[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