[Federal Register Volume 66, Number 22 (Thursday, February 1, 2001)]
[Rules and Regulations]
[Pages 8530-8553]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1798]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG29


Endangered and Threatened Wildlife and Plants; Final Designation 
of Critical Habitat for the Mexican Spotted Owl

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat under the Endangered Species Act of 1973, as amended 
(Act), for the Mexican spotted owl (Strix occidentalis lucida) (owl). 
The owl inhabits canyon and montane forest habitats across a range that 
extends from southern Utah and Colorado, through Arizona, New Mexico, 
and west Texas, to the mountains of central Mexico. We designate 
approximately 1.9 million hectares (ha) (4.6 million acres (ac)) of 
critical habitat in Arizona, Colorado, New Mexico, and Utah, on Federal 
lands. Section 7 of the Act requires Federal agencies to ensure that 
actions they authorize, fund, or carry out are not likely to destroy or 
adversely modify designated critical habitat. As required by section 4 
of the Act, we considered economic and other relevant impacts prior to 
making a final decision on what areas to designate as critical habitat.

DATES: This final rule is effective March 5, 2001.

ADDRESSES: The complete administrative record for this rule is on file 
at the New Mexico Ecological Services Field Office, 2105 Osuna Road NE, 
Albuquerque, New Mexico 87113. You may view the complete file for this 
rule, by appointment, during normal business hours at the above 
address.

FOR FURTHER INFORMATION CONTACT: Joy Nicholopoulos, Field Supervisor, 
New Mexico Ecological Services Field Office, at the above address; 
telephone 505/346-2525, facsimile 505/346-2542.

SUPPLEMENTARY INFORMATION:

Background

    The Mexican spotted owl (Strix occidentalis lucida) is one of three 
subspecies of spotted owl occurring in the United States; the other two 
are the northern spotted owl (S. o. caurina) and the California spotted 
owl (S. o. occidentalis). The Mexican spotted owl is distinguished from 
the California and northern subspecies chiefly by geographic 
distribution and plumage. The Mexican spotted owl is mottled in 
appearance with irregular white and brown spots on its abdomen, back, 
and head. The spots of the Mexican spotted owl are larger and more 
numerous than in the other two subspecies, giving it a lighter 
appearance.
    The Mexican spotted owl has the largest geographic range of the 
three subspecies. The range extends north from Aguascalientes, Mexico, 
through the mountains of Arizona, New Mexico, and western Texas, to the 
canyons of Utah and Colorado, and the Front Range of central Colorado. 
Much remains unknown about the species' distribution in Mexico, where 
much of the owl's range has not been surveyed. The owl occupies a 
fragmented distribution throughout its United States range, 
corresponding to the availability of forested mountains and canyons, 
and in some cases, rocky canyonlands. Although there are no estimates 
of the owl's historical population size, its historical range and 
present distribution are thought to be similar.
    According to the Recovery Plan for the Mexican Spotted Owl (United 
States Department of the Interior 1995) (Recovery Plan), 91 percent of 
owls known to exist in the United States between 1990 and 1993 occurred 
on land administered by the U.S. Forest Service (FS); therefore, the 
primary administrator of lands supporting owls in the United States is 
the FS. These numbers are based upon preliminary surveys that were 
focused on National Forests in the southwest. Nevertheless, most owls 
have been found within Region 3 of the FS, which includes 11 National 
Forests in New Mexico and Arizona. FS Regions 2 and 4, including two 
National Forests in Colorado and three in Utah, support fewer owls. The 
range of the owl is divided into 11 Recovery Units (RU), 5 in Mexico 
and 6 in the United States, as identified in the Recovery Plan. The 
Recovery Plan also identifies recovery criteria and provides 
distribution, abundance, and density estimates by RU. Of the RUs in the 
United States, the Upper Gila Mountains RU, located in the central 
portion of the species' U.S. range in central Arizona and west-central 
New Mexico, contains over half of known owl sites. Owls here use a wide 
variety of habitat types, but are most commonly found inhabiting mature 
mixed-conifer and ponderosa pine-Gambel oak forests. The Basin and 
Range-East RU encompasses central and southern New Mexico, and includes 
numerous parallel mountain ranges separated by alluvial valleys and 
broad, flat basins.
    Most breeding spotted owls occur in mature mixed-conifer forest. 
The Basin and Range-West RU contains mountain ranges separated by non-
forested habitat. These ``sky island'' mountains of southern Arizona 
and far-western New Mexico contain mid-elevation mixed-conifer forest 
and lower elevation Madrean pine-oak woodlands that support spotted 
owls. The Colorado Plateau RU includes northern Arizona, southern Utah, 
southwestern Colorado, and northwestern New Mexico, with owls generally 
confined to deeply incised canyon systems and wooded areas of isolated 
mountain ranges. The Southern Rocky Mountains-New Mexico RU consists of 
the mountain ranges of northern New Mexico. Owls in this unit typically 
inhabit mature mixed-conifer forest in steep canyons. The smallest 
number of spotted owls occurs in the Southern Rocky Mountains-Colorado 
RU. This unit includes the southern Rocky Mountains in Colorado, where 
spotted owls are largely confined to steep canyons, generally with 
significant rock faces and various amounts of mature coniferous forest. 
The critical habitat units identified in this designation are all 
within these RUs.
    A reliable estimate of the numbers of owls throughout its entire 
range is not currently available. Using information gathered by Region 
3 of the FS, Fletcher (1990) calculated that 2,074 owls existed in 
Arizona and New Mexico in 1990. Based on more up-to-date information, 
we subsequently modified Fletcher's calculations and estimated a total 
of 2,160 owls throughout the United States (USDI 1991). However, these 
numbers are not considered reliable estimates of current population 
size for a variety of statistical reasons, and a pilot study (Ganey et 
al. 1999) conducted in 1999, estimated the number of owls for the upper 
Gila Mountains Recovery Unit (exclusive of tribal lands) as 2,950 (95 
percent confidence interval 717-5,183).
    Mexican spotted owls nest, roost, forage, and disperse in a diverse 
array of biotic communities. Nesting habitat is typically in areas with 
complex forest structure or rocky canyons, and contains uneven-aged, 
multi-storied mature or old-growth stands that have high

[[Page 8531]]

canopy closure (Ganey and Balda 1989, USDI 1991). In the northern 
portion of the range (Utah and Colorado), most nests are in caves or on 
cliff ledges in steep-walled canyons. Elsewhere, the majority of nests 
appear to be in Douglas fir (Pseudotsuga menziesii) trees (Fletcher and 
Hollis 1994, Seamans and Gutierrez 1995). A wide variety of tree 
species is used for roosting; however, Douglas fir is the most commonly 
used species in mixed conifer forests (Ganey 1988, Fletcher and Hollis 
1994, Young et al. 1998). Owls generally use a wider variety of forest 
conditions for foraging than they use for nesting/roosting.
    Seasonal movement patterns of Mexican spotted owls are variable. 
Some individuals are year-round residents within an area, some remain 
in the same general area but show shifts in habitat use patterns, and 
some migrate considerable distances (20-50 kilometers (km)) (12-31 
miles (mi)) during the winter, generally migrating to more open habitat 
at lower elevations (Ganey and Balda 1989b, Willey 1993, Ganey et 
al.1998). The home-range size of Mexican spotted owls appears to vary 
considerably among habitats and/or geographic areas (USDI 1995), 
ranging in size from 261-1,487 ha (647-3,688 ac) for individuals birds, 
and 381-1,551 ha (945-3,846 ac) for pairs (Ganey and Balda 1989b, Ganey 
et al. 1999). Little is known about habitat use by juveniles dispersing 
soon after fledging. Ganey et al. (1998) found dispersing juveniles in 
a variety of habitats ranging from high-elevation forests to pinon-
juniper woodlands and riparian areas surrounded by desert grasslands.
    Mexican spotted owls do not nest every year. The owl's reproductive 
pattern varies somewhat across its range. In Arizona, courtship usually 
begins in March with pairs roosting together during the day and calling 
to each other at dusk (Ganey 1988). Eggs are typically laid in late 
March or early April. Incubation begins shortly after the first egg is 
laid, and is performed entirely by the female (Ganey 1988). The 
incubation period is about 30 days (Ganey 1988). During incubation and 
the first half of the brooding period, the female leaves the nest only 
to defecate, regurgitate pellets, or receive prey from the male, who 
does all or most of the hunting (Forsman et al. 1984, Ganey 1988). Eggs 
usually hatch in early May, with nestling owls fledging 4 to 5 weeks 
later, and then dispersing in mid-September to early October (Ganey 
1988).
    Little is known about the reproductive output for the spotted owl. 
It varies both spatially and temporally (White et al. 1995), but the 
subspecies demonstrates an average annual rate of about one young per 
pair. Based on short-term population and radio tracking studies, and 
longer-term monitoring studies, the probability of an adult owl 
surviving from 1 year to the next is 80 to 90 percent. Average annual 
juvenile survival is considerably lower, at 6 to 29 percent, although 
it is believed these estimates may be artificially low due to the high 
likelihood of permanent dispersal from the study area, and the lag of 
several years before marked juveniles reappear as territory holders and 
are detected as survivors through recapture efforts (White et al. 
1995). Little research has been conducted on the causes of mortality, 
but predation by great horned owls (Bubo virginianus), northern 
goshawks (Accipter gentilis), red-tailed hawks (Buteo jamaicensis), and 
golden eagles (Aquila chrysaetos), as well as starvation, and 
collisions (e.g., with cars, powerlines), may all be contributing 
factors.
    Mexican spotted owls consume a variety of prey throughout their 
range, but commonly eat small- and medium-sized rodents such as 
woodrats (Neotoma spp.), peromyscid mice (Peromyscus spp.), and 
microtine voles (Microtus spp.). Owls also may consume bats, birds, 
reptiles, and arthropods (Ward and Block 1995). Each prey species uses 
a unique habitat, so that the differences in the owl's diet across its 
range likely reflect geographic variation in population densities and 
habitats of both the prey and the owl (Ward and Block 1995). Deer mice 
(P. maniculatus) are widespread in distribution in comparison to brush 
mice (P. boylei), which are restricted to drier, rockier substrates, 
with sparse tree cover. Mexican woodrats (N. mexicana) are typically 
found in areas with considerable shrub or understory tree cover and 
high log volumes or rocky outcrops. Mexican voles (M. mexicanus) are 
associated with high herbaceous cover, primarily grasses, whereas long-
tailed voles (M. longicaudus) are found in dense herbaceous cover, 
primarily forbs, with many shrubs and limited tree cover.
    Two primary reasons were cited for listing the owl as threatened in 
1993: (1) Historical alteration of its habitat as the result of timber 
management practices, specifically the use of even-aged silviculture, 
and the threat of these practices continuing; and (2) the danger of 
catastrophic wildfire. The Recovery Plan for the owl outlines 
management actions that land management agencies and Indian tribes 
should undertake to remove recognized threats and recover the spotted 
owl. This critical habitat designation is based on recovery needs and 
guidelines identified in the Recovery Plan.

Previous Federal Actions

    The entire spotted owl species (Strix occidentalis) was classified 
in the January 6, 1989, Animal Notice of Review (54 FR 554) as a 
category 2 candidate species. A category 2 candidate species was one 
for which listing may have been appropriate, but for which additional 
biological information was needed to support a proposed rule.
    On December 22, 1989, we received a petition submitted by Dr. Robin 
D. Silver requesting the listing of the Mexican spotted owl as an 
endangered or threatened species. On February 27, 1990, we found that 
the petition presented substantial information indicating that listing 
may be warranted and initiated a status review. In conducting our 
review, we published a notice in the Federal Register (55 FR 11413) on 
March 28, 1990, requesting public comments and biological data on the 
status of the Mexican spotted owl. On February 20, 1991, we made a 
finding, based on the contents of the status review, that listing the 
Mexican spotted owl under section 4(b)(3)(B)(I) of the Act was 
warranted. Notice of this finding was published in the Federal Register 
on April 11, 1991 (56 FR 14678). We published a proposed rule to list 
the Mexican spotted owl as threatened without critical habitat in the 
Federal Register on November 4, 1991 (56 FR 56344).
    We published a final rule listing the Mexican spotted owl as a 
threatened species on March 16, 1993 (58 FR 14248). Section 4(a)(3) of 
the Act requires that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. The Act's implementing regulations (50 CFR 
424.12(a)(2)) state that critical habitat is not determinable if 
information sufficient to perform required analyses of the impacts of 
the designation is lacking or if the biological needs of the species 
are not sufficiently well known to permit identification of an area as 
critical habitat. At the time of listing, we found that, although 
considerable knowledge of owl habitat needs had been gathered in recent 
years, habitat maps in sufficient detail to accurately delineate these 
areas were not available. After the listing, we began gathering the 
data necessary to develop a proposed rule to designate critical 
habitat.
    On June 23, 1993, and again on August 16, 1993, we received 
petitions to remove the Mexican spotted owl from

