[Federal Register Volume 71, Number 217 (Thursday, November 9, 2006)]
[Rules and Regulations]
[Pages 66008-66061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9090]



[[Page 66007]]

-----------------------------------------------------------------------

Part III





Department of the Interior





-----------------------------------------------------------------------



Fish and Wildlife Service



-----------------------------------------------------------------------



50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Contiguous United States Distinct Population Segment of 
the Canada Lynx; Final Rule

  Federal Register / Vol. 71, No. 217 / Thursday, November 9, 2006 / 
Rules and Regulations  

[[Page 66008]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU52


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Contiguous United States Distinct Population 
Segment of the Canada Lynx

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the contiguous United States distinct 
population segment of the Canada lynx (Lynx canadensis) (lynx) pursuant 
to the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 1,841 square miles (mi2) (4,768 square 
kilometers (km\2\)) fall within the boundaries of the critical habitat 
designation, in three units in the States of Minnesota, Montana, and 
Washington.

DATES: This rule becomes effective on December 11, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours, at 
the Montana Ecological Services Office, 585 Shepard Way, Helena, 
Montana 59601 (telephone 406/449-5225). The final rule, environmental 
assessment, and economic analysis are available via the Internet at 
http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm.

FOR FURTHER INFORMATION CONTACT: Mark Wilson, Field Supervisor, Montana 
Fish and Wildlife Office, at the above address, (telephone 406/449-
5225); Gordon Russell, Field Supervisor, Maine Field Office (207/827-
5938); Tony Sullins, Field Supervisor, Twin Cities Field Office 
(Minnesota) (612/725-3548); or Susan Martin, Field Supervisor, Upper 
Columbia Fish and Wildlife Office (Washington) (509/891-6839).

SUPPLEMENTARY INFORMATION: 

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) designation provides additional 
protection to habitat only where there is a Federal action, known as a 
``nexus'', that triggers consultation under section 7 of the Act; (2) 
the protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would in 
fact take place (in other words, other statutory or regulatory 
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and 
(3) designation of critical habitat triggers the prohibition of 
destruction or adverse modification of that habitat. However, 
designation of critical habitat does not require specific actions to 
restore or improve habitat.
    Currently, only 475 species, or 36 percent of the 1,310 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,310 
listed species through conservation mechanisms such as listing, section 
7 consultations, the section 4 recovery planning process, the section 9 
protective prohibitions of unauthorized take, section 6 funding to the 
States, the section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas originally proposed for 
designation, we evaluated the benefits of designation in light of 
Gifford Pinchot Task Force v. United States Fish and Wildlife Service. 
In that case, the Ninth Circuit invalidated the Service's regulation 
defining ``destruction or adverse modification of critical habitat.'' 
In response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to completion to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, the Service believes that 
additional agency discretion would allow our focus to return to those 
actions that provide the greatest benefit to the species most in need 
of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation

[[Page 66009]]

in which those who fear adverse impacts from critical habitat 
designations challenge those designations. The cycle of litigation 
appears endless, and is very expensive, thus diverting resources from 
conservation actions that may provide relatively more benefit to 
imperiled species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)). 
These costs directly reduce the funds available for direct and tangible 
conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For more information, 
refer to the proposed critical habitat rule published in the Federal 
Register on November 9, 2005 (70 FR 68294); the notice reopening the 
public comment period and clarifying the proposed critical habitat 
designation, published on February 16, 2006 (71 FR 8258); the notice 
reopening the comment period that published on September 11, 2006 (71 
FR 53,355); the final listing rule published on March 24, 2000 (65 FR 
16052); and the clarification of findings published on July 3, 2003 (68 
FR 40076).

Previous Federal Actions

    For more information on previous Federal actions concerning the 
lynx, refer to the final listing rule published in the Federal Register 
on March 24, 2000 (65 FR 16052), and the clarification of findings 
published in the Federal Register on July 3, 2003 (68 FR 40076). As a 
result of litigation from Defenders of Wildlife, et al., the U.S. 
District Court for the District of Columbia instructed us to propose 
critical habitat by November 1, 2005, and to issue a final rule for 
critical habitat by November 1, 2006. The proposed rule to designate 
critical habitat for the lynx was published in the Federal Register on 
November 9, 2005 (70 FR 68294). A notice reopening the public comment 
period and clarifying the proposed critical habitat designation was 
published on February 16, 2006 (71 FR 8258). A Notice of Availability 
of the draft economic analysis and draft environmental assessment was 
published on September 11, 2006 (71 FR 53355). This final rule has been 
completed in compliance with the Court order.
    On September 29, 2006, U.S. District Court for the District of 
Columbia remanded one element of the 2000 listing decision for lynx. 
The Court requires the Service to explain how ``[c]ollectively the 
Northeast, Great Lakes, and Southern Rockies do not constitute a 
significant portion of the [Lynx] DPS.'' The Court reasoned that ``an 
explanation of an important finding in that prior decision, especially 
when the explanation (or even the modification or rejection of that 
explanation) may be relevant to the new rationale it is offering for 
that decision.'' The Court hoped that the Service can accomplish its 
task within 90 days, but did not identify a deadline for the remanded 
decision in its Order. The Service anticipates it will address this 
issue before the end of this year or early next year, and will make its 
explanation available in the Federal Register.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the lynx published on November 9, 
2005 (70 FR 68294). A notice reopening the public comment period and 
clarifying the proposed critical habitat designation was published on 
February 16, 2006 (71 FR 8258). We also contacted appropriate Federal, 
State, and local agencies; tribes; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule. 
The comment period was open from November 9, 2005, to February 7, 2006. 
It was reopened on February 16 for an additional 74 days until April 
30, 2006. On September 11, 2006 (71 FR 53355), the comment period was 
reopened to receive comment on the draft economic analysis and draft 
environmental assessment. Comments and new information received that 
were relevant to the final designation are addressed in the following 
summary and incorporated into the final rule as appropriate.
    During the comment period for the proposed rule that was open 
between November 9, 2005, and April 30, 2006, we received a total of 
8,028 comment letters. For the comment period open from September 11, 
2006 to October 11, 2006 we received 1,118 comments. A majority of the 
comments received were form letters. Comments were received from 
Federal, State, tribal and local governments, non-government 
organizations, private businesses, and individuals.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from eleven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from seven of 
the peer reviewers. The peer reviewers had differing assessments of our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. Peer reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the lynx and addressed them in the following summary.

Peer Reviewer Comments

    1. Comment: Some peer reviewers believed that our criteria 
(especially regarding evidence of occupancy and reproduction) for 
defining lynx critical habitat were too narrow and/or arbitrary, and 
resulted in us not including areas they consider important to lynx 
conservation, particularly the Kettle Range, the Greater Yellowstone 
Area, the Southern Rockies/Colorado, and a slightly more extensive area 
in Minnesota. Additionally, we received general comments recommending 
we designate critical habitat according to the lynx recovery outline, 
which included the areas of concern noted above by peer reviewers in 
addition to areas considered secondary or peripheral to recovery. 
General comments also were concerned with our criteria, asserting we 
should not restrict our designation solely to areas with confirmed 
evidence of the presence of reproducing lynx populations because lynx 
surveys have not been adequate to detect all reproducing lynx 
populations.
    Our response: Critical habitat contributes to the overall 
conservation of listed species, but does not by itself achieve 
conservation. It is not the intent of the Act to designate critical 
habitat for every population or occurrence of lynx. In the ``Criteria 
Used To Identify Critical Habitat'' section of the proposed and final 
critical habitat rules, we describe the parameters used for delineating 
areas that contain the physical and biological features essential to 
the conservation of lynx, as required by the definition of critical

[[Page 66010]]

habitat when considering occupied areas. We determined that occupied 
areas containing the features essential to the conservation of lynx 
support the majority of recent lynx records and evidence of breeding 
lynx populations since 1995, and have direct connectivity with lynx 
populations in Canada. We relied on records since 1995 to ensure that 
the proposed critical habitat designation was based on the data that 
most closely represented the current status of lynx in the contiguous 
United States and the geographic area occupied by the species. Although 
the average life span of a wild lynx is not known, we assumed that a 
lynx born in 1995 could have been alive in 2000 or 2003, the dates of 
publication of the final listing rule and the clarification of 
findings. Furthermore, lynx-related research in the contiguous United 
States substantially increased after the 1998 proposal to list, 
providing additional information on which to base this proposed 
critical habitat designation. We recognize that adequate surveys to 
confirm the presence of breeding lynx populations have not occurred 
everywhere throughout the species' range; however, no information was 
provided to us to suggest where there might be undetected breeding 
populations that we should more closely evaluate for designation as 
critical habitat other than the areas we already considered. We found 
the additional areas suggested by commenters were not essential to the 
conservation of the lynx.
    The areas we considered in our methodology for defining critical 
habitat for the lynx did not mirror the exact areas identified in the 
recovery outline, but it did reflect the biological concepts considered 
important in the recovery plan. We used the best science available in 
determining those areas that contained the features essential for the 
conservation of lynx. As explained on pages 68302 to 68303 of the 
critical habitat proposal (November 9, 2005; 70 FR 68294), the areas we 
determined to be essential for the conservation of lynx do not include 
all the areas identified in the recovery outline. This is because the 
criteria we used for determining areas essential to the conservation of 
lynx for the critical habitat designation based on the critical habitat 
requirements of the Act which are were more selective than those used 
for delineating the recovery areas in the lynx recovery outline.
    The recovery outline more broadly encompassed older records of lynx 
and did not focus solely on areas directly connected with populations 
in Canada, although in the recovery outline it was recognized that 
maintaining connectivity with Canadian lynx populations was important. 
Furthermore, the areas in the recovery outline were mapped conceptually 
and, therefore, include substantial areas which do not contain PCEs for 
Lynx, which are unoccupied, and therefore not essential to the 
conservation of Lynx. We refined our mapping for the purposes of 
designating critical habitat in order to meet the statutory 
requirements associated with a rulemaking designating critical habitat. 
As a result, areas determined to be essential to the conservation of 
lynx for the purposes of critical habitat did not include the entire 
areas delineated in the recovery outline.
    Specifically, following our methodology, the Kettle Range (WA) and 
Greater Yellowstone core areas and the Southern Rockies provisional 
core area were determined not to be essential to the conservation of 
lynx for the purposes of critical habitat as described in detail in the 
Criteria Used To Identify Critical Habitat section of the proposed rule 
(November 9, 2005; 70 FR 68294). To summarize: There is no evidence 
that a lynx population has occupied the Kettle Range since 1995. In the 
Greater Yellowstone Ecosystem, lynx habitat appears to be of lower 
quality as indicated by the low numbers of lynx records, and it is not 
directly connected to lynx populations in Canada. In the Southern 
Rockies it is still uncertain whether a self-sustaining lynx population 
will become established as a result of Colorado's reintroduction 
effort, but we recognize this reintroduction has been an important 
step, although not essential, toward the recovery of lynx, and thus it 
is included in the recovery plan, but not the critical habitat 
designation. Finally, the Southern Rockies are not directly connected 
to lynx populations in Canada.
    A substantial portion of the lynx habitat in the Kettle range, the 
Greater Yellowstone Area, and the Southern Rockies areas is on Federal 
lands, particularly U.S. Forest Service (USFS) lands, which conveys 
considerable management attention for lynx; as a result, these areas do 
not meet the critical habitat definition. Under a formal conservation 
agreement with the Service, the USFS committed to largely avoiding 
adverse effects to lynx and using the Lynx Conservation Assessment and 
Strategy (LCAS) to guide section 7 effects determinations for lynx 
pending amendments to Land and Resource Management Plans (LRMPs) that 
provide guidance for the conservation of lynx (USFS and Service 2006, 
entire). The LCAS is based on the best available science for lynx (see 
section 3(5)(A) discussion below). As a result, lynx habitat in these 
three areas is not in need of special management or protection.
    2. Comment: Some peer reviewers disagreed with or didn't understand 
our rationale for removing USFS and Bureau of Land Management (BLM) 
lands from the designation because these lands support a majority of 
lynx habitat or lynx occurrence records in their respective geographic 
regions. One peer reviewer supported removing such lands. Additionally, 
we received numerous general comments either opposing or supporting the 
removal of USFS and BLM lands, concerned that not all the LRMPs are 
complete or will change over time. Others are concerned that recent 
changes to the 2005 National Forest System Land and Resource Management 
Planning rules weaken the protective measures in LRMPs.
    Our response: U.S. Forest Service lands have been removed from the 
designation because either their LRMP has already been revised to 
incorporate lynx conservation measures, as is the situation with the 
Superior National Forest (NF), or the other National Forests that are 
operating under a Conservation Agreement with the Service in which the 
USFS agreed to use the LCAS to guide section 7 effects determinations 
for lynx (see Application of Section 3(5)(A) discussion, below). The 
LCAS is the basis for implementing this Conservation Agreement and the 
Superior NF plan revision. As explained starting on page 68307 of the 
proposed rule, the LCAS is based on the best available science for 
lynx. Bureau of Land Management lands, including the Garnet Resource 
Area and the Spokane District, were removed from the proposed 
designation because they had already incorporated the provisions of the 
LCAS into their Resource Management Plans (see Application of Section 
3(5)(A) of the Endangered Species Act discussion, below).
    Regarding concerns that the 2005 National Forest System Land and 
Resource Management Planning rules weaken protective measures in the 
LRMPs, to date, none of the plan amendments for lynx have been 
completed under the USFS 2005 Planning Rules, and so any conclusions 
regarding the effect of the rules is speculative. However, we note that 
future revisions to Forest Service Management Plans will consider the 
LCAs and include plan direction to provide for the needs of the lynx, 
pursuant to the MOU between the FWS and USFS.

[[Page 66011]]

    3. Comment: Some peer reviewers were concerned about using the LCAS 
as a basis for removing lands, such as USFS, from the designation 
because it is not yet known from a scientific standpoint if the 
measures in the LCAS will be adequate to conserve lynx. Another peer 
reviewer agreed that the LCAS was based on the best available science, 
but was concerned whether it would be kept up-to-date as new 
information becomes available. Some peer reviewers believed the 
management scope of the LCAS is limited and, therefore, is unlikely to 
provide the level of conservation that would be achieved under a 
critical habitat designation. Additionally, we received general 
comments with similar concerns about the LCAS or suggesting the LCAS 
isn't being implemented appropriately.
    Our response: As explained starting on page 68307 of the proposed 
rule, the LCAS is based on the best available science for lynx. The 
LCAS describes how and when updates will occur and that such updates 
will be based on the best current lynx science. In fact, revision of 
the LCAS is currently underway. Commenters did not provide specific 
examples of how the LCAS has not been properly implemented, and we have 
no information indicating this is the case. As described in the 
Application of Section 3(5)(A) of the Endangered Species Act 
discussion, below, USFS and Service are parties to a conservation 
agreement that requires the FS to use the LCAS to guide section 7 
effects determinations for lynx; all projects in lynx habitat on USFS 
lands undergo section 7 review and we have no indication the USFS is 
not adhering to the guidance in the LCAs.
    4. Comment: One peer reviewer questioned our determination that 
non-Federal lands require special management because lynx currently use 
a variety of non-Federal lands that support good lynx habitat as a 
result of past forest management practices. Prey densities in 15 to 20 
years will be determined by current forest management.
    Our response: We agree and for this reason, in addition to other 
reasons, we have excluded all non-Federal lands from the designation 
(see Exclusions Under Section 4(b)(2) of the Act discussion, below).

General Comments

    1. Comment: Many commented that our discussion of the value of 
designating critical habitat, and the procedural and resource 
difficulties involved, was inappropriate and should be addressed in a 
different forum, not in a critical habitat rule.
    Our response: As discussed in the sections ``Designation of 
Critical Habitat Provides Little Additional Protection to Species,'' 
``Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act,'' and ``Procedural and Resource Difficulties in 
Designating Critical Habitat'' and other sections of this and other 
critical habitat designations, we believe that, in most cases, other 
conservation mechanisms provide greater incentives and conservation 
benefits than does the designation of critical habitat. These other 
mechanisms include the section 4 recovery planning process, section 6 
funding to the States, section 7 consultations, the section 9 
protective prohibitions of unauthorized take, the section 10 incidental 
take permit process, and cooperative programs with private and public 
landholders and Tribal nations.
    2. Comment: Many commenters agreed with our discussions in 
``Designation of Critical Habitat Provides Little Additional Protection 
to Species,'' ``Role of Critical Habitat in Actual Practice of 
Administering and Implementing the Act,'' and ``Procedural and Resource 
Difficulties in Designating Critical Habitat'' and, as a result, 
questioned why we would designate critical habitat for the lynx. 
Additional comments suggested that critical habitat should not be 
designated because lynx are doing fine without it.
    Our response: Section 4(a)(3) of the Act requires that critical 
habitat be designated for listed species. The lynx was listed as a 
threatened species under the Act on March 24, 2000 (65 FR 16052). Under 
section 4(b)(2), the Act requires that a critical habitat designation 
be made on the basis of the best scientific data available and after 
taking into consideration the economic impact and any other relevant 
impact of specifying any particular area as critical habitat. 
Furthermore, the Service is under an order from the U.S. District Court 
for the District of Columbia to issue a final rule for critical habitat 
by November 1, 2006.
    In developing this final rule, we considered whether some areas 
should be designated as critical habitat given the issue the commenters 
identified about the status of lynx without critical habitat. We took a 
closer look at the necessity of designating critical habitat on lands 
managed by non-Federal landowners to determine whether current 
management was sufficient to conserve lynx. As a result of our 
additional analysis, we have excluded additional lands from this final 
rule based on the sufficiency of current management and other reasons 
(see Exclusions Under Section 4(b)(2) of the Act discussion, below).
    3. Comment: Numerous commenters asserted that the designation of 
critical habitat results in an increased regulatory burden, increased 
landowner costs, and restricted land uses and property rights. 
Specifically, many private landowners, particularly private timber 
companies, State, and county entities, commented that this designation 
would cause them harm economically and delay projects through the 
regulatory process.
    Our response: We have excluded all non-Federal lands from the final 
designation for the reasons described below in the ``Exclusions Under 
Section 4(b)(2) of the Act'' discussion, which resolves these concerns. 
The designation of critical habitat does not itself result in the 
regulation of non-Federal actions on private lands. However, as 
discussed in the sections ``Designation of Critical Habitat Provides 
Little Additional Protection to Species,'' ``Role of Critical Habitat 
in Actual Practice of Administering and Implementing the Act,'' and 
``Procedural and Resource Difficulties in Designating Critical 
Habitat,'' and other sections of this and other critical habitat 
designations, we believe that, in most cases, other conservation 
mechanisms provide greater incentives and conservation benefits than 
does the designation of critical habitat. These other mechanisms 
include the section 4 recovery planning process, section 6 funding to 
the States, the section 9 protective prohibitions of unauthorized take, 
the section 10 incidental take permit process, and cooperative programs 
with private and public landholders and Tribal nations. We note that on 
non-Federal lands there often are no Federal actions necessitating 
evaluation under section 7 of the Act. The economic issues raised have 
been addressed in the economic analysis and have been considered during 
the designation process.
    4. Comment: Some commenters suggested that the designation will 
result in an increased regulatory burden because State or local 
governments (such as county land use planning boards) could promulgate 
local rules to conserve designated lynx critical habitat.
    Our response: We recognize that State and local governments can 
promulgate regulations or local rules that may be linked to a critical 
habitat designation. This issue will not be a concern because we have 
excluded all lands from the final designation except National Parks

