reduce the risk of wildfire continue to be consulted on
with positive outcomes for the subspecies and the ecosystem while
allowing for timber harvest that meets Federal agency timber production
purposes; see our response to Comment (27a) for a discussion of recent
consultations. The decision on whether to propose an action that will
need to undergo section 7 consultation, however, is under the purview
of the Federal land management agencies. As we noted in the 2012
critical habitat rule, specifically prescribing such management is
beyond the scope or purpose of the critical habitat designation, but
should instead be developed by the appropriate land management agency
at the appropriate land management scale (e.g., National Forest or BLM
District) (USDA 2010, entire; Fontaine and Kennedy 2012, p. 1559;
Gustafsson et al. 2012, pp. 639-641, Davis et al. 2012, entire) through
the land managing agencies' planning processes and with technical
assistance from the Service, as appropriate (77 FR 71876, December 4,
2012; p. 71882).
In response to the comment that litigation associated with critical
habitat designations demonstrates that the designation conflicts with
forest
[[Page 62612]]
management, we note that historically Federal forest management
projects are frequently the subject of litigation regardless of whether
they occur within critical habitat or not. Litigation on these projects
does not necessarily indicate that critical habitat conflicts with
forest management. There are myriad reasons and issues that parties
seek to litigate Federal forest management actions; because they do so
is not a basis to conclude that the critical habitat designation is
flawed.
(v): The AFRC commented that northern spotted owl critical habitat
restricts timber harvest, citing the USFS' recent Bioregional
Assessment (USFS 2020), which states that timber production and
restoration often conflict with habitat protection objectives and
provides an example of reduced timber harvest on USFS matrix lands due
to critical habitat designation. AFRC further commented that critical
habitat has the effect of altering management direction on USFS matrix
lands based on the USFS recommendation in the Bioregional Assessment to
align their reserve allocations with the 2012 critical habitat
designation. AFRC asserts that a conflict in management of USFS forest
lands exists such that managing hazardous fuel loads that improve
forest health and resilience to wildfire conflicts with maintaining
vegetative cover that is needed for northern spotted owls.
Our response: The USFS Bioregional Assessment (Assessment) (USFS
2020) is one of the initial steps the USFS has taken to address
management plans that need to be updated. Most of the land management
plans in the area analyzed under the Assessment were written about 30
years ago and need to be updated to reflect current science and social,
economic, and ecological challenges across this area (USFS 2020, p.
10). The Assessment focuses on the most compelling issues across the
landscape that need updating, including species' habitat needs and the
need to address climate change, severe wildfire risk, and forest
health. The Assessment indicates that timber harvest is no longer
emphasized on USFS matrix lands that were designated as critical
habitat and expresses the need to align their reserve allocations with
the 2012 critical habitat designation (USFS 2020, pp. 60, 63). However,
the Assessment further states that ``better realignment of the late-
successional reserve network with critical habitat could adjust the
matrix lands available for ecological treatments, which might provide
additional timber outputs'' (USFS 2020, p. 74). Additionally, the
Assessment states that ``[b]etter alignment is needed between
designated critical habitat for spotted owls and the late-successional
old-growth portion of the late-successional reserve network; this could
help simplify management direction and better protect high-quality
habitat for owls and other old growth-dependent species, such as
marbled murrelet. In addition to protecting these habitats, management
direction that allows active management to restore and improve
ecosystem resilience could help conserve and develop northern spotted
owl habitat in the long term'' (USFS 2020, p. 63).
The Assessment expresses an urgent need to update their land
management plans to modify desired conditions associated with dry
forest ecosystems and to allow for active management in fire-prone
areas to restore ecological integrity and habitat (USFS 2020, pp. 63,
71, 76); active management to address these needs aligns with both the
Recovery Plan for the Northern Spotted Owl and the 2012 critical
habitat designation. Finally, the Assessment recognizes that ``social
values related to land management have begun to shift toward
recognition of the broad benefits associated with our natural resources
and the importance of balancing resource protection with timber
production'' (USFS 2020, p. 62).
We acknowledge that the designation of critical habitat on USFS
matrix lands can inform where timber harvest is emphasized as the USFS
considers the special management considerations and protections
discussed in the 2012 critical habitat designation. Education and
providing information are important functions of critical habitat
designations, especially when designing and implementing forest
management projects on public lands. However, the Service continues to
advocate for active management of forests to reduce wildfire risks as
described in our 2012 critical habitat rule and the Recovery Plan. We
designated USFS matrix lands as critical habitat where they contain
habitat that is essential to the subspecies' conservation (77 FR 71876,
December 4, 2012; p. 71895).
See our response to Comment (27a) regarding perceived conflicts
between the critical habitat designation and active forest management
to address the risk of wildfire in the dry forest ecosystem.
(vi): The AFRC commented that our July 20, 2021, proposed revised
critical habitat rule fails to consider the contribution that
management plans have in addressing connectivity across the landscape
and the current level of connectivity provided by management since the
NWFP was adopted. The AFRC stated that the Service acknowledged in the
Recovery Plan that the NWFP provides direction to address connectivity
and that both the reserve and matrix land-use allocations would
contribute to connectivity. AFRC further stated that the USFS maintains
dispersal habitat across their land-use allocations, that dispersal is
not a limiting factor, and that there is far more dispersal habitat
than is needed.
Our response: See our response to Comment (9) regarding the need
for biological redundancy within the critical habitat designation and
our responses to Comments (25c-e) regarding our consideration of
management plans. We evaluate effects of Federal actions on northern
spotted owl dispersal habitat during the section 7 consultation process
at a larger scale than effects of the action to nesting, roosting, and
foraging habitat. This approach is to ensure that dispersal habitat is
providing for connectivity across the landscape between large blocks of
nesting, roosting, and foraging habitat that reproducing northern
spotted owls prefer when available in an area. The amount of dispersal
habitat varies across the designation and is limited in some geographic
areas such as between the Coast Range and Cascade Range in southern
Oregon (FWS 2020, pp. 28-32). The biological redundancy included in the
design of the critical habitat network allows for some timber harvest
and was included to address the unpredictability of the extent of
natural disturbances such as wildfire.
(vii): The AFRC commented that ``mere connectivity is not an
element of habitat or critical habitat, and effects only on
connectivity cannot constitute `adverse modification' in violation of
the ESA,'' citing Defs. of Wildlife v. Zinke, 856 F.3d 1248, 1262 (9th
Cir. 2017) and that areas that provide only connectivity, therefore,
cannot be designated as critical habitat.
Our response: We do not agree with the commenter's interpretation
of the cited case, which involved effects of a proposed Federal action
to the desert tortoise. There, the project effects challenged were not
to designated critical habitat, but rather to habitat that provided
connectivity between designated critical habitat units. The Service
concluded that although the project affected connectivity habitat for
the tortoise, those effects did not adversely modify critical habitat.
Plaintiffs asserted that the Service was obligated to evaluate the
effect of that connectivity loss as an ``adverse modification'' to
critical habitat. The Service appropriately considered the effects of
the potential loss of
[[Page 62613]]
connectivity in examining whether the Federal action jeopardized the
species, but reasonably concluded that alterations to habitat that is
not designated as critical habitat did not ``adversely modify'' that
critical habitat.
The court simply affirmed this rational approach; the court's
decision does not stand for the proposition that designated critical
habitat cannot include the characteristics of connectivity. To the
contrary, the court recognized the well-established scientific
principles of connectivity (``[c]onnectivity is the ``degree to which
population growth and vital rates are affected by dispersal'' and ``the
flow of genetic material between two populations.''). Connectivity
promotes stability in a species by ``providing an immigrant subsidy
that compensates for low survival or birth rates of residents'' and
``increasing colonization of unoccupied'' habitat,'' Defs. of Wildlife
v. Zinke at 1254. This case is distinguishable from the circumstances
of the northern spotted owl in that the Service has expressly
designated ``connectivity'' habitat as critical habitat, i.e., the
dispersal habitat.
For the northern spotted owl, a project that proposes significant
impacts to designated critical dispersal habitat that impedes
connectivity between large blocks of designated critical habitat used
for nesting, roosting, or foraging could result in a conclusion that
the action would destroy or adversely modify critical habitat. Although
habitat that allows for dispersal may currently be marginal with
insufficient characteristics to support nesting, roosting, or foraging,
it provides an important linkage function among blocks of higher-
quality habitat both locally and over the northern spotted owl's range
that is essential to its conservation. Juvenile dispersal is a highly
vulnerable life stage for northern spotted owls and enhancing the
survivorship of juveniles during this period could play an important
role in maintaining stable populations of northern spotted owls.
Dispersal habitat is habitat that both juvenile and adult northern
spotted owls use when looking to establish a new territory. Both
dispersing subadults and nonterritorial birds (often referred to as
``floaters'') are present on the landscape and require suitable habitat
to support dispersal and survival until they recruit into the breeding
population; this habitat requirement is in addition to that already
used by resident territorial owls. Successful dispersal of northern
spotted owls is essential to maintaining genetic and demographic
connections among populations across the range of the subspecies and
population growth can occur only if there is adequate habitat in an
appropriate configuration to allow for the dispersal of owls across the
landscape; therefore, the Service included dispersal habitat as part of
the critical habitat designated for the northern spotted owl.
(viii): Comments submitted by AFRC (and incorporated by others)
include assertions that the Service included within the 2012 critical
habitat designation areas that are not ``habitat'' for the northern
spotted owl, in contravention of the Supreme Court's subsequent ruling
in 2018 that critical habitat designated under the Act must be habitat
for the species in the first instance (Weyerhaeuser Co. v. U.S. Fish
and Wildlife Serv., 139 S. Ct. 361, 368 (2018) (``Weyerhaeuser'').
These commenters assert that areas that are not ``habitat'' for the owl
within the critical habitat designation should be excluded by the
Secretary under section 4(b)(2).
Our response: As we explain in more detail in the Background
section below, we reviewed our 2012 critical habitat rule for
consistency with our new regulation defining ``habitat'' following the
Weyerhaeuser decision, and demonstrate why all of the designated
critical habitat is habitat for the northern spotted owl. We also
respond to comments seeking a wide variety of exclusions based on
general assertions that areas are not ``habitat'' for the northern
spotted owl presently, explaining why the assumptions underlying these
assertions are incorrect as matter of fact or law; see responses to
Comments (26-28).
Comment (D): The AFRC and several counties commented on several
other issues pertaining to our March 1, 2021, delay rule; April 30,
2021, delay rule; and proposed withdrawal of the January Exclusions
Rule as summarized below:
(i): Commenters stated that the Service predetermined to issue a
further delay rule prior to publishing the March 1, 2021, delay rule.
Our response: As described in the March 1, 2021, delay rule, the
Service was concerned about the potential effects of the January 2021
exclusions to impede conservation of the northern spotted owl, and
sought comments on the issues of fact, law, and policy regarding the
January Exclusions Rule. We noted that an additional delay of the
effective date might be warranted and expressly sought comment. As the
first delay rule would expire by April 30, and it can take some time to
develop and obtain publication of rules in the Federal Register, it was
appropriate for the Service to prepare a draft of such a second rule
while the first was being published. That the Service took steps to do
so is not a ``predetermination.'' Agencies frequently prepare drafts of
rules and change them based on internal and public comments. Any
decision to move forward with a second delay rule is not final until
authorized by the Service and published in the Federal Register.
(ii): Commenters stated that the delay rule is unlawful and
contrary to the Administrative Procedure Act and failed to effect a
valid amendment of the January Exclusions Rule, which was due to go
into effect on March 16, 2021. Commenters stated that the Service's
issuance of the March 1, 2021, delay rule without providing an
opportunity for public notice and comment was in violation of the
Administrative Procedure Act. Commenters further stated that the April
30, 2021, rule delaying the effective date of the January Exclusions
Rule until December 15, 2021, was issued after the first delay rule
expired and the January Exclusions Rule had gone into effect.
Our response: As the commenter noted, issues concerning the
lawfulness of the delay rule are the subject of litigation brought
against the Service on these topics in which they are plaintiffs, see
American Forest Resource Council v. Williams, No. 1:21-cv-00601-RJL
(D.D.C). The Service has responded to these assertions in briefs before
the court. In summary, the Service's decision to delay the
implementation of the January Exclusions Rule and ultimately to allow
for this additional rulemaking to withdraw it, was consistent with all
applicable laws. For further details, please see our responsive briefs
in that litigation, available in our record for this rulemaking.