[[Page 8532]]

the List of Endangered and Threatened Wildlife. In subsequent petition 
findings published in the Federal Register (58 FR 49467, 59 FR 15361), 
we addressed the issues raised in the petitions and determined that the 
delisting petitions did not present substantial information indicating 
that delisting the Mexican spotted owl was warranted. The petitioners 
challenged this decision in Federal District Court in New Mexico in 
Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. 
United States Fish and Wildlife Service, et al., CIV 94-1058-MV. The 
district court held that the Coalition failed to show that the Service 
violated any procedural rules that amounted to more than harmless error 
and failed to demonstrate that the Service acted arbitrarily or 
capriciously in listing or refusing to delist the Mexican spotted owl. 
A judgment was issued by the district court denying the plaintiff's 
petition to delist the owl.
    On February 14, 1994, a lawsuit was filed in Federal District Court 
in Arizona against the Department of the Interior for failure to 
designate critical habitat for the owl (Dr. Robin Silver, et al. v. 
Bruce Babbitt, et al., CIV-94-0337-PHX-CAM). On October 6, 1994, the 
Court ordered us to `` * * * publish a proposed designation of critical 
habitat, including economic exclusion pursuant to 16 U.S.C. Sec. 
1533(b)(2), no later than December 1, 1994, [and] publish its final 
designation of critical habitat, following the procedure required by 
statute and Federal regulations for notice and comment,'' by submitting 
the final rule to the Federal Register no later than May 27, 1995. 
Under an extension granted by the court, we issued the proposed rule to 
designate critical habitat on December 7, 1994 (59 FR 63162).
    We prepared a draft economic analysis, and published a notice of 
its availability in the Federal Register on March 8, 1995 (60 FR 12728; 
60 FR 12730). The publication also proposed several revisions to the 
original proposal, solicited additional information and comments, 
opened an additional 60-day comment period extending to May 8, 1995, 
and announced the schedule and location of public hearings. We 
published a final rule designating critical habitat for the Mexican 
spotted owl on June 6, 1995 (60 FR 29914).
    After the listing of the Mexican spotted owl, a Recovery Team was 
appointed by our Southwestern Regional Director to develop a Recovery 
Plan in March 1993. The Team assembled all available data on Mexican 
spotted owl biology, the threats faced across the subspecies' range, 
current protection afforded the subspecies, and other pertinent 
information. Using that information, the Team developed the Recovery 
Plan, which was finalized in the fall of 1995. In 1996, the Southwest 
Region of the FS incorporated elements of the Recovery Plan into their 
Forest Plans.
    In 1996, the Tenth Circuit Court of Appeals in Catron County Board 
of Commissioners v. United States Fish and Wildlife Service, 75 F.3d 
1429, 1439 (10th Cir. 1996), ruled that the Service had to comply with 
the National Environmental Policy Act (NEPA) before designating 
critical habitat for two desert fish, the spikedace and loach minnow. 
In addition, a Federal district court in New Mexico later set aside the 
final rule designating critical habitat for the owl and forbid the 
Service from enforcing critical habitat for the owl (Coalition of 
Arizona-New Mexico Counties for Stable Economic Growth v. U.S. Fish and 
Wildlife Service, No. 95-1285-M Civil). As a result of these court 
rulings, we removed the critical habitat designation for the owl from 
the Code of Federal Regulations on March 25, 1998 (63 FR 14378).
    On March 13, 2000, the United States District Court for the 
District of New Mexico, (Southwest Center for Biological Diversity and 
Silver v. Babbitt and Clark, CIV 99-519 LFG/LCS-ACE), ordered us to 
propose critical habitat within 4 months of the court order, and to 
complete and publish a final designation of critical habitat for the 
Mexican spotted owl by January 15, 2001. On July 21, 2000, we published 
a proposal to designate critical habitat for the Mexican spotted owl in 
Arizona, Colorado, New Mexico, and Utah, mostly on Federal lands (65 FR 
45336). The initial comment period was open until September 19, 2000. 
During this 60-day comment period, we held six public hearings on the 
proposed rule. On October 20, 2000, we published a notice announcing 
the reopening of the comment period and announced the availability of 
the draft economic analysis and draft environmental assessment on the 
proposal to designate critical habitat for the Mexican spotted owl (65 
FR 63047). The final comment period was open until November 20, 2000.

Summary of Comments and Recommendations

    In the July 21, 2000, proposed rule, we requested all interested 
parties to submit comments or information that might bear on the 
designation of critical habitat for the Mexican spotted owl (65 FR 
45336). The first comment period closed September 19, 2000. The comment 
period was reopened from October 20 to November 20, 2000, to once again 
solicit comments on the proposed rule and to accept comments on the 
draft economic analysis and draft environmental assessment (65 FR 
63047). We contacted all appropriate State and Federal agencies, 
Tribes, county governments, scientific organizations, and other 
interested parties and invited them to comment. In addition, we 
published newspaper notices inviting public comment and announcing the 
public hearings in the following newspapers in New Mexico: Albuquerque 
Journal, Albuquerque Tribune, Sante Fe New Mexican, Silver City Daily 
Press, Rio Grande Sun, Las Cruces Sun, and Alamogordo Daily News; 
Arizona: Arizona Republic, Arizona Daily Star, Arizona Daily Sun, 
Sierra Vista Daily Herald Dispatch, Navajo-Hopi Observer, White 
Mountain Independent, Lake Powell Chronicle, Verde-Independent-Bugle, 
Eastern Arizona Courier, and Prescott Daily Courier; Colorado: Rocky 
Mountain News, Pueblo Chiefton, Denver Post, Colorado Springs Gazette, 
and Canon City Daily; and Utah: The Spectrum Newspaper, Southern Utah 
News, Salt-Lake City Tribune, and Times Independent. We held six public 
hearings on the proposed rule: Sante Fe (August 14, 2000) and Las 
Cruces (August 15, 2000), New Mexico; Tucson (August 16, 2000) and 
Flagstaff (August 17, 2000), Arizona; Colorado Springs, Colorado 
(August 21, 2000); and Cedar City, Utah (August 23, 2000). Transcripts 
of these hearings are available for inspection (see ADDRESSES section).
    We solicited seven independent expert ornithologists who are 
familiar with this species to peer review the proposed critical habitat 
designation. However, only two of the peer reviewers submitted 
comments. Both responding peer reviewers supported the proposal. We 
also received a total of 27 oral and 813 written comments (the majority 
of written comments were in the form of printed postcards). Of those 
oral comments, 10 supported critical habitat designation, 14 were 
opposed to designation, and 3 provided additional information but did 
not support or oppose the proposal. Of the written comments, 756 
supported critical habitat designation, 38 were opposed to designation, 
and 19 were neutral but provided information. We reviewed all comments 
received for substantive issues and new data regarding critical habitat 
and the Mexican spotted owl. We address all comments received

[[Page 8533]]

during the comment periods and public hearing testimony in the 
following summary of issues. Comments of a similar nature are grouped 
into issues.

Issue 1: Biological Concerns

    (1) Comment: The wording of the attributes of the primary 
constituent elements are not consistent with the definitions of forest 
cover types as described in the Mexican Spotted Owl Recovery Plan, and 
there is a high potential for confusion over exactly which areas are 
included in the proposed designation. Do all of the primary constituent 
elements have to be present or just one, for the area to be considered 
critical habitat? The constituent elements described are vague 
(violating 50 CFR Sec. 424.12(c)) and should include the required 
greater detail defining what constitutes critical habitat. The 
boundaries are impossible to identify.
    Our Response: As stated in the critical habitat designation 
section, the critical habitat designation is consistent with the 
Mexican Spotted Owl Recovery Plan and includes areas within the mapped 
boundaries that meet the definition of protected and restricted areas. 
Protected areas are areas where owls are known to occur or are likely 
to occur. Protected areas include, (1) 600 acres around known owl sites 
within mixed conifer forests or (2) pine-oak forests with slopes 
greater than 40 percent and where timber harvest has not occurred in 
the past 20 years. Restricted habitat include areas outside of 
protected areas which may contain Mexican spotted owls. Restricted 
areas include mixed conifer forest, pine-oak forest and riparian areas.
    We clarified the definitions and use of the terms protected and 
restricted habitat and the attributes of primary constituent elements 
of critical habitat in this rule. This final rule describes in the 
greatest detail possible the primary constituent elements important to 
Mexican spotted owls to the extent the elements are known at this time. 
If new information on the primary constituent elements becomes 
available, we will then evaluate whether a revision of designated 
critical habitat is warranted, depending on funding and staffing.
    Critical habitat units are defined by Universal Transverse Mercator 
(UTM) coordinates. A list of those coordinates can be obtained by 
contacting the New Mexico Ecological Services Field Office (see 
ADDRESSES section). We believe that with the revisions to the 
description of primary constituent elements and the availability of UTM 
coordinates, the boundaries should be clear.
    (2) Comment: Some areas proposed as critical habitat units contain 
a considerable amount of land that is not suitable for or occupied by 
Mexican spotted owls, and therefore, the areas should be mapped more 
accurately. Some commenters questioned whether 13.5 million acres are 
needed for Mexican spotted owls.
    Our Response: There are some areas within the critical habitat 
boundaries that do not, and cannot, support the primary constituent 
elements and are, by definition, not considered to be critical habitat, 
even though they are within the identified mapped boundaries. We 
clarified the primary constituent element descriptions to assist 
landowners and managers in identifying areas containing these elements. 
However, a lack of precise habitat location data and the short amount 
of time allowed by the court to complete this final designation did not 
allow us to conduct the fine-scale mapping necessary to physically 
exclude all of the areas that do not contain suitable habitat. Critical 
habitat is limited to areas within the mapped boundaries that meet the 
definition of protected and restricted habitat in the Recovery Plan. In 
addition, the total gross area included within critical habitat 
boundaries in this final rule is 4.6 million acres, and the actual area 
designated as critical habitat is considerably less than the 4.6 
million acre figure provided in Table 1.
    (3) Comment: Lack of forest management has resulted in successional 
and structural changes to forests throughout the range of Mexican 
spotted owl. Designation and management of critical habitat will place 
an additional burden on land management agencies, further inhibiting 
their ability to prevent and suppress catastrophic wildfire, one of the 
greatest threats to the forest types this species inhabits. The risk 
and intensity of wildfire will increase. Therefore, designating 
critical habitat seems contradictory to the owl's recovery.
    Our Response: Critical habitat designation does not prevent actions 
that alleviate the risk of wildfire, nor will it have an effect on 
suppression activities. The maintenance of mature forest attributes in 
mixed conifer and pine-oak habitat types over a portion of the 
landscape and in areas that support existing owl territories is 
important to the recovery of the Mexican spotted owl; however, critical 
habitat designation does not emphasize the creation of these features 
where they do not currently exist. It also does not preclude the 
proactive treatments necessary to reduce the risk of catastrophic fire. 
Clearly, the loss of owl habitat by catastrophic fire is counter to the 
intended benefits of critical habitat designation.
    Section 7 prohibits actions funded, authorized, or carried out by 
Federal agencies from jeopardizing the continued existence of a listed 
species or destroying or adversely modifying the listed species' 
critical habitat. Actions likely to ``jeopardize the continued 
existence'' of a species are those that would appreciably reduce the 
likelihood of the species' survival and recovery (50 CFR 402.02). 
Actions likely to ``destroy or adversely modify'' critical habitat are 
those that would appreciably reduce the value of critical habitat for 
the survival and recovery of the listed species (50 CFR 402.02). Common 
to both definitions is an appreciable detrimental effect on both 
survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned when the habitat is occupied by the species. Therefore, the 
designation of critical habitat likely will not require any additional 
restrictions for section 7 consultations, including projects designed 
to reduce the risk of wildfire (e.g., prescribed burns, mechanical 
thinning, etc.). Furthermore, we expect that some activities may be 
considered to be of benefit to Mexican spotted owl habitat and, 
therefore, would not be expected to adversely modify critical habitat 
or place an additional burden on land management agencies. Examples of 
activities that could benefit critical habitat may include some 
protective measures such as fire suppression, prescribed burning, brush 
control, snag creation, and certain silvicultural activities such as 
thinning.
    We agree that many vegetative communities have undergone 
successional and structural changes as a result of past and current 
management practices. These practices include, to varying degrees, the 
combined effects of long-term and widespread fire suppression, 
reduction in surface fuels, rates of tree overstory removal and 
regeneration treatments on cycles shorter than those found in natural 
disturbance regimes, inadequate control of tree densities responding to 
fire suppression and tree harvest, and in xeric forest types, decreases 
in the proportion of the landscape in stands composed of more fire 
resistant large-diameter trees. We also agree that the vegetative 
structural and landscape changes may require proactive management to 
restore an appropriate distribution of age classes, control