[[Page 66012]]

(see ``Exclusions Under Section 4(b)(2) of the Act'' discussion below).
    5. Comment: Some commenters stated that our comment periods for the 
proposed rule, NEPA document, and economic analysis were inadequate to 
allow the public to understand and comment meaningfully on the proposed 
rule.
    Our response: The proposed critical habitat rule for the lynx was 
available to the public for review and comment for 90 days (November 9, 
2005, to February 7, 2006.) It was reopened on February 16 for an 
additional 74 days until April 30, 2006. The amount of time available 
for the public to comment on the proposed rule was substantially more 
than for most critical habitat proposals, and was the maximum time 
practical given the one-year period we had to finalize the rule. The 
comment period for the economic analysis and NEPA document was open for 
30 days, from September 11 to October 11, 2006. We believe the length 
of the comment period was adequate.
    6. Comment: Some commenters stated that the Service did not 
adequately notify landowners about the proposal or where proposed 
critical habitat was located.
    Our response: Because of the large scope of the proposed 
designation it was not possible to contact each landowner. However, we 
issued a widely-disseminated news release regarding our proposal, and 
published legal notices in major newspapers in areas involved in the 
proposal. We published Federal Register notices, including the critical 
habitat proposal, reopening of the comment period, and the notice of 
availability of draft documents. We sent hundreds of letters, cards, 
and e-mails to State and Federal agencies, tribal governments, local 
governments, private individuals, private companies, non-government 
organizations, and elected officials announcing the proposal, document 
availability, and public meetings and hearings. We also issued press 
releases concurrent with Federal Register notice announcements. A Web 
page of lynx critical habitat materials and information has been 
maintained at http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm. Public hearings, open houses, and meetings on the 
published proposal were held on the following dates and locations: 
December 7, 2005, Duluth, MN; December 14, 2005, Orono, ME; January 4, 
2006, Helena, MT; January 5, 2006, Great Falls, MT; January 10, 2006, 
Kalispell, MT; January 18, 2006, Twisp, WA. In the proposed rule we 
provided contact information for four Service Field Offices for anyone 
seeking assistance with the proposed critical habitat. Therefore, we 
believe that we made a conscientious effort to reach all interested 
parties and provide avenues for them to obtain information concerning 
our proposal and supporting documents.
    We recognize the scale of the maps published in the Federal 
Register made it difficult to accurately identify whether particular 
parcels of land were included within the proposed designation. However, 
the descriptions that begin on page 68313 of the proposed rule 
(November 9, 2005; 70 FR 68294) were provided to assist the public in 
understanding exactly which lands were proposed as critical habitat.
    7. Comment: Many commenters expressed concern that commercial and 
recreational activities such as logging, mining, snowmobiling, off-road 
vehicles, and downhill skiing, would be prohibited or severely 
restricted by a designation of critical habitat.
    Our response: This issue is no longer a concern because we have 
excluded all lands from the final designation except National Parks 
(see ``Exclusions Under Section 4(b)(2) of the Act'' discussion below). 
All other lands were removed or excluded from the final designation 
because of existing conservation commitments or because the benefits of 
excluding these areas exceeded the benefits of including the areas (see 
Application of Section 3(5)(A) of the Endangered Species Act and 
Exclusions Under Section 4(b)(2) of the Act discussions, below).
    Section 7(a)(2) of the Act requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of such a species or result in the 
destruction or adverse modification of critical habitat. If a Federal 
agency action, such as an action by the National Park Service (NPS), 
may affect a listed species or its critical habitat, the responsible 
Federal agency (action agency) must enter into consultation with us. 
Through this consultation, the action agency ensures that their actions 
do not destroy or adversely modify critical habitat. Section 7 of the 
Act does not apply to activities on private or other non-Federal lands 
where there is not a Federal action that triggers consultation, and 
critical habitat designation would not provide any additional 
protections under the Act for private or non-Federal activities. 
Critical habitat would not prohibit private or commercial activities 
from occurring unless they were occurring on the designated National 
Park System lands and we determined through a consultation that they 
would destroy or adversely modify critical habitat. We think this 
outcome would be highly unlikely given that the mission of the NPS 
largely prevents private or commercial activities that would result in 
major impacts to habitat. All parties--Federal, State, private, and 
tribal--are unable to take (e.g., harm, harass, pursue) listed species 
under section 9 without the appropriate permit.
    8. Comment: Some comments recommended excluding areas where 
landowners participate in the Sustainable Forestry Initiative (SFI) 
program.
    Our response: The SFI program is a condition for membership in the 
American Forest and Paper Association. The SFI program is a 
comprehensive system of principles, objectives and performance measures 
developed by foresters, conservationists and scientists, that combines 
the perpetual growing and harvesting of trees with the protection of 
wildlife, plants, soil and water quality (American Forest and Paper 
Association 2006). The SFI program appears well-intentioned, and can 
provide benefits to wildlife, and promotes wildlife conservation. The 
SFI program contains a number of principles and objectives that 
generally pertain to overall forest health. The objective that is most 
pertinent to lynx conservation is ``[t]o manage the quality and 
distribution of wildlife habitats and contribute to the conservation of 
biological diversity by developing and implementing stand- and 
landscape-level measures that promote habitat diversity and the 
conservation of forest plants and animals, including aquatic fauna.'' 
Therefore, participation in the SFI program is partially a basis for 
our decision to exclude non-Federal lands managed for commercial 
forestry from the designation (see Exclusions Under Section 4(b)(2) of 
the Act discussions, below).
    9. Comment: Some commenters asserted the designation of critical 
habitat constitutes an uncompensated taking of private property and is 
therefore illegal.
    Our response: This issue is no longer a concern because we have 
excluded all lands from the final designation except National Parks 
(see Exclusions Under Section 4(b)(2) of the Act discussion below). 
Additionally, the mere promulgation of a regulation, like the enactment 
of a statute, does not take private property unless the regulation on 
its face denies the property owners all economically beneficial or 
productive use of their land. Further, in accordance with Executive 
Order 12630 (``Government Actions and Interference

[[Page 66013]]

with Constitutionally Protected Private Property Rights''), we have 
analyzed the potential takings implications of designating critical 
habitat for the lynx in a takings implications assessment. The takings 
implications assessment concludes that this designation of critical 
habitat for the lynx does not pose significant takings implications
    10. Comment: Some commenters asserted that the proposed rule failed 
to adequately identify the physical or biological features (primary 
constituent element or PCE) essential to the conservation of the lynx. 
Some commenters stated the PCE needs to be more narrowly defined. Some 
commenters suggested that lynx use a wider variety of forest types than 
those described in the PCE or that lynx subsist on prey other than 
snowshoe hares. A few commenters claimed that snow is not essential to 
the lynx because there is no snow in summer.
    Our response: The features essential for the conservation of the 
species were determined based on the best scientific data available on 
lynx and snowshoe hare ecology. As more thoroughly described in the 
``Primary Constituent Element'' section of the proposed rule, starting 
on page 68299, we determined the PCE to be (1) Boreal forest landscapes 
supporting a mosaic of differing successional forest stages and 
containing: (a) presence of snowshoe hares and their preferred habitat 
conditions, which include dense understories of young trees or shrubs 
tall enough to protrude above the snow; (b) winter snow conditions that 
are generally deep and fluffy for extended periods of time; and (c) 
sites for denning that have abundant, coarse woody debris, such as 
downed trees and root wads. We recognize the value of observable or 
measurable standards. Unfortunately, current science is not sufficient 
to tell us, for example, the minimum density of snowshoe hares 
necessary to support a reproducing lynx population, nor is there 
reliable scientific information regarding a specific density or size of 
coarse woody debris such that a lynx would select for a den site, nor 
the precise snow conditions (such as depth or other properties) that 
provide a lynx an advantage over other potential competitors such as 
coyote or bobcat. As a result, our description of the PCE is as 
specific as the current science will allow.
    The best scientific information has demonstrated that lynx are 
highly adapted to preying on snowshoe hares and that snowshoe hare 
density is the most important factor explaining the persistence of lynx 
populations (see 65 FR 16052, March 24, 2000; 68 FR 40076, July 3, 
2003; background section of 70 FR 68294, November 9, 2005; Steury and 
Murray 2004, p.136). As a result, we determined that habitats 
containing the features essential to the conservation of lynx are those 
that support snowshoe hares, despite the fact that lynx are known to 
prey opportunistically on other small mammals and birds. Lynx 
populations are found in habitats that support abundant snowshoe hares. 
Such habitats are generally described as boreal forest or cold 
temperate forests (Frelich and Reich 1995, p, 325; Agee 2000 pp. 43-
46). Because lynx are capable of traveling long distances, they have 
been documented in a variety of habitat types, but habitat types that 
are incapable of supporting abundant snowshoe hares are not considered 
essential to the conservation of lynx. The commenters are correct that 
most of the areas included in the lynx critical habitat designation do 
not have snow in summer. Lynx and snowshoe hares are highly evolved to 
survive deep and/or fluffy snow, which is why we specified winter snow 
conditions as a component of the PCE. The presence of deep, fluffy snow 
in the winter gives lynx the competitive advantage over similar-sized 
carnivores and is a reliable indicator of the most important habitat 
for lynx persistence in the contiguous United States. All of the areas 
we are designating as critical habitat have deep, fluffy snow in 
winter, and this feature is essential to lynx conservation.
    11. Comment: Some commenters stated that many of the lands included 
in the proposed designation do not contain the physical and biological 
features (PCE) identified as being essential to the conservation of the 
lynx. Additional comments asserted the boundaries we used (such as the 
4,000-foot (ft) (1,219-meter (m)) elevation contour or highways) were 
arbitrary or overly broad.
    Our response: The 4,000-ft (1,219-m) elevation contour is used to 
delineate the boundary within Glacier National Park west of the 
Continental Divide and the boundary within North Cascades National Park 
east of the Crest of the Cascade Mountains. As described on page 68299 
of the Methods section of the proposed rule (November 9, 2005; 70 FR 
68294), the features essential to the conservation of lynx, the 
majority of lynx records, the evidence of reproduction, and the boreal 
forest types are found above 4,000 ft in these areas.
    Based on recently received landscape-scale vegetation maps for the 
Northern Rockies and Cascades proposed critical habitat units, we 
removed public land survey sections that were primarily unforested from 
the designation. We reviewed aerial photos for particular parcels 
identified by commenters as not supporting the PCE (such as Minnesota 
Power and Cleveland Cliffs in Unit 2), and determined that these 
parcels do not support the PCE. On that basis we removed them from the 
designation. A 1-mi (1.6-km) buffer along the Lake Superior shoreline 
and a 10-mi (16-km) circular buffer around Duluth, MN, were removed 
based on aerial photography showing that existing development in Unit 2 
is concentrated in these areas (Industrial Economics, Incorporated 
2006, p. 4-12)., limiting the potential of any lynx habitat 
intermingling in these areas
    12. Comment: Some commenters recommended that we designate critical 
habitat in unoccupied habitat. Others suggested that critical habitat 
units should encompass all lynx occurrence records.
    Our response: As explained on page 68298 of the proposed rule 
(November 9, 2005; 70 FR 68294), the data that define the current and 
historical range of the lynx at the time of listing constitute the 
geographic area occupied by the species. At the time of listing, we did 
not consider any areas within the current or historical range to be 
unoccupied because the lynx is highly mobile and survey information was 
spotty and incomplete. We considered critical habitat in areas that 
have the highest likelihood of supporting reproducing populations of 
lynx based on: (1) The presence of the PCE; (2) the majority of recent 
lynx records; (3) recent evidence of breeding lynx populations; and (4) 
direct connectivity with lynx populations in Canada. Many historic 
records of lynx occur in areas that do not support extensive boreal 
forest and abundant snowshoe hares. No evidence suggests that these 
areas ever supported self-sustaining populations of lynx in the past 
100 years (e.g., Oregon) (Aubry 2006, p.2). Pursuant to section 3(5)(A) 
of the Act, critical habitat shall not include the entire geographical 
area that can be occupied by the species unless otherwise determined by 
the Secretary. We have concluded that not all occupied habitat is 
essential to the conservation of the lynx.
    13. Comment: Some commenters stated that private lands have few to 
no Federal actions requiring consultation under section 7 of the Act, 
suggesting little need or benefit of designating critical habitat on 
private lands.
    Our response: We agree. The fact that Federal actions requiring 
consultation under section 7 of the Act occur infrequently on private 
lands weighed into our decision to exclude all private

[[Page 66014]]

lands from the designation, including lands managed for commercial 
forestry, small landowners, and lands not managed for commercial 
forestry because the benefit of excluding these areas exceeded the 
benefit of including them (see ``Exclusions Under Section 4(b)(2) of 
the Act'' discussion, below). Small land parcels and lands not managed 
for commercial forestry have a minor influence on the features 
essential to the conservation of lynx because they are small in size 
relative to the large landscape required to support lynx, particularly 
compared to the important role and large scale of National Forest lands 
and lands managed for commercial forestry.
    14. Comment: Some commenters were concerned that critical habitat 
designation will create a disincentive for lynx conservation on private 
lands because consultation under the Act is triggered when landowners 
participate in Federal programs such as conservation easements or 
receive Federal funding. Owners of private timber lands said they would 
be reluctant to accept Federal funding intended to encourage the 
conservation of private forest lands, such as the USFS Forest Legacy 
Program, because of the consultation requirement.
    Our response: We considered this factor in weighing whether the 
benefit of exclusion of lands from critical habitat designation 
exceeded the benefit of their inclusion in critical habitat (see 
``Exclusions Under Section 4(b)(2) of the Act'' discussion of section 
4(b)(2) exclusions below). As a result, we have excluded non-Federal 
lands from the final designation. We are obligated to note that Federal 
funding for conservation on private lands would still be subject to 
section 7 consultation in areas that are occupied by lynx. However, 
this requirement has existed since the lynx was listed and is unchanged 
by our designation of critical habitat.
    15. Comment: Some commenters believe that designation of critical 
habitat prior to completion of a lynx recovery plan or other lynx 
conservation guidance is premature.
    Our response: Section 4(a)(3) of the Act requires that critical 
habitat be designated for listed species within a year of listing. The 
lynx was listed as a threatened species under the Act in 2000 (March 
24, 2000; 65 FR 16052). The designation is made on the basis of the 
best scientific data available and after taking into consideration the 
economic impact and any other relevant impact of specifying any 
particular area as critical habitat. Furthermore, the Service is under 
an order from the U.S. District Court for the District of Columbia to 
issue a final rule for critical habitat by November 1, 2006. Therefore, 
we must proceed with the designation although a recovery plan has not 
yet been drafted for the lynx.
    16. Comment: Some commenters pointed out that some of the 
occurrence data we used to support the proposed critical habitat 
designation were based on winter track surveys, particularly from 
Maine, although in the proposed rule we said we only used winter track 
survey data when confirmed by genetic (DNA) testing.
    Our response: We did not include any lands in Maine in the final 
designation; therefore, this issue is moot. The pooling of snow track 
survey results with other verified evidence of lynx occurrence was an 
oversight. However, because of the stringent protocols used in 
confirming tracks as lynx and the minimal number of species in the area 
with which lynx tracks could be misidentified in Maine (McCollough 
2006), we have high confidence in the accuracy of the Maine snow track 
data that was incorporated into the data used for the proposed 
designation.
    17. Comment: Some commenters suggested that better snow information 
should have been used to delineate critical habitat boundaries.
    Our response: As explained on page 68301 of the proposed rule 
(November 9, 2005; 70 FR 68294), snow conditions also determine the 
distribution of lynx. However, available scientific information does 
not allow us to identify whether a precise snow depth and/or other 
quality, such as surface hardness or sinking depth, defines lynx use or 
preference. Information on average snow depth is limited to areas with 
good coverage by weather stations that record snow depth data. We were 
able to use average snow depth maps based on weather station data to 
inform our consideration of lands in Maine and Minnesota. However, in 
mountainous areas such as the Northern Rockies and Cascades, few 
weather stations exist, and local topography strongly influences snow 
conditions. Therefore, snow depth maps were not used for the Northern 
Rockies or Cascades units, where we relied on lynx occurrence records, 
vegetation data, and elevation.
    18. Comment: Some commenters suggested the critical habitat units 
or the PCEs do not encompass all the areas or features essential to the 
conservation of lynx. Specifically mentioned were areas that would 
mitigate the effect of climate change on lynx habitat, provide habitat 
for dispersing lynx to colonize (such as portions of New Hampshire, New 
York, North Dakota, Wyoming, Utah, Washington, and Oregon), or lynx 
travel corridors both within the United States and between the United 
States and Canada.
    Our response: The PCE and the areas proposed as critical habitat 
represent the features essential to the conservation of lynx. The Act 
states at section 3(5)(A), that except in particular circumstances 
determined by the Secretary, critical habitat shall not include the 
entire geographical area which can be occupied by the threatened or 
endangered species. It is not the intent of the Act to designate 
critical habitat for every population and every documented historical 
location of a species. As described on page 68299 of the proposed rule 
(November 9, 2005; 70 FR 68294), the areas proposed as critical habitat 
serve a variety of functions, including providing habitat that may 
serve as travel corridors to facilitate dispersal and exploratory 
movements. At this time the biological or physical features of habitats 
lynx choose for travel or colonization is not well-understood. The 
extent that climate change might affect lynx habitat is not known, nor 
do we know if any areas within the contiguous United States would 
mitigate for habitat changes due to climate change. Therefore, we did 
not have sufficient data to accurately delineate areas in the 
contiguous United States that might provide travel, serve as sites for 
colonization or corridors, or mitigate for climate change.
    19. Comment: Many commenters assert that the presence of lynx 
demonstrates that present and past timber management practices (i.e., 
those that started around 20 years ago and continue today) have created 
the current habitat conditions that are good for lynx; therefore, 
critical habitat should not be designated on such lands.
    Our response: We agree and for this reason, in addition to others, 
we have excluded all non-federal lands managed for commercial forestry 
from the designation (see Exclusions Under Section 4(b)(2) of the Act 
discussion, below).
    20. Comment: Washington State Department of Natural Resources 
requested that their lands be removed from the designation because the 
agency has implemented a Lynx Habitat Management Plan since 1996 that 
has been effective in the conservation of lynx habitat and updated the 
Habitat Management Plan in 2006 to include modifications to avoid the 
incidental take of lynx.
    Our response: We determined that Washington State Department of 
Natural Resources lands should be removed

