[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Proposed Rules]
[Pages 21426-21430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11213]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD20


Endangered and Threatened Wildlife and Plants; Proposed Special 
Rule for the Conservation of the Northern Spotted Owl on Non-Federal 
Lands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed special rule; additional information.

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SUMMARY: On February 23, 1996, the Service issued a Draft Environmental 
Alternatives Analysis (EAA) for the proposed special section 4(d)rule 
for the conservation of the northern spotted owl on non-Federal lands 
in California and Washington. The proposed special rule was published 
in the Federal Register on February 17, 1995 (60 FR 9484). The comment 
period for the draft EAA and the proposed rule was recently extended, 
(61 FR 15452, April 8, 1996) and is scheduled to end for both documents 
on June 3, 1996.
    The comment period was extended, in part, to allow the public the 
opportunity to review a proposal by the State of Washington Forest 
Practices Board that would address impacts of forest practices to the 
northern spotted owl. The state has asked the Service to consider their 
proposed state rule as a possible alternative to the current special 
rule proposed by the Service. The Service seeks additional comments 
from the interested public, agencies, and interest groups on the Draft 
EAA, the proposed special rule, and on the State of Washington's 
proposed state rule as a possible alternative to the rule currently 
proposed by the Fish and Wildlife. The purpose of this document is to 
provide a summary of Washington's proposed rule, and a comparison of 
that rule with the Service's proposed special rule.

DATES: The comment period for written comments closes June 3, 1996.

ADDRESSES: Comments and materials concerning the Draft Environmental 
Alternatives Analysis, the proposed rule and the potential use of the 
Washington Forest Practices Board proposed rule as an additional 
alternative should be sent to Mr. Michael J. Spear, Regional Director, 
Region 1, U.S. Fish and Wildlife Service, 911 N.E. 11th Avenue, 
Portland, Oregon 97232-4181. The complete file for this proposed rule 
will be available for public inspection, by appointment during normal 
business hours, at the U.S. Fish and Wildlife Service, Office of 
Technical Support for Forest Resources, 333 S.W. 1st Avenue, 4th Floor, 
Portland, Oregon 97204, (503/326-6218).

FOR FURTHER INFORMATION CONTACT: Mr. Curt Smitch, Assistant Regional 
Director, Region 1, U.S. Fish and Wildlife Service, 3704 Griffin Lane 
S.E., Suite 102, Olympia, Washington 98501, (206/534-9330); or Ron 
Crete, Office of Technical Support for Forest Resources, 333 S.W. 1st 
Avenue, Portland, Oregon 97232-4181, (503/326-6218).

SUPPLEMENTARY INFORMATION: The Service published its proposed rule 
under section 4(d) of the Endangered Species Act on February 17, 1995 
(60 FR 9484), followed by the release of the draft Environmental 
Alternatives Analysis (EAA) which describes and analyzes the potential 
environmental effects of the proposed special rule and six alternatives 
for the conservation of the northern spotted owl on non-Federal lands 
in Washington and California.
    The State of Washington's Forest Practices Board (Board) began work 
in 1993 to develop a rule to address the impacts of forest practices on 
northern spotted owls in that state. Following the publication of the 
Service's proposed rule, the Board accelerated work on the current 
version of the proposed state rule. The northern spotted owl is listed 
as endangered by the Washington Fish and Wildlife Commission. The 
state's proposed rule is similar in many ways to the Service's proposed 
4(d) rule, although there are some differences. The state has asked the 
Service to consider the state's proposed rule as an alternative to the 
Service's current proposed rule.
    The rule proposed by the Washington Forest Practices Board would 
classify forest practices in spotted owl habitat as ``Class IV-
Special''. Class IV-Special designation includes forest practices 
within critical wildlife habitats (state) of species listed as 
threatened or endangered under either the Federal Endangered Species 
Act or state law, and requires that certain forest practices proposed 
to occur in these habitat areas be evaluated relative to their 
potential to have substantial impacts to the environment. Such forest 
practices may include timber harvesting, road construction and aerial 
spraying of pesticides, and are subject to environmental review under 
the State Environmental Policy Act (SEPA).
    A review under SEPA involves a detailed analysis of a proposed 
action to determine if it will have a significant impact on the 
environment. Should a finding of significance be made, then an 
Environmental Impact Statement (EIS)