[[Page 8534]]

regeneration densities, and reintroduce some measure of natural 
disturbance processes such as fire events. This may include prescribed 
fire and thinning treatments, restoration of the frequency and spatial 
extent of such disturbances as regeneration treatments, and 
implementation of prescribed natural fire management plans where 
feasible. We consider use of such treatments to be compatible with the 
ecosystem management of habitat mosaics and the best way to reduce the 
threats of catastrophic wildfire. We will fully support land management 
agencies in addressing the management of fire to protect and enhance 
natural resources under their stewardship.
    (4) Comment: The designation of critical habitat for the Mexican 
spotted owl will conflict with the management objectives of other 
animal and plant species and ecosystem management. The designation of 
critical habitat will surely have an impact on many other species of 
wildlife.
    Our Response: Critical habitat management primarily focuses on the 
maintenance of habitat features in mixed conifer and pine-oak habitat 
types that support Mexican spotted owls, and the maintenance of good 
montane riparian habitat conditions. It does not emphasize the creation 
of these features where they do not currently exist, or do not have the 
potential to naturally occur. The management approach to critical 
habitat addresses diversity at the landscape scale by maintaining 
spatial variation and distribution of age classes, and at the stand 
scale by managing for complex within-stand structure. The methods to 
attain or conserve the desired measure of diversity vary, but are 
designed to maintain existing mature/old forest characteristics while 
allowing some degree of timber harvest and management of other 
objectives such as tree density control and prescribed fire. Older 
forests are productive successional stages that provide favorable 
environments for diverse assemblages of plants and animals. The 
maintenance of this under represented seral stage at landscape and 
stand scales will provide and enhance biological diversity. Therefore, 
critical habitat management does not preclude managing for other 
objectives or other species. In addition, critical habitat management 
is adaptive and will incorporate new information on the interaction 
between natural disturbance events and forest ecology. We continue to 
support sound ecosystem management and the maintenance of biodiversity.
    As outlined in our final environmental assessment, in areas within 
the geographic range occupied by the Mexican spotted owl, native fish, 
wildlife, and plants may directly or indirectly benefit as a result of 
ecosystem protections provided through the conservation of the owl and 
the associated requirements of section 7 of the Act. Designation of 
critical habitat in areas within the geographic range potentially 
occupied by the owl could provide similar ecological benefits to fish, 
wildlife, and plants.
    (5) Comment: How does the critical habitat designation correspond 
to the reasons why the owl is listed?
    Our Response: The two primary reasons for listing the Mexican 
spotted owl as threatened were historical alteration of its habitat as 
the result of timber management practices, and the threat of these 
practices continuing; and the risk of catastrophic wildfire (58 FR 
14248). The Recovery Plan outlines management actions that land 
managers should undertake to remove recognized threats and recover the 
spotted owl. This critical habitat designation is based on recovery 
needs identified in the Recovery Plan, and therefore promotes the 
reduction in the threats that necessitated listing the Mexican spotted 
owl. By not adversely modifying or destroying critical habitat, the 
threat of alteration by timber management practices is reduced.
    (6) Comment: Your list of constituent elements and condemnation of 
even-aged silviculture suggests that the constituent elements must 
occur on every acre of the 13.5 million acres. There appears to be an 
attempt to idealize and maximize owl populations over a very large 
area. The owl is flexible, adaptable, and capable of doing well with 
less and surviving.
    Our Response: The determination of primary constituent elements and 
designation of critical habitat is consistent with the Mexican Spotted 
Owl Recovery Plan. In the Recovery Plan, we outline steps necessary to 
remove the owl from the list of threatened species (see response to 
comment 9). The Recovery Plan recognizes that Mexican spotted owls 
nest, roost, forage, and disperse in a diverse array of biotic 
communities. The Recovery Plan provides realistic goals for the 
recovery of the species (including a significant increase in owl 
population numbers), and these goals are flexible in that they require 
local land managers to make site-specific decisions, including 
silviculture management.
    (7) Comment: Designation of critical habitat is not needed to 
conserve the owl, because there is information that shows the spotted 
owl is doing very well; a year ago you were in the process of delisting 
the spotted owl, because it was doing well. What happened to that 
activity?
    Our Response: We never proposed nor began the process of delisting 
the Mexican spotted owl. Although the Mexican spotted owl appears to be 
doing well in some areas of its range (e.g., Sacramento Ranger 
District, Lincoln National Forest, New Mexico), other populations may 
be declining (Seamans et al. 1999). On September 23, 1993, and April 1, 
1994, we announced separate 90-day findings on two petitions to remove 
the Mexican spotted owl from the list of endangered and threatened 
wildlife (FR 58 49467, FR 59 15361). We found that the petitions did 
not present substantial scientific or commercial information indicating 
that delisting the Mexican spotted owl was warranted.
    (8) Comment: The designation of critical habitat will not provide 
any additional conservation benefit to the Mexican spotted owl, which 
is already protected under section 7.
    Our Response: We agree that designation of critical habitat will 
provide no additional regulatory benefit in areas already managed 
compatibly with owl recovery. However, the designation of critical 
habitat may provide some additional conservation benefit to the Mexican 
spotted owl on lands that are within the geographic range potentially 
occupied or that may become unoccupied in the future since section 7 
consultations required under the listing of the species may not always 
be done in these areas of potentially occupied habitat. Critical 
habitat designation requires Federal agencies to consult with us to 
ensure that any action they authorize, fund, or carry out is not likely 
to result in the destruction or adverse modification of critical 
habitat.
    (9) Comment: Several commenters questioned whether the designation 
of critical habitat will improve conservation of the Mexican spotted 
owl because the current Recovery Plan is being implemented.
    Our Response: Lands managed by agencies who have formally adopted 
the Recovery Plan, as well as Indian Tribes who are implementing 
management plans compatible with owl recovery, have been excluded from 
the designation.
    A recovery plan for the Mexican spotted owl was finalized in 
December 1995. This plan recommends recovery goals, strategies for 
varying levels of habitat protection, population and

[[Page 8535]]

habitat monitoring, a research program to better understand the biology 
of the Mexican spotted owl, and implementation procedures. In addition, 
we have continued working with the Mexican spotted owl recovery team 
since the plan was finalized. We believe this critical habitat 
designation is consistent with the Recovery Plan and recommendations of 
those team members, and will contribute to the conservation and 
eventual recovery of the species. Designation of critical habitat will 
help to implement the Recovery Plan because it helps to conserve 
habitat for the Mexican spotted owl; one of the actions outlined in the 
Recovery Plan.
    (10) Comment: One commenter stated that not enough information is 
known about the total habitat requirements of the species to define 
critical habitat.
    Our Response: Section 4(b)(2) of the Act states ``The Secretary 
shall designate critical habitat, and make revisions thereto, under 
section (a)(3) on the basis of the best scientific data available * * 
*'' We considered the best scientific information available at this 
time, as required by the Act. Our recommendation is based upon a 
considerable body of information on the biology of the Mexican spotted 
owl, as well as effects from land-use practices on their continued 
existence. Much remains to be learned about this species; should 
credible, new information become available which contradicts this 
designation, we will reevaluate our analysis and, if appropriate, 
propose to modify this critical habitat designation, depending on 
available funding and staffing.

Issue 2: Procedural and Legal Compliance

    (11) Comment: The designation of critical habitat will place an 
additional burden on land management agencies above and beyond what the 
listing of the species would require. The number of section 7 
consultations will increase; large areas where no Mexican spotted owls 
are known to occur will now be subject to section 7 consultation and 
will result in a waste of time and money by the affected agencies. Many 
Federal agencies have been making a ``no effect'' call within 
unoccupied suitable habitat. Now, with critical habitat there will be 
``may effect'' determinations, and section 7 consultation will be 
required if any of the constituent elements are present.
    Our Response: If a Federal agency funds, authorizes, or carries out 
an action that may affect either the Mexican spotted owl or its 
critical habitat, the Act requires that the agency consult with us 
under section 7 of the Act. For a project to affect critical habitat, 
it must affect the habitat features important to the Mexican spotted 
owl, which are defined in the regulation section in this final rule. 
Our view is and has been that any Federal action within the geographic 
area occupied or potentially occupied by the species that affects these 
habitat features should be considered a situation that ``may affect'' 
the Mexican spotted owl and should undergo section 7 consultation. This 
is true whether or not critical habitat is designated, even when the 
particular project site within the larger geographical area occupied by 
the species is not known to be currently occupied by an individual 
Mexican spotted owl. All areas designated as critical habitat are 
within the geographical area occupied or potentially occupied by the 
species, so Federal actions affecting essential habitat features of the 
species should undergo consultation. Thus, the need to conduct section 
7 consultation should not be affected by critical habitat designation. 
As in the past, the Federal action agency will continue to make the 
determination as to whether their project may affect a species even 
when the particular project site is not known to be currently occupied 
by an individual Mexican spotted owl.
    (12) Comment: Many commenters expressed concern that the Mexican 
Spotted Owl Recovery Plan is not being implemented, and that federally 
funded or authorized activities (i.e., logging, grazing, dam 
construction, etc.) within Mexican spotted owl habitat are not 
consistent with recovery for the species and/or are not undergoing 
section 7 consultation for potential impacts to the owl.
    Our Response: We have consulted with Federal agencies on numerous 
projects since we issued the Recovery Plan. The Recovery Plan 
recognizes, as do we, that agencies must make management decisions for 
multiple use objectives, and that other pressing resource needs may not 
always be compatible with Mexican spotted owl recovery. Thus, agencies 
consult with us under section 7 when they propose actions that may be 
inconsistent with Recovery Plan recommendations, as well as when they 
propose actions may affect the species or critical habitat. However, 
there have been no consultations to date that have concluded that a 
proposed action is likely to jeopardize the continued existence of the 
Mexican spotted owl. Further, we are not aware of instances where 
action agencies have failed to properly consult on actions that may 
affect the species or its habitat.
    (13) Comment: One commenter believes that the designation of 
critical habitat for the Mexican spotted owl conflicts with the Federal 
Land Policy and Management Act of 1976, the Mining and Minerals Policy 
Act of 1970, the National Materials and Minerals Policy, Research, and 
Development Act of 1980, and other State and county policies and plans 
within the four States.
    Our Response: We read through the comments and information provided 
concerning the various acts and policies; however, the commenter failed 
to adequately explain the rationale for why they believe critical 
habitat designation conflicts with the above Federal laws and policies 
or other State and County policies and plans. We are unaware of any 
conflicts with the cited laws, policies, and plans.
    (14) Comment: The Rocky Mountain Region of the Forest Service 
provided Geographic Information System (GIS) coverages for Pike and San 
Isabel National Forests and the Royal Gorge Resource area of the BLM. 
They requested that we revise the critical habitat units in these areas 
by reducing the size of one critical habitat unit and increasing the 
size of another. The FS indicated that suggested revisions are based 
upon digital elevation models, elevation, vegetation, Mexican spotted 
owl surveys, and BLM land management designations (i.e., wilderness 
study areas). There was an expressed concern that much of the area 
within the proposed critical habitat boundaries does not contain the 
combination of primary constituent elements and attributes to meet the 
definition of critical habitat and should not be included.
    Our Response: We considered the information provided by the 
commenter and determined that the critical habitat units contain areas 
that meet the definition of protected areas in the Recovery Plan (e.g., 
slopes greater than 40 percent where timber harvest has not occurred in 
the past 20 years). The BLM land management designations (i.e., 
wilderness study areas) do not provide ``special management 
considerations or protections,'' pursuant to the definition of critical 
habitat in section 3 of the Act. Likewise, we have no formal 
documentation (e.g., consultation records) that demonstrates whether 
the FS or BLM is integrating the Mexican Spotted Owl Recovery Plan into 
their activities. Thus, these lands do not meet our criteria for 
exclusion and we conclude the areas should be designated as they were 
originally proposed.

[[Page 8536]]

    We recognize that some areas within the critical habitat units do 
not contain protected habitat or restricted habitat. These areas are 
not considered critical habitat. Critical habitat is limited to areas 
within the mapped boundaries that meet the definition of protected or 
restricted habitat as described in the Recovery Plan.
    (15) Comment: Some commenters expressed concern that there are 
areas containing Mexican spotted owls, but these were not within the 
critical habitat boundaries. Additional areas not identified in the 
proposed rule should be designated critical habitat.
    Our Response: The critical habitat designation did not include some 
areas that are known to have widely scattered owl sites, low population 
densities, and/or marginal habitat quality, which are not considered to 
be essential to this species' survival or recovery. Section 3(5)(C) of 
the Act and our regulations (50 CFR Sec. 424.12(e)) state that, except 
in certain circumstances, not all suitable or occupied habitat be 
designated as critical habitat, rather only those areas essential for 
the conservation of the species. Additionally, section 4(b)(4) of the 
Act requires that areas designated as critical habitat must first be 
proposed as such. Thus, we cannot make additions in this final rule to 
include areas that were not included in the proposed rule. Designation 
of such areas would require a new proposal and subsequent final rule.
    If, in the future, we determine from information or analysis that 
those areas designated in this final rule need further refinement or 
additional areas are identified which we determine are essential to the 
conservation of the species and require special management or 
protection, we will evaluate whether a revision of critical habitat is 
warranted at that time.
    (16) Comment: Why are areas included in the designation that are 
not presently occupied by the Mexican spotted owl?
    Our Response: The inclusion of both currently occupied and 
potentially occupied areas in this critical habitat designation is in 
accordance with section 3(5)(A) of the Act, which provides that areas 
outside the geographical area currently occupied by the species may 
meet the definition of critical habitat upon a determination that they 
are essential for the conservation of the species. Our regulations also 
provide for the designation of areas outside the geographical area 
currently occupied if we find that a designation limited to its present 
range would be inadequate to ensure the conservation of the species (50 
CFR 424.12(e)). The species' Recovery Plan recommends that some areas 
be managed as ``restricted habitat'' in order to provide for future 
population expansion and to replace currently occupied areas that may 
be lost through time. We believe that such restricted habitat is 
essential and necessary to ensure the conservation of the species.
    (17) Comment: If land has dual ownership of private and Federal, is 
it critical habitat? The land in question is under private ownership 
and the mineral rights are owned by the BLM.
    Our Response: The surface ownership is what would contain the 
primary constituent elements of critical habitat. Because the surface 
ownership is private and we are not including private land in this 
designation, we would not consider the lands to be designated critical 
habitat. However, if a Federal agency (e.g., BLM) funds, authorizes, or 
carries out an action (e.g., mineral extraction) that may affect the 
Mexican spotted owl or its habitat, the Act requires that the agency 
consult with us under section 7 of the Act. This is required whether or 
not critical habitat is designated for a listed species.
    (18) Comment: Fort Carson, Colorado, provided information during 
the comment period that indicated the Mexican spotted owl is not known 
to nest on the military installation and the species is a rare winter 
visitor. Protected and restricted habitat is also not known to exist on 
Fort Carson. Further, Fort Carson is updating the Integrated Natural 
Resources Management Plan (INRMP) to include specific guidelines and 
protection measures that have been recently identified through informal 
consultation with us. The INRMP will include measures to provide year-
round containment and suppression of wildland fire and the 
establishment of a protective buffer zone around each roost tree. The 
target date of completion for this revision is early 2001. Fort Carson, 
through consultation with us, indicated they will ensure that the INRMP 
will meet the criteria for exclusion. They also provided additional 
information and support to indicate that no protected or restricted 
habitat exists on the base, and asked to be excluded from the final 
designation.
    Our Response: We agree that Fort Carson should be excluded from the 
final designation (see discussion under Exclusions section). 
Nevertheless, Federal agencies are already required to consult with us 
on activities with a Federal nexus (i.e., when a Federal agency is 
funding, permitting, or in some way authorizing a project) when their 
activities may affect the Mexican spotted owl. For example, if Mexican 
spotted owls are present during certain times of the year (e.g., 
winter) and there is the potential for Fort Carson's activities to 
affect the species, the Act requires they consult with us under section 
7, regardless of critical habitat designation.
    (19) Comment: How will the exclusion of certain lands (e.g., State, 
private, Tribal) affect recovery and delisting of the Mexican spotted 
owl?
    Our Response: In accordance with section 3(5)(A)(i) of the Act and 
regulations at 50 CFR 424.12, we are required to base critical habitat 
designation on the best scientific and commercial data available and to 
consider those physical and biological features (primary constituent 
elements) that are essential to conservation of the species and that 
may require special management considerations or protection. We 
designated critical habitat for those lands we determined are essential 
to conservation of the Mexican spotted owl. We did not include certain 
lands (e.g., State, private, and Tribal) because we determined these 
lands are either not essential to the recovery of the Mexican spotted 
owl or are already managed in a manner compatible with Mexican spotted 
owl conservation. The exclusion of State, private, and tribal lands in 
the designation of critical habitat for the Mexican spotted owl will 
not affect the recovery and future delisting of the species. Whether or 
not a species has designated critical habitat, it is protected both 
from any actions resulting in an unlawful take and from Federal actions 
that could jeopardize the continued existence of the species.
    (20) Comment: The areas proposed as critical habitat in Colorado 
make up 4.2 percent of the total proposed critical habitat. Much of the 
areas proposed in Colorado do not contain the primary constituent 
elements for critical habitat of the Mexican spotted owl. It is 
difficult to understand how the small amount of habitat proposed in 
Colorado is essential for the survival and recovery of the owl. The 
current tree stocking levels, species composition, and stand structure 
of areas proposed as critical habitat in Colorado do not currently nor 
are they likely to meet the definition of threshold habitat as defined 
in the Recovery Plan.
    Our Response: We carefully considered the information provided with 
the above comment. If habitat within the mapped boundaries does not 
meet the definition of protected or restricted habitat as described in 
the Recovery Plan, then it is not considered critical habitat. We agree 
that not all of the land within the critical habitat