[[Page 66015]]

from the critical habitat because Washington DNR's plan provides 
sufficient management so that special management or protection is not 
required and thus the identified lands do not meet the definition of 
critical habitat. First, the plan is complete: The original plan was 
completed in 1996, updates and modifications to the plan were completed 
in 2006. Second, the plan provides specific provisions for lynx 
foraging (snowshoe hare) habitat and denning habitat on a landscape 
scale based on the best available science on lynx and snowshoe hare 
ecology. Third, the plan has been implemented since 1996. The Service 
found that implementation of the 1996 plan will maintain the function 
of the landscape and its capability to support lynx reproduction and 
was not likely to result in mortality or injury to lynx through 
significant impairment of breeding, feeding or sheltering or other 
essential behaviors (Martin 2002). Finally, implementation and 
effectiveness monitoring reports are provided and are incorporated into 
the 2006 plan. This issue is discussed in more detail in Exclusions 
Under Section 4(b)(2) of the Act, below.
    21. Comment: Montana Department of Natural Resources and 
Conservation requested that Montana State Trust Lands be excluded from 
designation because of Montana Department of Natural Resources and 
Conservation's pending Habitat Conservation Plan that will specifically 
address lynx conservation.
    Our response: We determined that Montana State Trust Lands should 
be excluded from the designation of critical habitat because the 
benefits of excluding these lands covered by the pending HCP outweigh 
the benefits of including them in the designation (see Exclusions Under 
Section 4(b)(2) of the Act, below). The Lynx Conservation Strategy 
portion of the pending HCP has undergone public review pursuant to 
State law and provides for the PCE in that it will provide multistoried 
boreal forest stands, foraging habitat (i.e., snowshoe hare habitat), 
lynx denning habitat, and protection for known den sites.
    22. Comment: Tribes submitted comments requesting their lands be 
excluded from the designation. We received other comments opposing the 
exclusion of tribal lands from the designation.
    Our response: In accordance with Secretarial Order 3206, ``American 
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' (June 5, 1997); the President's memorandum of 
April 29, 1994, ``Government-to-Government Relations with Native 
American Tribal Governments'' (59 FR 22951); Executive Order 13175 
``Consultation and Coordination with Indian Tribal Governments;'' and 
the relevant provision of the Departmental Manual of the Department of 
the Interior (512 DM 2), we believe that 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. Such designation is often viewed by 
tribes as 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.
    We contacted all tribes potentially affected by the proposed 
designation and met with some of them to discuss their ongoing or 
future management strategies for lynx. Several tribes subsequently 
submitted letters requesting exclusion based on their sovereign rights 
and concerns about the economic impact and affects on their ability to 
manage natural resources. As described on page 68310 of the proposed 
rule, we have determined that conservation of lynx can be achieved off 
tribal lands within the critical habitat units and/or with the 
cooperation of tribes. The tribal lands included in the proposed 
designation are found only in the Maine and Minnesota units and the 
size of the areas are relatively small (approximately 223 and 192 
km\2\, respectively [86 and 74 mi\2\]). Therefore, these tribal lands 
are excluded from final designation as critical habitat pursuant to 
section 4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the 
Act discussion, below).
    23. Comment: Some commenters are concerned the designation provides 
a mechanism for increased third party litigation.
    Our response: We have designated critical habitat for the lynx 
based upon the statutory obligations and definitions pursuant to 
sections 3 and 4 of the Act after taking into consideration the best 
available scientific and commercial information. Further, we have 
finalized our designation for lynx critical habitat following an 
evaluation of all conservation measures and partnerships, economics, 
and other relevant factors and subsequently weighing the benefits of 
inclusion against the benefits of exclusion pursuant to section 4(b)(2) 
of the Act. Thus, we believe that we have proposed and designated 
critical habitat according to the provisions of the Act and our 
implementing regulations. However, the final designation can be subject 
to litigation and those affected by the designation may also be 
vulnerable to third-party litigation if determined not to be in 
compliance with the provisions and protection of the regulation.
    24. Comment: Some commenters believe that the analysis for 
justifying removing USFS lands from the designation was inadequate.
    Our response: We have noted the comment and provide an expanded 
discussion in Application of Section 3(5)(A) of the Act, below. We have 
concluded that the conservation agreement, proposed plan amendments, 
and existing LRMPs that include lynx conservation provide sufficient 
special management for lynx.
    25. Comment: Some commenters believe that because USFS lands are 
being managed for lynx under the Conservation Agreement, the lands 
require special management and, therefore, should not be removed from 
the designation under section 3(5)(A). Additionally, commenters suggest 
that removal of USFS lands from the designation violates Center for 
Biological Diversity v. Norton (2003).
    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 or protections are not required if adequate 
management or protections are already in place. Adequate special 
management or protection is provided by a plan or agreement that 
addresses the maintenance and improvement of the primary constituent 
element for the species and manages for the long-term conservation of 
the species (see Application of Section 3(5)(A) of the Act, below). In 
our final designation, we analyzed whether the lands containing the 
features essential to the conservation of lynx required special 
management above and beyond what was currently being implemented. 
Because the USFS's current lynx management conserves lynx, we did not 
include any USFS lands in the final designation.
    26. Comment: Removing Federal lands from the designation unfairly 
and disproportionately places the burden of lynx conservation on non-
federal landowners.
    Our response: We have excluded all non-federal lands from the final 
designation for the reasons described below in the Exclusions Under 
Section 4(b)(2) of the Act discussion, which resolves these concerns.

[[Page 66016]]

    27. Comment: Voluntary, non-regulatory, cooperative conservation 
strategies would provide more effective lynx conservation than the 
critical habitat designation.
    Our response: In general, we agree with this comment. We responded 
to this comment by weighing the benefits of exclusion against the 
benefit of inclusion pursuant to 4(b)(2) of the Act. The benefits of 
non-regulatory conservation on private, state, and county lands were 
factored into our decision not to include such lands in the final 
designation. See Exclusions Under Section 4(b)(2) of the Act discussion 
below for a complete discussion.
    28. Comment: Designation of critical habitat would be harmful to 
lynx conservation because the regulation will make current land use 
(e.g., logging) unprofitable, causing landowners to sell to developers 
and resulting in a loss of lynx habitat.
    Our response: Our decision to include only National Park Service 
lands in the final designation resolves these concerns. No logging 
occurs within NPS lands. It is relevant to note, however, that our 
economic analysis did not indicate logging would be made unprofitable 
by the designation of lynx critical habitat. The cost of the 
designation on timber lands was relatively small on a per-acre basis. 
Thus, the exclusion of these areas in the final designation was not due 
to economic impacts. Please refer to our draft and final economic 
analyses for further detail concerning our estimate of potential 
economic impacts resulting from the proposed and this final 
designation.
    29. Comment: Lands covered by Plum Creek Timber Company's Native 
Fish Habitat Conservation Plan should be excluded from the designation 
because the plan conserves riparian zones that function as snowshoe 
hare habitat, lynx denning habitat, and lynx travel corridors.
    Our response: Plum Creek lands are not included in the final 
designation in part because the company has demonstrated it is a 
willing partner in fish and wildlife conservation efforts, such as the 
Native Fish Habitat Conservation Plan, which provides some ancillary 
benefits to lynx, as described below in the Exclusions Under Section 
4(b)(2) of the Act discussion, which resolves this concern. We believe 
partnerships are essential for the conservation and recovery of lynx.
    30. Comment: Private lands in Montana covered by the Swan Valley 
Grizzly Bear Conservation Agreement should be excluded from the 
designation.
    Our response: Private lands in Montana are not included in the 
final designation for the reasons described below in the Exclusions 
Under Section 4(b)(2) of the Act discussion, which resolves this 
concern. We believe that preserving cooperative partnerships such as 
demonstrated with the Swan Valley Grizzly Bear Agreement, which 
provides some ancillary benefits to lynx, is essential for the 
conservation and recovery of lynx.
    31. Comment: Dense forests required by lynx and snowshoe hares 
increases the risk of wildfires.
    Our response: Wildfire is not thought to be a threat to lynx, and 
often results in beneficial effects when burned areas regenerate into 
good lynx foraging habitat. The designation of critical habitat will 
not prohibit protection of defensible space around homes or the 
wildland-urban interface. As described in the final rule listing the 
lynx, natural fire plays an important role in creating the mosaic of 
vegetation patterns, forest stand ages, and structure that provide good 
lynx and snowshoe hare habitat, particularly in the western Great Lakes 
region and in the western mountain ranges of the United States (Agee 
2000, pp. 47-56). The final designation includes only National Parks. 
The National Park Service manages wildfire risk in accordance with the 
National Fire Plan. We routinely coordinate with NPS on fire projects 
that may affect listed species pursuant to section 7 of the Act. 
Typically, NPS fire management projects do not result in adverse 
effects to lynx. We anticipate that future projects are unlikely to 
adversely modify its critical habitat.
    32. Comment: Some commenters questioned the adequacy of the 
Environmental Assessment (EA) and other aspects of our compliance with 
NEPA. They believe the Service should prepare an Environmental Impact 
Statement (EIS) on this action.
    Our Response: 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 published a Notice of the Availability of 
the draft EA for public comment on September 11, 2006 (71 FR 53355). 
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 
on our Web site (see ADDRESSES section).
    33. Comment: Commenters believe that designating State School Trust 
lands as critical habitat will harm schools and school children because 
the lands will not be able to be used to fund the School Trust.
    Our response: We have excluded all State lands from the final 
critical habitat designation for the reasons described below in the 
Exclusions Under Section 4(b)(2) of the Act discussion, which resolves 
this concern.
    34. Comment: Some commenters were concerned that the Maine Forest 
Practices Act (MFPA), which regulates forestry in Maine, is not 
adequate to provide for the habitat requirements of lynx and, 
therefore, compliance with the Act should not be a basis for excluding 
lands from the critical habitat designation.
    Our response: We have previously recognized that the shift away 
from clear-cutting towards partial cutting in Maine creates uncertainty 
as to the long-range suitability of habitat for lynx. This shift is in 
large part a result of implementation of the Maine Forest Practices Act 
(MFPA) starting in 1989 when it was enacted. In our 2003 Remanded 
Determination regarding the listing of the lynx as a threatened 
species, we noted that ``if harvest practices cease to provide early 
successional forest with dense understories or stand-replacing 
disturbances (such as provided by a large clear-cut) in proportions 
similar to historic conditions, habitat conditions for snow shoe hares 
and lynx will be diminished.'' 68 FR 40076, 40094 (July 3, 2003) 
(emphasis added). In that notice, we also stated that ``at this time, 
we do not know if future timber harvest practices will continue to 
provide forest conditions that are capable of supporting snowshoe hare 
densities that can, in turn, support a resident lynx population.'' Id. 
Our 2005 Lynx Recovery Outline also acknowledges this uncertainty: 
``harvest management in Maine has shifted away from clear-cutting and 
now favors partial cutting, which in some situations, may result in 
less favorable conditions for snowshoe hare and lynx.'' Recovery 
Outline, p.9 (emphasis added).
    We agree that this uncertainty remains. As we have previously 
noted, lynx preference for regenerating clear-cuts has been well-
documented by analyses at landscape- and stand-level scales (Hoving et 
al. 2004, pp. 291-292; Fuller 2006, p. 31; Robinson 2006, pp.

[[Page 66017]]

119-129). Maine lynx habitat models document that lynx avoid partial 
harvest stands (Hoving et al. 2004, p. 292) or that partial harvested 
areas are not statistically associated with lynx occurrence at home 
range and landscape scales (Robinson 2006, pp.122-123). Furthermore, 
partial harvest stands support substantially lower snowshoe hare 
densities than regenerating clearcuts (Robinson 2006, p. 9), with many 
stands below a threshold of 1.1 hares/ha believed necessary to support 
a lynx population (Steury and Murray 2004, p. 137). But, at least one 
Maine study suggests that, under certain circumstances, lynx may prefer 
partially-harvested stands (Fuller 2006, p. 31). We recognize that this 
study, as with most, has certain limitations, but it does represent a 
somewhat different conclusion than previous studies about the 
suitability for lynx of various habitats created through forest 
management in Maine.
    But, long-range habitat suitability in Maine also depends on the 
distribution, amount, and longevity of habitats created through forest 
management. Thus another critical question is whether the mosaic 
created by clear-cutting, which is anticipated to last another 10-15 
years, may be replaced over time by across the landscape by other 
practices.
    Neither the MFPA nor its regulations provide prescriptions for age 
class, distribution of forest, or coarse woody debris. It is important 
to note that although the MFPA regulates clear-cutting it does not 
eliminate this practice altogether as some have suggested in their 
comments. The MFPA allows for the possibility of large clear-cuts (up 
to 400 acres) so long as such harvesting is accompanied by proper 
documentation and permits. In 1989, clear-cuts accounted for 45% of the 
land area harvested and partial harvests 55% (Maine Forest Service 
1995, summary statistics). In 1999, clear-cuts accounted for only 3%, 
whereas partial harvests accounted for 96% (Maine Forest Service 2000, 
summary statistics). This new silvicultural paradigm has landscape 
level implications for lynx because larger areas must be logged to 
supply mills with an equivalent volume of wood. The annual number of 
acres that is partially harvested has increased 21% from 398,743 acres 
in 1993 to 481,153 acres in 2004 (Maine Forest Service 2005, summary 
statistics). As currently implemented, MFPA is adequately providing for 
the habitat requirements of lynx.
    Partnerships will be essential in resolving both these scientific 
as well as management uncertainties, especially given that the majority 
of lynx habitat and occurrences occur on private lands managed for 
commercial forestry in Maine. Agreements and commitments with private 
landowners to allow access to lands, provide research capabilities and 
funding, map habitat and correlate it to past and existing forest 
management practices is necessary to address and reconcile 
uncertainties about which type and distribution of habitats lynx 
prefer. Because the amount and quality lynx habitat may ultimately 
depend on the types and locations of harvesting that are pursued under 
the MFPA, maintaining working relationships with the commercial timber 
industry is important, this is especially so because commercial timber 
operations in Maine typically do not involve Federal actions that would 
trigger consultation under Section 7 of the Act.
    35. Comment: Some commenters are concerned that certification 
programs and voluntary agreements were not working well on corporate 
forestlands in Maine and Montana and, therefore, should not be a basis 
for excluding such lands from the final critical habitat designation. 
Specific information was provided about Maine Department of Inland 
Fisheries and Wildlife's (MDIFW) concern about Plum Creek's reluctance 
to abide by voluntary, cooperative deer wintering area agreements that 
were negotiated with the previous owner. Commenters asserted that Plum 
Creek's land management in Montana includes activities that may 
threaten lynx, such as precommercial thinning that decreases the 
quality of snowshoe hare habitat; and divesting of its land holdings, 
which may then be developed.
    Our response: Several corporate forest landowners in Maine, 
including Plum Creek, have voluntary agreements with MDIFW to manage 
deer wintering habitat. These agreements enable the state to work in 
partnership with forest industry to manage for deer wintering habitat. 
Given the significant turnover in corporate forest land ownership in 
Maine in the last 15 years, agreements with previous companies need to 
be renegotiated with the new owners. New landowners sometimes do not 
honor the agreements made by previous landowners and cut in deer 
wintering areas. Deer wintering areas are large areas of mature 
softwood, usually in riparian areas. Although these are boreal 
habitats, they generally do not provide quality habitat for snowshoe 
hares or lynx. Lynx in Maine prefer young, regenerating softwood 
stands. Cutting deer wintering habitat may have created lynx habitat.
    The lynx forest management strategy offered by the Maine Forest 
Products Council applies to about 400 member landowners that comprise 
about 84% of the proposed Maine Unit of the critical habitat. The lynx 
management specified in the strategy applies to current and future 
landowners. Thus, as landowners change, there is a good probability 
that the lynx strategy will apply to future corporate forestry 
landowners.
    Section 7 of the Act only applies to activities on private lands 
where there is a Federal action that triggers consultation; critical 
habitat designation would not provide any additional protections under 
the Act to address activities on private lands that do not involve a 
Federal action. We weighed the benefits of exclusion against the 
benefit of inclusion pursuant to section 4(b)(2) of the Act. The 
benefits of preserving effective partnerships with private landowners 
and encouraging non-regulatory conservation on private lands managed 
for commercial forestry factored into our decision to exclude such 
lands. Specifically, Plum Creek has demonstrated it is a willing and 
effective partner in various fish and wildlife conservation efforts; it 
contributes funding for lynx research and allows research to occur on 
its properties, as well as managing habitat that supports lynx and 
other species, both protected and unprotected. See Exclusions Under 
Section 4(b)(2) of the Act discussion below for a complete discussion 
of specific exclusions.