[[Page 21427]]

must be prepared before the Department of Natural Resources (DNR) can 
act on a forest practice application. Under SEPA, the forest practice 
may be conditioned or denied, if necessary, to mitigate specific 
adverse environmental impacts.
    The Board's goal in developing its proposed rule was to ``prepare a 
rule that captures all forest practices that have potential for a 
substantial adverse impact on the environment. In the case of the owl, 
any forest practice that damages the long-term viability of the 
northern spotted owl in Washington State (WDNR 1996).'' The Board also 
adopted five objectives to support the proposed rule (WDNR 1996):
    (1) Define a level of [owl conservation] contribution from 
nonfederal lands that is essential to complement the federal recovery 
and conservation strategy for the northern spotted owl population in 
Washington State.
    (2) Identify those landscapes that are essential to complement the 
federal conservation and recovery strategy. Identify whether their 
primary function is for dispersal or population maintenance.
    (3) Maximize the use of local planning to promote flexibility. To 
do this, provide as specific criteria as possible for different levels 
of planning.
    (4) Minimize conflicts between federal and state standards.
    (5) Minimize economic impacts.
    Generally, the Board's proposed rule involves ten spotted owl 
special emphasis areas (SOSEAs) that are made up of all or parts of 13 
landscapes identified in the Spotted Owl Scientific Advisory Group 
(SAG) Report (Hanson et al. 1993). The proposed state rule assigns 
specific owl conservation functions or goals to the SOSEAs, includes a 
small parcel exemption, disturbance restrictions, and provides 
provisions for optional landowner conservation planning. Within the 
SOSEAs, areas are designated for either dispersal or demographic 
support, or a combination of both. Figure 1 shows the location of the 
SOSEAs.
    Within all the SOSEAs, except the one for the Entiat area, the 
proposed state rule would designate harvesting, road construction or 
aerial application of pesticides on suitable spotted owl habitat inside 
owl nesting circles (site centers) with less than specified amounts of 
suitable habitat as Class IV-Special activities, triggering a review 
under SEPA. Within the Entiat SOSEA, the SEPA trigger would only apply 
on suitable habitat inside owl circles and inside the areas designated 
for demographic support. The specified amounts of suitable habitat 
include 5,863 acres within a 2.7 mile circle for the Hoh- Clearwater/
Coastal Link SOSEA, and 2,605 acres within a 1.8 mile circle for all 
other SOSEAs.
    Both inside and outside SOSEAs, harvesting, road construction or 
aerial application of pesticides between March 1 and August 31, on the 
70 acres of highest quality suitable owl habitat surrounding the site 
center, would be Class IV-Special actions.
    The proposed state rule provides several exemptions to the SEPA 
trigger within the SOSEAs: an approved landowner option plan (LOP); an 
approved habitat conservation plan (HCP) from the Fish and Wildlife 
Service; pre-listing agreements or habitat management plan accompanied 
by a ``no-take'' letter from the Fish and Wildlife Service; and the 
provisions of a final 4(d) rule adopted by the Fish and Wildlife 
Service. A small parcel exemption is provided if a landowner owns 500 
acres or less within the SOSEA and the proposed forest practice is not 
within 0.7 mile of a northern spotted owl site center.
    The planning components of the proposed state rule include the LOP 
and the cooperative habitat enhancement agreement (CHEA). The details 
of the LOP process have not been finalized, and may be added to the 
rule at a later date. The CHEA option is available to landowners not 
currently impacted by owls, and is intended to preclude early 
harvesting based on fear of regulatory impact and to provide additional 
owl habitat. Under the provisions of Washington's proposed rule, if 
habitat is allowed to be harvested within an owl circle through one of 
the planning options (LOP, CHEA or HCP), the harvested habitat will 
continue to be counted in the calculation of suitable habitat from the 
date of plan approval and forward, even after harvest has occurred. The 
state's intent with this provision is to prevent the transfer of 
responsibility for maintenance of habitat from one landowner within an 
owl circle to another.
    This state proposal also includes disturbance restrictions inside 
SOSEAs during nesting season that apply within .25 mile of a site 
center between March 1 and August 31, unless affected owls are not 
actively nesting.
    It is important to note that the Service's proposed special 4(d) 
rule is based on avoidance of incidental take prohibitions for the owl. 
The State's proposed rule is based on the avoidance of triggering the 
requirements of a review under Washington's SEPA rather than on 
avoidance of incidental take prohibitions.
    A tabular comparison of the Washington proposed rule and the 
Service's proposed 4(d) rule is provided in Table 1.