[[Page 8537]]

boundaries in Colorado supports protected and restricted habitat and, 
therefore, is not critical habitat.
    (21) Comment: The statement that continued grazing in upland 
habitat will not adversely affect or modify critical habitat is 
unsubstantiated and is counter to FS information that suggests grazing 
may affect Mexican spotted owl prey and increase the susceptibility of 
owl habitat to fire.
     Our Response: Our data indicate that continued grazing in upland 
habitat has the potential to adversely impact the owl or its designated 
critical habitat. We concur with reports that there may be a link 
between continued grazing and an effect to Mexican spotted owl prey 
populations. We understand that the natural fire regime of frequent 
low-intensity and spatially extensive understory fire events has been 
interrupted by a variety of reasons (e.g., grazing eliminating fine 
fuels, suppression of wildfires, etc). When grazing activities involve 
Federal funding, a Federal permit, or other Federal action, 
consultation is required when such activities have the potential to 
adversely affect the Mexican spotted owl or its critical habitat. The 
consultation will analyze and determine to what degree those activities 
impact the Mexican spotted owl.
    (22) Comment: A premise for the proposed rule is that the Service 
was ordered by the court on March 13, 2000, to designate critical 
habitat by January 15, 2001. The court may not order critical habitat 
to be designated. Rather, the court may order the Service to make a 
decision on whether to designate critical habitat. The designation of 
critical habitat is an action that is ultimately discretionary, and the 
Service must apply the criteria in the ESA and its regulations to 
decide whether to designate critical habitat. Thus, the Service should 
seek correction of that court order and reconsider whether and to what 
extent critical habitat should be designated.
     Our Response: The commenter is correct that we cited a court order 
requiring actual designation of critical habitat. However, recent case 
law has indicated that critical habitat designation is required for 
listed species except in only rare instances (for example, Natural 
Resources Defense Council versus U.S. Department of the Interior 113 F. 
3d 1121 (9th Cir. 1997); Conservation Council for Hawaii versus 
Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Thus, we saw no reason 
to challenge the court order.
    (23) Comment: Are lands within a National Park that are already 
protected, but proposed as wilderness areas, considered critical 
habitat?
     Our Response: Yes, we consider lands that are within critical 
habitat boundaries, that contain the primary constituent elements, and 
required special management and protection, as critical habitat, 
regardless of whether they are currently designated as wilderness.
    (24) Comment: Military aircraft overflights and ballistic missile 
testing activities have no adverse effect on Mexican spotted owl 
critical habitat.
     Our Response: The designation of critical habitat will not impede 
the ability of military aircraft to conduct overflights nor to conduct 
ballistic missile testing activities. Activities such as these that do 
not affect designated critical habitat will not require section 7 
consultation. However, proposed low-level military aircraft overflights 
that could potentially affect the Mexican spotted owl will be reviewed 
during the consultation process as they have in the past.
    (25) Comment: Explain the rationale for excluding, by definition, 
State and private lands from the proposed designation; there are 
documented nesting sites for the Mexican spotted owl in Colorado 
located on State-leased lands; State and private lands should be 
included; the majority of owl locations are from Federal lands because 
no one is doing surveys on private and State lands.
     Our Response: Although we are aware of some Mexican spotted owl 
locations on State and private lands, the majority of owl locations are 
from Federal and Tribal lands. Thus, we believe that Mexican spotted 
owl conservation can best be achieved by management of Federal and 
Tribal lands, and determined that State and private lands are not 
essential to the species' recovery.
    (26) Comment: Several commenters asked whether projects that have 
obtained a biological opinion pursuant to section 7 of the Act would be 
required to reinitiate consultation to address the designation of 
critical habitat. Will the FS have to reinitiate consultation on their 
Forest Plans when critical habitat is designated?
    Service Response: In the case of projects that have undergone 
section 7 consultation and where that consultation did not address 
potential destruction or adverse modification of critical habitat for 
the Mexican spotted owl, reinitiation of section 7 consultation may be 
required. We expect that projects that do not jeopardize the continued 
existence of the Mexican spotted owl will not likely destroy or 
adversely modify its critical habitat and no additional modification to 
the project would be required.
    (27) Comment: The El Paso Natural Gas Company questioned whether 
the designation of critical habitat will require consultation for 
routine maintenance and operations. For example, if a linear pipeline 
project crosses State, private, and FS lands, will consultation be 
required?
    Our Response: Federal agencies are already required to consult with 
us on activities with a Federal nexus (i.e., when a Federal agency is 
funding, permitting, or in some way authorizing a project) when their 
activities may affect the species. We do not anticipate additional 
regulatory requirements beyond those required by listing the Mexican 
spotted owl as threatened. For routine maintenance and operations of 
public utilities or if a linear pipeline project crosses State, 
private, and FS lands and does not affect critical habitat, 
consultation will not be required. If maintenance activities would 
affect critical habitat and there is a Federal nexus, then section 7 
consultation will be necessary.
    (28) Comment: The National Forests in Arizona have amended their 
land and resource management plans to incorporate the Mexican Spotted 
Owl Recovery Plan. Consistent with the Service's justification for not 
designating critical habitat on certain tribal lands because habitat 
management plans are still valid and being implemented on these lands, 
the designation of critical habitat on FS lands may not be necessary 
because of existing land and resource management plans that are 
responsive to Mexican spotted owl conservation.
    Our Response: We determined that FS lands in Arizona and New Mexico 
do not meet the definition of critical habitat, and have not been 
included in this designation (see Exclusions section).
    (29) Comment: Several commenters questioned what the phrase, ``may 
require special management considerations,'' means; what kind of 
management activities might be implemented?
    Our Response: Under the definition of critical habitat, an area 
must be both essential to a species' conservation and require ``special 
management considerations or protections.'' Our interpretation is that 
special management is not required if adequate management or 
protections are already in place. Adequate special management or 
protection is provided by a legally operative plan that addresses the 
maintenance and improvement of the

[[Page 8538]]

primary constituent elements important to the species and manages for 
the long term conservation of the species (see Exclusions Under Section 
3(5)(A) Definition section).
    (30) Comment: Maps and descriptions provided are vague and violate 
the Act and 50 CFR Sec. 424.12(c).
    Our Response: The required descriptions of areas designated as 
critical habitat are available from the New Mexico Ecological Services 
Field Office (see ADDRESSES section), as are more detailed maps and GIS 
digital files. The maps published in the Federal Register are for 
illustration purposes, and the amount of detail that can be published 
is limited. If additional clarification is necessary, contact the New 
Mexico Ecological Services Field Office.

Issue 3: National Environmental Policy Act (NEPA) Compliance and 
Economic Analysis

    (31) Comment: Several commenters questioned the adequacy of the 
Environmental Assessment (EA) and other aspects of our compliance with 
NEPA. They believe the Fish and Wildlife Service should prepare an 
Environmental Impact Statement (EIS) on this action.
    Our Response: The commenters did not provide sufficient rationale 
to explain why they believed the EA was inadequate and an EIS 
necessary. An EIS is required only in instances where a proposed 
Federal action is expected to have a significant impact on the human 
environment. In order to determine whether designation of critical 
habitat would have such an effect, we prepared an EA of the effects of 
the proposed designation. We made the draft EA available for public 
comment on October 20, 2000, and published notice of its availability 
in the Federal Register (65 FR 63047). Following consideration of 
public comments, we prepared a final EA and determined that critical 
habitat designation does not constitute a major Federal action having a 
significant impact on the human environment. That determination is 
documented in our Finding of No Significant Impact (FONSI). Both the 
final EA and FONSI are available for public review (see ADDRESSES 
section).
    (32) Comment: Several local and county governments, a coalition of 
Arizona and New Mexico counties, and a Soil and Water Conservation 
District requested Joint Lead Agency or Cooperating Agency status in 
preparation of the NEPA documents for this critical habitat 
designation. Why were those requests denied?
    Our Response: The Village of Cloudcroft; Otero County, New Mexico; 
the Board of Coalition of Arizona/New Mexico Counties for Stable 
Economic Growth; and the San Francisco Soil and Water Conservation 
District, New Mexico, requested Joint Lead Agency status to assist us 
in preparation of the NEPA documents on the critical habitat 
designation. When preparing an EIS, a Joint Lead Agency may be a 
Federal, State, or local agency. However, a cooperating agency may only 
be another Federal agency (40 CFR 1501.5 and 1501.6). In our EA on the 
proposed action, we determined that an EIS was not necessary. Thus, the 
EA resulted in a FONSI, and the issue of Joint Lead Agency or 
Cooperating Agency status on preparation of an EIS became moot.
    (33) Comment: The draft economic analysis failed to adequately 
estimate the potential economic impacts to landowners regarding various 
forest management practices.
    Our Response: The economic analysis addressed a variety of forest 
management concerns that were voiced by stakeholders (e.g., fire and 
grazing management, timber harvesting, etc.). These activities are 
usually subject to a Federal nexus because the actions involve Federal 
funding, permitting, or authorizations. Although critical habitat 
designation may result in new or reinitiated consultations associated 
with activities on Federal lands, we believe these activities likely 
will not result in additional modifications beyond that required by 
listing. Whether or not a species has designated critical habitat, it 
is protected both from any actions resulting in an unlawful take and 
from Federal actions that could jeopardize the continued existence of 
the species.
    (34) Comment: Several commenters voiced concern that they were not 
directly contacted for their opinions on the economic impacts of 
critical habitat designation.
    Our Response: It was not feasible to contact every potential 
stakeholder in order for us to develop a draft economic analysis. We 
believe we were able to understand the issues of concern to the local 
communities based on public comments submitted on the proposed rule and 
draft economic analysis, on transcripts from public hearings, and from 
detailed discussions with Service representatives. To clarify issues, 
we solicited information and comments from representatives of Federal, 
State, Tribal, and local government agencies, as well as some 
landowners.
    (35) Comment: The draft Economic Analysis and Environmental 
Assessment were not available for comment during the first comment 
period; the opportunity for public comment on these documents was 
limited.
    Our Response: We published the proposed critical habitat 
determination in the Federal Register on July 21, 2000, and invited 
public comment for 60 days. We used comments received on the proposed 
critical habitat to develop the draft economic analysis. We reopened 
the comment period from October 20 to November 20, 2000, to allow for 
comments on the draft Economic Analysis, Environmental Assessment, and 
proposed rule. We believe that sufficient time was allowed for public 
comment given the short time frame ordered by the court.
    (36) Comment: Your draft Economic Analysis did not consider 
watersheds, nor water rights, State water rights, nor adjudication with 
Texas on water rights, nor the effect on water rights of any of the 
people within those watersheds.
    Our Response: In conducting our economic analysis, we read through 
these comments and concluded that the commenter failed to adequately 
explain the rationale for why they believe critical habitat designation 
for the Mexican spotted owl impacts watersheds or water rights.
    (37) Comment: The draft economic analysis and proposed rule do not 
comply with Executive Order 12866, which requires each Federal agency 
to assess the costs and benefits of proposed regulations.
    Our Response: We determined that this rule will not have an annual 
economic effect of $100 million or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of government. 
Thus, a cost-benefit analysis is not required for purposes of Executive 
Order 12866 (see Required Determinations section).
    (38) Comment: The draft economic analysis, draft environmental 
assessment, and proposed rule failed to adequately estimate and address 
the potential economic and environmental consequences and how timber, 
fuel wood, land acquisition and disposal, oil and gas development, and 
mining would be impacted by the designation.
    Our Response: We solicited further information and comments 
associated with the potential impacts of designating critical habitat 
for the Mexican spotted owl. We read through all comments received 
during the two comment periods and have concluded that further 
information was not provided on how the designation of critical habitat 
would result in economic or environmental consequences beyond those 
already addressed in the economic analysis,