(iii): Commenters stated that we cannot withdraw a rule that has
been published; it must instead be repealed, rescinded, or amended.
Based on this rationale, commenters stated that we must redesignate in
a new rulemaking the acres that were excluded in the January Exclusions
Rule if we are to retain them in the critical habitat designation and
that we must complete a new economic analysis for those redesignated
lands.
Our response: Whether or not the Service uses the term ``withdraw,
repeal, or rescind'' does not alter the result of this final rule--the
exclusions finalized (but not in effect) in the January rule are
``withdrawn, repealed, or rescinded'' by this final rule. Because this
final rule to take this action was developed with notice and comment
rulemaking, ``repeal'' would be
[[Page 62614]]
consistent with the language used in the Administrative Procedure Act
for the notice and comment rulemaking here. However, as the January
Exclusions Rule was final, but never went into effect, ``withdraw'' is
similar to situations in which a rule is developed but never went into
effect as cited by the commenters. In any event, as the January
Exclusions Rule never went into effect, the Service was not obligated
to ``redesignate'' the critical habitat areas already designated and
unchanged since the 2012 critical habitat rule.
(iv): Commenters stated that withdrawing the January Exclusions
Rule violates the terms and intent of the settlement agreement in
Carpenters Industrial Council et al. v. Bernhardt et al., No. 13-361-
RJL (D.D.C.) (retitled Pacific Northwest Regional Council of Carpenters
et al. v. Bernhardt et al. with the substitution of named parties
before being dismissed).
Our response: The commenter does not dispute that the Service
completed the production of a proposed and final rule per the timeline
in the settlement agreement, as extended. Rather, the commenter asserts
that because of the alleged flaws in the delay rules, the withdrawal of
the January Exclusions Rule violates the settlement agreement terms and
intent. The Service addresses the assertions regarding the delay rules
above. As to the ``intent'' of the settlement agreement, the Service is
here finalizing a revision to the 2012 critical habitat rule excluding
additional areas under authority of section 4(b)(2). This final rule is
not the broad exclusions that the commenters sought, but this does not
mean the Service violated either the intent, let alone the terms, of
the settlement agreement with the litigating parties. The Service did
not (nor could it have) pre-committed in a settlement agreement to
ultimately determine a set of exclusions in advance of public notice
and comment rulemaking.
Comment (E): Douglas County commented that exclusion of O&C lands
would not result in extinction of the northern spotted owl and that
exclusion of these areas would result in a stronger partnership with
local forest managers.
Our response: See our consideration of the benefits of partnerships
and our extinction analysis in Consideration of Impacts Under Section
4(b)(2) of the Act.
Comment (F): Commenters stated that our reevaluation of the
exclusions in the January Exclusions Rule is counter to the finding the
Secretary made in 1992 that ``overall effects on the Northwest timber
industry and to some counties in particular, were potentially severe
and that further consideration should be given to excluding additional
acreage from the final designation to reduce the overall economic
impacts that may result from the designation of critical habitat.''
Our response: Under section 4(b)(2) of the Act, the Secretary may
exclude an area from critical habitat if she determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless she determines, based on
the best scientific data available, that the failure to designate such
area as critical habitat will result in the extinction of the species.
In making that determination, the Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor; this discretion is not limited by previous determinations such
as we made in 1992. In this rulemaking, the Secretary has exercised her
discretion to exclude certain areas and not others from the critical
habitat designation after weighing these benefits.
Comment (G): Conservation groups commented that to the extent the
January Exclusions Rule relied on economic impacts, recent research
(Ferris and Frank 2021) shows that the economic impacts of the 2012
critical habitat designation have been overstated and are instead
consistent with what the Service found at that time.
Our response: Ferris and Frank (2021) discuss the impact that the
1990 listing of the northern spotted owl and subsequent critical
habitat designation in 1992 had on employment in the Lumber and Woods
Products Sector between 1984 and 2000. The authors found that the
impacts to employment in this sector were similar to what the
government projected at the time of listing of the northern spotted owl
and were not as large as projected in industry studies. Their study,
however, did not focus on the incremental impacts of designating
critical habitat for the northern spotted owl above those impacts
attributed to listing, which is how the Service assesses the economic
effect of critical habitat designations.
Comments Specific to Exclusions
Comments From Federal Agencies
Comment (1): The USFS stated 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 wildfire behavior as tools for determining where critical
habitat designations should be revised throughout the range of the
northern spotted owl. Additionally, on December 15, 2020, after the
comment period closed on our August 11, 2020, proposed rule, we
received a comment letter from the Under Secretary, Natural Resources
and Environment, Department of Agriculture, supporting Interior's
efforts to revise the northern spotted owl critical habitat designation
because of difficulties encountered by the USFS 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 USFS and the Service work
together in protecting the northern spotted owl and lowering the risks
of catastrophic wildfire.
Our response: In response to the comment submitted by the
Department of Agriculture, it is important to note that the Service
works closely with the USFS and other land managers to both recover the
northern spotted owl and lower the risk of catastrophic wildfire. For
example, the Service has completed multiple consultations under section
7 with Federal agencies on fuels reduction, stand resiliency, and pine
restoration projects in dry forest systems within the range of the
northern spotted owl. Those actions have included treatment areas that
reduce forest canopy to obtain desired silvicultural outcomes, lower
potential wildfire severity, and meet the need for timber production.
They also promote ecological restoration and are expected to reduce
future losses of spotted owl habitat and improve overall forest
ecosystem resilience to climate change. We have concluded in these
consultations that the actions do not destroy or adversely modify
critical habitat as defined under the Act and our implementing
regulations. Thus, in our experience, Federal agencies are able to plan
and implement active forest management, including commercial timber
harvests, to reduce wildfire risk in northern spotted owl designated
critical habitat.
In addition, the Service considered the potential impacts of
wildfire in our 2012 critical habitat designation (77 FR 71876,
December 4, 2012). The 2012 critical habitat rule represented an
increase in the total land area identified
[[Page 62615]]
from previous designations in 1992 and 2008. This increase in area was
due, in part, to the need to provide for essential biological
redundancy in northern spotted owl populations and habitat in fire-
prone landscapes (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285;
Kennedy and Wimberly 2009, p. 565). Please see our response to Comment
(9) concerning the impact of the 2020 wildfires.
In response to these and similar comments from others asserting
that excluding areas from critical habitat would lead to a reduction in
wildfire risks, the January Exclusions Rule acknowledged that Federal
land managers could conduct active management in areas of designated
critical habitat without violating the adverse modification prohibition
of section 7 of the Act. The January Exclusions Rule went further,
however, and inferred that the exclusion of areas from designated
critical habitat would increase the potential for Federal land managers
to include more lands in the Harvest Land Base, and allow longer cycles
between timber harvests to provide many environmental benefits,
including reductions in wildfire risk. It is certainly true that longer
cycles between timber harvests, i.e., allowing trees to become older
before they are removed, can have environmental benefits for species
dependent on mature forests such as the northern spotted owl. However,
it is speculative to conclude that Federal land managers would change
their approach to allow for longer rotations if lands are excluded from
the northern spotted owl critical habitat designation. There also
remains scientific uncertainty about the conclusion that harvest of
timber always lessens risks for catastrophic wildfire as compared with,
for example, a focus on fuel reduction treatments targeted to restore
more sustainable ecological processes. While the efficacy of standalone
treatments such as thinning is uncertain and site-dependent, there
exists widespread agreement that combined effects of thinning plus
prescribed burning consistently reduce the potential for severe
wildfire across a broad range of forest types and conditions (Prichard
et al. 2021, Fule et al. 2012, Kalies et al. 2016, Stephens et al.
2021).
In response to the USFS comments concerning spotted owl habitat
connectivity, providing connectivity while also supporting other uses
of forest lands is consistent with the critical habitat designation.
For example, we found in our 2016 Biological Opinion on the revised BLM
RMPs that the spatial configuration of ``reserve'' land use allocations
identified in the RMPs provide for northern spotted owl connectivity
across the landscape. Reserve land-use allocations are areas in which
BLM prioritizes management for resources other than commercial timber
production, although active management such as harvest may occur in
some reserves in order to achieve management objectives. The Harvest
Land Base land-use allocation describes areas where BLM prioritizes
commercial timber production. The BLM's management of the Late-
Successional Reserve for northern spotted owl habitat and other
reserves for non-timber objectives, along with the management and
scheduling of timber sales within the Harvest Land Base, are expected
to provide for northern spotted owl dispersal between physiographic
provinces and between and among large blocks of habitat designed to
support clusters of reproducing northern spotted owls (FWS 2016, p.
698), while also allowing BLM to meet its timber harvest goals.
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 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 additional exclusions in Oregon. We did not
receive comments from any State or State agency on the August 11, 2020,
or July 20, 2021, proposed rules, only comments regarding the January
Exclusions Rule; see our response to Comment (Ci).
Comments From Counties
We received comments from Klickitat, Lewis, and Skamania Counties
in Washington; from Douglas, Jackson, and Harney Counties in Oregon;
and from Siskiyou County in California. Most comments from counties
pertained to either economic analysis or exclusions; see Economic
Analysis Comments and Exclusions Comments below for County comments and
our responses. Other comments from the counties are addressed in the
section above titled Comments on the Withdrawal of the January
Exclusions Rule and the section below titled Comments on July 20, 2021,
Proposed Rule.
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 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 and the Cow Creek Band of
Umpqua Tribe of Indians pursuant to the Western Oregon Tribal Fairness
Act (Pub. L. 115-103). This revised rule excludes those recently
transferred lands from critical habitat designation. We considered
Tribal management plans in our analysis of these exclusions as
requested by the commenters; 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 areas we proposed
for exclusion in our August 11, 2020, proposed rule and our July 20,
2021, proposed rule provide important connectivity between the Coast
Range, Cascades, and Klamath/Siskiyou Mountains populations of northern
[[Page 62616]]
spotted owls, and that exclusion could reduce colonization and gene
flow, cause further isolation, and increase the probability of
extinction of the owl. Commenters further stated that we should not
rely on outdated plans that assume that northern spotted owls can
successfully disperse in low-quality habitat, and that the distribution
of reserves on National Forests alone will not meet the subspecies'
need for well-connected habitat.
Our response: The BLM updated their RMPs in 2016; we found in our
2016 Biological Opinion on the revised BLM RMPs that the spatial
configuration of reserves, the management of those reserves for the
retention, promotion, and development of northern spotted owl habitat,
and the management and scheduling of timber sales within the Harvest
Land Base land use allocation are all expected to provide adequate
opportunities for northern spotted owl dispersal between physiographic
provinces and between and among large blocks of habitat designed to
support clusters of reproducing northern spotted owls (FWS 2016, p.
698). Thus, by excluding areas within the Harvest Land Base, we are not
diminishing or altering connectivity functions of the remaining
designated critical habitat to any significant degree. Additionally,
regarding the reliance on reserves alone to facilitate connectivity,
this revised designation retains USFS matrix lands that are essential
to the conservation of the subspecies in addition to reserve lands.
Please see our response to Comment (9) concerning the impact of the
2020 wildfires and Comment (26b) concerning the quality of dispersal
habitat.
In response to this comment, the January Exclusions Rule concluded
that connectivity would remain protected without the critical habitat
designation because Federal actions that ``may affect'' northern
spotted owls would still require consultation under section 7 of the
Act to evaluate whether the action jeopardizes the continued existence
of the subspecies. On further review, we conclude that assumption was
overstated as a basis to exclude these lands. It is true that Federal
actions that ``may affect'' northern spotted owls, including actions
that impact northern spotted owl habitat even if not designated as
``critical,'' would still undergo section 7 consultation (whether
informal or formal, depending on the effects, see our response to
Comment 7, below). The critical habitat designation, however, benefits
the northern spotted owl as a landscape-scale conservation network that
connects large blocks of habitat that are able to support multiple
clusters of northern spotted owls. The designation identifies areas on
the landscape that may require special management considerations or
protection.
