[Federal Register Volume 60, Number 45 (Wednesday, March 8, 1995)]
[Proposed Rules]
[Pages 12728-12730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5809]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AD02
Endangered and Threatened Wildlife and Plants; Proposed Revisions
for Proposed Designation of Critical Habitat for the Mexican Spotted
Owl
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Supplemental proposed rule, proposed revisions to proposed
designation of critical habitat.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces
proposed exclusions from its previously published proposal to designate
critical habitat for the Mexican spotted owl. The draft economic
analysis upon which the exclusions are partly based has also been made
available.
DATES: The original comment period on the proposed rule to designate
critical habitat extended from December 7, 1994, to March 7, 1995. The
comment period on the proposal and the proposed exclusions extends
through May 8, 1995.
ADDRESSES: Requests for copies of the Service's Economic Analysis and
comments concerning that document and the proposal to designate
critical habitat for the Mexican spotted owl or [[Page 12729]] proposed
exclusions should be sent to the State Supervisor, U.S. Fish and
Wildlife Service, 2105 Osuna NE, Albuquerque, New Mexico 87113.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
FOR FURTHER INFORMATION CONTACT: Jennifer Fowler-Propst, New Mexico
State Supervisor, at the above address, telephone (505) 761-4525.
SUPPLEMENTARY INFORMATION:
Background
The Service listed the Mexican spotted owl as a threatened species
on March 16, 1993 (58 FR 14248). At the time of the listing, the
Service found that, although considerable knowledge of Mexican spotted
owl habitat needs had been gathered in recent years, habitat maps in
sufficient detail to accurately delineate these areas were not
available. Subsequent to listing the owl, the Service began gathering
the data necessary to develop the proposed rule to designate critical
habitat. On February 14, 1994, several environmental groups and an
individual filed a lawsuit in Federal District Court in Arizona against
the Department of the Interior for failure to designate critical
habitat for the Mexican spotted owl (Dr. Robin Silver, et al. v. Bruce
Babbitt, et al., CIV-94-0337-PHX-CAM). On October 6, 1994, the Court
ordered the Service to ``publish a proposed designation of critical
habitat, including economic exclusion pursuant to 16 U.S.C. Sec.
1533(b)(2), no later than December 1, 1994.'' The proposal was
published on December 7, 1994 (59 FR 63162); since the Service had not
yet completed an economic analysis on the potential effects of the
designation, economic exclusions were not proposed at that time. A
total of 4,770,223 acres was proposed for inclusion in critical habitat
for the Mexican spotted owl.
The extent and trend of habitat loss and degradation was the basis
for determining that protection under the Endangered Species Act (Act)
was necessary. The vegetative communities and structural attributes
used by the Mexican spotted owl vary across its range. In forested
habitat types, the vegetative communities consist primarily of warm-
temperate and cold-temperate forests, and, to a lesser extent,
woodlands and riparian deciduous forests. Canyons, deep drainages, and
other topographical features that influence vegetative associations are
also essential components of owl habitat. Characteristics associated
with forested Mexican spotted owl habitat usually develop with
increasing forest age, but their occurrence may vary by location, past
forest management practices, forest type, and productivity. The
attributes of nesting and roosting habitat typically include a moderate
to high canopy closure; a multi-layered canopy with large overstory
trees, often with various deformities; large snags; and accumulations
of fallen trees and other woody debris on the ground.
Currently, land managing agencies characterize Mexican spotted owl
habitat under the term ``suitable.'' Suitable habitat is often only
applied to habitat able to sustain the combined nesting, roosting, and
foraging needs of the species' life history. Additional habitat
utilized only for foraging frequently comprises the majority of the
surrounding habitat base. The term ``capable'' is applied to habitat
that was suitable some time in the past, but whose condition has
changed through natural or human-caused structural modifications, and
that retains the potential to return to suitable conditions at some
time in the future.