[[Page 8539]]

environmental assessment, or this final rule.
    (39) Comment: One commenter questioned whether publishing the 
proposed rule on July 21, 2000, and not releasing the EA until October 
20, 2000, violated the intent of NEPA by being pre-decisional. Others 
contend that the range of alternatives considered in the EA was 
inadequate.
    Our Response: We began work on our Environmental Assessment at 
approximately the same time we began to draft the proposed rule. Our 
Proposed Alternative in the EA was to finalize the designation of 
critical habitat as described in the proposed rule published in the 
Federal Register on July 21, 2000 (65 FR 45336). The draft EA 
considered a no-action alternative and four action alternatives. We 
believe our EA was consistent with the spirit and intent of NEPA, and 
was not pre-decisional.
    (40) Comment: The assumption applied in the economic analysis that 
the designation of critical habitat will cause no impacts above and 
beyond those caused by listing of the species is faulty, legally 
indefensible, and contrary to the ESA. ``Adverse modification'and 
``jeopardy'' are different, will result in different impacts, and 
should be analyzed as such in the economic analysis.
    Our Response: The statutory language in the Act prohibits us from 
considering economic impacts when determining whether or not a species 
should be added to the list of federally protected species. As a 
result, the designation of critical habitat for the Mexican spotted owl 
has been evaluated in the economic context known as ``with'' critical 
habitat and ``without'' critical habitat (i.e., the effects of listing 
alone). Elsewhere in this rule we discuss that the definitions of 
``jeopardy'' to the species and ``adverse modification'' of critical 
habitat are nearly identical and that the designation of critical 
habitat will not have significant economic impacts above and beyond 
those already imposed by listing the Mexican spotted owl. Further, it 
is our position that both within and without critical habitat, Federal 
agencies should consult with us if a proposed action is (1) within the 
geographic areas occupied and potentially occupied by the species, 
whether or not owls have been detected on the specific project site; 
(2) the project site contains habitat features that can be used by the 
species; and (3) the proposed action is likely to affect that habitat 
(see response to comment 12).
    (41) Comment: The proposed designation of critical habitat will 
impose economic hardship on private landowners. There is an expressed 
concern that the proposed critical habitat designation would have 
serious financial implications for grazing and sources of revenue that 
depend upon Federal ``multiple-use'' lands. The designation will have 
harmful impacts on the quality of life, education, and economic 
stability of small towns.
    Our Response: As stated in the economic analysis, the proposed rule 
to designate critical habitat for the Mexican spotted owl is adding 
few, if any, new requirements to the current regulatory process. Since 
the adverse modification standard for critical habitat and the jeopardy 
standard are almost identical, the listing of the Mexican spotted owl 
itself initiated the requirement for consultation. The critical habitat 
designation adds no additional requirements not already in place due to 
the species' listing.

Issue 4: Tribal Issues

    (42) Comment: Why are tribal lands included in the proposed 
designation?
    Our Response: In our proposal to designate critical habitat, we 
found that lands of the Mescalero Apache, San Carlos Apache, and Navajo 
Nation likely met the definition of critical habitat with respect to 
the Mexican spotted owl, and portions of those lands were proposed as 
critical habitat. However, we worked with the tribes in developing 
voluntary measures adequate to conserve Mexican spotted owls on tribal 
lands. The Navajo Nation and Mescalero Apache Tribe completed 
management plans for the Mexican Spotted Owl that are consistent with 
the Recovery Plan. The San Carlos Apache Reservation management plan is 
substantially complete and is expected to be completed in March 2001. 
We reviewed a draft of their plan and found it to be consistent with 
the Recovery Plan. We determined that adequate special management is 
being provided for the Mexican spotted owl on the Navajo Nation and 
Mescalero Apache lands and, therefore, they were not included in the 
designation since they do not meet the definition of critical habitat 
(see Exclusions Under Section 3(5)(A) Definition section of this rule 
for further information). In the case of the San Carlos Apache 
Reservation we found, in accordance with section 4(b)(2) of the Act, 
that the benefits of excluding their lands outweighed the benefits of 
including them in the designation (see American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act 
section of this rule for further information).
    (43) Comment: The Mescalero Apache Tribe believes the Service did 
not adequately consider how the designation of critical habitat on 
tribal lands will benefit the Mexican spotted owl or how the 
designation will impact the Mescalero Apache Reservation.
    Our Response: We did not include the Mescalero Apache or other 
tribal lands in the final designation. As stated in our response above, 
we determined that adequate special management is being provided for 
the Mexican spotted owl on Mescalero Apache lands and, therefore, they 
were not included in the designation since they do not meet the 
definition of critical habitat.

Issue 5: Other Relevant Issues

    (44) Comment: The designation of critical habitat would constitute 
a ``government land grab.'' The Mexican spotted owl is merely the 
vehicle by which environmental groups plan to stop harvest of ``old 
growth'' forests.
    Our Response: The designation of critical habitat has no effect on 
non-Federal actions taken on private or State lands, even if the land 
is within the mapped boundary of designated critical habitat, because 
these lands were specifically excluded from the designation. We believe 
that the designation of critical habitat for the Mexican spotted owl 
does not impose any additional restrictions on land managers/owners 
within those areas designated as critical habitat, beyond those imposed 
due to the listing of the Mexican spotted owl (see response to comment 
11). All landowners are responsible to ensure that their actions do not 
result in the unauthorized take of a listed species, and all Federal 
agencies are responsible to ensure that the actions they fund, permit, 
or carry out do not result in jeopardizing the continued existence of a 
listed species, regardless of where the activity takes place.
    We also note that this designation is consistent with the Recovery 
Plan. While the Recovery Plan does not explicitly protect ``old-
growth'' forests, it does recommend that large trees and other forest 
attributes that may be found in ``old-growth'' forests be retained to 
the extent practicable within certain forest types. Large trees are 
important ecosystem components, have been much reduced in the 
Southwest, and take many decades to replace once they are lost.
    (45) Comment: The Mexican spotted owl by its very name is not 
exclusive to the United States. Typical of most Mexican fauna entering 
the United States, it appears rarer than it really is. Therefore, it is 
Mexico's duty to protect it.

[[Page 8540]]

    Our Response: A significant portion of the species' entire 
population occurs in the United States. Furthermore, according to CFR 
402.12(h) ``Critical habitat shall not be designated with foreign 
countries or in other areas outside of the United States 
jurisdiction.''
    (46) Comment: Why were the public hearings in Utah held in the 
southwestern part of the State when most of the critical habitat is in 
the southeastern portion?
    Our Response: The Act requires that at least one public hearing be 
held if requested. We held six public hearings throughout the four 
state region. We selected Cedar City, Utah, for a hearing location 
because of its proximity to four of the five proposed critical habitat 
units in the State.
    (47) Comment: The designation of critical habitat abrogates the 
Treaty of Guadalupe Hidalgo. You do not have constitutional authority 
to do so.
    Our Response: The Treaty of Guadalupe Hidalgo resulted in grants of 
land made by the Mexican government in territories previously 
appertaining to Mexico, and remaining for the future within the limits 
of the United States. These grants of land were respected as valid, to 
the same extent that the same grants would have been valid within the 
territories if the grants of land had remained within the limits of 
Mexico. The designation of critical habitat has no effect on non-
Federal actions taken on private land (e.g., land grants), even if the 
private land is within the mapped boundary of designated critical 
habitat because we excluded State and private lands by definition. 
Critical habitat has possible effects on activities by private 
landowners only if the activity involves Federal funding, a Federal 
permit, or other Federal action. If such a Federal nexus exists, we 
will work with the landowner and the appropriate Federal agency to 
ensure that the landowner's project can be completed without 
jeopardizing the species or adversely modifying critical habitat. The 
designation of critical habitat for the Mexican spotted owl in no way 
abrogates any treaty of the United States.
    (48) Comment: Many commenters were concerned that the designation 
of critical habitat would prohibit recreational and commercial 
activities from taking place.
    Our Response: As stated in the economic analysis and this final 
rule, we do not believe the designation of critical habitat will have 
adverse economic effects on any landowner above and beyond the effects 
of listing of the species. It is correct that projects funded, 
authorized, or carried out by Federal agencies, and that may affect 
critical habitat, must undergo consultation under section 7 of the Act. 
This provision includes commercial activities. However, as stated 
elsewhere in this final rule, we do not expect the result of those 
consultations to result in any restrictions that would not be required 
as a result of listing the Mexican spotted owl as a threatened species.
    Designation of critical habitat does not preclude commercial 
projects or activities such as riparian restoration, fire prevention/
management, or grazing if they do not cause an adverse modification of 
critical habitat. We will work with Federal agencies that are required 
to consult with us under section 7 of the Act to ensure that land 
management will not adversely modify critical habitat (see responses to 
prior comments).

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as--(i) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection and; (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. The term ``conservation,'' as defined in section 3(3) of the 
Act, means ``the use of all methods and procedures which are necessary 
to bring any endangered species or threatened species to the point at 
which the measures provided pursuant to this Act are no longer 
necessary'' (i.e., the species is recovered and removed from the list 
of endangered and threatened species).
    Section 4(b)(2) of the Act requires that we base critical habitat 
designation on the best scientific and commercial data available, 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation if we determine that 
the benefits of exclusion outweigh the benefits of including the areas 
as critical habitat, provided the exclusion will not result in the 
extinction of the species.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or under 
short court-ordered deadlines, we will often not have sufficient 
information to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what, at the time of designation, we know to be critical habitat.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. We will not 
speculate about what areas might be found to be essential if better 
information became available, or what areas may become essential over 
time. If the information available at the time of designation does not 
show that an area provides essential life cycle needs of the species, 
then the area should not be included in the critical habitat 
designation.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the species only when a designation limited to its present range 
would be inadequate to ensure the conservation of the species.'' (50 
CFR 424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (Vol.59, 
p. 34271), provides criteria, establishes procedures, and provides 
guidance to ensure that decisions made by the Service represent the 
best scientific and commercial data available. It requires Service 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information should be the listing package 
for the species. Additional information may be obtained from a recovery 
plan, articles in peer-

[[Page 8541]]

reviewed journals, conservation plans developed by states and counties, 
scientific status surveys and studies, and biological assessments or 
other unpublished materials (i.e. gray literature).
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under Section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the Section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Primary Constituent Elements

    In accordance with section 3(5)(A)(I) of the Act and regulations at 
50 CFR 424.12, we are required to base critical habitat designation on 
the best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements) that 
are essential to conservation of the species and that may require 
special management considerations or protection. Such requirements 
include, but are not limited to--space for individual and population 
growth, and for normal behavior; food, water, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, or rearing of offspring; and habitats that are protected 
from disturbance or are representative of the historic geographical and 
ecological distributions of a species.
    The primary constituent elements essential to the conservation of 
the Mexican spotted owl include those physical and biological features 
that support nesting, roosting, and foraging. These elements were 
determined from studies of Mexican spotted owl behavior and habitat use 
throughout the range of the owl. Although the vegetative communities 
and structural attributes used by the owl vary across the range of the 
subspecies, they consist primarily of warm-temperate and cold-temperate 
forests, and, to a lesser extent, woodlands and riparian deciduous 
forests. The mixed-conifer community appears to be the most frequently 
used community throughout most portions of the subspecies' range 
(Skaggs and Raitt 1988; Ganey and Balda 1989, 1994; USDI 1995). 
Although the structural characteristics of Mexican spotted owl habitat 
vary depending on uses of the habitat (e.g., nesting, roosting, 
foraging) and variations in the plant communities over the range of the 
subspecies, some general attributes are common to the subspecies' life-
history requirements throughout its range.
    The Mexican Spotted Owl Recovery Plan provides for three levels of 
habitat management: protected areas, restricted areas, and other forest 
and woodland types. The Recovery Plan recommends that Protected 
Activity Centers (PACs) be designated around known owl sites. A PAC 
would include an area of at least 243 ha (600 ac) that includes the 
best nesting and roosting habitat in the area. Based on available data, 
the recommended size for a PAC includes, on average, 75 percent of the 
foraging area of an owl. Protected habitat includes PACs and all areas 
within mixed conifer or pine-oak types with slopes greater than 40 
percent, where timber harvest has not occurred in the past 20 years.
    Restricted habitat includes mixed conifer forest, pine-oak forest, 
and riparian areas outside of protected areas described above. 
Restricted habitat should be managed to retain or attain the habitat 
attributes believed capable of supporting nesting and roosting owls as 
depicted in Table III.B.1. on page 92 of the Recovery Plan. These areas 
are essential to the conservation of the species because the Recovery 
Plan identifies these areas as providing additional owl habitat that is 
needed for recovery.
    Other forest and woodland types (ponderosa pine, spruce-fir, pinon-
juniper, and aspen) are not expected to provide nesting or roosting 
habitat for the Mexican spotted owl (except when associated with rock 
canyons). Thus, these other forest and woodland types are not 
considered to be critical habitat unless specifically delineated within 
PACs.
    Existing man-made features and structures within the boundaries of 
the mapped units, such as buildings, roads, aqueducts, railroads, 
airports, other paved areas, and other urban areas, do not contain 
Mexican spotted owl habitat and are not considered critical habitat.
    We determined the primary constituent elements for Mexican spotted 
owl from studies of their habitat requirements and the information 
provided in the Recovery Plan and references therein. Since owl habitat 
can include both canyon and forested areas, we identified primary 
constituent elements in both areas. Within PACs, primary constituent 
elements include all vegetation and other organic material within the 
243 ha (600 ac) areas delineated by land managers. Within restricted 
habitat (described in the Recovery Plan,Volume I, part III, pages 84-
95, including Table III.B.1), the primary constituent elements that 
occur in mixed conifer, pine-oak, and riparian forest types, which 
currently contain or may attain the habitat attributes believed capable 
of supporting nesting and roosting owls include:

--High basal area of large diameter trees;
--Moderate to high canopy closure;
--Wide range of tree sizes suggestive of uneven-age stands;
--Multi-layered canopy with large overstory trees of various species;
--High snag basal area;
--High volumes of fallen trees and other woody debris;
--High plant species richness, including hardwoods; and
--Adequate levels of residual plant cover to maintain fruits, seeds, 
and regeneration to provide for the needs of Mexican spotted owl prey 
species.