The section 7 consultation on effects to critical habitat ensures
these considerations occur and evaluates the post-project functionality
of the network to provide for connectivity at the subunit, unit, and
designation scales. Evaluating habitat at multiple scales in a
consultation on critical habitat ensures the landscape continues to
support the habitat network locally, regionally, and across the
designation.
These considerations are not necessarily involved to the same
degree when considering the effects to northern spotted owl habitat
that is not designated as critical as part of the jeopardy analysis in
a section 7 consultation. A consultation on effects to the species
(including effects resulting from changes to the non-designated habitat
of the species) as part of the ``jeopardy'' prong looks primarily at
how the project affects individuals, populations, and the species
rangewide. Consultation on the effects to the designated critical
habitat (the ``critical habitat'' prong of the consultation) focuses on
that habitat network. This reflects Congress's clear articulation of
two limits on Federal actions in section 7: A prohibition against
jeopardizing the species, and a prohibition against destroying or
adversely modifying its designated critical habitat. While we do
evaluate the effects of landscape level impacts to habitat as part of
the jeopardy analysis, this does not mean that the analysis of impacts
to critical habitat are no longer necessary; the two analyses are not
necessarily interchangeable.
Additionally, many of the lands that were excluded in the January
Exclusions Rule are reserves or matrix lands that provide habitat that
we found in our 2012 critical habitat rule were essential to the
conservation of the northern spotted owl (77 FR 71876; p. 71895). See
our reconsideration of the weighing of the benefits of inclusion versus
the benefits of excluding these lands and our extinction analysis in
Consideration of Impacts Under Section 4(b)(2) of the Act. The Harvest
Land Base lands that we exclude here in this final rule represent only
a small portion (less than 2 percent) of the critical habitat
designation and represent only 7 percent of the land base managed by
the BLM under the 2016 RMPs, with the remaining lands largely managed
as reserves. We evaluated the effects of future harvest on the Harvest
Land Base lands in our 2016 biological opinion on the BLM's revised
RMPs (BLM 2016a, b) and found that recovery of the northern spotted owl
would not be impeded and that the critical habitat units would continue
to provide connectivity and sufficient habitat across the landscape
(FWS 2016). Therefore, additional section 7 consultation on critical
habitat within the Harvest Land Base as currently described in the 2016
RMPs would provide no incremental conservation benefit as the
management direction under the RMPs already provides a conservation
strategy consistent with recovery of the northern spotted owl and will
not appreciably diminish the conservation value of the critical habitat
designation.
The January Exclusions Rule, in response to this comment, also
stated that ``some of the areas used by the northern spotted owl for
migration are secondary growth forests'' and that ``excluding such
areas from critical habitat will not change their characteristics as
secondary growth forests'' and they will continue to be used for
``migratory purposes.'' On further review we find it is accurate that
northern spotted owls may use areas of secondary growth forest;
however, their use of these areas is dependent on the age, diversity,
and condition of those forests. See also our response to Comment (26)
below. An increase in the areas available for timber harvest, which was
identified as a benefit of excluding the 3.4 million acres (1.4 million
hectares) in the January Exclusions Rule, could occur if these lands
were excluded from the critical habitat designation and land management
agencies were no longer required to consider the special management
considerations of critical habitat and subsequently amended their
management approach or land management plans to allow for more harvest.
The resulting increase in timber harvest could significantly alter the
ability of these stands to provide for dispersal. While these changes
in management and any resulting projects would not be immediate if
these areas were excluded from the designation, over time expanded
timber harvest would reduce connectivity of these areas to older, more
complex forests that provide nesting, roosting, and foraging habitat
for populations of northern spotted owls. Conserving or enhancing
connectivity between populations to facilitate dispersal and subsequent
colonization of large blocks of habitat that can support clusters of
reproducing northern spotted owls was a key feature in the design of
the critical habitat network.
[[Page 62617]]
Additionally, the January Exclusions Rule assumed that the reduced
regulatory burden in the process of Federal planning and implementation
of timber management would result in increased harvest. Increased
harvest at the scale of exclusions in the January Exclusions Rule would
reduce the overall connectivity and suitability of the critical habitat
network. That reduction in connectivity under the January Exclusions
Rule was, in hindsight, quite significant because of the expansive
elimination of critical habitat designated in areas of the northern
spotted owl range, with some critical habitat subunits being reduced by
up to 90 percent. The much smaller exclusions we finalize here
eliminate only portions of critical habitat units that overlap with the
Harvest Land Base allocation, which, as we already determined in our
2016 biological opinion, could be harvested without affecting the
conservation value, including connectivity, of that designated critical
habitat. See also our response to Comment (9) concerning the impact of
the 2020 wildfires.
Comment (4): Commenters noted that the lands proposed for exclusion
in our August 11, 2020, proposed rule and July 20, 2021 proposed rule,
in particular Federal lands, 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), and so questioned how
those lands could now be appropriate for exclusion from designation.
Additionally, commenters questioned how the exclusion of these lands
will not result in extinction.
Our response: Areas that are found essential to the conservation of
the species may be 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 she determines that the benefits of
such exclusion outweigh the benefits of specifying such area as part of
the critical habitat, unless she 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 BLM revised
their RMPs in 2016, amending their conservation strategy for the
northern spotted owl and related land use allocations (BLM 2016a,
2016b). We found in our 2016 Biological Opinion on the BLM RMPs (FWS
2016, p. 700) that, even with the projected timber harvest in the
Harvest Land Base land use allocation, the management direction
implemented under the RMPs is consistent with the Revised Recovery Plan
for the Northern Spotted Owl (FWS 2011) and would not appreciably
diminish the conservation value of, or adversely modify, critical
habitat (FWS 2016, p. 702). Because we had this updated information and
analysis, we reconsidered whether exclusion of these areas was
appropriate. We have determined that the benefits of exclusion of the
Harvest Land Base land outweigh the benefits of including these areas,
and that exclusion of these lands will not result in the extinction of
the northern spotted owl. See our exclusion and extinction analyses for
Harvest Land Base lands under Consideration of Impacts Under Section
4(b)(2) of the Act.
The January Exclusions Rule, which excluded all areas managed by
the BLM under the O&C Act, including reserves as well as the Harvest
Land Base, states that excluding the 3.4 million acres (1.4 million
hectares) identified in that rule will not cause the extinction of the
northern spotted owl. As discussed in our proposed rule, on
reconsideration we find that conclusion is not supported by the science
of conservation biology, the current population trend of the northern
spotted owl, nor the purpose of the Act. See our analysis in the
Withdrawal of the January Exclusions Rule section of this rule for a
more detailed discussion.
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 higher quality
habitat.
Our response: See our response to Comment (3). Additionally, the
BLM manages the Harvest Land Base acres in accordance with the
management direction of the BLM RMPs (BLM 2016a, 2016b). In our 2016
Biological Opinion on the BLM RMPs (FWS 2016), we found that, even with
the projected timber harvest in the Harvest Land Base, the area would
continue to function for the dispersal of northern spotted owls and
would provide connectivity between large blocks of habitat designed to
support clusters of reproducing northern spotted owls.
Comment (6): Commenters stated 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. Other commenters expressed concern about
excluding lands in southwest Oregon where the majority of O&C lands
occur.
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,
Public Law 75-405 (O&C Act) addresses the management of O&C lands. The
O&C Act identifies the primary use of revested timberlands for
permanent forest production. The Harvest Land Base lands that we
exclude in this revision are mostly on O&C lands managed by the BLM
under the 2016 RMPs. However, portions of O&C lands, outside of the
Harvest Land Base, that are managed by either the BLM or the USFS that
provide essential habitat and are located in a spatial configuration
that provides connectivity across the designation are still important
to northern spotted owl conservation and are retained as critical
habitat in this revision. As we noted above, we found in our 2016
Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with
the projected timber harvest in the Harvest Land Base land use
allocation, the management direction implemented under the RMPs is
consistent with the Revised Recovery Plan for the Northern Spotted Owl
(FWS 2011) and would not appreciably diminish the conservation value
of, or adversely modify, critical habitat (FWS 2016, p. 702). Thus, for
the reasons explained in Consideration of Impacts Under Section 4(b)(2)
of the Act, we have excluded the Harvest Land Base from the critical
habitat designation. This conclusion is based in part on the
expectation that these lands and the remaining designated critical
habitat in other land use allocations will be managed consistent with
the BLM's 2016 RMPs.
The January Exclusions Rule, because it excluded all O&C lands,
provided a different response to this comment: ``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
[[Page 62618]]
lands as critical habitat is proper in this case.'' 86 FR 4820, January
15, 2021, p. 4822.
Though not stated explicitly, this response implied (and has been
interpreted by some commenters to mean) that the O&C Act removes any
discretion the BLM may have in how to manage the O&C lands on a
sustained-yield basis such that the Endangered Species Act does not
apply to the BLM's management of those lands at all. We take this
opportunity to correct that implication. Courts reviewing the BLM's
management of O&C lands have found that the BLM retains discretion as
to how to achieve sustained yield timber production. See AFRC v.
Hammond, 422 F.Supp. 3d 184 at 190-91 (D.D.C. 2019); see also Swanson
Grp. Mfg. LLC v. Salazar, 951 F. Supp. 2d 75, 82 (D.D.C. 2013), vacated
on other grounds sub nom. Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235
(D.C. Cir. 2015); Portland Audubon Soc. v. Babbitt, 998 F.2d 705, 709
(9th Cir. 1993).
None of these courts--including AFRC v. Hammond, that found legal
infirmities in the BLM's adoption of its 2016 RMPs--has held that the
O&C Act precludes the BLM from considering opportunities to conserve
threatened and endangered species when authorizing actions on O&C
lands. Indeed, that district court decision narrowly ruled only that
BLM lacks the authority to designate reserves on O&C lands because it
violates the mandate to manage those lands for sustained yield timber
harvest. It expressly stated that BLM had discretion in the management
of those lands, and certainly did not hold that BLM lacks such
discretion altogether. To the extent the January Exclusions Rule relied
on the assumption to the contrary, it was incorrect. In short,
``reserves'' are not the same as designated critical habitat.
In any case, as we discuss further in Consideration of Impacts
Under Section 4(b)(2) of the Act, we conclude that the exclusion of
some O&C lands from the designation as critical habitat is appropriate,
but the exclusion of all O&C lands is not.
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
section 7 of the Endangered Species Act. Commenters also expressed
concern that the Service no longer considers habitat fitness when
assessing project effects and incidental take in section 7
consultations. Commenters further assumed that section 7 consultations
would be required only if surveys confirm northern spotted owl
presence, which commenters considered problematic because they conclude
we cannot reliably detect northern spotted owls when barred owls are
present. Thus, critical habitat provides a benefit through section 7
review likely resulting in the retention of the physical and biological
features needed by northern spotted owls, which cannot be addressed
otherwise through section 7 consultations.
Our response: We completed a programmatic section 7 consultation on
the BLM RMPs in 2016, under the assumption that BLM will implement
actions consistent with the RMPs' specific management direction 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).
In our July 20, 2021, proposed revision to the critical habitat
designation, we explained that Federal actions in the Harvest Land Base
that may affect designated critical habitat require section 7
consultation at the project-level scale. As discussed further below in
Consideration of Impacts Under Section 4(b)(2) of the Act, based on our
experience in project consultations since the BLM 2016 RMPs were
implemented, addressing effects to designated critical habitat in the
Harvest Land Base provides no incremental conservation benefit over the
conservation already provided for in the BLM RMPs (2016a, 2016b) and
project-level consultations that still occur regardless of the presence
of critical habitat. Thus, continuing to require BLM to include an
analysis of effects to designated critical habitat in the Harvest Land
Base within otherwise triggered, project-level consultations is not
contributing to the conservation and recovery of the subspecies, nor is
it an efficient use of limited consultation and administrative
resources.