Comments on Economic Issues

General Comments on Methodology and Scope

    1. Comment: Cook County commented that the draft economic analysis 
(DEA) does not include a breakdown of economic impacts by county. 
Similarly, Lutsen-Tolfte Tourism Association and Lutsen Mountains Ski 
resort suggested that the Service should separately analyze the 
developed portion of Cook County in Northeastern Minnesota, as it 
comprises the majority of the existing development and industry in the 
County.
    Our response: As described in Section 2.1, an economic analysis of 
this type must make a determination of the geographic level at which to 
present results. In this case, the DEA provides economic impacts at the 
subunit level, which is defined by landowner type (e.g., private 
timberlands, State lands, etc.). Landowner type was selected as the 
geographic scale of the analysis, as impacts across land use types were 
expected to be more homogenous than across political boundaries, such 
as

[[Page 66018]]

cities or counties. Impacts of lynx conservation on Cook County lands 
are, therefore, summarized according to the subunits that intersect 
Cook County in Unit 2. These are the Superior National Forest, Unknown 
Private Landowner, MN Department of Natural Resources, Private Mining 
Company Lands, and Tribal Lands subunits.
    2. Comment: One comment stated that the DEA refers to a ``one mile 
buffer along the coast of Lake Superior'' as being excluded from the 
economic analysis. The commenter requests clarification regarding the 
actual delineation of critical habitat as Section 4(b)(2) of the Act 
requires economic analysis of areas proposed to be included in the 
designation, and thus including the 1-mile buffer as critical habitat 
without analyzing the economic data would be a violation of the Act.
    Our response: The DEA does not refer to the 1-mile buffer 
surrounding Lake Superior as being excluded from the economic analysis. 
These areas were explicitly considered in the DEA as described in 
Section 4.3.2.
    3. Comment: One commenter stated that the DEA should include the 
direct cost to the private sector and Federal agencies of dealing with 
critical habitat through interactions with Federal agencies regarding 
permits or sales. This commenter also stated that the DEA should 
consider the indirect costs of dealing with project delays and the 
legal costs associated with critical habitat designation that accrue to 
both the public and private sector.
    Our response: Appendix A of the DEA quantifies the administrative 
costs to public and private entities of section 7 consultations, a 
direct impact of critical habitat designation. These impacts of 
complying with section 7 of the Act are included in the total economic 
impact estimates provided in the DEA. The DEA also considers the impact 
of project delays. For example, the analysis quantifies construction of 
new roads to access timber or mining projects to avoid delays 
associated with lynx conservation concerns.
    4. Comment: One comment highlighted that the DEA does not quantify 
impacts to mines, development, and grazing in the area. Another comment 
questioned why the DEA presents the full value estimates for 
development and mining.
    Our response: Since the publication of the DEA, a supplemental 
analysis of impacts to development was undertaken and will be 
incorporated in the Final Economic Analysis (Final EA). As described in 
Section 6.5 of the DEA, absent information regarding how or whether 
grazing activities may be impacted by lynx conservation, the DEA 
provides information on the geographic areas grazed and the full value 
of the grazing within the study area. While not an impact estimate, 
this information is useful for decision making by identifying the 
distribution of grazing activity across the study area. Section 8 of 
the economic analysis does quantify impacts to mining activities.
    5. Comment: Plum Creek Timber Company, Inc. commented that the DEA 
does not consider that an acre of land may have both timber and 
potentially substantial future additional value, and thus the DEA 
underestimates the potential value at risk associated with critical 
habitat designation. The comment further stated that all of Plum 
Creek's lands have some future value (including recreation, 
conservation, and higher and better uses) in addition to current use 
values, regardless of Plum Creek's ultimate use of the land. The 
assumption that an acre of land is primarily used for one use 
(rendering the value of secondary uses negligible), therefore, 
underestimates the total acreage at risk of losing value.
    Our response: The DEA does not assume that the primary land use of 
an acre is its only value, or that other components of the total value 
are negligible. Rather, the DEA recognizes that the value of an acre 
encompasses the value of all of its foreseeable future uses. The DEA 
uses existing zoning and land use information to identify acres that 
are expected to have a value associated with the option for future 
development. For land parcels for which the only foreseeable future use 
is timber (based on available data), however, the potential of that 
parcel to be developed is unknown within the timeframe of the analysis, 
and, therefore, the parcel does not have an estimated development 
option value in the DEA. This characterizes the majority of the Plum 
Creek lands in both Maine and Montana. Communication with land value 
appraisers in Montana confirmed that the appraised value of parcels for 
which timber management is the only current and known future use do not 
include a measurable value associated with the option for future 
development. To the extent that these lands may be developed in the 
future absent lynx conservation, the DEA underestimates impacts related 
to development on these parcels.
    6. Comment: Defenders of Wildlife commented that the DEA omits 
assessment of benefits from increased direct uses including welfare 
gains for participants in non-motorized recreation activities that 
benefit from restrictions on snowmobiling, or avoided loss of scenic 
beauty for recreationists due to prevented destruction of habitat for 
development.
    Our response: As discussed in Section 1.2.4 of the DEA, these types 
of benefits are considered in the analysis. However, similar to the 
calculation of benefits related to viewing lynx, information regarding 
the number of non-snowmobilers recreating in the area is not readily 
available, and the extent to which lynx-related restrictions increases 
enjoyment of non-motorized recreation due to reduced noise pollution, 
or increases the scenic beauty of the study area, is unknown.
    7. Comment: Defenders of Wildlife stated that the DEA violates its 
own study parameters in order to incorporate project costs that occur 
beyond the 20-year timeframe of the analysis. In particular, the 
commenter notes that pre-commercial thinning impacts would change from 
a net cost to a net benefit if the DEA respected its own temporal 
boundaries of analysis.
    Our response: As stated in Section 1.3, the DEA forecasts impacts 
to activities that are considered ``reasonably foreseeable.'' Where 
information is available to reliably forecast economic activity beyond 
the 20-year timeframe, this analysis incorporates that information. For 
timber management, silvicultural planning typically occurs over a long 
time horizon (e.g., 100 years). The DEA, therefore, forecasts impacts 
to activities in the timber industry accordingly. Reporting only the 
first 20 years of impacts of restrictions on precommercial thinning 
would result in the reporting of a net benefit of these restrictions, 
as the costs of these restrictions are experienced at the time of 
harvest (e.g., reduced yield). Reporting a net benefit or precluding 
precommercial thinning from the analysis would be misleading, however, 
as precommercial thinning would not likely be undertaken if it did not 
offer a long-term benefit to landowners.
    8. Comment: Pingree Associates, Inc., commented that the DEA was 
prepared based on substandard information with no peer review and that 
there was no adherence to any appraisal standards in determining values 
of forestlands.
    Our response: The DEA applies the best available information, and 
was peer-reviewed by forest economists from both Maine and Montana. As 
described in Section 4 and Appendix D, the land appraisal information 
applied in the DEA is from recent appraisals by the Maine Revenue 
Service. This information is used by the Land Use Regulatory Commission 
in Maine, and was cross-checked with a number of

[[Page 66019]]

stakeholders, including the University of Maine and the Maine 
Department of Inland Fisheries and Wildlife.

Comments on Timber Analysis

    9. Comment: A comment provided by Maine Audubon asserted that the 
DEA overestimates the number of acres likely to be precommercially 
thinned. The DEA estimates that over a 100-year period, 6.1 million 
acres will be precommercially thinned; Maine Audubon estimates that 
this should be closer to 2.1 million acres. The comment further states 
that timber impacts in Maine should be estimated over a 30-year 
projection, rather than 100 years due to the short tenure of most 
timberland ownerships.
    Our response: The DEA applied the best available information 
regarding the potential impact of precluding precommercial thinning in 
Maine. The estimates are based on previously conducted modeling by the 
University of Maine Cooperative Forestry Research Unit as described in 
Section 3 and Appendix D. Results applied in the DEA from the existing 
model are estimated benefits of precommercial thinning on a per-acre 
basis for the entire State of Maine over a 100-year timeframe, based on 
the recent, observed level of precommercial thinning. The application 
of this model to the DEA was reviewed and considered reasonable by 
multiple stakeholders and peer reviewers. Further, the tenure of a 
landowner is not relevant to the timeframe of the analysis, as the 
impacts estimated are not specific to current landowners, but to land 
parcels.
    10. Comment: The Montana Wood Products Association commented that 
the assumption in the DEA that there is no market for precommercially 
thinned material is incorrect. In Montana existing facilities that 
function on residuals from timber harvesting would be impacted by 
restrictions on precommercial thinning. This comment further stated 
that the assumption that future stumpage prices will be comparable to 
past prices is unfounded.
    Our response: As described in Section 3.2 of the DEA, Scenario 2 of 
timber analysis assumes that no ready market exists for slash from 
precommercial thinning. To the extent that a market for this residual 
does exist within the study area, the DEA acknowledges in Exhibit 3-7 
and on page 3-9 that timber impacts could be underestimated. An 
increase in biomass energy production would create demand and provide a 
market for residuals from precommercial thinning. This comment suggests 
that the market for residuals from precommercial thinning exists in 
certain areas of the proposed critical habitat. As timber harvests 
would not be precluded under any of the scenarios considered in the 
DEA, it is unlikely that this market would be completely eliminated, 
however, as there would still be residual material from harvests 
available for these facilities.
    11. Comment: One comment highlighted that Exhibit 3-7 of the DEA 
states that differences in quality between thinned and unthinned stands 
are not taken into consideration, and noted that precommercial thinning 
would not be undertaken if it had no purpose.
    Our response: Following discussions with a variety of timberland 
stakeholders, the DEA timber analysis focused on the benefits in 
quantity and timing of the harvest resulting from precommercial 
thinning rather than the potential increases in quality of the wood 
harvested. Benefits related to an increased quality are highly 
dependent on the initial quality of the stand, which was unknown across 
the study area. To the extent that restricting precommercial thinning 
leads to decreased quality of wood harvested from a stand, the analysis 
may underestimate impacts, as noted in Exhibit 3-7.
    12. Comment: One commenter noted that the impacts cited in the 
Section 3 did not match those in the Executive Summary, and were 
significantly higher.
    Our response: The figure of $808 million referred to in the Key 
Findings for the Timber analysis in page ES-3 of the DEA was a rounding 
error and has been corrected to show $809 million. Other timber 
analysis results cited in the Executive Summary are correct and match 
those in Section 3.
    13. Comment: Maine Forest Products Council asserted that the full 
value of timberland estimated for Maine was understated because the 
$300/per acre value applied did not account for the entire ``timber 
capital value.'' The commenter stated that many timberland transactions 
have occurred that have exceeded those values.
    Our response: As described in Appendix D of the DEA, the average 
per-acre timber value of $300 applied in the DEA for Maine represents 
the value of land as a silvicultural input, which generally reflects 
the present value of the standing timber. This estimate is based on 
information regarding appraised value of lands where timber is the only 
use. This value represented an average value, thus, it is likely that 
there have been transactions exceeding this value. The $300-per-acre 
average value was confirmed with a number of stakeholders and peer 
reviewers.
    14. Comment: One commenter expressed concern that the DEA does not 
consider the broader economic impacts that stem from the effect 
critical habitat designation could have on the overall strength of the 
forest products industry in Maine and its global competitiveness.
    Our response: The DEA provides information on the full value of the 
timberland within the study area, as well as information regarding the 
potential impacts to the timber industry under two scenarios, one with 
restrictions on precommercial thinning, and one without. As described 
in Section 3.2 of the DEA, under Scenario 1, no impacts to the quantity 
of timber harvested on private lands is forecast, while under Scenario 
2, impacts to timber harvest quantity are forecast in the future as a 
result of restrictions on precommercial thinning practices. The full 
value of the timberland in Maine is presented along with the impact of 
lynx conservation on the timber resource to provide context to the 
impact estimate, and its relative effect on the regional timber 
industry.
    15. Comment: The Maine Forest Products Council commented that the 
DEA does not address the impact of the designation on spruce 
plantations. Additionally, the commenter is concerned that the report 
does not address the potential for a future spruce budworm outbreak and 
the impact the designation could have on the ability of the State and 
its timberland owners to deal with the next outbreak.
    Our response: The analysis of impacts to the timber industry did 
not focus on impacts to plantations as this was not the focus of the 
timber-related conservation guidelines described in the LCAS. As 
discussed in Section 1.4 of the DEA, the LCAS is considered by the 
Service to be the best information available regarding conservation 
measures for the lynx. The DEA assumes that, absent more specific 
information, public and private landowners across the proposed critical 
habitat will use the LCAS as a model for lynx conservation needs. To 
the extent that limiting precommercial thinning can multiply the impact 
of an upcoming spruce-budworm epidemic, the analysis may have 
underestimated impacts to the timber industry. No models are available, 
however, to link restrictions on precommercial thinning with increased 
probability or severity of spruce budworm outbreaks.
    16. Comment: One comment stated that the DEA does not address the 
impact of changes in wood supply

[[Page 66020]]

within the study area on industry located outside the study area.
    Our response: Scenario 2 of the timber analysis in the DEA 
quantifies impacts to future timber harvest resulting from a 
restriction on precommercial thinning practices. The DEA does not make 
any assumptions about where the harvested timber is delivered, within 
or outside of the proposed critical habitat, but instead focuses on the 
estimated decreased value of a timber stand to the landowner as a 
result of restrictions on precommercial thinning. Any impacts to mills 
associated with a decreased supply of timber as a result of 
precommercial thinning restrictions would occur at the time of harvest, 
which may be 60 to 100 years (depending on harvest rotation schedules) 
from the time the restrictions on thinning are implemented. Further, 
while Section D.1.2 of the DEA states that the best available 
information indicates that approximately 1 percent of the timber lands 
are precommercially thinned per year, information is not readily 
available describing which particular parcels would be thinned in a 
given year, or which specific mills (within or outside of the study 
area) rely on those particular stands.
    17. Comment: Comments from Pingree Associates, Inc., and the 
American Forest and Paper Association (AFPA) stated that limiting the 
discussion on forest management impacts to precommercial thinning 
restrictions is inadequate and misleading. Pingree Associates asserted 
that, from past experience with critical habitats for other species, a 
high probability exists that designation of critical habitat will 
require additional set-asides and lead to restrictions on commercial 
thinning and harvesting. AFPA cited the Washington State Department of 
Natural Resources standards, which they believe, if applied across the 
critical habitat, would result in a greatly increased calculation of 
economic impact.
    Our response: The DEA applies information from the LCAS regarding 
the types of habitat-related conservation measures that may be 
requested to benefit the lynx. Information in the LCAS and from review 
of past consultations does not indicate that additional set-asides or 
restrictions on commercial thinning will be recommended for the benefit 
of the lynx. While the WADNR standards are similar to the LCAS, the 
LCAS has been applied to a broader geographic area.
    18. Comment: The American Forest and Paper Association (AFPA) 
argues that using full value of timberlands shown in Exhibit 3-2 in the 
DEA would provide a more appropriate `high impact' benchmark for 
measuring and weighing the benefits and economic impacts of the 
critical habitat designation.
    Our response: The DEA does not consider the full values of 
designated timberland to be a valid estimate of impacts of lynx 
habitat-related conservation, as there is no basis to assume this full 
value could be lost due to the proposed critical habitat. Rather, the 
DEA is based on information contained in the LCAS about how timber 
activities would be expected to change under the proposed critical 
habitat designation as described in Section 3.2.
    19. Comment: The Montana Wood Products Association stated the 
assumption that future stumpage prices will be comparable to past 
prices is unfounded. Similarly, the American Forest and Paper 
Association stated that rising stumpage prices resulting from 
restrictions in timber management may also place in jeopardy portions 
of the pulp and paper industry or solid wood products industry in the 
affected States.
    Our response: As stated in Exhibit 3-7, the DEA made the 
simplifying assumption that future stumpage prices would be similar to 
past stumpage prices. Specifically, the analysis utilized the most 
recent information available (from 2005) for stumpage prices for 
Minnesota and Montana, and relied on analyses provided by the 
University of Maine, Idaho Department of Lands, and Washington State 
Department of Natural Resources for impacts in those areas. This 
assumption and impact analysis method was peer reviewed by forest 
economists in both Maine and Montana.
    20. Comment: F.H. Stoltze Land and Lumber Company commented that it 
is a small family-owned business that is directly affected by the 
critical habitat through purchase of USFS sales, Special Use Permits 
for access and radio towers, contract road maintenance, and 
participation in stewardship contracts, and that none of these issues 
are considered in the DEA. The commenter further stated that the 
estimated $652 per acre of timberland in Western Montana is not the 
appropriate market value and that the DEA underestimates that value of 
thinning and returns to forest landowners. F.H. Stoltze Land and Lumber 
Company also commented that the DEA does not reflect the use of 
fertilization, which is also used on Stoltze lands. The commenter 
further states that studies have shown they can achieve a 50 to 60 
percent increase in growth rates by using the 20-foot spacing and 
fertilization and that these lost revenues and costs should be 
considered in the economic analysis.
    Our response: Impacts related to special use permits and road 
maintenance on Federal lands were considered in Section 3 of the DEA. 
The estimated per-acre value is an average; thus, it is not surprising 
that some sales of specific lands will be well above this average due 
to factors such as location, access and quality. Also, as discussed in 
Section 1.4 of the DEA, the DEA assumes that the LCAS is the best 
information available regarding conservation measures for the lynx and 
the LCAS does not suggest any habitat-related conservation measures 
related to the use of fertilizers; thus no impacts to fertilization 
activities are expected. Stoltze lands are excluded from critical 
habitat in the final designation for biological reasons.

Comments on Development Analysis

    21. Comment: One commenter stated that because the DEA relies on 
existing zoning status, it underestimates the amount of land in Maine 
that may be subject to development as future changes in zoning may 
occur.
    Our response: Section 4.2 of the DEA highlights that, while the 
analysis does not account for potential changes in future zoning across 
the study area, the relatively rural character of the area does not 
suggest that significant levels of re-zoning will be necessary to 
accommodate the existing development pressure. To the extent that 
development pressure increases in this region and rezoning occurs, 
however, the DEA will underestimate the number of developable acres in 
the study area in Maine.
    22. Comment: Maine Audubon commented that the DEA calculates 
revenues likely to be lost if no development is allowed on lands 
currently zoned for development in Maine. The comment argued that this 
assumes that there is no silvicultural value of those lands, and that 
no development will be allowed under the designation, and these are 
unlikely assumptions.
    Our response: The DEA does not calculate lost revenues as a result 
of restrictions on development, but rather reduced value of land as a 
result of precluding the option to develop. Further, the DEA does 
assume that silviculture is a potential use of these lands and, 
therefore, if development is precluded, the land retains its 
silvicultural value. While the DEA provides information on the full 
value of the option to develop the study area, it does so due to lack 
of information regarding how development projects

[[Page 66021]]

may be modified for the benefit of the lynx as described in Section 4.2 
and does not assume that all development within the study area will be 
precluded as a result of lynx conservation.
    23. Comment: A comment from Cook County, Minnesota, noted that, 
although the DEA provides information on the full value of developable 
land in Unit 2 ($1.56 billion), the total economic impacts of lynx 
conservation provided is an underestimate of costs because impacts to 
the developable lands are not assessed and added.
    Our response: The comment correctly highlights that the DEA did not 
quantify impacts to potential development activities, but rather 
provides the full option value of future development within the study 
area. Since the publication of the DEA, a supplemental analysis of 
impacts to development was completed by the economists, and will be 
incorporated in the Final Economic Analysis (Final EA). The 
supplemental development analysis estimated impacts to development in 
Unit 2 to be $658 million to $709 million.
    24. Comment: Plum Creek Timber Company, Inc., commented that the 
DEA should consider conservation easement values as a proxy for future 
development value, as development value of timber acres is overlooked 
in the DEA. Maine Forest Products Council commented that the analysis 
of development in Maine does not look at any development proposals, 
empirical market information, analysis of comparable market sales, or 
appraisal information, and it posits no build-out scenarios. This 
commenter also expressed concern that there is no consideration of 
development value on backland, which they suggest could be based on 
available information from the sale of conservation easements. The 
commenter provides information on two conservation easement sales and 
applies these per-acre values to estimate potential development value 
of some lands in the study area in Maine.
    Our response: The values of conservation easements can serve as a 
proxy for the value of a parcel for development. Research was 
undertaken in the development of the DEA on per-acre values of 
conservation easements in the study area. In order to transfer the 
value of development from a conservation easement to other parcels, 
however, information is needed on the relationship between land 
attributes, such as distance from existing development and roads, 
proximity to water bodies, etc., and the easement values. Without 
information on the attributes of specific parcels that may be 
developed, values of conservation easements could not be transferred 
from easement lands to the specific parcels as a proxy of their 
development value.
    25. Comment: A comment provided by Cook County, Minnesota, states 
that the DEA underestimates the amount of developable land in Cook 
County.
    Our response: As highlighted in this comment, approximately 91 
percent of the lands in Cook County are public forest lands; the 
private lands in the County are primarily inholdings within these 
public forests. Where information was available to identify the private 
inholdings among the public lands, those private lands were considered 
developable. For example, 291 acres in the southwestern corner of Cook 
County were identified as privately owned, and considered developable 
in the DEA. Best available data regarding landownership within Unit 2, 
however, is imperfect and may not identify all of the private 
inholdings within the forests, in which case impacts may be 
underestimated.
    26. Comment: A comment provided by Lutsen Mountains Ski Area 
asserted that the DEA should consider ``other relevant impacts'' of the 
designation, including any resulting increased local standards on land 
use decisions, such as zoning and issuance of building permits. This 
may require hiring of experts, analysis, and public hearings before the 
planning commission and county board.
    Our response: The area of Cook County, Minnesota, to which this 
comment refers is a developed area, containing recreational, 
commercial, and residential infrastructure. Existing development and 
infrastructure is excluded from critical habitat in the proposed rule. 
The analysis, therefore, does not quantify impacts associated with 
increased standards on local land use regulation associated with lynx 
conservation.
    27. Comment: A comment from F.H. Stoltze Land and Lumber Company 
asserted that the use of $932 per acre as the value for development in 
Montana is too low.
    Our response: As described in Section 4.3.3, the DEA did not apply 
an average per-acre value for developable lands in Montana but instead 
applied parcel-specific appraisal data from the Montana Department of 
Administration, Information Technology Services. The average per-acre 
value is presented for context, although the specific values of parcels 
ranged across the region.