                                                     Table 1                                                    
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            Rule provision                    Washington proposed rule              Service proposed rule       
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1. Landscapes.........................  10 SOSEAs: Columbia Gorge*.........  6 SEAs: Columbia River Gorge/White 
                                                                              Salmon.                           
                                        Entiat *...........................  (Not proposed).                    
                                          (Special SEPA trigger)                                                
                                        Finney Block.......................  Finney Block.                      
                                        I-90 West..........................    I-90 Corridor (includes I-90E, I-
                                          I-90 East* (includes Teanaway,      90W, Taneum, Easton, Blewett).    
                                         Taneum, Easton)                                                        
                                        Mineral Block/Link.................  Mineral Block (includes Mineral    
                                                                              Link).                            
                                        Siouxon*...........................  Siouxon Creek (included in other   
                                          White Salmon *                      SEA) (included in other SEA).     
                                          North Blewett                                                         
                                        Hoh-Clearwater/Coastal Link........  Hoh-Clearwater.                    
                                        * Means modified from original SAG   SEAs may provide dispersal,        
                                         boundaries.                          demographic or combination        
                                          Note: SOSEA goals/functions are     support, to be decided on a case  
                                         identified on Figure 1               by case basis, except in areas    
                                                                              surrounded by or located in matrix
                                                                              or AMA lands, except if sites are 
                                                                              centered on reserve or withdrawn  
                                                                              areas.                            
2. Owl Circle Dimensions:                                                                                       

[[Page 21428]]