With the exclusions finalized here, actions within the Harvest Land
Base that affect northern spotted owl habitat (even if that habitat is
no longer designated as critical) will still be subject to section 7
consultation to ensure that actions are not likely to jeopardize the
continued existence of the subspecies, but we are removing the
regulatory burden to consult under section 7 to address designated
critical habitat by excluding the Harvest Land Base. We have consulted
on the program of timber harvest planned under the RMPs, which will
occur primarily in the Harvest Land Base. We already determined in that
consultation (FWS 2016) that harvest in the Harvest Land Base will not
appreciably diminish the value of the critical habitat for the
conservation of the northern spotted owl and that BLM's management
approach provided under the RMPs will sustain critical habitat over
time. Northern spotted owls are expected to continue to be able to
disperse across the landscape due to the habitat conditions and
protections in the Late-Successional Reserves and Riparian Reserves,
the stand retention incorporated into the management direction for
timber harvest in the Harvest Land Base, and because any detrimental
effects to northern spotted owl dispersal capability will be spread
over 50 years during which time ingrowth in the reserves will also be
occurring. The BLM's revised 2016 RMPs included approximately 177,000
additional acres (71, 630 hectares) of reserved lands compared to lands
originally reserved under the NWFP in 1994; these acres contribute
additional dispersal capability across the management area. These
factors represent a significant improvement in the capability of the
landscape to provide for spotted owl movement and dispersal. Given
these provisions and assurances, 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
Harvest Land Base areas as designated critical habitat are relatively
minor when compared to the benefits of excluding them.
The commenter is incorrect in stating that we do not consider
habitat fitness in our evaluations of effects in section 7
consultations for the subspecies in the absence of affected designated
critical habitat. We consult on Federal actions that have effects to
northern spotted owl habitat even if it is not designated as critical
habitat, regardless of whether the subspecies currently occupies that
habitat, and consider this information in our analysis of whether the
action is likely to jeopardize the continued existence of the
subspecies. The commenter may be confusing the question of
``occupancy'' for consideration of whether ``incidental take'' of the
species will occur. Even if we conclude that a Federal action that
[[Page 62619]]
adversely affects habitat does not result in a ``jeopardy'' finding for
the species, we must still assess whether the Federal action will
result in the incidental take of the species. Because ``take'' of the
species is dependent in part on the Federal action proximately causing
actual injury to the species, information about the presence or absence
of the animal during the proposed activity (often referred to in the
terminology of ``occupied'' versus ``unoccupied'') is particularly
relevant. In order to evaluate whether a Federal action affecting
northern spotted owl habitat will incidentally ``take'' that
subspecies, we consider a number of factors, including habitat effects
and survey results for the presence of the owl. As a result, in some
cases we may find that adverse effects to northern spotted owl habitat
(not designated as critical habitat) will occur, but we are unable to
conclude with reasonable certainty that the habitat effects will result
in incidental ``take'' of the owl. See Arizona Cattlegrower's Assn. v.
U.S. Fish and Wildlife Serv., 273 F.3d 1229 (9th Cir. 2001).
The commenter is correct that detectability of northern spotted
owls is reduced when barred owls are present, which led us to endorse
an updated protocol for surveying for northern spotted owls to take
this into account (FWS 2012), a protocol that has been upheld on review
by the courts (Cascadia Wildlands v. Thrailkill, 49 F. Supp. 3d 774,
779-80 (D. Or. 2014), aff'd, 806 F.3d 1234 (9th Cir. 2015)). Our
jeopardy analysis considers the effects to habitat regardless of
occupancy. With the exclusions finalized today, Federal agencies will
no longer have the obligation to consult on the effect of their actions
to (formerly) designated critical habitat in the areas excluded. They
will still be required to consult with us if their discretionary
actions result in effects to northern spotted owl habitat that remains,
and they will be precluded from jeopardizing the subspecies as a result
of that habitat modification. We will also still continue to evaluate
whether the Federal actions affecting habitat, even if they do not
jeopardize the subspecies, result in the incidental take of northern
spotted owls, and if so, will identify reasonable and prudent measures
and terms and conditions to minimize that incidental take.
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 wildfires 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.
Commenters further stated that excluding lands from critical habitat
will lead to more regeneration logging, which will lead to increased
fuels and uncharacteristic wildfire and that additional critical
habitat should be designated in order to protect forests from
regeneration harvest and further the objectives of the final recovery
plan to provide habitat redundancy and avoid fire hazard.
Our response: In September 2020, several major wildfires burned
across portions of the range of the northern spotted owl in Washington,
Oregon, and California affecting habitat conditions. The fires impacted
multiple ownerships, including Federal lands managed by the BLM and
USFS, State lands, and private lands. Although the wildfires that
occurred during the fall of 2020 had significant impacts to some
critical habitat units at the local level, the longer term impacts to
spotted owl conservation will vary depending on fire severity (see our
discussion in Comment (27b) regarding the use of previously burned
habitat). Although some subunits have experienced a partial and/or
temporary reduction in connectivity in places, overall the critical
habitat units and the rangewide network designated in 2012 will
continue to provide demographic support and connectivity to the
northern spotted owl as intended in the 2012 critical habitat
designation.
The 2012 critical habitat rule was an increase in designated area
compared to previous designations, in part to provide for biological
redundancy in northern spotted owl populations and habitat by
maintaining sufficient habitat on a landscape level in areas prone to
frequent natural disturbances, such as the drier, fire-prone regions of
its range (Noss et al. 2006, p. 484; Thomas et al. 2006, p. 285;
Kennedy and Wimberly 2009, p. 565). The historical range of the
northern spotted owl within Oregon, Washington, and California is about
57 million acres (23 million hectares), including both Federal and non-
Federal (33 million) acres (USDA-USFS and DOI-BLM 1993, p. 23). The
Northwest Forest Plan area, which was explicitly identified in 1994 to
encompass the range of the northern spotted owl on Federal lands, is
approximately 25 million acres (10 million hectares) in size and
included 19 National Forests, 7 BLM Districts, and other Federal lands.
The 2012 designation of 9.6 million acres (3.9 million hectares) of
critical habitat (reduced in this revision to approximately 9.4 million
acres (3.8 million hectares)) is a parsimonious and scientifically
appropriate identification of only those lands within these 25 million
acres (10 million hectares) that are critical to the conservation and
recovery of the spotted owl.
The 2012 designation is based upon almost three decades of
scientific research on the spotted owl. Estimating actual historical
forested habitat within this range is difficult, but during our
evaluation of whether to list the northern spotted owl, we concluded
the best available information was that some 17.5 million acres (7
million hectares) of ``suitable'' habitat were available to the owl
historically, before the advent of significant timber harvesting of old
growth forests (55 FR 26114, June 26, 1990; p. 26151). When we
initially designated critical habitat for the owl in 1992, we estimated
that only 7.2 million acres (2.9 million hectares) of this ``suitable''
habitat (in this context meaning the types of older, more mature stands
preferred by the northern spotted owl for nesting, roosting, and
foraging when available in an area) remained on Federal lands, and most
of it (60 percent) was in land allocations available for harvest (57 FR
1796, January 15, 1992; p. 1799). We found in the 1992 critical habitat
designation that the best available information was that it could all
be removed within 25-30 years (57 FR 1796, January 15, 1992; p. 1800).
The critical habitat revision in 2012 was built upon this scientific
work, while also incorporating the best available updated scientific
information and taking into account more recent concerns such as the
barred owl invasion, climate change, and the
[[Page 62620]]
increasing impacts associated with severe wildfire.
In the development of habitat conservation networks generally, the
intent of spatial redundancy is to increase the likelihood that the
network and populations can sustain habitat losses by inclusion of
multiple populations unlikely to be affected by a single disturbance
event. This redundancy is essential to the conservation of the northern
spotted owl because disturbance events such as fire can potentially
remove large areas of habitat with negative consequences for northern
spotted owls. The evaluation process used by the Service incorporates
the recommendations of the Revised Recovery Plan for the Northern
Spotted Owl (FWS 2011) by addressing spatial redundancy at two scales:
By (1) making critical habitat subunits large enough to support
multiple groups of owl sites, and (2) distributing multiple critical
habitat subunits within a single geographic region. This was
particularly the case in the fire-prone Klamath and Eastern Cascades
portions of the range.
In summary, we acknowledge that the recent wildfires had negative
impacts on some local northern spotted owl populations and critical
habitat subunits and that future fires are likely to have additional
negative impacts. However, the additional exclusions we make here
represent a relatively small area compared with the designated areas
that remain, and they do not appreciably diminish the conservation
value of the designation to the northern spotted owl. These areas that
remain in the designation will be managed in the long term for northern
spotted owl conservation under the Northwest Forest Plan (NWFP) (USFS
and BLM 1994a, USFS and BLM 1994b) and BLM RMPs (BLM 2016a, BLM 2016b)
and are expected to provide an adequate amount of habitat at the
listed-entity scale to withstand periodic natural disturbances such as
wildfire.
Regarding the comment that exclusions will lead to regeneration
harvest and subsequent increased fuel load and uncharacteristic
wildfire, we assume the Harvest Land Base will continue to be managed
consistent with the management direction defined in the 2016 RMPs. As
previously stated, we found in our 2016 Biological Opinion on the BLM
RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in
the Harvest Land Base land use allocation, the management direction
implemented under the RMPs is consistent with the Revised Recovery Plan
for the Northern Spotted Owl (FWS 2011) and would not appreciably
diminish the conservation value of, nor adversely modify, critical
habitat (FWS 2016, p. 702).
The January Exclusions Rule 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. See our responses
to Comments (1) and (27a) regarding section 7 consultation and the
recommendations in our 2012 critical habitat rule for fuels management
and dry forest restoration projects.
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.
Commenters stated that the exclusions will lead to more logging and
greenhouse gas emissions and that mitigating the risks of climate
change requires greater conservation of northern spotted owl habitat,
particularly older forests that store significant amounts of carbon;
therefore, these additional exclusions should not be made.
Our response: As mentioned earlier, the 2012 spotted owl critical
habitat designation was enlarged from previous designations, in part to
provide increased redundancy in the face of climate change. We analyzed
climate change and its potential impact on spotted owl recovery in the
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011). We noted
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 Recovery Plan acknowledged the
uncertainty associated with estimating rates of habitat recruitment
(FWS 2011, p. B-8).
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 Environmental Impact Statement, then the BLM would engage in
additional planning steps and procedures under the National
Environmental Policy Act (NEPA) (BLM 2016a, p. 111). Additionally, the
effects of climate change will be considered in the development of
forest management actions and analyzed in future NEPA analyses and
section 7 consultations at the project level.
The BLM may also apply adaptive management by taking additional
planning steps and NEPA procedures based on information found through
the monitoring questions (Appendix B) (BLM 2016a, p. 111; BLM 2016b, p.
133). The late-successional and old-growth ecosystems effectiveness
monitoring program characterizes the status and trend of older forests
to answer the basic question: Is implementation of the BLM RMPs
maintaining and restoring late-successional and old-growth forest
ecosystems to desired conditions on Federal lands in the planning area?
(BLM 2016a, p. 116; BLM 2016, p. 138). Effectiveness monitoring reports
will also include analysis of whether the BLM is achieving desired
conditions based on effectiveness monitoring questions and, where
possible, inform adaptive management (BLM 2016a, p. 111; BLM 2016b, p.
139). As discussed further in our response to Comment (33), we
established benchmarks in our biological opinion on the BLM's RMPs for
evaluating the effectiveness of their program.
In sum, BLM's RMPs are consistent with the Recovery Plan
recommendations for addressing uncertainty, and provide the tools for
adaptive management if needed to address effects from climate change.
The Harvest Land Base exclusions finalized here will not impair that
adaptability.
Comment (11): Commenters asserted that our statement in the
proposed rule that the proposed exclusion provides ``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''
[[Page 62621]]
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. The critical
habitat designation retains northern spotted owl habitat in reserve
land-use allocations, and retains northern spotted owl habitat in the
matrix and some non-Federal public lands that we found essential to the
conservation of the subspecies. The designation of these lands was
supported by our statement in the 2012 critical habitat rule: ``In some
areas, for example the O&C lands, our modeling results indicated that
those Federal lands make a significant contribution toward meeting the
conservation objectives for the northern spotted owl in that region,
and that we cannot attain recovery without them. Likewise, in addition
to our modeling results, peer review of both the Revised Recovery Plan
for the Northern Spotted Owl (FWS 2011) as well as our proposed rule to
revise critical habitat, suggested that retention of high-quality
habitat in the matrix is essential for the conservation of the
subspecies. Population performance based on reserves under the NWFP,
for example, fared very poorly compared to this final designation of
critical habitat. As described in the section Changes from the Proposed
Rule, we tested possible habitat networks without many of these matrix
lands, which resulted in a significant increase in the risk of
extinction for the northern spotted owl.'' (77 FR 71876, December 4,
2012; p. 72007).