The Service's determination of the extent and trend of habitat loss
and degradation was based on the assessment of the impacts of timber
management in forested owl habitat. Under presently approved forest
management plans, timber on the majority of lands on which the owl
occurs is managed primarily under a shelterwood harvest regime. The
shelterwood harvest method results in even-aged stands, rather than the
uneven-aged, multi-layered stands used by Mexican spotted owls. In
addition, the shelterwood silvicultural system calls for even-aged
conditions in perpetuity. Thus, stands already changed from suitable to
capable would not be allowed to return to a suitable condition, and
acreage slated for future harvest would be similarly rendered
perpetually unsuitable for Mexican spotted owls. National Forest plans
currently in place in the Southwest Region allow for up to 95 percent
of commercial forest (59 percent of suitable owl habitat) to be managed
under a shelterwood system. The Service also considered the various
Federal and State laws and agency management policies, and concluded
that existing regulatory mechanisms were inadequate to protect the
Mexican spotted owl.
Proposed Revisions to Proposed Critical Habitat
In analyzing potential areas of critical habitat for the owl, the
Service evaluated the known and primary threats to the species: even-
aged timber harvest practices, steep-slope timber harvests, and
inadequate regulatory mechanisms. Areas of known or suspected threats
were compared to areas containing habitats that support or could
support the nesting, roosting, and foraging requirements of the owl.
This process resulted in the identification of the approximately 4.8
million acres that were included in the proposed rule to designate
critical habitat.
After the Service identified areas to be proposed for designation
as critical habitat, information was submitted to the Service by the
Jicarilla Apache Tribe concerning the occurrence of the Mexican spotted
owl on its Reservation and the Tribe's plan for protecting the species
and managing timber resources. After reviewing this information, the
Regional Director of the Southwest Region of the Service (Regional
Director) is of the opinion that the Jicarilla Apache Reservation lands
do not require special Federal management considerations or protection.
Therefore, for reasons discussed in more detail below, the Service is
proposing to delete the reservation lands described below from the area
proposed for critical habitat designation in the Federal Register on
December 7, 1994.
Approximately 101,923 acres of Jicarilla Apache Tribal lands, in
five discrete units (NM-JAIR-1, NM-JAIR-2, NM-JAIR-3, NM-JAIR-4, and
NM-JAIR-5), were included in the proposed designation of critical
habitat for the Mexican spotted owl. These critical habitat units
(CHUs) run north-south along a series of canyon-incised mesas, and lie
between the proposed CHUs in the Santa Fe National Forest to the south
and the Colorado-New Mexico state line. A parallel north-south series
of proposed CHUs in the Jicarilla Ranger District of the Carson
National Forest lie 5 to 18 kilometers to the west. The majority of the
high-potential breeding habitat (steep slopes, mixed conifer) receives
little or no timber management, and the surrounding foraging habitat is
managed primarily under uneven-age silviculture. Furthermore, there are
only two known records for the Mexican spotted owl on the Jicarilla
Reservation. Both records were documented in the 1980's approximately 3
miles west of the Town of Dulce. Additional records exist for areas
adjacent to the Reservation. Extensive surveys between 1990 and 1994
were unsuccessful in locating any owls, nests, or roost sites on the
Jicarilla Reservation.
Informal discussions between staffs of the Service's New Mexico
Ecological Services State Office and Jicarilla Game and Fish Department
on owl related issues were initiated during the data
[[Page 12730]] collection period for critical habitat development in
early summer 1993. Continued discussions led to a mutual recognition of
the significant differences between resource management and habitat
conditions on federally administered lands and Jicarilla Apache
Reservation lands. These differences afforded an opportunity to address
the threats identified in the listing proposal through the development
of a tribal management plan for the owl. Working independently, the
Jicarilla Game and Fish Department developed a draft ``Conservation
Plan for the Mexican Spotted Owl on the Jicarilla Apache Reservation,
New Mexico'' and requested review of the document by the New Mexico
Ecological Services State Office at a meeting on November 21, 1994.
Reviews were conducted and recommendations provided by the Service at
that meeting and during subsequent telephone conversations with
representatives of the Tribe. On December 16, 1994, the Jicarilla
Apache Tribal Council approved the plan and formally submitted it to
the Service.