Comments on the Recreation Analysis

    28. Comment: Two comments asserted that the DEA should consider the 
benefit to the economy of wildlife watching, including having lynx 
available to watch. One commenter highlights the National Survey of 
Fishing, Hunting, and Wildlife-Associated Recreation estimates that 
778,000 people participated in wildlife-watching in Maine in 2001, 
spending an average of $445 per participant.
    Our response: Section 1.2.4 of the DEA acknowledges the potential 
for benefits to the wildlife-viewing community of lynx conservation 
efforts. Three pieces of information would be required to estimate 
economic benefits derived from lynx-viewing: (1) The number of visitors 
that may engage in lynx-viewing (the National Survey evidences the 
importance of wildlife-viewing for all species in the entire State, not 
that specifically related to lynx or within the lynx habitat area); (2) 
the extent to which the likelihood of viewing lynx may be increased due 
to the lynx conservation efforts described in this analysis; and (3) 
the incremental value of a wildlife-viewing trip associated with lynx 
sightings. These data are not available. To the extent that the 
conservation efforts quantified in the DEA increase the likelihood of a 
lynx sighting, and wildlife-viewing participants positively value that 
opportunity, impacts in the DEA may be overestimated.
    29. Comment: A comment from Lutsen Mountains Ski Area stated that, 
while the DEA considers impacts associated with increased congestion on 
snowmobiling trails and costs of hunter and trapper education, it does 
not consider recreation activities occurring in Cook County, including 
alpine skiing, golfing, hiking, cross country skiing, and mountain 
biking.
    Our response: The DEA considers activities that represent a 
conservation threat to the lynx, and how they may be affected by lynx 
conservation. As described in Section 4.2 of the DEA, existing 
infrastructure related to recreation, such as ski resorts or golf 
courses, are not considered critical habitat as described in the 
proposed rule and, therefore, are not expected to be impacted by lynx 
conservation as they do not support the lynx (70 FR 68304-5). The DEA 
looks at expansions of existing recreation areas and developments of 
new trails that may impact the proposed critical habitat for the lynx. 
Accordingly, the DEA quantifies impacts in Cook County associated with 
precluding the development of new trails, which may be used, for 
example, for snowmobiling.
    30. Comment: Maine Audubon and Defenders of Wildlife commented that 
the recreation analysis in the DEA should not include the costs of 
hunter

[[Page 66022]]

and trapper education programs as these programs are required 
regardless of critical habitat designation because the lynx is a 
threatened species.
    Our response: As described in Section 1.2 of the DEA, due to the 
difficulty in making a credible distinction between listing and 
critical habitat effects within critical habitat boundaries, this 
analysis considers all future conservation-related impacts to be co-
extensive with the designation.
    31. Comment: One comment provided on the DEA states that roadless 
areas of the National Forest System are the best hunting areas, and the 
DEA should therefore consider that the enhancement and maintenance of 
fish and wildlife species as a result of designating critical habitat 
will also enhance hunting and tourism sectors of local economies.
    Our response: While maintenance and enhancement of hunting areas 
provides a benefit to hunters, and potentially tourism, within the 
region, the extent to which the conservation efforts quantified in the 
DEA contribute to the improved quantity (area) and/or quality (e.g., 
game density) of the forests for hunting is unknown. In the case that 
restrictions on development within the habitat area increase the total 
amount of land available for hunting in the future, information is 
required regarding whether additional hunters would use the region, or 
whether density of hunters across the region would decrease, to provide 
an associated welfare benefit.
    32. Comment: The Maine Forest Products Council asserted that the 
analysis should weigh the impact of fewer snowmobilers recreating in 
Maine with the demand for purchasing lands in the study area, including 
impacts on forestland value, lease-lot values, conservation easement 
values, and backland camplot values.
    Our response: This comment asserts that demand for purchasing lands 
in the study area will decrease as a result of decreases in the number 
of snowmobilers recreating in the region. As described in Section 5.2, 
the DEA assumes there will be no decrease in the number of snowmobilers 
recreating in the study area in Maine. Rather, the DEA assumes that the 
same number of snowmobilers will be recreating on fewer trails in the 
future, as it assumes snowmobilers will not be deterred by the 
increased densities projected. Therefore, the DEA does not estimate a 
decreased demand on land purchases.
    33. Comment: The Northwest Environmental Defense Center commented 
that the analysis of impacts to the snowmobiling industry is flawed. 
The DEA uses the results of a study of the impacts of increased 
crowding of snowmobilers at Yellowstone National Park. The Northwest 
Environmental Defense Center asserts that Yellowstone National Park is 
significantly more crowded than the areas in question in the DEA.
    Our response: Appendix E of the DEA discusses the limitations 
associated with applying the results of the Yellowstone study to the 
impacts to snowmobilers in the DEA, and acknowledges the comment raised 
above. However, this study represents the best available information 
regarding the impacts of increased crowding of snowmobilers. The 
commenter states that the baseline density of snowmobilers in 
Yellowstone is higher than that in the study area. For this reason, 
Scenario 1 of the recreation impact analysis assumes that snowmobilers 
do not experience a reduced value for snowmobiling trips as described 
in Section 5.2 of the DEA.
    34. Comment: A comment provided by the Washington State Snowmobile 
Association asserted that the DEA failed to consider impacts to the 
regional economy in Washington of curtailing snowmobiling. It further 
states that, although there are only 29 miles of affected snowmobile 
trails in Washington, those trails provide access to over 429 miles of 
trails outside of the proposed habitat area. Similarly, F.H. Stoltze 
Land and Lumber Company commented that the DEA fails to consider 
impacts to local guides that charge for OHV use.
    Our response: As described in Section 5 of the DEA, Scenario 2 of 
the recreation analysis quantifies the impacts of increased congestion 
on snowmobile trails as a result of restrictions on creating new 
trails. Because the analysis quantifies impacts of increased congestion 
as opposed to reduced participation, no impacts to regional businesses 
benefiting from participation in snowmobiling are expected. Regarding 
the access issue, the DEA does not assume that existing trails will be 
decommissioned, as this is not described in the LCAS or in the past 
consultation history as a habitat-related conservation measure for the 
lynx. Accordingly, there is no economic impact forecast associated with 
accessing trails outside of the study area from existing trails within 
the study area.
    35. Comment: The Cook County ATV Club commented that the DEA should 
have considered impacts to ATV use in addition to other types of 
recreation, such as snowmobiling.
    Our response: The DEA applies habitat-related conservation measures 
from the LCAS and consultation history to determine how land use 
activities may be impacted by lynx conservation. Neither the LCAS nor 
the consultation history cite ATV use specifically as a conservation 
threat to the lynx or suggest that this activity may be impacted by 
lynx conservation.

Comments on the Public Lands and Conservation Lands Management Analysis

    36. Comment: Maine Audubon commented that the DEA estimate to 
prepare a habitat management plan of $5.73 per acre overestimates the 
true costs. The comment argued that the costs would be closer to a 
range of $1 to $3 per acre.
    Our response: The average per-acre cost estimate to prepare a lynx 
habitat management plan is a weighted average of all known lynx 
management plans in the region. Some of these plans cost on the order 
of $1 to $3 per acre, and others were significantly greater, as 
described in Exhibit 6-4.
    37. Comment: The Washington Cattlemen's Association commented that 
the DEA downplays the impact of lynx conservation on grazing in 
Washington by comparing the impacts to the grazing activities in 
Okanogan County to the entire Washington State livestock industry.
    Our response: Section 6.5 of the DEA quantifies the value of 
grazing in the study area. The DEA recognizes that impacts to rural 
communities may be significant even when small compared to the 
statewide industry. The value of the grazing resource in Washington 
State was presented alongside the value of grazing in the critical 
habitat area in order to provide additional information on the impacts 
of critical habitat to the statewide economy. The final rule has 
excluded areas that are currently grazed, and, therefore, there will be 
no grazing impact as a result of this rule.
    38. Comment: F.H. Stoltze Land and Lumber, Co. commented that page 
6-18 of the DEA highlights that fencing to limit livestock grazing is a 
conservation measure related to the lynx, but does not quantify impacts 
of this effort.
    Our response: As noted in Section 6.5 of the DEA, fencing of 
foraging areas specifically for lynx and snowshoe hare is a habitat-
related conservation effort for the lynx. The DEA further states, 
however, that while information is available regarding the level of 
grazing activity in the habitat area overall, the extent to which 
grazing occurs specifically within foraging habitat is unknown. The 
amount and location of fencing that may be requested for the benefit of 
the lynx is, therefore,

[[Page 66023]]

uncertain. The DEA thus presents the full value of the grazing resource 
within the potential critical habitat area as a resource at risk of 
being impacted by lynx conservation within the study area.
    39. Comment: The Okanogan County Farm Bureau commented that fires 
burn thousands of acres of lynx habitat in the North Cascades, and 
broad designation of critical habitat will severely restrict the 
thinning necessary to prevent fire losses that threaten homes and 
lives. F.H. Stoltze Land and Lumber Company also commented that 
management of fires has been important in Western Montana.
    Our response: The DEA relies on the conservation measures outlined 
in the LCAS to determine how land use activities may be affected by 
lynx conservation. As described in Section 6.6. of the DEA, the LCAS 
does not recommend precluding burn management as a lynx conservation 
measure, but suggests that lynx conservation be taken into 
consideration in planning burn management, for example, by promoting 
response by shrub and tree species favored by the snowshoe hare or 
other prey species, avoiding construction of permanent firebreaks, and 
minimizing temporary construction of roads.

Comments on the Transportation Analysis

    40. Comment: One commenter was concerned about the impact the 
designation could have on the ability to maintain and improve Route 11 
in Maine; in particular, the commenter was concerned about impacts on 
the ability of the sawmills in Portage and Ashland to get wood.
    Our response: We have excluded all lands in Maine from this final 
designation of critical habitat for the lynx pursuant to section 
4(b)(2) of the Act; thus, this concern about impacting Route 11 
maintenance is no longer an issue.

Comments on the Mining Analysis

    41. Comment: The Northwest Mining Association commented that the 
DEA did not consider impacts to three mines in Western Montana (Troy, 
Rock Creek, and Montanore), Formation Capital's cobalt project near 
Salmon, ID, or Kinross Gold's Buckhorn project in Okanagan County, WA.
    Our response: As described in Section 2.1, the geographic scope of 
the DEA is limited to those areas proposed for designation and those 
areas considered for exclusion from critical habitat in the proposed 
rule; these lands are referred to as the ``study area'' of the DEA. 
None of the mines referenced in this comment are within the study area.
    42. Comment: The Northwest Mining Association stated that the 
economic analysis should have analyzed the impact of the loss of mining 
activity on Federal lands due to the LCAS.
    Our response: Mining expansions or expected new mining projects 
were considered in the analysis of mining activity in Section 8 
regardless of whether they were expected to occur on Federal lands or 
otherwise.

Comments on the Initial Regulatory Flexibility Analysis (IRFA)

    43. Comment: The Small Business Administration (SBA), Office of 
Advocacy commented that the development analysis in the DEA should 
include more information on the number of small entities to which the 
proposed rule will apply, similar to how impacts to small timber-
related businesses are considered in the DEA.
    Our response: Because the DEA did not provide estimates of impact 
to development activities, entities related to development were not 
considered in the draft IRFA. A supplemental analysis estimating 
impacts to development activities conducted during the public comment 
period provided more information on how landowners may be affected by 
the proposed rule. The IRFA in the Final EA is, therefore, updated to 
include numbers of development-related small entities. Further, this 
updated information was taken into consideration in the development of 
this final rule.
    44. Comment: The SBA commented that the DEA does not include data 
on the economic impacts of the proposed rule on small entities in the 
development industry, which include developers, builders, and other 
types of small entities in addition to landowners.
    Our response: The supplemental development analysis incorporated in 
the Final EA quantifies impacts to land values associated with 
restrictions on development for the purposes of lynx conservation. The 
IRFA assumes that the primary impact of decreased development is to the 
landowner in the form of decreased land value. The analysis further 
assumes that, to the extent that decreased development leads to impacts 
on related businesses, these businesses are small. This is because the 
majority (90 to 100 percent depending on the sector) of the businesses 
in related industries (e.g., construction, planning, and landscaping) 
are small in the counties containing proposed critical habitat. While 
more detailed information became available to us for consideration of 
potential economic impacts on small business entities through the 
supplemental analysis, because only National Park Service lands remain 
in the final designation, we do not anticipate significant impacts to a 
substantial number of small business entities. Please refer to our 
discussion concerning compliance with the Regulatory Flexibility 
Analysis later in the rule.
    45. Comment: The SBA expressed concern that the IRFA does not 
include impacts to the timber industry such as decreased employment, 
decreased number of businesses or foregone revenue, or profit per 
business. The comment further stated that small entities are worried 
that further regulatory restrictions from the State and local 
government will further burden the timber industry. Another comment on 
the DEA stated that the IRFA is inadequate and requested that the IRFA 
be revised to consider the impacts to small businesses that rely on the 
resources on public lands. The comment further asserted that the IRFA 
should look at small business impacts in individual communities as 
opposed to the habitat as a whole.
    Our response: The draft IRFA contained within the DEA represents an 
initial examination of potential impacts to small businesses to provide 
information regarding whether the rule may result in a significant 
impact on a substantial number of small businesses, and, therefore, 
whether a full Regulatory Flexibility Analysis should be completed, 
which would require additional research, outreach, and analysis. 
However, because only National Park Service lands remain in the final 
designation, we do not anticipate significant impacts to a substantial 
number of small business entities. Please refer to our discussion 
concerning compliance with the Regulatory Flexibility Analysis later in 
the rule.
    46. Comment: One commenter expressed concern about the reliability 
of data sources used to estimate the number of small businesses in the 
study area.
    Our response: As stated in the notes to Exhibit C-3, the number of 
small timber-related businesses in the study area is from the Dun & 
Bradstreet database, a frequently cited source of business information, 
and was acquired in February 2006. The numbers of small businesses 
estimated are for all counties containing critical habitat, and not 
just for the study area within the county as this information is not 
readily available at a more refined geographic scale than county.

[[Page 66024]]

Summary of Changes From Proposed Rule

    In preparing the final critical habitat designation for the lynx, 
we reviewed and considered comments from the public on the proposed 
designation of critical habitat published on November 9, 2005 (70 FR 
68294). We published a Notice of Availability of the DEA and draft 
environmental assessment on September 11, 2006 (71 FR 53355). As a 
result of comments received on the proposal, the DEA, draft 
environmental assessment and a reevaluation of the proposed critical 
habitat boundaries we made changes to our proposed designation as 
follows:
    (1) We reevaluated the proposed critical habitat units based on 
peer review, public comments, and biological information received 
during the public comment period. We excluded areas based on Tribal 
ownership, lands with existing lynx management plans or pending HCPs 
for lynx, lands managed for commercial forestry because of existing 
management practices and partnerships, and small landowners and lands 
not managed for commercial forestry because of their minor role in the 
conservation of lynx compared to efforts taken by larger landowners on 
adjacent and nearby lands who have an important role in the 
conservation of lynx habitat.
    (2) Portions of units that did not contain PCEs or where 
development was concentrated were removed from the final designation 
based on available maps.
    (3) Collectively, we excluded or removed a total of approximately 
41,922 km\2\ (16,190 mi\2\) of land from this final critical habitat 
designation. Please refer to Table 1 for the differences in the amount 
of area proposed for designation and the areas designated in this final 
rule. For a detailed discussion of all exclusions and exemptions, 
please refer to Exclusions Under Section 4(b)(2) of the Act section 
below.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical 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 
geographical 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. Conservation, as defined under section 3 of the Act means 
to use and 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 the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking. 
Conservation is a process which contributes to improving the status of 
the species. Individual actions may still be considered conservation 
even though in and of themselves they do not remove the species' need 
for protection under the Act.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the geographical area occupied by the subspecies must first have 
features that are essential to the conservation of the subspecies. 
Critical habitat designations identify, to the extent known using the 
best scientific data available, habitat areas that provide essential 
life cycle needs of the subspecies (i.e., areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management considerations or protection. Thus, we do not include areas 
where existing management is sufficient to conserve the subspecies. (As 
discussed below, such areas may also be excluded from critical habitat 
pursuant to section 4(b)(2).) Accordingly, when the best available 
scientific data do not demonstrate that the conservation needs of the 
subspecies require additional areas, we will not designate critical 
habitat in areas outside the geographical area occupied by the 
subspecies at the time of listing. An area currently occupied by the 
subspecies but was not known to be occupied at the time of listing will 
likely, but not always, be essential to the conservation of the 
subspecies and, therefore, typically included in the critical habitat 
designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists to the 
extent consistent with the Act and with the use of the best scientific 
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 is generally the listing package for the species. 
Additional information sources include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge. All information is used in 
accordance with the provisions of section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. 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 subspecies. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.