We are excluding the portion of O&C lands (approximately 172,712
acres (69,894 hectares)) allocated by the BLM to the Harvest Land Base.
The remaining O&C lands under USFS and BLM management (1,209,229 acres
(489,357 hectares)) are retained within the critical habitat
designation in this final rule. We have determined that the benefits of
exclusion of the Harvest Land Base land outweigh the benefits of
including these areas, and that exclusion of these lands will not
result in the extinction of the northern spotted owl. See our
discussion of the benefits of exclusion versus inclusion of Harvest
Land Base lands in Consideration of Impacts Under Section 4(b)(2) of
the Act.
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: A district judge in the U.S. District Court for the
District of Columbia 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, American Forest Resource Council et al.
v. Hammond, 422 F.Supp.3d 184 (D.D.C. 2019). Although a decision as to
remedy has not yet been issued, depending on the final outcome of that
litigation, the Harvest Land Base might change through court order or
land use planning by BLM. We have excluded lands based on the BLM RMPs
as they are, not as they may be modified in the future. See also our
response to Comment 25(b), below, and our reconsideration of the
weighing of the benefits of inclusion versus the benefits of excluding
these lands and our extinction analysis in Consideration of Impacts
Under Section 4(b)(2) of the Act.
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. Commenters stated that
reducing critical habitat will increase the probability of competitive
exclusion and that we should not reduce critical habitat without a
barred owl management plan in place.
Our response: In addition to the effects of historical and ongoing
habitat loss, 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).
Franklin et al. (2021) found that spotted owl populations declined 6 to
9 percent annually on 6 demographic study areas and 2 to 5 percent
annually on 5 study areas. Applying the annual rates of decline,
populations dropped to or below 35 percent of the historical population
on 7 of the study areas, and to or below 50 percent on the remaining 3
areas over a 22-year period (1995-2017). The presence of barred owls on
spotted owl territories was the primary factor negatively affecting
apparent survival, recruitment, and thus the population change, and was
a contributing factor in our recent determination that the subspecies
warranted reclassification to endangered status.
An analysis of occupancy based on northern spotted owl and barred
owl detections supported the conclusion that barred owl presence has a
negative effect on northern spotted owls, increasing territorial
extinction and decreasing territorial colonization of spotted owls.
While barred owl occupancy was the dominant negative effect on spotted
owl territory occupancy and population trend, other factors such as
habitat condition had a weaker, but positive, effect on occupancy and
trend. These other factors such as habitat were insufficient to reverse
the negative trend, but suggest the importance of maintaining spotted
owl habitat on the landscape, even if it is unoccupied, in the face of
competitive exclusion by barred owls, as noted by Dugger et al. 2011.
The authors in Franklin et al. (2021) noted that maintenance of habitat
across the landscape would (1) provide areas available for
recolonization by northern spotted owls should management actions allow
for reduction of barred owl populations and (2) facilitate connectivity
by dispersing northern spotted owls among occupied areas, citing to
Sovern et al. 2014. The authors stated, ``Our analyses indicated that
northern spotted owl populations potentially face extirpation if the
negative effects of barred owls are not ameliorated while maintaining
northern spotted owl habitat across their range.'' (Franklin et al.,
2021, p. 19)
The Service conducted experimental removal of barred owls to test
its efficacy in improving spotted owl demographic performance on four
study areas spread across the northern spotted owl range in Washington,
Oregon, and northern California. Peer-reviewed analysis of the
experiment (Wiens et al. 2021) showed a strong, positive effect of
barred owl removal on survival of spotted owls in the treated areas and
a weaker but positive effect on spotted owl dispersal and recruitment.
The estimated mean annual rate of population change for spotted owls
stabilized in areas with removals (0.2 percent decline per year), but
continued to decline sharply in areas without removals (12.1 percent
decline per year). Barred owl removal had a strong positive effect on
spotted owl survival, which was the primary factor in stabilizing the
populations. Barred owl removal also demonstrated a weaker, though
still positive, effect on recruitment of new spotted owls to the
territorial populations. This weaker
[[Page 62622]]
response is probably due to the depressed reproduction in recent years
and the subsequent limited availability of new recruits. The experiment
demonstrated that barred owl removal can achieve rapid results in
improving the persistence of northern spotted owls, though effects on
reproduction and long-term population trend will take a longer period
of management effort.
These two analyses (Wiens et al. 2021, and Franklin et al. 2021)
indicate that, while barred owl presence was the primary and strongest
driver of spotted owl population trend leading to the rapidly
decreasing spotted owl populations, habitat availability and quality
were important components of managing for the survival and recovery of
spotted owls in the future. The Service is in the process of developing
a barred owl management strategy, using the information from both of
these studies.
Similar to our response above to the comment suggesting the need
for increased habitat redundancy in the face of catastrophic wildfire,
we find that the critical habitat designation, which includes more area
than what was previously designated in 1992 and 2008, is consistent
with the Revised Recovery Plan for the Northern Spotted Owl (2011) and
provides for the conservation of northern spotted owls as they face
growing competition from barred owls. The exclusions we finalize here
are not of a scale to appreciably affect that approach. See also our
discussion of our analysis in the biological opinion on BLMs RMPs and
their approach to barred owl management in our responses to Comments
(15, 18, and 33).
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 Late-Successional
Reserve) 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: In this final rule, we are not excluding lands within
reserve land use allocations from the critical habitat designation. Our
exclusion of the Harvest Land Base lands managed by BLM is based on new
information since the December 4, 2012, critical habitat designation
(77 FR 71876), i.e., the 2016 BLM RMPs and our evaluation of those RMPs
through the section 7 consultation process. As described earlier, the
lands we exclude in this final rule were already reviewed for their
value to long-term spotted owl conservation in the 2016 Biological
Opinion on the BLM RMPs, and the RMPs provide a robust long-term
conservation strategy that is consistent with the goals of the 2011
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and the
2012 critical habitat designation.
The January Exclusions Rule, in justifying the exclusion of 3.4
million acres (1.4 million hectares), stated that even on excluded
lands, all discretionary Federal actions and decisions on areas that
are occupied by the subspecies will be required to undergo section 7
consultation if such action or decision ``may affect'' the northern
spotted owl and that such consultation will ensure that the continued
existence of the northern spotted owl is not jeopardized. See our
further review of these statements in our response to Comment (3) and
our reconsideration of the weighing of the benefits of inclusion versus
the benefits of excluding these lands and our extinction analysis in
Consideration of Impacts Under Section 4(b)(2) of the Act.
Comment (15): Commenters 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 and that critical habitat
should not be reduced until the reserve system is fully restored. The
commenters 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 containing 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 implement 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 in the Harvest Land Base and minimized in
other land use allocations. These measures in the RMPs will minimize
near-term negative effects to occupied northern spotted owl habitat in
the Harvest Land Base as habitat continues to further develop late-
successional characteristics in the reserve land use allocations.
Comment (16): Commenters stated that our proposal to exclude the
Harvest Land Base lands ignores the northern spotted owl Recovery Plan
recommendation to protect older, complex forests on Federal lands west
of the crest of the Cascades range.
Our response: We relied on the recovery criteria set forth in the
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) to
determine what is essential to the conservation of the subspecies and
identified a critical habitat designation that ensures sufficient
habitat to support stable, healthy populations across the range and
within each of the 11 recovery units.
The Revised Recovery Plan for the Northern Spotted Owl relies on
the NWFP's Late-Successional Reserve network as the foundation for
northern spotted owl recovery on Federal lands (FWS 2011, p. III-41).
The revised plan recommended ``continued application of the reserve
network of the NWFP until the 2008 designated spotted owl critical
habitat is revised and/or the land management agencies amend their land
management plans taking into account the guidance in this Revised
Recovery Plan'' (FWS 2011, p. II-3). BLM's 2016 revision of its RMPs
fully considered the 2011 Recovery Plan recommendation.
The BLM RMPs provide protection to older, complex forests through
the system of reserves. Reserve land use allocations (Late-Successional
Reserve, Congressionally Reserved Lands and National Conservation
Lands, District-Designated Reserves, Riparian Reserve) comprise 74.6
percent (1,847,830 acres (747,790 hectares)) of the acres of BLM land
within land use allocations (FWS 2016, p. 9). These lands are managed
for various purposes, including preserving wilderness areas, natural
areas, and structurally complex forest; recreation management;
maintaining facilities and infrastructure; some timber harvest and
fuels management; and conserving lands
[[Page 62623]]
along streams and waterways. Of these lands, 51 percent (948,466 acres
(383,830 hectares)) are designated as Late-Successional Reserve, 64
percent of which (603,090 acres (244,061 hectares)) are located within
the critical habitat designation for the northern spotted owl (FWS
2016, p. 9). The management objectives on Late-Successional Reserve are
designed to promote older, structurally complex forest and to promote
or maintain habitat for the northern spotted owl and marbled murrelet
(Brachyramphus marmoratus). In this final rule, we are not excluding
lands within reserve land use allocations from the critical habitat
designation.
The January Exclusions Rule stated that ``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.'' We agree with this statement; however,
see our reconsideration of the weighing of the benefits of inclusion
versus the benefits of excluding these lands and our extinction
analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.
Comment (17): Commenters expressed concern that excluding critical
habitat will impede recovery of the northern spotted owl and that we
should not exclude areas that contain sites with a history of northern
spotted owl reproduction.
Our response: In our 2016 Biological Opinion on the 2016 Revised
BLM RMPs, we found that the conservation needs of the northern spotted
owl will continue to be met because the BLM's plan is consistent with
the guidance of the northern spotted owl Recovery Plan, at the
landscape scale over 50 years, as follows:
<bullet> The BLM RMPs will conform to the northern spotted owl
Recovery Plan, including the location and function of large blocks of
habitat for reproducing spotted owls and the ability of the landscape
to support spotted owl movement between those blocks.
<bullet> The BLM RMPs will include approximately 177,000 more acres
(71,629 hectares) of Late-Successional Reserve and Riparian Reserves
than in the NWFP, which will be managed for the retention and
development of large trees and complex forests across the RMP
landscape.
<bullet> The BLM RMPs will improve the amount, quality, and
distribution of nesting habitat on BLM lands over the first 50 years
modeled under the RMPs through management of these increased reserves.
<bullet> The BLM RMPs will facilitate and improve northern spotted
owl dispersal capability across the landscape through the management of
the increased reserves.
Given the management, spatial configuration, and projected
improvement of habitat in the reserves, we find that excluding the
Harvest Land Base lands will not preclude recovery of the northern
spotted owl if the 2016 RMPs are implemented as described. In addition,
the Indian lands excluded herein represent only 0.21 percent of the
overall designation; we have found that we can achieve the conservation
of the northern spotted owl by limiting the designation to other lands.
The January Exclusions Rule determined that the exclusion of 3.4
million acres (1.4 million hectares) from the critical habitat
designation outweighed the benefits of inclusion, and that, based upon
the best scientific and commercial data available, it did not conclude
that exclusion of those areas will result in extinction of the
subspecies. See our reconsideration of the weighing of the benefits of
inclusion versus the benefits of excluding these lands and our
extinction analysis in Consideration of Impacts Under Section 4(b)(2)
of the Act.
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 5 years under the NWFP)
prior to making changes in the critical habitat designation. Commenters
further expressed concern that we should be conserving more habitat in
light of the Service's recent finding that the northern spotted owl
warrants reclassification to endangered status.
Our response: The most recent meta-analysis, Franklin et al.
(2021), found that 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. Unless barred owls are proactively managed while also
maintaining northern spotted owl habitat across the range, northern
spotted owls are likely to become extirpated across portions of their
range (Franklin et al. 2021, pp. 18-19).