                                                                                                                
    Inside SOSEAs.....................  All SOSEAs: All habitats within 0.7  Dimensions are discussed in the    
                                         miles/1,000 acres retained.          preamble to the proposed 4(d) rule
                                                                              and the DEAA.                     
                                        Hoh-Clearwater SOSEA: 5,863 acres    Median annual home range,          
                                         of suitable owl habitat within       approximately the same size as    
                                         median owl home range circle (2.7    state proposal.                   
                                         mile radius) must be retained.                                         
                                                                             At least 40 percent suitable owl   
                                                                              habitat within owl median home    
                                                                              range must be retained.           
                                        All other SOSEAs: 2,605 acres of                                        
                                         suitable owl habitat within median                                     
                                         owl home range circle (1.8 mile                                        
                                         radius) must be retained                                               
    Outside SOSEAs....................  The 70 acres highest quality         The 70 acres of highest quality    
                                         habitat around the site center       habitat closest to an owl site    
                                         must be retained from March 1        center must be retained.          
                                         through Aug. 31.                                                       
3. SEPA Trigger:                                                                                                
    Within Important Landscapes.......  Within SOSEA boundaries harvesting,  Federal permit requirement, no NEPA
                                         road construction or aerial          trigger exists.                   
                                         application of pesticides on                                           
                                         suitable habitat inside owl                                            
                                         circles (except within the Entiat                                      
                                         SOSEA where the trigger applies                                        
                                         only on suitable habitat inside                                        
                                         owl circles and inside the areas                                       
                                         indicated for demographic                                              
                                         support.).                                                             
    Outside Important Landscapes......  Outside of a SOSEA: harvesting,                                         
                                         road construction, or aerial                                           
                                         application of pesticides between                                      
                                         March 1 and August 31, on the 70                                       
                                         acres of highest quality suitable                                      
                                         habitat                                                                
    Exemptions to SEPA................  --Under an approved Landowner                                           
                                         Option Plan                                                            
                                        --HCP approved by USFWS                                                 
                                        --Prelisting agreements or habitat                                      
                                         management plan accompanied by a                                       
                                         ``no-take'' letter from the USFWS                                      
                                        --4(d) rule adopted by the USFWS                                        
                                        --Small parcel exemption                                                
4. Prohibited Activities:                                                                                       
    Within Important Landscapes.......  The SEPA triggers in the state       Under the ESA, ``incidental take'' 
                                         proposal require SEPA review, they   is generally prohibited and is    
                                         do not prohibit activities.          only allowed under limited        
                                                                              circumstances.                    
                                                                             Timber harvest activities are      
                                                                              prohibited in SEAs if they result 
                                                                              in the incidental take of a       
                                                                              spotted owl (a significant        
                                                                              likelihood if suitable habitat    
                                                                              drops below 40 percent within the 
                                                                              median annual owl home range.)    
                                                                             Alternative proscription allows    
                                                                              harvesting on non-Federal lands   
                                                                              surrounded by or located in       
                                                                              Federal matrix or AMA lands if the
                                                                              Federal matrix or AMA             
                                                                              prescriptions and restrictions are
                                                                              followed.                         
    Outside Important Landscapes......  (No equivalent)....................  Timber harvest actions are         
                                                                              prohibited if they result in      
                                                                              retention of less than 70 acres of
                                                                              highest quality suitable habitat  
                                                                              closest to the site center or     
                                                                              impact the sites centered inside  
                                                                              Federal Reserves, Administratively
                                                                              withdrawn lands or Congressionally
                                                                              reserved lands (no seasonal       
                                                                              restrictions).                    
                                                                             Incidental take of owls is not     
                                                                              authorized for owls whose site    
                                                                              center is located within or along 
                                                                              the boundary of a Federal reserve 
                                                                              or Administratively withdrawn     
                                                                              lands or Congressionally reserved 
                                                                              lands (except on the Olympic      
                                                                              Peninsula), or along or within the
                                                                              boundary of an SEA.               
    Exemptions to Prohibitions........  (No equivalent)....................  Harvest is allowed:                
                                                                             --With an approved HCP;            
                                                                             --With an approved Local Option    
                                                                              Plan;                             
                                                                             --With a Spotted Owl Habitat       
                                                                              Enhancement Agreement.            
5. Planning Components Needed to        Establishes a process for the        Habitat Conservation Plan (HCP)    
 Authorize Incidental Take:.             development of the Landowner         required for owners of more than  
                                         Option Plan (LOP):.                  5,000 acres. HCPs must include:   
                                        --Description of area;                                                  
                                        --Identifies elements that are to                                       
                                         be included in a LOP:                                                  
                                          --Goals and objectives                                                
                                          --Planning area description                                           
                                          --Physical features                                                   
                                          --Current spotted owl habitat                                         
                                         status                                                                 
                                          --Current owl status                                                  
                                          --Management proposals and                                            
                                         operation plans                                                        
                                          --Projected spotted owl habitats                                      
                                          --Training                                                            
                                          --Monitoring                                                          
                                          --Reporting                                                           

[[Page 21429]]