[[Page 66025]]

    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted 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, in determining which areas to designate as critical 
habitat, we consider those physical and biological features (PCEs) that 
are essential to the conservation of the subspecies, and within areas 
occupied by the subspecies at the time of listing, that may require 
special management considerations and protection. These include, but 
are not limited to: Space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species.
    The area designated as critical habitat provides boreal forest 
habitat for breeding, non-breeding, and dispersing lynx in 
metapopulations across the species' range in the contiguous United 
States. No areas are being designated solely because they provide 
habitat for dispersing animals. At this time, the biological or 
physical features of habitats lynx choose for dispersal are not well-
understood; while it is assumed lynx would prefer to travel where there 
is forested cover, the literature contains many examples of lynx 
crossing large, unforested openings (e.g., Roe et al. 2000, p. 30-33). 
The areas being designated as critical habitat serve a variety of 
functions that include acting as a source of dispersing animals and 
providing habitat that may serve as travel corridors to facilitate 
dispersal and exploratory movements. The features or habitat components 
essential for the conservation of the species were determined from 
studies of lynx and snowshoe hare ecology.
    The specific biological and physical features, otherwise known as 
the primary constituent elements, essential to the conservation of the 
lynx are:
    (1) Boreal forest landscapes supporting a mosaic of differing 
successional forest stages and containing:
    (a) Presence of snowshoe hares and their preferred habitat 
conditions, which include dense understories of young trees, shrubs or 
overhanging boughs that protrude above the snow; and
    (b) Winter snow conditions that are generally deep and fluffy for 
extended periods of time; and
    (c) Sites for denning that have abundant coarse woody debris, such 
as downed trees and root wads.
    A description of the primary constituent elements is provided 
below.

Boreal Forest Landscapes (Space for Individual and Population Growth 
and Normal Behavior)

    Lynx populations respond to biotic and abiotic factors at different 
scales. At the regional scale, snow conditions, boreal forest and 
competitors (especially bobcat) influence the species' range (Aubry et 
al. 2000, p. 378-380; McKelvey et al., 2000b p. 242-253; Hoving et al., 
2005 p. 749). At the landscape scale within each region, natural and 
human-caused disturbance processes (e.g., fire, wind, insect 
infestations and forest management) influence the spatial and temporal 
distribution of lynx populations by affecting the distribution of good 
habitat for snowshoe hares (Agee 2000, pp. 47-73; Ruediger et al. 2000, 
pp. 1-3, 2-2--2-6, 7-3). At the stand-level scale, quality, quantity, 
and juxtaposition of habitats influence home range size, productivity, 
and survival (Aubry et al 2000, pp. 380-390; Vashon et al. 2005a, pp. 
9-11). At the substand scale, spatial distribution and abundance of 
prey and microclimate influence movements, hunting behavior, den, and 
resting site locations.
    All of the constituent elements of critical habitat for lynx are 
found within large landscapes in what is broadly described as the 
boreal forest or cold temperate forest (Frelich and Reich 1995, p. 325, 
Agee 2000, pp. 43-46). In the contiguous United States, the boreal 
forest is more transitional rather than true boreal forest of northern 
Canada and Alaska (Agee 2000, pp. 43-46). This difference is because 
the boreal forest is at its southern limits in the contiguous United 
States, where it transitions to deciduous temperate forest in the 
Northeast and Great Lakes and subalpine forest in the west (Agee 2000, 
pp. 43-46). We use the term ``boreal forest'' because it generally 
encompasses most of the vegetative descriptions of the transitional 
forest types that comprise lynx habitat in the contiguous United States 
(Agee 2000, pp. 40-41).
    At a regional scale, lynx habitat is within the areas that support 
deep snow for extended periods and that support boreal forest 
vegetation types (see below for more detail). In eastern North America, 
lynx distribution was strongly associated with areas of deep snowfall 
and 100 km\2\ (40 mi\2\)) landscapes with a high proportion of 
regenerating forest (Hoving 2001, pp. 75,143). Hoving et al. (2004, p. 
291) concluded that the broad geographic distribution of lynx in 
eastern North America is most influenced by snowfall, but within areas 
of similarly deep snowfall, measures of forest succession become more 
important factors in determining lynx distribution.
    Boreal forests used by lynx are generally cool, moist and dominated 
by conifer tree species, primarily spruce and fir (Agee 2000, pp. 40-
46; Aubry et al. 2000, pp. 378-382; Ruediger et al. 2000, pp. 4-3, 4-
8--4-11, 4-25--4-26, 4-29--4-30). Boreal forest landscapes used by lynx 
are a heterogeneous mosaic of vegetative cover types and successional 
forest stages created by natural and human-caused disturbances 
(McKelvey et al. 2000a, pp. 426-434). Periodic vegetation disturbances 
stimulate development of dense understory or early successional habitat 
for snowshoe hares (Ruediger et al. 2000, pp. 1-3--1-4, 7-4--7-5). In 
Maine, lynx were positively associated with landscapes altered by 
clearcutting 15 to 25 years previously (Hoving et al. 2004, p. 291).
    The overall quality of the boreal forest landscape matrix and 
juxtaposition of stands in suitable condition within the landscape is 
important for both lynx and snowshoe hares in that it can influence 
connectivity or movements between suitable stands, availability of food 
and cover and spatial structuring of populations or subpopulations 
(Hodges 2000b, pp. 184-195; McKelvey et al. 2000a, pp. 431-432; Walker 
2005, pp. 79). For example, lynx foraging habitat must be near denning 
habitat to allow females to adequately provision dependent kittens, 
especially when the kittens are relatively immobile. In north-central 
Washington, hare densities were higher in landscapes with an abundance 
of dense boreal forest interspersed with

[[Page 66026]]

small patches of open habitat, in contrast to landscapes composed 
primarily of open forest interspersed with few dense vegetation patches 
(Walker 2005, p. 79). Similarly, in northwest Montana, connectivity of 
dense patches within the forest matrix benefited snowshoe hares 
(Ausband and Baty 2005, p. 209). In mountainous areas, lynx appear to 
prefer flatter slopes (Apps 2000, p. 361; McKelvey et al. 2000d, p. 
333; von Kienast 2003, p. 21, Table 2; Maletzke 2004, pp. 17-18).
    Individual lynx require large portions of boreal forest landscapes 
to support their home ranges and to facilitate dispersal and 
exploratory travel. The size of lynx home ranges is believed to be 
strongly influenced by the quality of the habitat, particularly the 
abundance of snowshoe hares, in addition to other factors such as 
gender, age, season, and density of the lynx population (Aubry et al. 
2000, pp. 382-385; Mowat et al. 2000, pp. 276-280). Generally, females 
with kittens have the smallest home ranges while males have the largest 
home ranges (Moen et al. 2005, p. 11). Reported home range sizes vary 
greatly from 31 km\2\ (12 mi\2\) for females and 68 km\2\ (26 mi\2\) 
for males in Maine (Vashon et al. 2005a, p. 7), 21 km\2\ (8 mi\2\) for 
females to 307 km\2\ (119 mi\2\) for males in Minnesota (Moen et al. 
2005, p. 12), and 88 km\2\ (34 mi\2\) for females and 216 km\2\ (83 
mi\2\) for males in northwest Montana (Squires et al. 2004b, pp. 15-
16).

Forest Type Associations

Maine

    Lynx were more likely to occur in 100 km2 (40 
mi2) landscapes with regenerating forest, and less likely to 
occur in landscapes with recent clearcut or partial harvest, (Hoving et 
al. 2004, pp. 291-292). Lynx in Maine select softwood-dominated (spruce 
and fir) regenerating stands (Vashon et al. 2005a, p. 8). Regenerating 
stands used by lynx generally develop 15-30 years after forest 
disturbance and are characterized by dense horizontal structure and 
high stem density within a meter of the ground. These habitats support 
high snowshoe hare densities (Homyack 2003, p. 63; Fuller and Harrison 
2005, pp. 716,719; Vashon et al. 2005a, pp. 10-11). At the stand scale, 
lynx in northwestern Maine selected older (11 to 26 year-old), tall 
(4.6 to 7.3 m (15 to 24 ft)) regenerating clearcut stands and older (11 
to 21 year-old) partially harvested stands (A. Fuller, University of 
Maine, unpubl. data).

Minnesota

    In Minnesota, lynx primarily occur in the Northern Superior Uplands 
Ecological Section of the Laurentian Mixed Forest Province. 
Historically, this area was dominated by red pine (Pinus resinosa) and 
white pine (P. strobus) mixed with aspen (Populus spp.), paper birch 
(Betula papyrifera), spruce, balsam fir (A. balsamifera) and jack pine 
(P. banksiana) (Minnesota Department of Natural Resources [Minnesota 
DNR] 2003, p. 2).
    Preliminary research suggests lynx in Minnesota generally use 
younger stands (less than 50 years) with a conifer component in greater 
proportion than their availability (R. Moen, University of Minnesota, 
unpubl. data). Lynx prefer predominantly upland forests dominated by 
red pine, white pine, jack pine, black spruce (P. mariana), paper 
birch, quaking aspen (P. tremuloides), or balsam fir (R. Moen, unpubl. 
data).

Washington

    In the North Cascades in Washington, the majority of lynx 
occurrences were found above 1,250 m (4,101 ft) (McKelvey et al. 2000b, 
p. 243, 2000d, p. 321; von Kienast 2003, p. 28, Table 2; Maletzke 2004, 
p. 17). In this area, lynx selected Engelman spruce (P. engelmanii)-
subalpine fir (A. lasiocarpa) forest cover types in winter (von Kienast 
2003, p. 28, Maletzke 2004, pp. 16-17). Lodgepole pine (P. contorta) is 
a dominant tree species in the earlier successional stages of these 
climax cover types. Seral lodgepole stands contained dense understories 
and therefore received high use by snowshoe hares and lynx (Koehler 
1990, pp. 847-848; McKelvey et al. 2000d, pp. 332-335).

Northern Rockies

    In the Northern Rocky Mountains, the majority of lynx occurrences 
are associated with the Rocky Mountain Conifer Forest or Western 
Spruce-Fir Forest vegetative class (Kuchler 1964, p. 4; McKelvey et al. 
2000b, p. 246) and occur above 1,250 m (4,101 ft) elevation (Aubry et 
al. 2000, pp. 378-380; McKelvey et al. 2000b, pp. 243-245). The 
dominant vegetation that constitutes lynx habitat in these areas is 
subalpine fir, Engelman spruce and lodgepole pine (Aubry et al. 2000, 
p. 379; Ruediger et al. 2000, pp. 4-8--4-10). As in the Cascades, 
lodgepole pine is an earlier successional stage of subalpine fir and 
Engelman spruce climax forest cover types.
a. Snowshoe Hares (Food)
    Snowshoe hare density is the most important factor explaining the 
persistence of lynx populations (Steury and Murray 2004, p. 136). A 
minimum snowshoe hare density necessary to maintain a persistent, 
reproducing lynx population within the contiguous United States has not 
been determined, although Ruggiero et al. (2000, pp. 446-447) suggested 
that at least 0.5 hares per hectare (ha) (0.2 hares per acre (ac)) may 
be necessary. Steury and Murray (2004, p. 137)) modeled lynx and 
snowshoe hare populations and predicted that a minimum of 1.1 to 1.8 
hares per ha (0.4 to 0.7 hares per ac) was required for persistence of 
a reintroduced lynx population in the southern portion of the lynx 
range.
    The boreal forest landscape must contain a mosaic of forest stand 
successional stages to sustain lynx populations over the long term as 
the condition of individual stands changes over time. If the vegetation 
potential (or climax forest type) of a particular forest stand is 
conducive to supporting abundant snowshoe hares, it likely will also go 
through successional phases that are unsuitable as lynx foraging 
(snowshoe hare habitat) or lynx denning habitat (Agee 2000, p. 62-72; 
Buskirk et al. 2000b, pp. 403-408). For example, a boreal forest stand 
where there has been recent disturbance, such as fire or timber 
harvest, resulting in little or no understory structure is unsuitable 
as snowhoe hare habitat for lynx foraging. That temporarily unsuitable 
stand may regenerate into suitable snowshoe hare (lynx foraging) 
habitat within 10 to 25 years, depending on local conditions (Ruediger 
et al. 2000, pp. 1-3--1-4, 2-2--2-5). Forest management techniques that 
thin the understory, however, may render the habitat unsuitable for 
hares and, thus, for lynx (Ruediger et al. 2000, pp. 2-4--3-2; Hoving 
et al. 2004, pp. 291-292). Stands may continue to provide suitable 
snowshoe hare habitat for many years until woody stems in the 
understory become too sparse, as a result of undisturbed forest 
succession or management (e.g., clearcutting or thinning). Thus, if the 
vegetation potential of the stand is appropriate, a stand that is not 
currently in a condition that is suitable to support abundant snowshoe 
hares for lynx foraging or coarse woody debris for den sites has the 
capability to develop into suitable habitat for lynx and snowshoe hares 
with time.
    As described previously, snowshoe hares prefer boreal forest stands 
that have a dense horizontal understory to provide food, cover and 
security from predators. Snowshoe hares feed on conifers, deciduous 
trees and shrubs (Hodges 2000b, pp. 181-183). Snowshoe hare density is 
correlated to understory

[[Page 66027]]

cover between approximately 1 to 3 m (3 to 10 ft) above the ground or 
snow level (Hodges 2000b, p. 184). Habitats most heavily used by 
snowshoe hares are stands with shrubs, stands that are densely stocked, 
and stands at ages where branches have more lateral cover (Hodges 
2000b, p. 184). In Maine, the snowshoe hare densities were highest in 
stands supporting high conifer stem densities (Homyack 2003, p. 195, 
Robinson 2006, p. 69). In northcentral Washington, snowshoe hare 
density was highest in 20-year-old lodgepole pine stands where the 
average density of trees and shrubs was 15,840 stems per ha (6,415 
stems per ac) (Koehler 1990, p. 848). Generally, earlier successional 
forest stages support a greater density of horizontal understory and 
more abundant snowshoe hares (Buehler and Keith 1982, p. 24; Wolfe et 
al. 1982, p. 668-669; Koehler 1990, pp. 847-848; Hodges 2000b, pp. 184-
191; Griffin 2004, pp. 84-88); however, sometimes mature stands also 
can have adequate dense understory to support abundant snowshoe hares 
(Griffin 2004, p. 88). In Montana, lynx favor multistory stands, often 
in older-age classes, where the tree boughs touch the snow surface but 
where the stem density is low (Squires 2006, p. 4).
    In Maine, the highest snowshoe hare densities were found in 
regenerating softwood (spruce and fir) and mixedwood stands with high 
conifer stem densities (Fuller and Harrison 2005, pp. 716,719, Robinson 
2006, p. 69). In the north Cascades, the highest snowshoe hare 
densities were found in 20-year-old seral lodgepole pine stands with a 
dense understory (Koehler 1990, p. 847-848). In montane and subalpine 
forests in northwest Montana, the highest snowshoe hare densities in 
summer were generally in younger stands with dense forest structure, 
whereas in winter, snowshoe hare densities were as high or higher in 
mature stands with dense understory forest structure (Griffin 2004, p. 
53). Snowshoe hare studies are just underway in Minnesota (Moen et al. 
2005, p. 18); therefore, results on habitat relationships are still 
preliminary.
    Habitats supporting abundant snowshoe hares must be present in a 
large proportion of the landscape to support a viable lynx population. 
Broad-scale snowshoe hare density estimates are not available for the 
areas being designated as lynx critical habitat; available snowshoe 
hare density estimates are only applicable for the immediate area and 
time frame for which the study was conducted and cannot be extrapolated 
further.
b. Snow Conditions (Other Physiological Requirements)
    Snow conditions also determine the distribution of lynx and 
snowshoe hares. Deep, fluffy snow conditions likely restrict potential 
competitors such as bobcat or coyote from effectively encroaching on or 
hunting in winter lynx habitat. Snowfall was the strongest predictor of 
lynx occurrence at a regional scale (Hoving et al. 2005, p. 746, Table 
5). In addition to snow depth, other snow properties, including surface 
hardness or sinking depth, are important factors in the spatial, 
ecological, and genetic structuring of the species (Stenseth et al. 
2004, p. 75).
    In the northeastern United States, lynx are most likely to occur in 
areas with a 10-year mean annual snowfall greater than 268 cm (105 in) 
(Hoving 2001, p. 75). The Northern Superior Uplands section of 
Minnesota receives more of its precipitation as snow than any section 
in the State, has the longest period of snow cover, and the shortest 
growing season (Minnesota DNR 2003, p. 2). Mean annual snowfall from 
1971 to 2000 in this area was generally greater than 149 cm (55 in) 
(University of Minnesota 2005 Web page).
    Information on average snowfall or snow depths in mountainous areas 
such as the Cascades or northwest Montana is limited because there are 
few weather stations in these regions that have measured snow fall or 
snow depth over time. An important consideration is that the topography 
strongly influences local snow conditions. In the Cascades, at the 
Mazama station, average annual snowfall from 1948 to 1976 was 292 cm 
(115 in) (Western Regional Climate Center 2005 Web page). In Montana, 
at the Seeley Lake Ranger Station, average annual snowfall from 1948 to 
2005 was 315 cm (124 in), while at the Troy station the average total 
snowfall from 1961 to 1994 was 229 cm (90 in) (Western Regional Climate 
Center 2005 Web page).
c. Denning Habitat (Sites for Reproduction and Rearing of Offspring)
    Lynx den sites are found in mature and younger boreal forest stands 
that have a large amount of cover and downed, large woody debris. The 
structural components of lynx den sites are common features in managed 
(logged) and unmanaged (e.g., insect damaged, wind-throw) stands. 
Downed trees provide excellent cover for den sites and kittens and 
often are associated with dense woody stem growth.
    Sub-stand characteristics were evaluated for 26 lynx dens from 1999 
to 2004 in northwest Maine. Dens were found in several stand types. 
Modeling of den site variables determined that tip-up mounds (exposed 
roots from fallen trees) alone best explained den site selection (J. 
Organ, Service, unpubl. data). Tip-up mounds may purely be an index of 
downed trees, which were abundant on the landscape. Horizontal cover at 
5 m (16 ft) alone was the next best performing model (J. Organ, unpubl. 
data). Dead downed trees were sampled, but did not explain den site 
selection as well as tip-up mounds and cover at 5 m (16 ft). Lynx 
essentially select dense cover in a cover-rich area for denning.
    In the North Cascades, Washington, lynx denned in mature (older 
than 250 years) stands with an overstory of Engelman spruce, subalpine 
fir and lodgepole pine with an abundance of downed woody debris 
(Koehler 1990, p. 847). In this study, all den sites were located on 
north-northeast aspects (Koehler 1990, p. 847). In northwest Montana, 
the immediate areas around dens were in a variety of stand ages but all 
contained abundant woody debris including downed logs, blowdowns, and 
rootwads, and dense understory cover (Squires et al. 2004b, Table 3). 
Information on den site characteristics in Minnesota has not yet been 
reported (Moen et al. 2005, p. 8).
    This critical habitat designation is designed for the conservation 
of the PCE essential to the conservation of the lynx and necessary to 
support lynx life history functions. The PCE comprises the essential 
features of boreal forest that (1) provide adequate prey resources 
necessary for the persistence of local populations and metapopulations 
of lynx through reproduction; (2) act as a possible source of lynx for 
more peripheral boreal forested areas; (3) enable the maintenance of 
home ranges; (4) incorporate snow conditions for which lynx are highly 
specialized that give lynx a competitive advantage over potential 
competitors; (5) provide denning habitat; and (6) provide habitat 
connectivity for travel within home ranges, exploratory movements, and 
dispersal.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available in determining critical habitat. We have 
reviewed the approach to the conservation of the lynx provided in a 
recovery outline (Service 2005, entire); information from State, 
Federal and tribal agencies; and information from academia and private 
organizations that have collected scientific data on lynx.