We find the BLM RMPs provide an approach that minimizes negative
impacts to spotted owls and offsets these impacts with proactive
positive actions providing for the long-term survival and recovery of
the northern spotted owl. When considered in its entirety,
implementation of the BLM RMPs will have both negative and positive
effects on the northern spotted owl. Negative impacts will primarily be
due to resource utilization such as timber harvest on less than one-
quarter of the BLM land base, and other resource programs. Positive
effects of the plan will accrue due to the following: An increase in
the total area of protected forest reserves on BLM lands (approximately
80 percent of BLM ownership); BLM's management of forest habitat to
increase the rate of development of late-successional conditions; and
BLM's support for, and cooperation in, the barred owl removal
experiment and a potential barred owl management program (see our
response to Comment (13) regarding the completion of the barred owl
removal experiment and the development of a barred owl management
program). When aggregating these negative and positive impacts with the
environmental baseline, it is our conclusion that the impact of the BLM
RMPs will be a net conservation gain for the northern spotted owl
during the next 50 years under the plans.
Over the 50-year life of the BLM RMPs (BLM 2016a, BLM 2016b), there
will also be a significant net gain over current levels in spotted owl
habitat largely within reserves that will be managed to maintain and
produce high-quality spotted owl habitat of the kind preferred by owls
for nesting, roosting, and foraging when available in an area. This
increase will provide large blocks of habitat of Federal land capable
of supporting more than 25 spotted owl pairs. Spotted owl dispersal
through these areas also will continue to be facilitated and is
expected to improve over time under BLM's management.
Although impacts to spotted owl habitat in the Harvest Land Base
were anticipated, wherever possible those impacts will be spread out
over time to minimize site abandonment as a barred owl management
strategy is implemented. Given this, and the landscape of reserves
providing for blocks of habitat and northern spotted owl movement
consistent with the recovery needs of the spotted owl, we concluded the
BLM RMPs will not appreciably diminish the ability of the BLM lands to
provide for a well-distributed population of owls.
Because of the expected retention and improvement of northern
spotted owl populations on BLM lands, the Service concluded that
implementation of the BLM RMPs would not represent an appreciable
reduction in the likelihood of survival and recovery of the northern
spotted owl in the wild due to
[[Page 62624]]
reductions in reproduction, numbers, or distribution (FWS 2016, p.
624). BLM's commitment to participate in and support a barred owl
management strategy, combined with the RMPs' allocation of reserves, is
projected to result in a significant improvement in the northern
spotted owl population's trend, and in the reproduction, numbers, and
distribution over projected baseline conditions with no barred owl
management and no timber harvest.
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: Our rationale for excluding the Harvest Land Base is
not to circumvent section 7 consultation, nor because the area in
question involves O&C lands. Rather, we have concluded based on our
programmatic review in our Biological Opinion on the BLM 2016 RMPs, and
our experience in project consultations since the BLM 2016 RMPs were
implemented, that addressing effects to designated critical habitat in
the Harvest Land Base provides no incremental conservation benefit over
the conservation already provided for in the BLM RMPs (2016a, 2016b)
and project-level consultations that still occur regardless of the
presence of critical habitat. Thus, continuing to designate critical
habitat in order to require BLM to include effects to critical habitat
designated in the Harvest Land Base within otherwise triggered,
project-level consultations is not contributing to the conservation and
recovery of the subspecies, nor is it an efficient use of limited
consultation and administrative resources.
The January Exclusions Rule stated 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. See our response to Comment (3) concerning
section 7 consultations and our reconsideration of the weighing of the
benefits of inclusion versus the benefits of excluding these lands and
our extinction analysis in Consideration of Impacts Under Section
4(b)(2) of the Act.
Economic Analysis Comments
Comments From Counties
Comment (20): Several counties requested that the Service undertake
a new economic analysis to reconsider the economic impacts of the 2012
designation on local communities and natural resource-based economies.
Our response: We reviewed the FEA (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 economists who prepared the FEA regarding the
additional information submitted (IEc 2020). See our 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)). In addition, because the January Exclusions Rule has not
gone into effect and we are only excluding (i.e., removing) additional
areas from critical habitat, the economic impact will be further
reduced from that analyzed in 2012 and a new economic analysis is not
necessary. Even if the January Exclusions Rule were to go into effect,
an entirely new economic analysis would not be required for this final
rule because (1) this rule does not designate any new areas that were
not included in the 2012 critical habitat designation and analyzed in
the 2012 FEA; (2) the 2012 FEA estimated potential incremental economic
impacts of the 2012 designation over a 20-year timeframe, which has not
yet ended as of the date of this final rule; and (3) the Service has
considered the updated economic-impact information provided by
commenters, as discussed more fully below. The Service has fully
considered the economic impacts of this final rule, consistent with the
requirements of ESA Section 4(b)(2).
The January Exclusions Rule stated that our FEA completed in 2012
(IEc 2012) in combination with a new report prepared by the Brattle
Group (2020) (Brattle Report) continue to be the best scientific and
commercial data available; we no longer find this to be the case as
discussed in our response to Comment (21) addressing IEc's review of
and our concerns with information contained in the Brattle Report (IEc
2020, IEc 2021).
Comment (21): The AFRC (AFRC 2020; AFRC 2021) provided public
comments requesting that the Service exclude at least 2,515,491
additional acres (1,017,983 hectares) in addition to the 204,653 acres
(82,820 hectares) proposed for exclusion. The AFRC provided the Brattle
Report critiquing our FEA and a supplement to the Brattle Report
(Brattle supplement) responding to our responses to comments in the
January Exclusions Rule (The Brattle Group 2021). 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 and/or
supplement 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 and supplement (referred to as
reports here) is a review of our analysis of potential timber harvest
losses attributable to northern spotted owl critical habitat
designation in 2012. The Brattle reports follow the same analytic
approach for measuring timber harvest impacts as employed in the
economic analysis for the critical habitat designation (IEc 2012), but
use alternative assumptions or updated inputs. These adjustments yield
the following differences when compared to the results of the FEA (see
IEc 2020 for more details):
<bullet> The number of acres where incremental harvest impacts may
occur is higher;
<bullet> The baseline annual harvest potential is higher;
<bullet> The potential reductions in harvest volumes due to the
impact of critical habitat are larger; and
<bullet> The estimated stumpage values are lower.
As described by IEc in their review of this information (IEc 2020,
2021), the effect of these changes in inputs by the Brattle reports is
a higher measure of the negative annualized timber harvest impacts
across the affected acres, i.e., a projection of greater economic
effects. The Brattle reports assert that, across 1.7 million acres
(687,966 hectares), the critical habitat designation greatly diminishes
harvest and causes losses to the market of between $66.4 million and
$77.2 million (or between $66.4 million and $85.4 million per the
supplement) on an annualized basis, and between $753 million and $1.18
billion (or between $869 million and $1.31 billion per the supplement)
over 20 years on a net present value (NPV) basis. AFRC and others
suggest the results of the
[[Page 62625]]
Brattle reports support their request for exclusion of additional acres
based on economic impacts.
Our response: We find several issues with the analysis provided in
the Brattle reports, specifically the assumptions or data used to
produce the estimate of negative annualized timber harvest impacts due
to the critical habitat designation, and we do not agree with their
ultimate conclusions.
First, the Brattle reports state that the higher number of acres
where incremental impacts may occur is based upon a review of GIS files
and other related information. Their estimated acreage of lands
affected changed considerably between the Brattle Report and
supplement. However, the supplement provides no clear basis for this
increase. We asked IEc to review the Brattle reports, and they
concluded that they could not replicate the result, but determined that
the magnitude of differences in the acreages identified in the reports
versus those identified in our FEA are unlikely to substantially alter
the ranking of potential impacts by subunit. The Brattle reports
provide retrospective impacts by subunit, but do not provide a
composite ranking. In contrast, our FEA 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).
Second, the Brattle reports assume a much higher baseline annual
harvest potential on USFS and BLM lands (a more than five-fold
increase) than the best available information indicates is likely. We
understand that the reports relied on average yields from a short time
period of harvest data (2018-2020) on lands managed by BLM for moist
and dry forests and then translated these harvest levels into estimates
of long-term annual yields across the acres where the reports assume
incremental impacts may occur. Based on comments from AFRC, the reports
also assume 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 at
best hypothetical and not widely applicable. The BLM and USFS are
unlikely to have similar yields generally for a variety of reasons,
including that 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. The USFS and BLM apply ``uneven-aged'' stand management,
rather than ``even-aged'' stand rotations, on many of these areas to
meet multiple use goals such as wildfire risk reduction, recreation,
forest restoration, and biodiversity conservation, especially in drier
portions of the range. In contrast, we based our yield rates on actual
harvest data provided by the BLM and USFS over an extended period (IEc
2012). For lands managed by BLM, the FEA 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, our FEA used
projected yield rates provided by the USFS for each critical habitat
unit.
Third, the Brattle reports assume an 80 percent reduction in
harvest volumes due to the critical habitat designation versus the 20
percent used in the FEA high-impact scenario. The reports indicate that
the assumption of an 80 percent reduction in harvest volumes is based
on discussions with AFRC and unspecified comments provided by the USFS
and BLM on the 2012 economic analysis. As a result, it is unclear on
what basis the Brattle reports assume an 80 percent reduction in
harvest volumes. The most likely cause is by improperly conflating the
impact that the listing of the northern spotted owl in 1990 and other
economic and logistical factors had on timber harvest with the
incremental effect of the subsequent designation of critical habitat,
particularly in areas that are currently unoccupied by the subspecies.
The Brattle Report also noted 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 FEA). 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 timber harvest in
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 FEA 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 FEA ``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 reports 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 FEA
(IEc 2012) ($66 to $77 million estimated in the Brattle Report, $66 to
$85 million in the supplement, versus $6.5 million in the FEA). As
noted above, the Brattle supplement added the distribution of its
overall measure of impacts across the designation's subunits.
Understanding
[[Page 62626]]
relative impacts by discrete areas of critical habitat is a necessary
aspect of an accurate benefits-weighing process. We note that the
Brattle reports include 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 do not consider the Brattle reports to be
the best scientific and commercial data available, and we do not agree
with the conclusions of the Brattle reports and the comments that rely
on them. More specific analysis of the Brattle reports can be found in
our record on this rulemaking (IEc 2020, 2021).
The January Exclusions Rule considered the negative economic
impacts on rural communities of the critical habitat designation and
the listing of the northern spotted owl in its weighing of the benefits
of excluding 3.4 million acres against the benefits of inclusion and
concluded that the benefits of exclusion outweighed the benefits of
inclusion. We do not now find these conclusions to be appropriate; see
our reconsideration of the weighing of the benefits of inclusion versus
the benefits of excluding these lands and our extinction analysis in
Consideration of Impacts under Section 4(b)(2) of the Act.
(b) The Brattle Report included information on annual timber
harvest levels on Federal lands in 18 counties within California,
Oregon, and Washington, from 2002 through 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 acknowledge that the listing of the northern
spotted owl in 1990, in addition to other social and economic factors,
affected timber industry employment and establishments (Ferris and
Frank 2021, p. 12). However, we have reviewed the information in the
Brattle Report and found significant errors and unsubstantiated
assumptions.
First, 4 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. The Brattle
supplement states that this information was provided for context,
although it does not explain how referencing this context aids in
assessment of impacts from the northern spotted owl. In fact, the data
from these counties document that timber harvest and related economic
patterns were concurrently volatile in rural counties outside the range
of the spotted owl, suggesting larger market forces were impacting
timber markets both within and outside the range of the owl.
Second, of the remaining 14 counties cited in the report that
contain some spotted owl critical habitat, the Brattle reports describe
timber harvest declines occurring in 7 counties somewhere around (i.e.,
proximally before and after) the year 2012, stable or flat trends in 3
counties, and increased harvest levels in 4 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 harvest levels between years going back to 2002, indicating that
there are likely other confounding economic and logistical factors
influencing these dynamic timber harvest levels aside from the 2012
critical habitat designation, as described in our response to Comment
(22).
Third, the analysis provided charts of harvest decline in specific
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. Most of these counties showed wide
fluctuations in timber harvested on Federal lands, both before and
after 2012, again indicating the influence of factors other than the
designation of critical habitat.
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 land harvest data in Oregon counties that are within the
northern spotted owl critical habitat designation. The annual average
harvest from 2002 through 2012 on all 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 through
2019, after the 2012 critical rule was published, was 235 million board
feet; the total in 2020 was 249 million board feet offered for sale
(BLM 2021a). Thus, rather than suffering a decline, annual harvest
appears to have increased substantially subsequent to the 2012
designation of critical habitat.
Likewise, the annual average harvest from 2002 through 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 through
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.
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 FEA is flawed with respect to Douglas County and should be revised.