For canyon habitat, the primary constituent elements include one or 
more of the following attributes:

--Cooler and often more humid conditions than the surrounding area;
--Clumps or stringers of trees and/or canyon wall containing crevices, 
ledges, or caves;
--High percent of ground litter and woody debris; and
--Riparian or woody vegetation (although not at all sites).

    The forest habitat attributes listed above usually develop with 
increasing forest age, but their occurrence may vary by location, past 
forest management practices or natural disturbance events, forest type, 
and productivity. These characteristics may also develop in younger 
stands, especially when the stands contain remnant large trees or 
patches of large trees from earlier stands. Certain forest management

[[Page 8542]]

practices may also enhance tree growth and mature stand characteristics 
where the older, larger trees are allowed to persist.
    Canyon habitats used for nesting and roosting are typically 
characterized by cooler conditions found in steep, narrow canyons, 
often containing crevices, ledges, and/or caves. These canyons 
frequently contain small clumps or stringers of ponderosa pine, Douglas 
fir, white fir, and/or pinon-juniper. Deciduous riparian and upland 
tree species may also be present. Adjacent uplands are usually 
vegetated by a variety of plant associations including pinon-juniper 
woodland, desert scrub vegetation, ponderosa pine-Gambel oak, ponderosa 
pine, or mixed conifer. Owl habitat may also exhibit a combination of 
attributes between the forested and canyon types.

Criteria for Identifying Critical Habitat Units

    In designating critical habitat for the owl, we reviewed the 
overall approach to the conservation of the species undertaken by 
local, State, tribal, and Federal agencies and private individuals and 
organizations since the species' listing in 1993. We also considered 
the features and overall approach identified as necessary for recovery, 
as outlined in the species' Recovery Plan. We reviewed the previous 
proposed (59 FR 63162) and final critical habitat rules (60 FR 29914) 
for the owl, new location data, habitat requirements and definitions 
described in the Recovery Plan, and habitat and other information 
provided during the two comment periods, as well as utilized our own 
expertise.
    The previous critical habitat designation included extensive use 
and evaluation of owl habitat and territory maps, vegetation maps, 
aerial photography, and field verification to identify areas for 
designation as critical habitat. We considered several qualitative 
criteria (currently suitable habitat, large contiguous blocks of 
habitat, occupied habitat, rangewide distribution, the need for special 
management or protection, adequacy of existing regulatory mechanisms) 
when identifying critical habitat areas. We finalized the previous 
designation prior to the completion of the Recovery Plan for the 
Mexican Spotted Owl. For this new designation, we examined the 
previously designated critical habitat units, but relied primarily on 
the Recovery Plan to provide guidance. We expanded or combined previous 
units to comply with the Recovery Plan. We also included wilderness 
areas and other areas containing protected and restricted habitat areas 
as defined in the Recovery Plan. Some lands were excluded if they did 
not meet our definition of critical habitat (see discussion below).

Critical Habitat Designation

    The designated critical habitat constitutes our best assessment of 
areas needed for the conservation of the owl and that are in need of 
special management or protection. The areas designated are within the 
range of the species, and include (1) most known occupied sites, (2) 
some sites not surveyed but suspected to be occupied, and (3) other 
sites surveyed without detecting owls, but believed to be capable of 
periodically supporting owls. We consider these areas to be within the 
geographic range occupied or potentially occupied by the species. We've 
included these areas in the designation based on information contained 
within the Recovery Plan that finds them to be essential to the 
conservation of the species because they either currently support 
populations of the owl, or because they currently possess the necessary 
habitat requirements for nesting, roosting, and foraging (see 
description of primary constituent elements). All protected habitat and 
restricted habitat as described in the Recovery Plan that is within the 
designated boundaries, is considered critical habitat.
    Critical habitat units are designated in portions of McKinley, Rio 
Arriba, Sandoval, Socorro, and Taos, Counties in New Mexico; Apache, 
Cochise, Coconino, Graham, Mohave, and Pima Counties in Arizona; 
Carbon, Emery, Garfield, Grand, Iron, Kane, San Juan, Washington, and 
Wayne Counties in Utah; and Custer, Douglas, El Paso, Fremont, 
Huerfano, Jefferson, Pueblo, and Teller Counties in Colorado. Precise 
legal descriptions of each critical habitat unit are on file at the New 
Mexico Ecological Services Field Office, as are digital files of each 
unit (see ADDRESSES section).
    This critical habitat designation does not include tribal lands; FS 
lands within Arizona and New Mexico; Fort Carson, Colorado; and low-
density areas (see discussion under Exclusions Under Section 3(5)(A) 
Definition). This critical habitat designation does include FS lands in 
Utah and Colorado, and other Federal lands used by currently known 
populations of Mexican spotted owls (Table 1).
    We did not designate some areas that are known to have widely 
scattered owl sites, low population densities, and/or marginal habitat 
quality, which are not considered to be essential to this species' 
survival or recovery. These areas include Dinosaur National Park in 
northwest Colorado; Mesa Verde National Park, Ute Mountain Ute 
Reservation, Southern Ute Reservation, other FS and Bureau of Land 
Management land in southwest Colorado and central Utah; and the 
Guadalupe and Davis Mountains in southwest Texas. We also did not 
include isolated mountains on the Arizona Strip, such as Mount 
Trumbull, due to their small size, isolation, and lack of information 
about owls in the area.
    State and private lands are not included in this designation. Some 
State and private parcels within the critical habitat boundaries likely 
support mid-and higher-elevation forests that are capable of providing 
nesting and roosting habitat. However, given that the majority of the 
owl's range occurs on Federal and tribal lands, we do not consider 
State and private lands essential to the recovery of the species and, 
therefore, we are not designating these areas as critical habitat. The 
overwhelming majority of Mexican spotted owl records are from Federal 
and tribal lands, indicating that those lands are essential to the 
species' recovery. Where feasible, we drew critical habitat boundaries 
so as to exclude State and private lands. However, the short amount of 
time allowed by the court to complete this designation did not allow us 
to conduct the fine-scale mapping necessary to physically exclude the 
smaller and widely scattered State and private parcels that remain 
within the mapped boundaries. Those areas under State or private 
ownership that are within mapped critical habitat unit boundaries are 
excluded from this designation of critical habitat by definition.
    We significantly reduced some critical habitat units that we 
proposed as critical habitat (December 7, 1994; 59 FR 63162 and July 
21, 2000; 65 FR 45336) within Arizona and New Mexico because, as 
discussed below, we are excluding FS lands governed by existing forest 
management plans. Nevertheless, the remaining Federal lands (e.g., 
Bureau of Land Management (BLM), National Park Service, etc.) within 
the mapped boundaries in Arizona and New Mexico, are designated as 
critical habitat. The critical habitat designation on Federal lands 
adjacent to FS lands within Arizona and New Mexico will ensure that 
``special management considerations or protections'' are provided for 
the Mexican spotted owl on all Federal lands, pursuant to the 
definition of critical habitat in section 3 of the Act. (See Exclusion 
Under

[[Page 8543]]

Section 3(5)(A) Definition section for additional information.)
    The approximate Federal ownership within the boundaries of owl 
critical habitat is shown in Table 1. Actual critical habitat is 
limited to areas within the mapped boundaries that meet the definition 
of protected and restricted habitat in the Recovery Plan. Therefore, 
the area actually designated as critical habitat is considerably less 
than the gross acreage indicated in Table 1.

                                                            Table 1.--Critical Habitat by Land Ownership and State in Hectares (Acres)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Arizona                New Mexico                Colorado                   Utah                     Total
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 Forest Service....................................................                        0                        0        152,096 (375,837)        111,133 (274,616)        263,229 (650,453)
 Bureau of Land Management.........................................           4,238 (10,473)           5,806 (14,346)         60,255 (148,894)      666,270 (1,646,388)      736,569 (1,820,101)
 National Park Service.............................................        322,248 (796,292)          14,267 (35,255)                        0        260,346 (643,328)      596,861 (1,474,875)
 Department of Defense.............................................           9,728 (24,038)            1,677 (4,145)                        0                        0          11,405 (28,183)
 Bureau of Reclamation.............................................                        0                        0                        0        109,377 (270,276)        109,377 (270,276)
 Other Federal \a\.................................................                        0                        0                        0        156,207 (385,995)        156,207 (385,995)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
     Total.........................................................        336,214 (830,803)          21,750 (53,747)        212,351 (524,731)    1,303,333 (3,220,603)    1,873,648 (4,629,883)
     Total critical habitat units..................................                       11                        6                        2                        5                      24
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 \a\ Includes land identified in the current Utah land ownership file as National Recreation Area or National Recreation Area/Power Withdrawal; Federal land ownership is unclear (may be NPS,
  BOR, or other).

Exclusions Under Section 3(5)(A) Definition

    Section 3(5) of the Act defines critical habitat, in part, as areas 
within the geographical area occupied by the species ``on which are 
found those physical and biological features (I) essential to the 
conservation of the species and (II) which may require special 
management considerations and protection.'' As noted above, special 
management considerations or protection is a term that originates in 
the definition of critical habitat. Additional special management is 
not required if adequate management or protection is already in place. 
Adequate special management considerations or protection is provided by 
a legally operative plan/agreement that addresses the maintenance and 
improvement of the primary constituent elements important to the 
species and manages for the long-term conservation of the species. We 
use the following three criteria to determine if a plan provides 
adequate special management or protection: (1) A current plan/agreement 
must be complete and provide sufficient conservation benefit to the 
species; (2) the plan must provide assurances that the conservation 
management strategies will be implemented; and (3) the plan must 
provide assurances that the conservation management strategies will be 
effective, i.e., provide for periodic monitoring and revisions as 
necessary. If all of these criteria are met, then the lands covered 
under the plan would no longer meet the definition of critical habitat.
    We considered that the Southwest Region of the FS amended the 
Forest Plans in Arizona and New Mexico in 1996 to incorporate the 
Mexican Spotted Owl Recovery Plan guidelines as management direction, 
and these plan amendments underwent consultation (Biological Opinion 
000031RO). We evaluated the Forest Plan Amendments against our three 
criteria used to determine whether lands require ``special management 
considerations or protections,'' under the definition of critical 
habitat in section 3 of the Act. We determined that the FS amended 
their National Forest Plans in Arizona and New Mexico to conform with 
the Mexican Spotted Owl Recovery Plan, and these plans adequately meet 
all of our three criteria. The plan provides a conservation benefit to 
the species since it incorporates all elements of the Recovery Plan; 
the plan provides assurances that the management plan will be 
implemented since the FS in the Southwest Region has authority to 
implement the plan and has obtained all the necessary authorizations or 
approvals; and the plan provides assurances that the conservation plan 
will be effective since it includes biological goals consistent with 
the Recovery Plan, monitoring, and adaptive management (65 FR 63438, 65 
FR 63680, 65 FR 69693). Moreover, we consider that the Mexican spotted 
owl is receiving substantial protection on FS lands in Arizona and New 
Mexico. We, therefore, determined that FS lands in Arizona and New 
Mexico do not meet the definition of critical habitat, and we did not 
include them in this final designation.
    At the time of the proposal these lands were included in the 
designation, even though the FS amended their Forest Plans in 1996 to 
follow the Recovery Plan. We had recently published a notice seeking 
public comment on the direction we should take in developing a national 
critical habitat policy (June 14, 1999; 64 FR 31871). Due to the 
diversity of comments that we received in response to this notice, we 
reopened this comment period and held two national workshops on 
February 8 and 11, 2000, to further discuss critical habitat issues 
with major stakeholders and the public to obtain their input. Based 
upon information we received from the public and in our internal 
discussions that followed these workshops, one issue which emerged was 
how to consistently interpret the term special management in our 
critical habitat designations. In the past, we removed areas from 
critical habitat designations, typically Federal lands, because we felt 
that the areas were adequately managed and provided for the 
conservation of the species. For example, we excluded National Park 
Lands and National Wildlife Refuges from the critical habitat 
designation for the cactus ferruginous pygmy-owl because we felt that 
they were adequately protected (July 12, 1999; 64 FR 37419). In the 
final rule designating critical habitat for the coastal California 
gnatcatcher (65 FR 63680), we identified three criteria we used to 
determine whether adequate special management was being provided for to 
determine, in this case, whether a Department of Defense INRMP was 
adequate. During our comment period on this proposal, we received two 
comments indicating that the FS is providing adequate special 
management through their Forest Plans. In light of these comments and 
information contained in our final designation of critical habitat for 
the gnatcatcher, we excluded National Forest lands in Arizona and New 
Mexico from this final designation since the FS is providing adequate 
special management through their Forest Plans.
    The affected National Forests within the Rocky Mountain Region of 
the FS (i.e., Utah and Colorado) have not amended their Forest Plans to 
conform with the Mexican Spotted Owl Recovery Plan. The FS integrates 
the Mexican Spotted Owl Recovery Plan ``as much as possible'' into 
their forest management activities (Industrial Economics Inc., 2000). 
Nevertheless, we do not have formal documentation (e.g., completed 
consultation) that supports this contention. The National Forests in 
Utah and Colorado do not have ``special