[[Page 66028]]

    The focus of our strategy in considering lands for designation as 
critical habitat was on boreal forest landscapes of sufficient size to 
encompass the temporal and spatial changes in habitat and snowshoe hare 
populations to support interbreeding lynx populations or 
metapopulations over time. Individual lynx maintain large home ranges; 
the areas identified to have features essential to the conservation of 
the lynx are large enough to encompass multiple home ranges. A 
secondary consideration is that, in addition to supporting breeding 
populations, these areas provide connectivity among patches of suitable 
habitat (e.g., patches containing abundant snowshoe hares), whose 
locations in the landscape shift through time.
    We reviewed available information that pertains to the habitat 
requirements of this species and its principal prey, the snowshoe hare. 
This information included data in reports submitted by researchers 
holding recovery permits under section 10(a)(1)(A) of the Act; research 
published in peer-reviewed articles, presented in academic theses, 
agency reports and unpublished data; and various Geographic Information 
System (GIS) coverages (e.g., land cover type information, land 
ownership information, snow depth information, topographic information, 
locations of lynx obtained from radio- or GPS-collars and locations of 
lynx confirmed via DNA analysis or other verified records).
    In designating critical habitat for the lynx we used the best 
scientific data available to evaluate areas that possess those physical 
and biological features essential to the conservation of the species 
and that may require special management considerations or protection. 
In evaluating areas as critical habitat, we first determined the 
geographic area occupied by the species. We utilized data providing 
verified evidence of the occurrence of lynx and evidence of the 
presence of breeding lynx populations as represented by records of lynx 
reproduction. We focused on records since 1995 to ensure that this 
critical habitat designation is based on the data that most closely 
represents the current status of lynx in the contiguous United States 
and the geographic area occupied by the species. Data that define the 
historic and current range of the lynx (e.g., McKelvey et al. 2000b, 
pp. 207-232; Hoving et al. 2003, entire) constitute the geographic area 
that may be occupied by the species; therefore, we determined that 
areas outside the historic distribution are not essential to the 
conservation of the species. Although the average life span of a wild 
lynx is not known, we have assumed that a lynx born in 1995 could have 
been alive in 2000 or 2003, the dates of publication of the final 
listing rule and the clarification of findings. Recent verified lynx 
occurrence records were provided by Federal research entities, state 
wildlife agencies, academic researchers, and private individuals or 
organizations working on lynx (K. Aubry, Pacific Northwest Research 
Station, unpubl. data; S. Gehman, Wildthings Unlimited, unpubl. data; 
S. Gniadek, Glacier National Park, unpubl. data; S. Loch, Independent 
Scientist, and E. Lindquist, Superior National Forest, unpubl. data; K. 
McKelvey, Rocky Mountain Research Station; unpubl. data; Minnesota DNR 
2005 Web site; R. Moen, University of Minnesota, Natural Resources 
Research Institute, unpubl. data.; J. Squires, Rocky Mountain Research 
Station, unpubl. data; J. Vashon, Maine Department of Inland Fisheries 
and Wildlife, unpubl. data).
    By accepting only verified recent lynx records, we restricted the 
available lynx occurrence dataset because we wanted reliable data for 
the purposes of evaluating areas and features for critical habitat 
designation. The reliability of lynx occurrence reports can be 
questionable because the bobcat, a common species, can be confused with 
the lynx, which is similar in appearance. Additionally, many surveys 
are conducted by snow tracking in which correct identification of 
tracks can be difficult because of variable conditions affecting the 
quality of the track and variable expertise of the tracker. Our 
definition of a verified lynx record is modified from McKelvey et al. 
(2000b, p. 209)--(1) an animal (live or dead) in hand or observed 
closely by a person knowledgeable in lynx identification, (2) genetic 
(DNA) confirmation, (3) snow tracks only when confirmed by genetic 
analysis (e.g., McKelvey et al. 2006, entire) or (4) location data from 
radio- or GPS-collared lynx. Documentation of lynx reproduction 
consists of lynx kittens in hand, or observed with the mother by 
someone knowledgeable in lynx identification, or snow tracks 
demonstrating family groups traveling together, as identified by a 
person highly knowledgeable in identification of carnivore tracks. 
However, we made an exception and accepted snow track data from Maine 
because of the stringent protocols used in confirming tracks as lynx 
and the minimal number of species in the area with which lynx tracks 
could be misidentified (McCollough 2006, entire).
    The geographical area occupied by the species was then delineated 
to encompass areas containing features essential to the conservation of 
the lynx, the majority of recent lynx records, evidence of breeding 
lynx populations, the boreal forest type that is currently occupied by 
lynx in that particular region and direct connectivity with lynx 
populations in Canada. Lynx populations in the contiguous United States 
seem to be influenced by lynx population dynamics in Canada (Thiel 
1987; McKelvey et al. 2000a, p. 427, 2000c, p. 33). Many of these 
populations in Canada are directly interconnected with United States' 
populations, and are likely a source of emigration into the contiguous 
United States, lynx from the contiguous United States are known to move 
into Canada. Therefore, we assume that retaining connectivity with 
larger lynx populations in Canada is important to ensuring long-term 
persistence of lynx populations in the United States. We assume that, 
regionally, lynx within the contiguous United States and adjacent 
Canadian provinces interact as metapopulations. Where available, data 
on historic average snow depths and bobcat harvest provided additional 
insight for refining and delineating appropriate boundaries for 
consideration as critical habitat.
    In the North Cascades and Northern Rockies, the features essential 
to the conservation of lynx, the majority of lynx records, evidence of 
reproduction, and the boreal forest types are found above 4,000 feet 
(ft) (1,219 meters [m]) in elevation (McKelvey et al. 2000b, pp. 243-
245; McAllister et al. 2000, entire). Thus, we limited the delineation 
of critical habitat to lands above this elevation. Additionally, in the 
North Cascades, features essential to the conservation of the lynx and 
the majority of the lynx records and evidence of reproduction occur 
east of the crest of the Cascade Mountains.
    Once we determined which lands contained the physical and 
biological features essential to the conservation of lynx, we did not 
include lands that did not require additional special management 
according for the definition of critical habitat, and lands where the 
benefits of exclusion outweighed the benefits of inclusion. Finally, we 
excluded Tribal lands in accordance with Secretarial Order 3206, et al.
    Lands that we did not include because they did not require special 
management included lands with management plans to conserve lynx, such 
as the Superior National Forest; Garnet Resource Area, Bureau of Land 
Management; Flathead Indian

[[Page 66029]]

Reservation, and the Spokane District, Bureau of Land Management. We 
also did not include USFS Lands Covered by a Conservation Agreement for 
Lynx, which includes portions of the Flathead National Forest, Helena 
National Forest, Idaho Panhandle National Forests, Kootenai National 
Forest, Lewis and Clark National Forest, Lolo National Forest and the 
Okanogan-Wenatchee National Forest. Please refer to Application of 
Section 3(5)(A) of the Endangered Species Act discussion below.
    We determined that the benefits of exclusion outweighed the 
benefits of inclusion for the Montana Department of Natural Resources 
and Conservation Forested State Trust lands that are covered by a 
pending Habitat Conservation Plan for lynx and other species, 
Washington Department of Natural Resource (WDNR) lands managed under 
Lynx Habitat Management Plan, lands managed for commercial forestry, 
small landowners, and other lands not managed for commercial forestry 
but that benefit from conservation measures taken by adjacent or nearby 
landowners (which includes inholdings within National Parks and 
National Forests). These exclusions are described in more detail in 
section 4(b)(2) below.
    We excluded Tribal lands in accordance with Secretarial Order 3206, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' and other orders and directives. These 
include Houlton Band of Maliseet Indians, Aroostook Band of Micmac 
Indians, Passamaquoddy Tribe, Penobscot Indian Nation, Grand Portage 
Indian Reservation, Vermillion Lake Indian Reservation.
    Based on comments received, the availability of better maps and 
inspection of aerial photos, we removed sections of lands that were not 
forested. We then removed a 1 mile strip along the entire Lake Superior 
shoreline in Minnesota and the area within a 10-mile radius of Duluth, 
MN, because this is where existing development is concentrated 
(Industrial Economics, Incorporated 2006, pp. 4-12), limiting the 
potential of any lynx habitat intermingling in these areas.
    As a result of stepping through this process, we are not 
designating any critical habitat in Maine, and only National Park 
Service lands in Minnesota (Voyageurs National Park), Montana (Glacier 
National Park), and Washington (North Cascades National Park including 
Lake Chelan National Recreation Area).
    Given the scale of the critical habitat units, it was not feasible 
to completely avoid encompassing waterbodies, including lakes, 
reservoirs and rivers, grasslands, or human-made structures such as 
buildings, paved and gravel roadbeds, parking lots, and other 
structures that lack the PCEs for the lynx. Any such developed areas 
and the land on which such structures are located inside critical 
habitat boundaries, are excluded by text and are not designated 
critical habitat. Therefore, Federal actions limited to these areas 
would not trigger section 7 consultation, unless they affect the 
species and/or primary constituent element in adjacent critical 
habitat.
    When considering what areas to include as critical habitat, we 
focused closely on areas with reliable evidence of lynx occurrence and 
reproduction since 1995. For example, because there is no verified 
evidence of lynx occupation or reproduction in New Hampshire or western 
Maine since 1995, we did not consider these areas to be essential to 
the conservation of the lynx. In addition, while evaluating information 
for the critical habitat proposal, we received bobcat harvest data for 
Minnesota showing abundant bobcat harvest and reduced lynx presence in 
the area west of the critical habitat unit in Minnesota, which suggests 
the western portion of the area preliminarily delineated as core in 
Minnesota may not be of high quality for lynx.
    We determined that the Kettle Range in northcentral Washington and 
the Greater Yellowstone Ecosystem did not contain the features 
essential to the conservation of the listed entity and thus did not 
include them in either our proposed or final critical habitat rules. 
The Kettle Range historically supported lynx populations (Stinson 2001, 
pp.13-14). However, although boreal forest habitat within the Kettle 
Range appears of high quality for lynx, there is no evidence that the 
Kettle Range is currently occupied by a lynx population (Koehler 2005 
entire). In particular, we have no information to suggest a lynx 
population has occupied the Kettle area since 1995 so it did not meet 
our criteria for consideration as critical habitat. Therefore, we did 
not propose the Kettle Range as critical habitat.
    Although lynx currently occupy the Greater Yellowstone Ecosystem 
(Murphy et al. 2004, entire; J. Squires, Rocky Mountain Research 
Station, unpubl. data; S. Gehman, Wildthings Unlimited, unpubl. data), 
their presence has been at a lower level compared to areas we 
considered as critical habitat. In the clarification of findings 
published in the Federal Register on July 3, 2003 (68 FR 40076), we 
concluded this was because habitat in this area is less capable of 
supporting snowshoe hares because it is naturally marginal (more patchy 
and drier forest types) and because the Greater Yellowstone Ecosystem 
is disjunct from likely source populations. Within Yellowstone National 
Park, few lynx were detected during recent surveys (Murphy et al. 2004, 
pp.8-9) and snowshoe hare densities were very low (Hodges and Mills 
2005, pp. 5-6). Murphy et al. (2004, pp. 9-10) concluded that 
elevations and slope aspects cause lynx habitat in this area to be 
naturally highly fragmented, resulting in low lynx densities. Few lynx 
were documented in the Wyoming Mountain Range in the southern portion 
of the ecosystem (Squires and Laurion 2000, pp. 343-345; Squires et al. 
2001, pp. 9-10). On study sites on the western edge of the Greater 
Yellowstone Ecosystem in Idaho, the subalpine fir vegetation series 
that comprises lynx and snowshoe hare habitat was found only in small, 
discontinuous patches (McDaniel and McKelvey 2004, pp. 15-18). In this 
study area, few stands supported snowshoe hare densities similar to 
areas known to support lynx (McKelvey and McDaniel 2001, pp. 11-18). 
Therefore, because the habitat is of lower quality as indicated by the 
low numbers of lynx and snowshoe hares, we did not consider the habitat 
within the Greater Yellowstone Ecosystem to have the features that are 
essential for the conservation of lynx.
    Native lynx were functionally extirpated from their historic range 
in Colorado and southern Wyoming in the Southern Rocky Mountains by the 
time the lynx was listed in 2000. In 1999, the State of Colorado began 
an intensive effort to reintroduce lynx. Although it is too early to 
determine whether the introduction will result in a self-sustaining 
population, the reintroduced lynx have produced kittens and now are 
distributed throughout the lynx habitat in Colorado and southern 
Wyoming. These animals are not designated as experimental under section 
10(j) of the Act. Although Colorado's reintroduction effort is an 
important step toward the recovery of lynx, we determined that the 
Southern Rockies does not have features that are essential to the 
conservation of lynx and require special management.
    Many areas within the contiguous United States have one or more 
individual lynx records with no evidence of persistent, reproducing 
lynx populations. It is possible some of these areas may support 
undocumented persistent populations of lynx.

[[Page 66030]]

However, most of these records are likely a result of wide-ranging 
dispersal events, occur in habitat that is less suitable for lynx than 
in the core areas, and are mostly disjunct from areas that contain 
persistent lynx populations. We consider these areas as secondary or 
peripheral and their role in sustaining persistent lynx populations is 
unclear; such areas may provide habitat to dispersing lynx, especially 
when populations are extremely high and some of these animals may 
eventually settle in areas capable of supporting lynx populations. We 
do not believe these areas require special management for lynx.
    Secondary and peripheral areas contain only periodic records of 
lynx over time, and they lack evidence of reproducing lynx populations. 
Habitat suitability for lynx has not been assessed throughout the 
secondary and peripheral areas, so we are not certain whether the PCEs 
are present. However, the relative lack of lynx records over time, and, 
in particular the lack of evidence of reproducing populations, may 
suggest that habitat (snowshoe hare densities, in particular) has not 
been adequate historically, nor is it currently adequate, to support 
reproducing lynx populations. Additionally, some of the peripheral 
areas are naturally disjunct and support few historical records of 
lynx.

Special Management Considerations or Protections

    We believe the areas designated as critical habitat in this final 
rule will require some level of management and/or protection to ensure 
the conservation of the lynx; the General Management Plans for the 
National Parks designated lack direction specific to conserve lynx. The 
areas we designated are components of the areas containing the features 
essential to the conservation of lynx, which provide connectivity to 
the larger lynx populations in Canada. This connectivity is important 
to maintain, as the conservation of lynx in the United States may not 
be possible without it. The designation of critical habitat does not 
imply that lands outside of critical habitat do not play an important 
role in the conservation of the lynx. Federal activities outside of 
critical habitat are still subject to review under section 7 of the Act 
if they may affect the lynx or its critical habitat (such as activities 
on Federal lands, Clean Water Act permits, etc.). Prohibitions of 
section 9 of the Act also continue to apply both inside and outside of 
designated critical habitat. A detailed discussion of threats to the 
lynx and its habitat can be found in the final listing rule (65 FR 
16052, March 24, 2000) and the clarification of findings (68 FR 40076, 
July 3, 2003).

Critical Habitat Designation

    We are designating three units as critical habitat for the lynx 
(Table 1). The critical habitat areas described below constitute our 
best assessment at this time of areas: (1) Determined to be occupied at 
the time of listing, (2) contain the primary constituent elements 
essential for the conservation of the species, and (3) possibly 
requiring special management. The three areas designated as critical 
habitat are Voyageurs National Park in Minnesota, portions of Glacier 
National Park in Montana, and portions of North Cascades National Park 
in Washington. To further understand the location of these designated 
areas, please see the associated maps found within this final rule 
(also available at our Web site: http://mountain-prairie.fws.gov/species/mammals/lynx/).
    Table 1. Critical Habitat Units designated for the lynx. Area 
Proposed for Designation includes the area meeting the definition of 
critical habitat for the lynx (see the November 9, 2005 (70 FR 68294) 
proposed rule for a detailed description). Excluded Area includes the 
area excluded from the final critical habitat designation. Area 
Designated includes the final designated area.

----------------------------------------------------------------------------------------------------------------
                                   Area proposed for
      Critical habitat units       designation km\2\    Excluded area       Land ownership      Area designated
                                        (mi\2\)         km\2\ (mi\2\)                            km\2\ (mi\2\)
----------------------------------------------------------------------------------------------------------------
Unit 1: Maine....................    27,530 (10,633)    27,530 (10,633)  None designated.....                  0
Unit 2: Minnesota................      9,183 (3,546)       8363 (3,229)   Voyageurs National           822 (317)
                                                                          Park.
Unit 3: Northern Rocky Mountains       9,192 (3,549)      5,594 (2,160)  Glacier National           3598 (1,389)
 (MT and ID).                                                             Park.
Unit 4: North Cascades...........          785 (303)          435 (168)  North Cascades                348 (135)
                                                                          National Park.
                                  --------------------------------------                      ------------------
    Total........................  .................  .................  ....................      4,768 (1,841)
----------------------------------------------------------------------------------------------------------------

    Below we provide a description of those lands being designated as 
critical habitat for the Canada lynx in this final rule. Please refer 
to the November 9, 2005 (70 FR 68294) proposed rule for a detailed 
description of the lands proposed.

Unit 1: Maine

    All lands essential to the conservation of the Canada lynx that 
meet the definition of critical habitat have been excluded from this 
unit pursuant to section 4(b)(2) of the Act. Please refer to the 
Application of Section 3(5)(A) of the Endangered Species Act Exclusions 
Under Section 4(b)(2) of the Act sections below.