Among other exclusions that are addressed in Comments (25-28), Douglas
County requested that all private and State lands, and county lands
specifically in Oregon, be excluded.
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
[[Page 62627]]
designation but describes general pressures on the timber industry.
In addition, during this same time period, timber-related tax
revenue flowing to Oregon counties has declined due to large reductions
in State and local property and severance taxes on private timber
lands. According to one in-depth analysis, half of Oregon's 18 western
counties lost more revenue due to tax cuts on private lands than they
did due to reductions in Federal timber harvest levels (Younes and
Schick 2020). It is unclear if the Brattle analysis incorporated this
data into its analysis of net declines in timber revenue to local
economies.
Our FEA (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 FEA 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 revised 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).
We acknowledge that Douglas County has experienced significant
economic strain, but we conclude that the economic impacts analysis we
conducted with the 2012 critical habitat designation remains an
accurate assessment of the incremental economic effects of the
designation of critical habitat, and does not provide a basis from
which to exclude all of the areas of critical habitat currently
designated in the county.
Regarding Douglas County's request that we exclude private, State,
and county lands, there are no private lands designated as critical
habitat for the northern spotted owl; we primarily relied on Federal
lands, with a small amount of State and local government lands, to meet
the conservation needs of the northern spotted owl. We did not
designate any county lands in Oregon as critical habitat. We did
designate areas on some State lands in Washington, Oregon, and
California where Federal lands are not sufficient to meet the
conservation needs of the northern spotted owl. In our final 2012
designation, we excluded State parks and natural areas and lands in
Washington covered by a habitat conservation plan. See our Process for
Exercising Discretion to Conduct an Exclusion Analysis in Consideration
of Impacts Under Section 4(b)(2) of the Act.
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 FEA contracted by the Service and written by
Industrial Economics (IEc 2012), even incorporating a summary of the
Kusel and Saah report (2012) (see our response to Comment (201) in the
December 4, 2012, critical habitat rule (77 FR 71876, p. 72040)). The
Service maintains that the FEA conducted for the 2012 critical habitat
designation (IEc 2012) is the most accurate reflection of the potential
economic impacts of that designation (77 FR 71876). We have reviewed
the FEA (IEc 2012) and determined that because we are proposing only to
exclude (i.e., remove) additional areas from critical habitat and are
not adding any new areas not included in the 2012 designation, the
economic impact will be further reduced and a new analysis is not
necessary.
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).
Other than a small amount of Indian lands (which were previously
managed by the BLM), the Service is only excluding lands identified for
timber harvest under the 2016 BLM RMPs. These RMPs underwent rigorous
NEPA review, including public comment on the identification of the
Harvest Land Base lands. The Service then completed a Biological
Opinion on these RMPs, which included an analysis of the effects of
proposed timber harvest in designated critical habitat, and concluded
that timber harvest under the plan would not adversely modify the
critical habitat. Therefore, consistent with the ruling in Douglas
County, conducting a NEPA analysis and a biological opinion on the
proposed exclusions would be redundant, and an inefficient use of
limited government resources. As we are withdrawing the exclusions
finalized in the January Exclusion Rule, we make no assessment of
whether or not a NEPA analysis and biological opinion on those
exclusions would have been required.
4(b)(2) Exclusions Comments
The Secretary has discretion whether to conduct an exclusion
analysis under section 4(b)(2) in accordance with our regulations at 50
CFR 17.90(c). The Secretary will conduct an exclusion analysis when the
proponent of excluding a particular area (including but not limited to
permittees, lessees or others with a permit, lease, or contract on
federally managed lands) has presented credible information regarding
the existence of a meaningful economic or other relevant impact
[[Page 62628]]
supporting a benefit of exclusion for that particular area. We provide
our evaluation of whether commenters requesting the exclusions below
have provided this credible information in Consideration of Impacts
Under Section 4(b)(2) of the Act under the section entitled Process for
Exercising Discretion to Conduct an Exclusion Analysis.
Comment (25): Commenters variously requested that we exclude all
O&C lands; all USFS matrix lands; all USFS and BLM lands; BLM lands
outside the Harvest Land Base; and specifically, 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, including
salvage harvest, on O&C lands and matrix lands.
Our response: We determined in our section 7 consultation on the
BLM RMPs that BLM's management direction was consistent with the
Endangered Species Act and that the actions proposed within the plans,
including timber harvest in the Harvest Land Base on O&C lands over a
50-year timeframe, did not result in adverse modification of the
designated critical habitat. Similarly, our consultations under section
7 with the USFS for its harvest actions carried out under the NWFP on
matrix and O&C lands since the 2012 designation of critical habitat
have resulted in determinations that the actions did not adversely
modify critical habitat or jeopardize the continued existence of the
northern spotted owl. Thus, these agencies have not been precluded from
implementing timber harvests within designated critical habitat; they
can and do implement harvest actions within critical habitat consistent
with their management plans. As described in previous responses to
comments, average annual timber harvest on these lands has actually
increased after the 2012 designation. Additionally, as an example, in
response to the 2020 wildfire season, we recently consulted on salvage
harvest projects in critical habitat in the areas of the Archie Creek
and South Obenchain wildfires to allow the BLM and the USFS to recover
the economic value of trees proposed for removal. Critical habitat did
not impede these projects from going forward nor did it require
additional project changes to the actions the agencies proposed.
(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. One commenter suggested that we wait for the
outcome of that proceeding before revising critical habitat; another
commenter indicated the court ruling, even without the remedy order,
supported the exclusion of all O&C lands from designated critical
habitat.
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 upheld the
RMPs in challenges asserting non-compliance with the Endangered Species
Act, a conclusion affirmed by an appellate court (see Pac. Rivers v.
U.S. Bureau of Land Mgmt., No. 6:16-cv-01598- JR, 2019 WL 1232835 (D.
Or. Mar. 15, 2019), aff'd sub nom. Pac. Rivers v. Bureau of Land Mgmt.,
815 F. App'x 107 (9th Cir. 2020). In a separate proceeding a district
judge on the U.S. District Court for the District of Columbia 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,
American Forest Resource Council et al. v. Hammond, 422 F.Supp.3d 184
(D.D.C. 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 rule.
This final rule is based on the 2016 RMPs as they are, and not as
they may be modified in the future. The ultimate litigation outcome
challenging the BLM's management of O&C lands is not certain. We
acknowledge the potential for future reductions in the BLM reserve
land-use allocations and changes in the Harvest Land Base. We will
continue to monitor the litigation and once it has concluded (including
any land-use planning if undertaken) will assess whether revisions to
this designation are appropriate to propose. See also our response to
Comment (6).
(c) Commenters asserted that O&C lands managed by the BLM and lands
managed by the USFS should be excluded because the NWFP and RMPs should
guide management on Federal lands since they are consistent with the
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011).
Our response: The Service agrees 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.
In contrast, we have not conducted an updated programmatic review
of USFS land management plans as was done with BLM plans in 2016. All
USFS actions carried out under the NWFP since the 2012 designation of
critical habitat that may affect that habitat have undergone section 7
consultation on a project-by-project basis and have been found to be
consistent with the Endangered Species Act. Our January Exclusions Rule
comment response stated that these consultations were sufficient to
support exclusion of the USFS land areas because it supported the then-
Secretary's determination that extinction would not result. However,
without a programmatic-scale look at USFS land management plans we lack
the updated broad-scale information and assessment of the effects of
harvest within designated critical habitat that would be necessary to
sustain additional exclusions of all USFS O&C lands, whether they are
located in reserves or in areas targeted for timber harvest. See our
response to Comment (11) concerning the remaining O&C lands in the
final critical habitat designation. See also our reconsideration of the
weighing of the benefits of inclusion versus the benefits of excluding
these lands and our extinction analysis in Consideration of Impacts
Under Section 4(b)(2) of the Act.
(d) Commenters stated that non-O&C BLM lands should be excluded for
ease of administration.
Our response: We are excluding lands within the BLM Harvest Land
Base and certain Indian lands in this rulemaking, including some non-
O&C lands managed by BLM. Over 90 percent of
[[Page 62629]]
the Harvest Land Base occurs on O&C lands, but we also included the
portion of the Harvest Land Base that does not occur on O&C lands in
this exclusion. See responses to Comments (11) and (16) for an
explanation of why additional lands managed by BLM are essential to the
conservation of the northern spotted owl and are thus not being
excluded.
(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 (25c) above.
Additionally, we acknowledge the continuing concern over the inclusion
of O&C lands in the designation of critical habitat for the northern
spotted owl. Since the mid-1970s, scientists and land managers have
recognized the importance of forests located on portions of O&C lands
for the conservation of the northern spotted owl and have attempted to
reconcile this conservation need with other land uses (Thomas et al.
1990, entire). Starting in 1977, BLM worked closely with scientists and
other State and Federal agencies to implement northern spotted owl
conservation measures on O&C lands. Over the ensuing decades, the
northern spotted owl was listed as a threatened species under the Act,
critical habitat was designated (57 FR 1796, January 15, 1992) and
revised two times (73 FR 47326, August 13, 2008; 77 FR 71876, December
4, 2012) on portions of the O&C lands, and a Recovery Plan for the owl
was completed (73 FR 29471, May 21, 2008, p. 29472) and revised (76 FR
38575, July 1, 2011). These and other scientific reviews consistently
recognized the need for large portions of the O&C forest to be managed
for northern spotted owl conservation while also providing for other
uses of these lands.
In 2016, the BLM revised their RMPs providing direction for the
management of approximately 2.5 million acres (1 million hectares) of
BLM-administered lands, which includes most of the O&C lands, for the
purposes of producing a sustained yield of timber, contributing to the
recovery of endangered and threatened species, providing clean water,
restoring fire-adapted ecosystems, and providing for recreation
opportunities (BLM 2016a, p. 20; BLM 2016b, p. 20). The BLM RMPs
revised the land-use allocations of BLM-managed lands in western
Oregon. We noted in the Revised Recovery Plan for the Northern Spotted
Owl (FWS 2011, p. II-3) that the functionality of the critical habitat
designation on BLM-managed lands and rangewide was anticipated to
improve, in part as the land management agencies updated their land
management plans to incorporate the Recovery Plan's recommendations.
The total Harvest Land Base land use allocation on BLM lands, a
portion of which is critical habitat and is now being excluded from
critical habitat, comprises 19 percent (469,215 acres (189,884
hectares)) of the overall land use allocations described in the RMPs
and is where the majority of programmed timber harvest will occur (FWS
2016, p. 9; BLM 2016a, pp. 59-63). Approximately 172,712 acres (69,779
hectares) of the Harvest Land Base being excluded herein is O&C lands.
Our analysis of the impacts to the habitat within the Harvest Land Base
recognized that this land use allocation was not intended to be relied
upon for demographic support of northern spotted owls (FWS 2016, p.
553). Thus, through our analysis conducted for the section 7
consultation for the 2016 RMPs, we have evaluated the role that these
lands have in the recovery of the northern spotted owl. Based on that,
we reconsidered the relative value of including them in a critical
habitat designation.
The O&C lands that remain within the critical habitat designation
with this final rule are composed primarily of Late-Successional
Reserve on BLM and USFS lands, and some forest ``matrix'' lands in
National Forests where timber harvest was programmed to occur under the
1994 NWFP. Our modeling results for the 2012 critical habitat
designation indicated that the O&C lands make a significant
contribution toward meeting the conservation objectives for the
northern spotted owl. As described in the section, Changes From the
Proposed Rule, in the December 4, 2012, critical habitat rule (77 FR
71876; p. 71888), we tested possible habitat networks without many of
the BLM (now Harvest Land Base) and USFS matrix lands, which resulted
in a significant increase in the risk of extinction for the northern
spotted owl (Dunk et al. 2012, pp. 57-59; Dunk et al. 2019, Figure 8).
Likewise, in addition to our modeling results, peer review of both the
Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) as well
as our proposed rule to revise critical habitat in 2012 indicated that
retention of high-quality habitat in portions of the matrix is
essential for the conservation of the subspecies. Thus, while the
exclusion of the Harvest Land Base acreage as described will not
jeopardize the subspecies (as assessed in our Biological Opinion on the
2016 RMPs), the O&C lands and USFS matrix lands that remain within the
designation remain essential to the conservation of the northern
spotted owl.