[[Page 8544]]

management considerations or protections,'' pursuant to the definition 
of critical habitat in section 3 of the Act. Thus, within the mapped 
boundaries of the National Forests in Utah and Colorado, those lands 
that meet the definition of protected or restricted habitat are 
designated as critical habitat.
    The Sikes Act Improvements Act of 1997 (Sikes Act) requires each 
military installation that includes land and water suitable for the 
conservation and management of natural resources to complete an INRMP 
by November 17, 2001. An INRMP integrates implementation of the 
military mission of the installation with stewardship of the natural 
resources found there. Each INRMP includes an assessment of the 
ecological needs on the installation, including needs to provide for 
the conservation of listed species; a statement of goals and 
priorities; a detailed description of management actions to be 
implemented to provide for these ecological needs; and a monitoring and 
adaptive management plan. We consult with the military on the 
development and implementation of INRMPs for installations with listed 
species and critical habitat. We believe that bases that have completed 
and approved INRMPs that address the needs of listed species generally 
do not meet the definition of critical habitat discussed above, as they 
require no additional special management or protection. Therefore, we 
do not include these areas in critical habitat designations if they 
meet the three criteria described above.
    Fort Carson provided information during the second comment period 
that indicated the Mexican spotted owl is not known to nest on the 
military installation and the species is a rare winter visitor. 
Similarly, protected and restricted habitat, as defined in the Recovery 
Plan, is not known to exist on Fort Carson. Therefore, lands on Fort 
Carson do not meet the definition of critical habitat and have been 
excluded from the final designation of critical habitat. Furthermore, 
Fort Carson, Colorado, is nearing completion of their updated INRMP, 
which includes specific guidelines for protection and management for 
the Mexican spotted owl. The target date of completion for this 
revision is early 2001, prior to the Sikes Act statutory deadline of 
November 17, 2001. Fort Carson, through consultation with us, indicated 
they will ensure that the INRMP meets the above criteria, and when Fort 
Carson's INRMP is complete, it will undergo formal consultation.
    We indicated in the proposed rule (July 21, 2000; 65 FR 45336) that 
the Navajo Nation, Mescalero Apache, and San Carlos Apache were working 
on Mexican Spotted Owl Habitat Management Plans. We indicated that if 
any of these tribes submit management plans, we will consider whether 
these plans provide adequate special management considerations or 
protection for the species, or we will weigh the benefits of excluding 
these areas under section 4(b)(2).
    During the second comment period, the Mescalero Apache and Navajo 
Nation completed management plans for the Mexican Spotted Owl. We 
reviewed these plans to determine whether adequate special management 
is being provided, through their consistency with the Recovery Plan. We 
determined that these plans conform with the Mexican Spotted Owl 
Recovery Plan, and therefore adequately meet all of our three criteria. 
Both plans provide a conservation benefit to the species since they are 
both complete and specifically written to provide for the conservation 
of the Mexican spotted owl. The Navajo Nation plan provide assurances 
that the management plan will be implemented since the Navajo Nation 
plan is within the scope of work of the Navajo Natural Heritage Program 
of the Navajo Nation. This program is contracted by the Bureau of 
Indian Affairs to collect and manage information on rare, and federally 
and tribally listed plant and animal species on the Navajo Nation and 
will ensure that the Mexican spotted owl plan will be properly 
implemented and funded. The Mescalero Apache plan has been approved by 
the Tribal council, indicating a commitment to implement the plan. Both 
plans provide assurances the conservation plan will be effective since 
they both include a monitoring component. We, therefore, determine that 
lands of the Mescalero Apache and virtually all lands of the Navajo 
Nation are not in need of special management considerations and 
protection, and therefore do not meet part 3(5)(A)(i)(II) of the 
definition of critical habitat and are not included in this 
designation.
    During our review of the Navajo Nation management plan for the 
Mexican Spotted Owl, we concluded that there is a unique land ownership 
of Navajo National Monument and Canyon de Chelly wherein the land is 
owned by the Navajo Nation, but under the management authority and 
administration of the National Park Service. Although we excluded other 
lands owned by the Navajo Nation from critical habitat, we designated 
critical habitat on Navajo National Monument and Canyon de Chelly, 
because the National Park Service retains management authority over 
these lands, and any management that may have the potential to 
adversely affect the owl or its critical habitat would stem from their 
actions.
    As reported in the proposed rule (65 FR 45336), the Southern Ute 
Reservation has not supported Mexican spotted owls historically, and 
our assessment revealed that the Southern Ute Reservation does not 
support habitat essential to the species' conservation. Thus, lands of 
the Southern Ute Reservation do not meet part 3(5)(A)(i)(I) of the 
definition of critical habitat stated above; we are, therefore, not 
designating these lands as critical habitat.
    We are not designating lands of the Ute Mountain Ute Tribe as 
critical habitat. Due to the low owl population density and isolation 
from other occupied areas in Colorado, New Mexico, and Utah, the 
Mexican spotted owl habitat in southwestern Colorado is not believed to 
be essential for the survival or recovery of the species. Thus, these 
lands do not meet part 3(5)(A)(i)(I) of the definition of critical 
habitat stated above; we are, therefore, not designating these lands as 
critical habitat. Owls in these areas will retain the other protections 
of the Act, such as the prohibitions of section 9 and the prohibition 
of jeopardy under section 7.
    In addition, other tribal lands including the Picuris, Taos, and 
Santa Clara Pueblos in New Mexico and the Havasupai Reservation in 
Arizona may have potential owl habitat. However, the available 
information, although limited, on the habitat quality and current or 
past owl occupancy in these areas does not indicate that these areas 
meet the definition of critical habitat. Therefore, we are not 
designating these lands as critical habitat.

American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act

    In accordance with the Presidential Memorandum of April 29, 1994, 
we believe that, to the maximum extent possible, fish, wildlife, and 
other natural resources on tribal lands are better managed under tribal 
authorities, policies, and programs than through Federal regulation 
wherever possible and practicable. Based on this philosophy, we believe 
that, in most cases, designation of tribal lands as critical habitat 
provides very little additional benefit to threatened and endangered 
species. This is especially true where the habitat is occupied by the 
species and is therefore already subject to protection under the Act 
through section 7 consultations

[[Page 8545]]

requirements. Conversely, such designation is often viewed by tribes as 
unwarranted and an unwanted intrusion into tribal self governance, thus 
compromising the government-to-government relationship essential to 
achieving our mutual goals of managing for healthy ecosystems upon 
which the viability of threatened and endangered species populations 
depend.
    Section 4(b)(2) of the Act requires us to consider the economic and 
other relevant impacts of critical habitat designation, and authorizes 
us to exclude areas from designation upon finding that the benefits of 
exclusion outweigh the benefits of including the areas as critical 
habitat, so long as excluding those areas will not result in the 
extinction of the species concerned. As mentioned above, in the 
proposed rule we indicated that if the San Carlos Apache Tribe 
submitted a management plan to us, we would considering excluding their 
land from the designation under section 4(b)(2) of the Act.
    The San Carlos Apache Tribe submitted a draft management plan for 
the Mexican Spotted Owl to us in September 2000, which we reviewed and 
determined to be consistent with the Recovery Plan and substantially 
complete. The Tribe also commented on the proposed rule and indicated 
in their comments that their management plan was nearing completion. 
Based on recent conversations with the Tribe, their plan is expected to 
be completed in March 2001. In 1996 we reviewed the San Carlos Apache 
Reservation Tribe's Malay Gap Management Plan and determined that the 
plan provided adequate special management for the owl. We did not 
include areas covered by that plan in the proposed designation. Based 
on our review of their draft plan, it is similar to the Tribe's Malay 
Gap Management Plan as they are both consistent with the Recovery Plan. 
Their comment letter also indicates that suitable nesting and roosting 
habitat, as well as foraging habitat, on the reservation has been 
mapped and PACs have been established for all known owl pairs. Thus, 
any impacts from management activities to either PACs or owl habitat 
will trigger section 7, regardless of critical habitat, since the areas 
are presently occupied by the owl. In light of this and the fact that 
the Tribe will soon have their management plan completed, we find that 
the designation of critical habitat will provide little or no 
additional benefit to the species. The designation of critical habitat 
would be expected to adversely impact our working relationship with the 
Tribe and we believe that Federal regulation through critical habitat 
designation would be viewed as an unwarranted and unwanted intrusion 
into tribal natural resource programs. Our working relationships with 
the Tribe has been extremely beneficial in implementing natural 
resource programs of mutual interest.
    After weighing the benefits of critical habitat designation on 
these lands against the benefits of excluding them, we find that the 
benefits of excluding the San Carlos Apache Tribe from the designation 
of critical habitat outweighs the benefits of including those areas as 
critical habitat. We also find that the exclusion of these lands will 
not lead to the extinction of the species. Therefore, we are not 
designating San Carlos Apache Tribal lands as critical habitat for the 
owl.

Effect of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) of the Act requires Federal agencies to ensure that 
actions they fund, authorize, or carry out do not destroy or adversely 
modify critical habitat to the extent that the action appreciably 
diminishes the value of the critical habitat for the survival and 
recovery of the species. Individuals, organizations, States, local 
governments, and other non-Federal entities are affected by the 
designation of critical habitat only if their actions occur on Federal 
lands, require a Federal permit, license, or other authorization, or 
involve Federal funding.
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as 
endangered or threatened and with respect to its critical habitat, if 
any is designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. If a 
species is listed and critical habitat is designated, section 7(a)(2) 
requires Federal agencies to ensure that actions they authorize, fund, 
or carry out are not likely to jeopardize the continued existence of 
such a species and do not destroy or adversely modify its critical 
habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency (action agency) must 
enter into consultation with us.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that we believe would 
avoid destruction or adverse modification of critical habitat. 
Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation with us on 
actions for which formal consultation has been completed if those 
actions may affect designated critical habitat.
    Activities on Federal lands that may affect the Mexican spotted owl 
or its critical habitat will require section 7 consultation. Activities 
on State or private lands requiring a permit from a Federal agency, 
such as a permit from the U.S. Army Corps of Engineers (Army Corps) 
under section 404 of the Clean Water Act, or some other Federal action, 
including funding (e.g., Federal Highway Administration, Federal 
Aviation Administration, or Federal Emergency Management Agency) will 
continue to be subject to the section 7 consultation process only for 
actions that may affect the Mexican spotted owl, but not for critical 
habitat because areas under State or private ownership are excluded 
from the critical habitat designation by definition. Similarly, Federal 
lands that we did not designate as critical habitat (e.g., FS lands in 
Arizona and New Mexico) will also continue to be subject to the section 
7 consultation process only for actions that may affect the Mexican 
spotted owl. Federal actions not affecting listed species or critical 
habitat and actions on non-Federal lands that are not federally funded 
or regulated do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to evaluate briefly in any 
proposed or final regulation that designates critical habitat those 
activities involving a Federal action that may adversely modify such 
habitat or that may be

[[Page 8546]]

affected by such designation. Adverse effects on one or more primary 
constituent elements or segments of critical habitat generally do not 
result in an adverse modification determination unless that loss, when 
added to the environmental baseline, is likely to appreciably diminish 
the capability of the critical habitat to satisfy essential 
requirements of the species. In other words, activities that may 
destroy or adversely modify critical habitat include those that alter 
one or more of the primary constituent elements (defined above) of 
protected or restricted habitat to an extent that the value of critical 
habitat for both the survival and recovery of the Mexican spotted owl 
is appreciably reduced.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery (50 CFR 402.02). Actions likely to ``destroy or adversely 
modify'' critical habitat are those that would appreciably reduce the 
value of critical habitat for the survival and recovery of the listed 
species (50 CFR 402.02).
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would almost always result in jeopardy to the species 
concerned when the habitat is occupied by the species. The purpose of 
designating critical habitat is to contribute to a species' 
conservation, which by definition equates to survival and recovery. 
Section 7 prohibitions against the destruction or adverse modification 
of critical habitat apply to actions that would impair survival and 
recovery of the listed species, thus providing a regulatory means of 
ensuring that Federal actions within critical habitat are considered in 
relation to the goals and recommendations of any existing Recovery Plan 
for the species concerned. As a result of the direct link between 
critical habitat and recovery, the prohibition against destruction or 
adverse modification of the critical habitat should provide for the 
protection of the critical habitat's ability to contribute fully to a 
species' recovery.
    A number of Federal agencies or departments fund, authorize, or 
carry out actions that may affect the Mexican spotted owl and its 
critical habitat. Among these agencies are the FS, Bureau of Indian 
Affairs, Bureau of Land Management, Department of Defense, Department 
of Energy, National Park Service, and Federal Highway Administration. 
We have reviewed and continue to review numerous activities proposed 
within the range of the Mexican spotted owl that are currently the 
subject of formal or informal section 7 consultations. Actions on 
Federal lands that we reviewed in past consultations on effects to the 
owl include land management plans; land acquisition and disposal; road 
construction, maintenance, and repair; timber harvest; livestock 
grazing and management; fire/ecosystem management projects (including 
prescribed natural and management ignited fire); powerline construction 
and repair; campground and other recreational developments; and access 
easements. We expect that the same types of activities will be reviewed 
in section 7 consultations for designated critical habitat.
    Actions that would be expected to both jeopardize the continued 
existence of the Mexican spotted owl and destroy or adversely modify 
its critical habitat would include those that significantly and 
detrimentally alter the species' habitat over an area large enough that 
the likelihood of the Mexican spotted owls' persistence and recovery, 
either range-wide or within a recovery unit, is significantly reduced. 
Thus, the likelihood of an adverse modification or jeopardy 
determination would depend on the baseline condition of the RU and the 
baseline condition of the species as a whole. Some RUs, such as the 
Southern Rocky Mountains-New Mexico and Southern Rocky Mountains-
Colorado, support fewer owls and owl habitat than other RUs and, 
therefore, may be less able to withstand habitat-altering activities 
than RUs with large contiguous areas of habitat supporting higher 
densities of spotted owls.
    Actions not likely to destroy or adversely modify critical habitat 
include activities that are implemented in compliance with the Recovery 
Plan, such as thinning trees less than 9 inches in diameter in PACs; 
fuels reduction to abate the risk of catastrophic wildfire; ``personal 
use'' commodity collection such as fuelwood, latillas and vigas, and 
Christmas tree cutting; livestock grazing that maintains good to 
excellent range conditions; and most recreational activities including 
hiking, camping, fishing, hunting, cross-country skiing, off-road 
vehicle use, and various activities associated with nature 
appreciation. We do not expect any restrictions to those activities as 
a result of this critical habitat designation. In addition, some 
activities may be considered to be of benefit to Mexican spotted owl 
habitat and, therefore, would not be expected to adversely modify 
critical habitat. Examples of activities that could benefit critical 
habitat may include some protective measures such as fire suppression, 
prescribed burning, brush control, snag creation, and certain 
silvicultural activities such as thinning.
    If you have questions regarding whether specific activities in New 
Mexico will likely constitute destruction or adverse modification of 
critical habitat, contact the Field Supervisor, New Mexico Ecological 
Services Field Office (see ADDRESSES section). In Arizona, Colorado, 
and Utah, refer to the regulation at the end of this final rule for 
contact information. If you would like copies of the regulations on 
listed wildlife or have questions about prohibitions and permits, 
contact the U.S. Fish and Wildlife Service, Division of Endangered 
Species, P.O. Box 1306, Albuquerque, New Mexico 87103 (telephone 505-
248-6920; facsimile 505-248-6788).