The plan addresses the identified threats to owl habitat by
maintaining sufficient suitable habitat across the landscape and the
site-specific retention of complex forest structure following timber
harvest. Nest/roost habitats, primarily in mixed conifer and steep
slope areas, are not managed for timber extraction and are to remain in
suitable nest-roost condition. Foraging habitat consisting of ponderosa
pine is to be managed almost entirely by uneven-aged methods. Timber
harvest may lower the quality of a fraction of the foraging habitat
base, but adequate residual structure remains so that the habitat may
rapidly reattain suitable condition. At any point in time the majority
of foraging habitat remains in suitable foraging condition across the
landscape. Site-specific management of territories address both habitat
conditions and behavioral disturbance within owl territories.
Territorial management includes the establishment of 300-acre protected
activity centers (PAC) around nest-roost sites. No timber, or oil and
gas development is to occur within these areas, and no behaviorally
disturbing activities are permitted within \1/4\ mile of any nest or
roost site during the breeding season. Habitat in the areas surrounding
the PACs are to be managed as described above.
The plan fully incorporates the Service's criteria for management
of critical habitat. These criteria were adopted, in part, from the
recommended guidelines outlined in the Draft Recovery Plan prepared by
the Mexican Spotted Owl Recovery Team. In addition, the Jicarilla plan
has increased protection in ponderosa pine foraging habitat above those
levels identified in the Draft Recovery Plan.
Based on information provided during the initial public comment
period by the Jicarilla Apache Indian Tribe, the Service has determined
that identified threats to the species over the majority of its range
have been removed on the Jicarilla Apache Indian Reservation through
the establishment and enforcement of the Tribe's Mexican Spotted Owl
Conservation Plan. Therefore, the Service proposes to delete the
101,923 acres in Critical Habitat Units NM-JAIR-1, NM-JAIR-2, NM-JAIR-
3, NM-JAIR-4, and NM-JAIR-5, on the Jicarilla Apache Indian Reservation
from the proposed rule to designate critical habitat based on the new
information provided by the Tribe.
Section 4(b)(2) of the Act (16 U.S.C. 1533 (b)(2)) requires the
Service to consider economic and other impacts of designating a
particular area as critical habitat. In a final designation of critical
habitat, the Service is required to balance the benefits of excluding a
significantly impacted area against the benefits of including that area
within the boundaries of critical habitat. In fulfillment of that
requirement, the Service has prepared a draft economic analysis of the
effects that may be caused by the designation of critical habitat. The
Service will provide a copy of the Economic Analysis to interested
parties upon request. Based on the data provided for the draft economic
analysis, and the assessment of identified economic impacts, the lands
of the Navajo Nation, and the Southern Ute, Mescalero Apache, and San
Carlos Apache tribes are being proposed for exclusion under section
4(b)(2), contingent upon Service receipt and review of specific
economic information for each of those tribes, and biological data
concerning the presence, distribution, and habitat use of Mexican
spotted owls on those tribal lands. Information provided for the draft
economic analysis indicates that significant economic impacts may occur
on lands of these tribes due to the designation of critical habitat.
However, the information was not conclusive. In one instance, data were
grouped together for three of the tribes: Jicarilla Apache, Mescalero
Apache, and Southern Ute. Such aggregation does not allow specific
impacts to be delineated for individual tribes. In another instance,
information provided on economic impacts on the Navajo Reservation was
contradictory and may require further review and analysis. While
information is available regarding economic effects, biological
information is lacking concerning the abundance, distribution and
management of Mexican spotted owls on the Navajo, Southern Ute,
Mescalero Apache, and San Carlos Apache reservation lands. Therefore,
the Service is inviting submission of information and comment on these
and any other relevant issues. A more detailed discussion of economic
impacts is provided in the Economic Analysis. The Service will consider
the critical habitat designation in light of all additional relevant
information obtained during the comment period before making a final
decision with respect to the proposed rule.
A series of public hearings have been scheduled in connection with
the announcement of availability of the draft economic analysis; notice
of the times and locations of the hearings appears elsewhere in today's
issue of the Federal Register. Comments regarding the proposed
exclusions described above will also be accepted at these hearings or
in writing through the end of the comment period on May 8, 1995.
Author
The primary author of this notice is Jennifer Fowler-Propst, New
Mexico State Supervisor, at the above address.
Authority
Authority for this action is the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.)
Dated: March 6, 1995.
George T. Frampton Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 95-5809 Filed 3-7-95; 8:45 am]
BILLING CODE 4310-55-P