Comment (26): Commenters requested that we exclude: Areas of
younger forests; all critical habitat subunits that have 50 percent or
more younger forests; areas that are not currently occupied by northern
spotted owls; all unoccupied areas; unoccupied USFS matrix and adaptive
management area lands; ``habitat capable'' lands; stands under 80 years
old; and low-quality habitat; and areas described as dispersal habitat.
We respond separately to these exclusion requests below:
(a) Commenters asserted that younger forests, including stands
under 80 years old, areas that are not currently occupied by northern
spotted owls, and ``habitat capable'' lands do not currently provide
habitat to the northern spotted owl. Commenters assert that an area is
not habitat if modification or natural growth is required before it
could actually support the subspecies. Comments stated that areas of
younger forests and subunits dominated (greater than 50 percent) by
younger forests should be excluded and that the benefits of including
these areas is negligible. Some commenters provided a report and data
showing areas within the critical habitat designation that had been
harvested, experienced severe wildfire (see our response to Comment
27), or are smaller fragmented parcels (see our response to Comment 28)
(Mason, Bruce and Girard 2021 in AFRC 2021, appendices A-D). Commenters
stated that even with these exclusions there would still be protections
for the subspecies due to section 7 obligations.
Our response: Younger forests are typically the result of past
timber harvest, wildfire, or some other form of disturbance. Areas of
younger forest in the critical habitat designation are part of the
forest mosaic essential for the northern spotted owl. The fact that
some younger forests may contain few habitat characteristics preferred
by owls does not mean that such areas are not habitat for the owl--some
areas may be, others may not be, depending on the site-specific
characteristics. Nor does the Act preclude designation of areas that
currently function as habitat for the northern spotted owl but are
dynamic, such as a forested environment in which younger trees
naturally grow over time and the area thereby transitions from
[[Page 62630]]
functioning primarily as dispersal or foraging habitat to the
subspecies' preferred roosting and nesting habitat consisting of older
stands. The Service's rule does not describe or anticipate
modifications or natural changes to the designated areas for them to
qualify as critical habitat or represent current habitat for the
subspecies; indeed, the regulation explicitly indicates that
``[n]othing in this rule requires land managers to implement, or
precludes land managers from implementing, special management or
protection measures.'' 50 CFR 17.95 (entry for northern spotted owl at
paragraph 4).
As to ``occupied'' versus ``unoccupied'' habitat, the commenter may
be confusing the use of the term ``occupied'' as used when designating
critical habitat, with the concepts of presence or absence of a species
in section 7 consultations, which can also refer to the ``occupancy''
of the species at the time of the consultation. The two are not the
same. The Service is required to designate critical habitat based on
the occupied habitat ``at the time of listing'' which in the case of
the northern spotted owl was 1990. After 1990, whether or not the
species ``occupies'' that specific habitat does not dictate whether the
area is critical habitat. Rather, in our evaluation in a section 7
consultation for effects of a Federal action on specific designated
critical habitat, we evaluate the effects to the physical and
biological features of critical habitat and the post-project
functionality of the network to provide for connectivity at the
subunit, unit, and designation scales to ensure the landscape continues
to support the habitat network locally, regionally, and across the
designation. This evaluation is not conditional on critical habitat
being currently occupied. Rather, ``occupancy'' at the time of a
specific action resulting in a section 7 consultation is generally most
relevant for assessing whether the proposed Federal action will
``jeopardize'' the species, or incidentally ``take'' the species. See
also our response to Comment (3).
As was explained in the 2012 critical habitat designation, although
some areas of younger forests may not have been used as nesting habitat
by northern spotted owls at the time of listing, younger forests are
often used by owls for dispersal or foraging behavior, both of which
are essential life functions, and thus are considered as ``occupied''
for the purposes of critical habitat designation. Including these areas
within the designation is beneficial because they provide the physical
and biological features that currently support owl life functions
(e.g., dispersal) and contain the habitat elements conducive to
developing the physical or biological features of the higher-quality
nesting and roosting habitat (they are of suitable elevation, climate,
and forest community type over time). While some areas may not be used
for nesting by spotted owls and may be lacking some element of the
physical or biological features, such as large trees or dense canopies
that are associated with the higher quality nesting habitat, these
areas contain the dispersal and foraging habitat to support movement
between adjacent subunits and are therefore essential to provide
population connectivity for the northern spotted owl. In addition,
northern spotted owls are regularly reproductively successful in home
ranges that comprise a mosaic of habitat, including older and younger
forest. Northern spotted owls have in fact been found occupying lower
quality habitat consisting of younger forested stands, particularly
when higher quality habitat is not available in the area (Glenn et al.
2004). The critical habitat designation included younger forests that
are in proximity to older forests to contribute to northern spotted owl
occupancy and reproduction.
In response to ``habitat capable'' lands, see our response to
Comment (29c) below. In response to continuing section 7 obligations,
see our response to Comment (3).
(b) Commenters stated that the description of dispersal habitat is
unclear and that the Recovery Plan for the Northern Spotted Owl (FWS
2011) states that dispersal needs have not been thoroughly evaluated
and therefore dispersal habitat is not determinable. Commenters further
stated that habitat that does not meet a minimum threshold of 11 inches
(in) (28 centimeters) (cm) diameter at breast height (dbh) does not
meet the definition of dispersal habitat.
Our response: There are sufficient data and scientific information
to include dispersal habitat as a habitat type for northern spotted owl
critical habitat. Ideally, dispersal habitat consists of higher-quality
nesting, roosting, and foraging habitat, but in cases where the
landscape does not support those habitat types, spotted owls will
disperse through younger habitat as described in the 2012 critical
habitat rule (FWS 2012, p. 71907). The Service focused on defining the
lower limit for forest stands that support the transient phase of
northern spotted owl dispersal as stands ``with adequate tree size and
canopy closure to provide protection from avian predators and minimal
foraging opportunities'' (FWS 2011, p. A-8). Corridors that contain
these minimum characteristics for dispersal habitat, such as forested
corridors through fragmented landscapes, serve primarily to support
relatively rapid movement through such areas, rather than colonization
(FWS 2012, p. 71901). In general, these areas contain trees with at
least, but not limited to, 11 in (28 cm) dbh and a minimum 40 percent
canopy cover. For instance, northern spotted owls will also disperse
though non-forested areas, such as clearcuts, although they use them
less than expected based on availability (Miller et al. 1997, p. 145).
The risk of dispersing through a landscape of minimum or lower
quality dispersal habitat is not well understood. Buchanan (2004, p.
1341) evaluated this risk, concluding that ``strategies for management
of spotted owl dispersal habitat may not produce conditions preferred
by spotted owls and may result in dispersal-related mortality (due to
starvation or predation) or other consequences that negatively
influence juvenile recruitment.'' The relative effect to spotted owls
dispersing though a lower-quality stand and landscape is the issue that
has not been ``thoroughly evaluated or described'' (FWS 2011, p. vi),
as opposed to the value of dispersal habitat generally for northern
spotted owls. Mortality rates of juvenile dispersal exceed 70 percent
in some studies, with known or suspected causes of mortality during
dispersal including starvation, predation, and accidents (FWS 2011, p.
A-7).
In addition to assisting with dispersal in support of northern
spotted owl life functions, young stands also assist in addressing the
long-term viability and recovery of the owl. Habitat loss and
degradation were identified as major threats to the northern spotted
owl at the time of listing, and conservation and recovery of the
subspecies are dependent in part on the development of currently low-
quality habitat into high-quality habitat to allow for population
growth and recovery (77 FR 71876; p. 71917). Younger forests that meet
the dispersal characteristics described in the 2012 designation provide
for this environment as the stands age and develop the complex
structural components of that higher quality habitat. To summarize,
there is a clear biological need for young forests to contribute to
spotted owl recovery both as dispersal habitat and as future breeding
habitat to support population growth and recovery. Ideally, dispersal
habitat consists of a large percentage of older habitat on the
landscape, but younger stands also support movement
[[Page 62631]]
and are necessary where older habitat is lacking. Additionally,
dispersal habitat is a biological need of the subspecies due to the
need for successional development to supply additional older, higher-
quality habitat to address past and future habitat loss within critical
habitat.
Comment (27): Commenters requested that we exclude all California
lands, areas of high or moderately high fire hazard risk or fire-prone
forests, entire subunits in fire-prone areas, dry forest in California,
dry forest in the Eastern Washington Cascades, areas that have
experienced high-severity wildfire, and previously burned Late-
Successional Reserve, 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: 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 encouraged land managers to consider implementation
of active forest management, using ``ecological forestry'' practices,
to restore natural ecological processes where they have been disrupted
or suppressed (e.g., natural fire regimes). This flexibility is
provided to reduce the potential for adverse impacts associated with
commercial timber harvest when such harvest is planned within or
adjacent to critical habitat and consistent with land-use plans (77 FR
71876; p. 71877).
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 (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. We have to date concluded in these consultations that the
actions do not adversely modify critical habitat. Thus, active
management to reduce wildfire risk can and has been undertaken in
designated critical habitat.
In the 2012 critical habitat rule, we repeatedly reference the need
for and appropriateness of 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.
In sum, there are almost always conflict and tradeoffs when
conducting silvicultural projects that disturb existing forest stands.
Spotted owl habitat conservation is just one of these tradeoffs; others
include water quality, recreation, carbon sequestration, aesthetic
values, economic opportunity, safety, and fire risk, to name a few. The
2012 critical habitat rule and other documents prepared by the Service
both before and after 2012 provide support for evaluating these
tradeoffs and, where appropriate, proceeding with fuels management
projects within critical habitat (Henson et al. 2013). The commenters'
assertion that critical habitat conflicts with management objectives
for fuels reduction and active management is overstated; therefore, we
find this rationale does not support consideration of exclusion of
additional lands.
(b) Commenters requested the exclusion of burned areas to allow
reforestation and fuels treatments to occur, stated that fire-dependent
landscapes should be excluded because critical habitat does not benefit
conservation or forest management in these areas. Commenters also
stated that areas that have experienced high-severity burns no longer
provide habitat for the northern spotted owl.
Our response: Northern spotted owls use previously burned areas for
foraging and nesting/roosting depending on the habitat conditions post-
fire (Gaines et al. 1997, King et al. 1998, Bond et al. 2002, Jenness
et al. 2004; Clark 2007; Bond et al. 2009, Clark et al. 2011; Roberts
et al. 2011; Lee et al. 2012; Clark et al. 2013; Bond et al. 2016;
Jones et al. 2016; Bond et al. 2016; and Eyes et al. 2017). For
example, in southwestern Oregon, spotted owls used areas that burned at
all levels of burn severity, although they preferred areas that were
unburned or burned at low to moderate severity (Clark 2007, pp. 111-
112). Spotted owls use all burn severities and fire-created edges at
different spatial scales, although the use may change over time and be
dependent on proximity to existing high-quality nesting, roosting, and
foraging habitat where protective cover and structural complexity were
not as affected by fire.
In addition, the critical habitat rule provides the flexibility to
conduct fuel treatments and reforestation activities, whose
contribution to northern spotted owls will be amplified when conducted
consistent with Recovery Action 12 (FWS 2011, p. III-49): ``In lands
where management is focused on development of spotted owl habitat,
post-fire silvicultural activities should concentrate on conserving and
restoring habitat elements that take a long time to develop (e.g.,
large trees, medium and large snags, downed wood).''
Additionally, natural disturbance processes, especially in drier
regions, likely contribute to a pattern in which patches of habitat in
various stages of suitability shift positions on the landscape through
time. Sufficient area to provide for these habitat dynamics and to
allow for the maintenance of adequate quantities of suitable habitat on
the landscape at any one point in time is, therefore, essential to the
conservation of the northern spotted owl. The recent loss of older
habitat due to the 2020 and 2021 wildfires underscores the need for
biological redundancy in the critical habitat designation to
accommodate these habitat changes over time. We do not remove these
areas from the designation when these changes occur, we anticipated
this shift in suitability in the overall design of the critical habitat
network.
Because northern spotted owls use burned areas, and because
management
[[Page 62632]]
activities such as reforestation may still occur within designated
critical habitat, we do not agree w
[…truncated; see source link]Indexed from Federal Register on November 10, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.