                                                                                                                
                                          --Plan modification                                                   
                                          --Plan duration                                                       
                                          --Approval process                                                    
                                          --Enforcement process                                                 
                                        (No equivalent)....................  Proposes a Local Option            
                                                                              Conservation Plan (Short-Form HCP)
                                                                              for Owners of 80-5,000 acres.     
                                                                              Basic criteria generally same as  
                                                                              for regular HCP although the      
                                                                              application process will be       
                                                                              streamlined.                      
                                        Establishes a process for the        Proposes similar Habitat           
                                         development of Cooperative Habitat   Enhancement Agreement process.    
                                         Enhancement Agreements.                                                
                                        Identified elements:                                                    
                                          --Description of agreement area                                       
                                          --Current owl habitat status                                          
                                          --Management proposals                                                
                                          --Projected habitat development                                       
                                          --Agreement modification                                              
                                          --Agreement duration                                                  
                                          --Approval process                                                    
                                          --Enforcement process                                                 
                                        Agreement to be approved by DNR in                                      
                                         consultation with Washington                                           
                                         Department of Fish and Wildlife,                                       
                                         others..                                                               
6. Disturbance........................  Road construction within SOSEA       (No equivalent proposal).          
                                         boundary restricted within .25                                         
                                         miles of site center between March                                     
                                         1 and August 31, unless owls are                                       
                                         not actively nesting.                                                  
                                        Felling and bucking within SOSEA                                        
                                         boundary restricted within .25                                         
                                         miles of site center between March                                     
                                         1 and August 31, unless owls are                                       
                                         not actively nesting.                                                  
                                        Cable yarding within a SOSEA                                            
                                         boundary restricted within .25                                         
                                         miles of site center between March                                     
                                         1 and August 31, unless owls are                                       
                                         not actively nesting..                                                 
                                        Helicopter yarding within SOSEA                                         
                                         boundary restricted within .25                                         
                                         miles of site center between March                                     
                                         1 and August 31, unless the owls                                       
                                         are not actively nesting..                                             
                                        Tractor and wheel skidding systems                                      
                                         operations of heavy equipment                                          
                                         within a SOSEA boundary restricted                                     
                                         within .25 miles of site center                                        
                                         between March 1 and August 31,                                         
                                         unless the owls are not actively                                       
                                         nesting..                                                              
                                        Slash disposal or prescribed                                            
                                         burning within a SOSEA boundary                                        
                                         restricted within .25 miles of                                         
                                         site center between March 1 and                                        
                                         August 31, unless the owls are not                                     
                                         actively nesting..                                                     
7. Small Landowner Exemption..........  Provides for small parcel            Owners of not more than 80 acres of
                                         exemption:.                          forest land not restricted as long
                                        --If a landowner owns or controls     as harvest does not destroy or    
                                         500 acres or less within the         degrade the 70 acres of suitable  
                                         SOSEA; and                           habitat closest to the owl site   
                                        --The forest practice is not within   center.                           
                                         .7 mile of a site center                                               
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    The Service is in the process of analyzing the state's proposed 
rule as a possible alternative to the Service's proposed 4(d) rule 
published February 17, 1995. The state's comment period for their 
proposed rule has expired, however, the Service is interested in 
receiving comment from the interested public regarding the advisability 
of adapting some or all of the Washington state rule in any final 4(d) 
rule that the Service may publish. To receive an actual copy of the 
State of Washington proposed rule and the state's Supplemental Draft 
Environmental Impact Statement, write to Washington State Department of 
Natural Resources, Forest Practices Division, P.O. Box 47012, Olympia, 
WA 98504-7012, Attn: Judith Holter.
    The Service's Draft EAA, including all maps, tables, charts, and 
graphs, remains available on the Internet's World Wide Web at http://
www.r1.fws.gov/4deaa/welcome.html.

References Cited

Hanson, E., Hays, D., Hicks, L., Young, L., and J. Buchanan. 1993. 
Spotted owl habitat in Washington: a report to the Washington Forest 
Practices Board. Washington Forest Practices Board Spotted Owl 
Advisory Group. Olympia, Washington.
WDNR. 1996. Supplemental draft environmental impact statement and 
appendices on forest practices rule proposals for the northern 
spotted owl. Washington Forest Practices Board, Washington 
Department of Natural Resources. Olympia, Washington.

    Dated: April 30, 1996.
Thomas Dwyer,
Acting Regional Director, U.S. Fish and Wildlife Service Region 1, 
Portland, Oregon.

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[FR Doc. 96-11213 Filed 5-9-96; 8:45 am]
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