Effects on Tribal Trust Resources From Critical Habitat Designation on 
Non-Tribal Lands

    In complying with our tribal trust responsibilities, we 
communicated with all tribes potentially affected by the designation of 
critical habitat for the Mexican spotted owl. We solicited and received 
information from the tribes (see discussion above) and arranged 
meetings with the tribes to discuss potential effects to them or their 
resources that may result from critical habitat designation.

Summary of Changes From the Proposed Rule

    In addition to the areas deleted from the proposed designation as 
described previously, this final rule differs from the proposal as 
follows:
    We attempted to clarify the definitions and use of protected and 
restricted habitat and the attributes of primary constituent elements 
of critical habitat in this rule. As stated in the critical habitat 
designation section, critical habitat is limited to areas within the 
mapped boundaries that meet the definition of protected and restricted 
habitat.

[[Page 8547]]

    In the proposed rule we stated that all ``reserved'' lands would be 
considered critical habitat and included ``designated'' wilderness 
areas. In this final rule, we are only considering lands that are 
within critical habitat boundaries and that meet the definition of 
protected and restricted habitat as critical habitat, regardless of 
whether they are currently designated as wilderness.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial data 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We based this 
designation on the best available scientific information, and believe 
it is consistent with the Recovery Plan and recommendations of those 
team members. We utilized the economic analysis, and took into 
consideration comments and information submitted during the public 
hearing and comment period to make this final critical habitat 
designation. We may exclude areas from critical habitat upon a 
determination that the benefits of such exclusions outweigh the 
benefits of specifying such areas as critical habitat. We cannot 
exclude such areas from critical habitat when such exclusion will 
result in the extinction of the species.
    The economic effects already in place due to the listing of the 
Mexican spotted owl as threatened is the baseline upon which we 
analyzed the economic effects of the designation of critical habitat. 
The critical habitat economic analysis examined the incremental 
economic and conservation effects of designating critical habitat. The 
economic effects of a designation were evaluated by measuring changes 
in national, regional, or local indicators. A draft analysis of the 
economic effects of the proposed Mexican spotted owl critical habitat 
designation was prepared and made available for public review (65 FR 
63047). We concluded in the final analysis, which included review and 
incorporation of public comments, that no significant economic impacts 
are expected from critical habitat designation above and beyond that 
already imposed by listing the Mexican spotted owl. A copy of the 
economic analysis is included in our administrative record and may be 
obtained by contacting the New Mexico Ecological Services Field Office 
(see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a significant regulatory action and has been reviewed by the Office 
of Management and Budget.
    (a) This rule will not have an annual economic effect of $100 
million or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit analysis is 
not required for purposes of Executive Order 12866. The Mexican spotted 
owl was listed as a threatened species in 1993. Since that time, we 
have conducted, and will continue to conduct, formal and informal 
section 7 consultations with other Federal agencies to ensure that 
their actions would not jeopardize the continued existence of the 
Mexican spotted owl.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored or permitted by a Federal 
agency (see Table 2 below). Section 7 requires Federal agencies to 
ensure that they do not jeopardize the continued existence of the 
species. Based upon our experience with the species and its needs, we 
believe that any Federal action or authorized action that could 
potentially cause an adverse modification of the designated critical 
habitat would currently be considered as ``jeopardy'' to the species 
under the Act. Accordingly, we do not expect the designation of 
critical habitat in areas within the geographic range occupied by the 
species to have any incremental impacts on what actions may or may not 
be conducted by Federal agencies or non-Federal persons that receive 
Federal authorization or funding. Non-Federal persons who do not have a 
Federal ``sponsorship'' of their actions are not restricted by the 
designation of critical habitat (however, they continue to be bound by 
the provisions of the Act concerning ``take'' of the species).

  Table 2.--Impacts of Designating Critical Habitat for Mexican Spotted
                                  Owl.
------------------------------------------------------------------------
                                   Activities
                              potentially affected
                               by the designation
                               of critical habitat       Activities
                              in areas occupied by  potentially affected
  Categories of activities       the species (in     by the designation
                                addition to those    of critical habitat
                               activities affected   in unoccupied areas
                                from listing the
                                    species)
------------------------------------------------------------------------
Federal Activities            None................  None.
 Potentially Affected \1\.
Private or other non-Federal  None................  None.
 Activities Potentially
 Affected \2\.
------------------------------------------------------------------------
\1\ Activities initiated by a Federal agency.
\2\ Activities initiated by a private or other non-Federal entity that
  may need Federal authorization or funding.

    We evaluated any potential impact through our economic analysis, 
and found that we anticipate little, if any, additional impact due to 
designating areas within the geographic range potentially occupied by 
the owl, because the designated critical habitat units all occur within 
the Recovery Units. (See Economic Analysis section of this rule.)
    (b) This rule will not create inconsistencies with other agencies' 
actions. Federal agencies have been required to ensure that their 
actions do not jeopardize the continued existence of the Mexican 
spotted owl since its listing in 1993. The prohibition against adverse 
modification of critical habitat is not expected to impose any 
additional restrictions to those that currently exist in areas of 
proposed critical habitat.
    (c) This designation will not significantly impact entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. Federal agencies are currently required to ensure 
that their activities do not jeopardize the continued existence of the 
species, and, as discussed above, we anticipate that the adverse 
modification prohibition (resulting from critical habitat designation) 
will have little, if any, incremental effects in areas of critical 
habitat.
    (d) This rule will not raise novel legal or policy issues. The 
designation follows the requirements for determining critical habitat 
contained in the Endangered Species Act.

[[Page 8548]]

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the economic analysis, we determined that designation of 
critical habitat will not have a significant effect on a substantial 
number of small entities. As discussed under Regulatory Planning and 
Review above, this designation is not expected to result in any 
restrictions in addition to those currently in existence.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 
804(2))

    Our economic analysis demonstrated that designation of critical 
habitat will not cause (a) an annual effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers; 
individual industries; Federal, State, or local government agencies; or 
geographic regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act:
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any programs 
involving Federal funds, permits, or other authorized activities must 
ensure that their actions will not destroy or adversely modify critical 
habitat. However, as discussed above in the Regulatory Planning and 
Review section, these actions are currently subject to equivalent 
restrictions through the listing protections of the species, and no 
further restrictions are anticipated in areas of proposed critical 
habitat.
    b. This rule will not produce a Federal mandate on State, local, or 
tribal governments or the private sector of more than $100 million or 
greater in any year, i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this designation does not 
have significant takings implications, and a takings implication 
assessment is not required. This designation will not ``take'' private 
property. In this designation, State and private lands were excluded by 
definition.

Federalism

    In accordance with Executive Order 13132, this designation will not 
affect the structure or role of States, and will not have direct, 
substantial, or significant effects on States. A Federalism assessment 
is not required. As previously stated, critical habitat is applicable 
only to Federal lands or to non-Federal lands when a Federal nexus 
exists.
    In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from and coordinated 
development of this critical habitat designation with appropriate State 
resource agencies in Arizona, New Mexico, Colorado, and Utah. In 
addition, Arizona and Utah have representatives on the recovery team 
for this species.

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor 
reviewed this final determination. We made every effort to ensure that 
this final determination contained no drafting errors, provides clear 
standards, simplifies procedures, reduces burden, and is clearly 
written such that litigation risk is minimized.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which Office of Management and Budget approval under the Paperwork 
Reduction Act is required.

National Environmental Policy Act (NEPA)

    Our position is that, outside the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the Endangered Species Act of 
1973, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This assertion was upheld in the courts of the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert. 
denied 116 S. Ct. 698 (1996). However, when the range of the species 
includes States within the Tenth Circuit, such as that of the Mexican 
spotted owl, pursuant to the Tenth Circuit ruling in Catron County 
Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 
(10th Cir. 1996), we undertake a NEPA analysis for critical habitat 
designation. We completed an environmental assessment and finding of no 
significant impact on the designation of critical habitat for the 
Mexican spotted owl.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the New Mexico Ecological Services Field 
Office (see ADDRESSES section).

Authors

    The primary authors of this notice are the New Mexico Ecological 
Services Field Office staff (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.


    2. Amend Sec. 17.11(h), by revising the entry for ``Owl, Mexican 
spotted'' under ``BIRDS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 8549]]



 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                       When       Critical     Special
                                                            Historic range       endangered or         Status         listed      habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Birds
 
                   *                  *                  *                  *                  *                  *                  *
Owl, Mexican spotted.............  Strix occidentalis    U.S.A. (AZ, CO, NM,  Entire.............  T                       494  Sec.  17.95           NA
                                    lucida.               TX, UT), Mexico.                                                              (b)
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.95(b) by adding critical habitat for the Mexican 
spotted owl (Strix occidentalis lucida) in the same alphabetical order 
as this species occurs in Sec. 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (b) Birds. * * *

Mexican Spotted Owl (Strix occidentalis lucida)

    Critical habitat is limited to areas within the mapped 
boundaries that meet the definition of protected habitat as 
described in the Recovery Plan (600 acres around known owl sites and 
mixed conifer or pine-oak forests with slopes greater than 40 
percent where timber harvest has not occurred in the past 20 years). 
All restricted habitat as described in the Recovery Plan is also 
designated as critical habitat. Private and State lands within 
mapped boundaries are not designated as critical habitat. No Tribal 
lands other than those administered by the National Park Service are 
designated. Existing man-made features and structures, such as 
buildings, roads, railroads, and urban development, are not 
considered critical habitat. Critical habitat units for the States 
of Arizona, Colorado, New Mexico, and Utah are depicted on the maps 
below. Larger maps and digital files for all four States and maps of 
critical habitat units in the State of New Mexico are available at 
the New Mexico Ecological Services Field Office, 2105 Osuna N.E., 
Albuquerque, New Mexico 87113, telephone (505) 346-2525. For the 
States of Arizona, Colorado, and Utah, maps of the critical habitat 
units specific to each State are available at the following U.S. 
Fish and Wildlife Service offices--Arizona Ecological Services Field 
Office, 2321 West Royal Palm Road, Suite 103, Phoenix, Arizona 
85021, telephone (602) 640-2720; Colorado State Sub-Office, 764 
Horizon Drive South, Annex A, Grand Junction, Colorado 81506, 
telephone (970) 243-2778; and Utah Ecological Services Field Office, 
Lincoln Plaza, 145 East 1300 South, Suite 404, Salt Lake City, Utah 
84115, telephone (801) 524-5001.
    1. Critical habitat units are designated in portions of 
McKinley, Rio Arriba, Sandoval, Socorro, and Taos, Counties in New 
Mexico; Apache, Cochise, Coconino, Graham, Mohave, and Pima Counties 
in Arizona; Carbon, Emery, Garfield, Grand, Iron, Kane, San Juan, 
Washington, and Wayne Counties in Utah; and Custer, Douglas, El 
Paso, Fremont, Huerfano, Jefferson, Pueblo, and Teller Counties in 
Colorado. Precise descriptions of each critical habitat unit are on 
file at the New Mexico Ecological Services Field Office.
    2. Within these areas, the primary constituent elements for 
Mexican spotted owl include, but are not limited to, those habitat 
components providing for nesting, roosting, and foraging activities. 
Primary constituent elements in Protected Activity Centers include 
all vegetation and other organic matter contained therein. Primary 
constituent elements on all other areas are provided in canyons and 
mixed conifer, pine-oak, and riparian habitat types that typically 
support nesting and/or roosting. The primary constituent elements 
that occur in mixed conifer, pine-oak, and riparian forest types, as 
described in the Recovery Plan, which currently contain or may 
attain the habitat attributes believed capable of supporting nesting 
and roosting owls include: high basal area of large-diameter trees; 
moderate to high canopy closure; wide range of tree sizes suggestive 
of uneven-age stands; multi-layered canopy with large overstory 
trees of various species; high snag basal area; high volumes of 
fallen trees and other woody debris; high plant species richness, 
including hardwoods; and adequate levels of residual plant cover to 
maintain fruits, seeds, and regeneration to provide for the needs of 
Mexican spotted owl prey species. For canyon habitats, the primary 
constituent elements include the following attributes: cooler and 
often higher humidity than the surrounding area; clumps or stringers 
of ponderosa pine, Douglas-fir, white fir, and/or pinon-juniper 
trees and/or canyon wall containing crevices, ledges, or caves; high 
percent of ground litter and woody debris; and riparian or woody 
vegetation (although not at all sites).

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* * * * *

    Dated: January 16, 2001.
Kenneth L. Smith,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-1798 Filed 1-30-01; 10:06 am]
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