Unit 2: Minnesota

    Voyageurs National Park constitutes the lands designated as 
critical habitat in this unit. All other lands that met the definition 
of critical habitat have been excluded from this unit pursuant to 
section 4(b)(2) of the Act. Please refer to the Application of Section 
3(5)(A) of the Endangered Species Act Exclusions Under Section 4(b)(2) 
of the Act sections below. This unit supports the PCE and requires 
special management to address the lack of direction in the General 
Management Plan specific to conserve lynx.

Unit 3: Northern Rocky Mountains

    The lands of Glacier National Park above 4,000 ft (122 m) on the 
west side of the Continental Divide and to the Park borders east of the 
Continental Divide constitute the critical habitat designation in this 
unit. All other lands that met the definition of critical habitat have 
been excluded from this unit pursuant to section 4(b)(2) of the Act. 
Please refer to the Application of Section 3(5)(A) of the Endangered 
Species Act Exclusions Under Section 4(b)(2) of the Act sections below. 
This unit supports the PCE and requires special management to address 
the lack of direction in the General Management Plan specific to 
conserve lynx.

Unit 4: North Cascades

    The lands of North Cascades National Park above 4,000 feet 
elevation east of the Cascade Crest, including Lake

[[Page 66031]]

Chelan National Recreation Area, constitute the critical habitat 
designation in this unit. All other lands that met the definition of 
critical habitat have been excluded from this unit pursuant to section 
4(b)(2) of the Act. Please refer to the Application of Section 3(5)(A) 
of the Endangered Species Act Exclusions Under Section 4(b)(2) of the 
Act sections below. This unit supports the PCE and requires special 
management to address the lack of direction in the General Management 
Plan specific to conserve lynx.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition. Pursuant to current 
national policy and the statutory provisions of the Act, destruction or 
adverse modification is determined on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, 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 proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report; the results of a formal conference are typically 
transmitted in a conference opinion. Conference opinions on proposed 
critical habitat are typically prepared according to 50 CFR 402.14, as 
if the proposed critical habitat were designated. We may adopt the 
conference opinion as the biological opinion when the critical habitat 
is designated, if no substantial new information or changes in the 
action alter the content of the opinion (see 50 CFR 402.10(d)). As 
noted above, any conservation recommendations in a conference report or 
opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to 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. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, and are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or 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 the Director believes would avoid 
jeopardy to the listed species or 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 a new 
species is listed or critical habitat is subsequently designated that 
may be affected 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 of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect the lynx or its designated 
critical habitat will require section 7 consultation under the Act. 
Activities on State, tribal, local or private lands requiring a Federal 
permit (such as a permit from the Corps under section 404 of the Clean 
Water Act or a permit under section 10(a)(1)(B) of the Act from the 
Service) or involving some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency) will also be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, tribal, local or 
private lands that are not federally-funded, authorized, or permitted, 
do not require section 7 consultations.

[[Page 66032]]

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the Lynx and Its Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for lynx jeopardy analyses that 
relies heavily on the importance of core area populations to the 
survival and recovery of the lynx. The section 7(a)(2) analysis is 
focused not only on these populations but also on the habitat 
conditions necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the lynx in a qualitative fashion without making distinctions 
between what is necessary for survival and what is necessary for 
recovery. Generally, if a proposed Federal action is incompatible with 
the viability of the affected core area population(s), inclusive of 
associated habitat conditions, a jeopardy finding is considered to be 
warranted, because of the relationship of each core area population to 
the survival and recovery of the species as a whole.
Adverse Modification Standard
    The analytical framework described in the Director's December 9, 
2004, memorandum is used to complete section 7(a)(2) analyses for 
Federal actions affecting lynx critical habitat. The key factor related 
to the adverse modification determination is whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for the lynx is appreciably reduced. Activities 
that, when carried out, funded, or authorized by a Federal agency, may 
affect critical habitat and therefore result in consultation for the 
lynx include, but are not limited to:
    (1) Actions that would reduce or remove understory vegetation 
within boreal forest stands on a scale proportionate to the large 
landscape used by lynx. Such activities could include, but are not 
limited to, fuels treatment of forest stands. These activities could 
significantly reduce the quality of snowshoe hare habitat such that the 
landscape's ability to produce adequate densities of snowshoe hares to 
support persistent lynx populations is at least temporarily diminished.
    (2) Actions that would cause permanent loss or conversion of the 
boreal forest on a scale proportionate to the large landscape used by 
lynx. Such activities could include, but are not limited to, 
recreational area developments; certain types of mining activities and 
associated developments; and road building. Such activities could 
eliminate and fragment lynx and snowshoe hare habitat.
    (3) Actions that would increase traffic volume and speed on roads 
that divide lynx critical habitat. Such activities could include, but 
are not limited to, transportation projects to upgrade roads or 
development of a new tourist destination. These activities could reduce 
connectivity within the boreal forest landscape for lynx and could 
result in increased mortality of lynx within the critical habitat 
units, as lynx are highly mobile and frequently cross roads during 
dispersal, exploratory movements or travel within their home ranges.
    If you have questions regarding whether specific activities may 
constitute destruction or adverse modification of critical habitat, 
contact the Supervisor of the appropriate Ecological Services Field 
Office (see list below).

------------------------------------------------------------------------
             State                     Address             Phone No.
------------------------------------------------------------------------
Minnesota.....................  4101 East 80th Street     (612) 725-3548
                                 Bloomington,
                                 Minnesota 55425.
Montana.......................  585 Shepard Way           (406) 449-5225
                                 Helena, Montana
                                 59601.
Washington....................  11103 E. Montgomery       (509) 893-8015
                                 Drive Spokane,
                                 Washington 99206.
------------------------------------------------------------------------

    All of the units designated as critical habitat, as well as those 
specific areas that have been excluded or that do not meet the 
definition of critical habitat, contain features essential to the 
conservation of the lynx. All units are within the geographic range of 
the species, and all were occupied by the species at the time we last 
formally reviewed the status of the species under the Act in 2003, 
based on surveys and research documenting the presence and reproduction 
of lynx (68 FR 40076, July 3, 2003). Federal agencies already consult 
with us on activities in areas currently occupied by the lynx, or if 
the species may be affected by the action, to ensure that their actions 
do not jeopardize the continued existence of the lynx.

Application of Section 3(5)(A) of the Endangered Species Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
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 or protection. Therefore, areas within the 
geographical area occupied by the species that do not contain the 
features essential to the conservation of the species are not, by 
definition, critical habitat. Similarly, areas within the geographical 
area occupied by the species that require no special management or 
protection also are not, by definition, critical habitat.
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans, as well as 
management under Federal agency jurisdiction can provide protection and 
management to avoid the need for designation of critical habitat. When 
we consider a plan to determine its adequacy in protecting habitat, we 
consider whether the plan, as a whole, will provide the same level of 
protection that designation of critical habitat would provide. The plan 
need not lead to exactly the same result as a designation in every 
individual application, as long as the protection it provides is 
equivalent, overall. In making this determination, we examine

[[Page 66033]]

whether the plan provides management, protection, or enhancement of the 
PCE that is at least equivalent to that provided by a critical habitat 
designation, and whether there is a reasonable expectation that the 
management, protection, or enhancement actions will continue into the 
foreseeable future. Each review is particular to the species and the 
plan, and some plans may be adequate for some species and inadequate 
for others.
    During development of final critical habitat for the lynx, we first 
determined which physical and biological features are essential to the 
species' conservation and delineated the specific areas that contain 
those features and recent verified records of lynx presence and 
reproduction. Next, we refined the delineation of the designation to 
include only those lands that contained essential features that require 
special management or protection pursuant to the definition of critical 
habitat in 3(5)(A) of the Act.
    During this process, we identified several areas where current land 
management results in no special management or protection being 
necessary. These areas include National Forests that are covered under 
a conservation agreement between us and the USFS (USFS and Service 2006 
entire), or lands with management plans that adequately conserve the 
lynx and its habitat.

National Forest Service Lands Covered by a Conservation Agreement for 
Lynx

    Since we proposed to list the lynx in 1999, the USFS has been an 
active partner in lynx conservation and recovery. The cooperation of 
the USFS in lynx conservation and recovery has been essential because 
the USFS manages the majority of lynx habitat in the contiguous United 
States. Thus, the USFS has substantial influence in addressing the 
primary threat to lynx identified at time of listing, that of 
inadequate regulatory mechanisms on Federal lands. The USFS was an 
instrumental partner in the development of the Lynx Conservation and 
Assessment Strategy (LCAS) (Ruediger et al. 2000, entire). The LCAS, 
described in more detail below, constitutes the best available 
information for conserving lynx. In 2000, we signed a conservation 
agreement with the USFS wherein the USFS committed to largely avoiding 
adverse effects to lynx until their LRMPs could be amended to 
incorporate lynx conservation (USFS and Service 2000, entire). The 
conservation agreement has been renewed twice (USFS and Service 2005 
and 2006, entire). The 2006 agreement expires December 31, 2010, unless 
renewed (USFS and Service 2006, p. 8).
    At the time of this final rule, the conservation agreement applies 
to all National Forests that have not yet amended their Land Resource 
Management Plans (LRMPs) to provide measures for lynx conservation 
(USFS and Service 2006, entire). The agreement applies to 31 national 
forests (USFS and Service 2006, Table 1). Of these, we determined that 
seven national forests meet the first prong of the definition of 
critical habitat under 3(5)(A) of containing physical or biological 
features essential to the conservation of lynx (see Table 2). Our next 
step was to evaluate whether these areas may require special management 
or protection pursuant to the definition of critical habitat in 3(5)(A) 
of the Act. The conservation agreement ensures that these seven forests 
will continue to be managed for lynx conservation by: (1) continuing to 
manage these lands consistent with the LCAS until their LRMPs are 
revised to provide guidance to conserve lynx, which we have determined 
largely avoids adverse effects to lynx in the interim period (Service 
2000, p. 47); and (2) ensuring sufficient conservation of the lynx and 
its habitat upon revision of LRMPs with guidance to conserve lynx. All 
projects in lynx habitat on USFS lands undergo section 7 review and we 
have no indication the USFS is not adhering to the guidance in the 
conservation agreement.

   Table 2.--National Forests Covered by the Canada Lynx Conservation
  Agreement Within Areas With Features Essential to the Conservation of
                                  Lynx
------------------------------------------------------------------------
         Critical habitat unit                   National forest
------------------------------------------------------------------------
North Cascades.........................  Okanogan-Wenatchee National
                                          Forest.
                                         Flathead National Forest.
                                         Helena National Forest.
Northern Rocky Mountains...............  Idaho Panhandle National
                                          Forests.
                                         Kootenai National Forest.
                                         Lewis and Clark National
                                          Forest.
                                         Lolo National Forest.
Minnesota..............................  None.
Maine..................................  None.
------------------------------------------------------------------------

    The USFS is actively in the process of amending LRMPs in all the 
forests listed above except for the Okanogan-Wenatchee National Forest. 
Until such time as the plans are amended to provide guidance for lynx, 
the USFS will largely avoid projects that would have any adverse 
effects to lynx within these seven forests (USFS and Service 2006, p. 
6). The more protective standards in the conservation agreement will be 
implemented the longest in the Okanogan-Wenatchee National Forest, 
where revision of the Forest Plan has recently been initiated. The 
commitment to avoid adverse effects in the conservation agreement is 
extremely protective of the lynx and its habitat, and is well beyond 
any protections or conservation benefits that would result from the 
designation of critical habitat. This is because under normal section 
7, projects with adverse effects on lynx habitat could proceed without 
modification as long as the adverse effects do not reach levels that 
adversely modify critical habitat. According to the LCAS, projects that 
adversely affect lynx habitat adversely affect lynx as well. Thus under 
the conservation agreement, the vast majority of projects that 
adversely affect lynx habitat cannot proceed until Forest Plans are 
amended.
    To determine the level of protection that lynx within the forests 
identified in Table 2 (with the exception of the Okanogan-Wenatchee 
National Forest as indicated above) are likely to receive upon LRMP 
amendment, we analyzed three documents that constitute the best 
available information on the subject. These documents are the USFS 
draft Environmental Impact Statement for the Northern Rockies Lynx 
Amendment (DEIS) (USFS 2004, entire); a biological

[[Page 66034]]

assessment prepared for the Northern Rockies Lynx Amendment (USFS 2005, 
entire); and a supplement to the biological assessment (USFS 2006, 
entire). On January 5, 2004, the USFS announced the availability of the 
Draft Environmental Impact Statement (DEIS) that included a preferred 
alternative to conserve lynx while addressing issues related to 
wildland fire (USFS 2004, pp. 30-53). On November 23, 2005, the USFS 
requested formal consultation from us on the effects of their proposed 
action to amend management plans for 18 national forests to include 
lynx conservation while addressing wildland fire issues (Kimbell 2005, 
entire). We have not finalized our biological opinion but anticipate 
doing so in early 2007. The proposed action in the USFS's biological 
assessment indicates that the USFS will continue to conserve lynx 
habitat in the future as they have over the past 6 years.
    We have analyzed the proposed action in the Biological Assessment 
(USFS 2005) for the purposes of this final rule to determine whether 
the six forests within the Northern Rockies that we identified as 
meeting the first prong of the definition of critical habitat are in 
need of special management or protection pursuant to 3(5)(A) of the 
Act. We have determined that the proposed LRMP amendments incorporate 
substantial and relevant conservation measures from the LCAS, or the 
equivalent thereof, based on updated information. Overall, the proposed 
action would increase conservation for lynx over the direction in the 
current LRMPs. Essential lynx habitat may be adversely affected by some 
of the proposed actions, mostly from fire and fuels management and a 
small amount of pre-commercial thinning activities. However, given 
adherence to LCAS guidelines that are proposed, these adverse effects 
would not amount to adverse modification, as the guidelines have been 
written to avoid significant large scale effects. Furthermore, these 
adverse effects are counterbalanced by a commitment to lynx 
conservation that applies to 94 percent of lynx habitat within the six 
Northern Rockies Forests containing the features essential to the 
conservation of the lynx, which provides a net conservation benefit for 
lynx.
    Both the conservation agreement and the proposed plan amendments 
that follow from the agreement address the single most important threat 
identified at time of listing: the inadequacy of existing regulatory 
mechanisms. The conservation agreement and proposed amendments ensure 
that adequate habitat of sufficient quality is available to support the 
long-term persistence of lynx populations on these seven forests and 
would provide for connectivity between adjacent lynx populations in 
Canada or the United States. The conservation agreement and proposed 
amendments address the primary threat to the lynx (inadequate 
regulatory measures) by addressing the major adverse impacts of Federal 
land management on lynx, as well as several other potential impacts or 
influences that do not rise to the level of a threat to the lynx. Thus, 
special management or protection pursuant to 3(5)(A) of the Act is not 
required for the seven national forests identified in Table 3. Because 
Federal lands within these seven national forests do not meet the 
definition of critical habitat pursuant to section 3(5)(A) of the Act, 
we have not included these lands in the final critical habitat 
designation.

Lands With Management Plans That Conserve Lynx

    Several management plans have been amended or revised to 
incorporate the lynx management strategy as outlined in the Lynx 
Conservation Assessment and Strategy (LCAS) (Ruediger et al. 2000, 
entire) or comparable programs. The USFS, Bureau of Land Management 
(BLM), National Park Service (NPS), and the Service developed the LCAS 
using the best available science specifically to provide a consistent 
and effective approach to conserve lynx and lynx habitat on Federal 
lands (Ruediger et al. 2000, p. 1). The overall goals of the LCAS were 
to recommend lynx conservation measures, to provide a basis for 
reviewing the adequacy of USFS and BLM land and resource management 
plans with regard to lynx conservation, and to facilitate conferencing 
and consultation under section 7 of the Act. The LCAS identifies an 
inclusive list of 17 potential risk factors for lynx or lynx habitat 
that may be addressed under programs, practices, and activities within 
the authority and jurisdiction of Federal land management agencies. By 
addressing these potential risk factors, the Federal agencies could 
address the primary threat identified in the 2000 listing rule for the 
lynx, that of inadequate regulatory mechanisms to protect lynx on 
Federal lands.
    The risks identified in the LCAS are based on effects to either 
individual lynx, lynx populations, both, or lynx habitat. Potential 
risk factors the LCAS addresses that may affect lynx productivity 
include: timber management, wildland fire management, recreation, 
forest/backcountry roads and trails, livestock grazing, and other human 
developments (Ruediger et al. 2000, pp. 2-2--2-15). Potential risk 
factors the LCAS addresses that may affect lynx mortality include: 
trapping, predator control, incidental or illegal shooting, competition 
and predation as influenced by human activities and highways (Ruediger 
et al. 2000, pp. 2-15--2-17). Potential risk factors the LCAS addresses 
that may affect lynx movement include: highways, railroads and utility 
corridors, land ownership pattern, and ski areas and large resorts 
(Ruediger et al. 2000, pp. 2-17--2-19). Other potential large-scale 
risk factors for lynx addressed by the LCAS include: fragmentation and 
degradation of lynx refugia, lynx movement and dispersal across shrub-
steppe habitats and habitat degradation by non-native and invasive 
plant species (Ruediger et al. 2000, pp. 2-19--2-21).
    The LCAS ensures the appropriate mosaic of habitat is provided for 
lynx on Federal lands. To facilitate use of the LCAS in project 
planning and allow for the assessment of the potential effects of a 
project on an individual lynx, the USFS and BLM delineated Lynx 
Analysis Units (LAUs). The scale of an LAU approximates the size of 
area used by an individual lynx (25 to 50 mi\2\ (65 to 130 km\2\)) 
(Ruediger et al. 2000, p. 7-3). The LCAS recognizes that LAUs will 
likely encompass both lynx habitat and other areas (e.g., lakes, low 
elevation ponderosa pine (Pinus ponderosa) forest, and alpine tundra). 
The LCAS provides habitat-related standards to address potential risks 
include: (1) If more than 30 percent of lynx habitat in an LAU is 
currently in unsuitable condition, no further reduction of suitable 
condition shall occur as a result of vegetation management activities 
by Federal agencies; (2) within an LAU, maintain denning habitat in 
patches generally larger than 5 acres, comprising at least 10 percent 
of lynx habitat; (3) maintain habitat connectivity within and between 
LAUs; (4) management actions (e.g., timber sales, salvage sales) shall 
not change more than 15 percent of lynx habitat within an LAU to an 
unsuitable condition within a 10-year period; (5) pre-commercial 
thinning will only be allowed when stands no longer provide snowshoe 
hare habitat; (6) on Federal lands in lynx habitat, allow no net 
increase in groomed or designated over-the-snow routes and snowmobile 
play areas by LAU (Ruediger et al. 2000, pp. 7-3--7-9).
    Lynx conservation depends on supporting boreal forest landscapes of 
sufficient size to encompass the temporal and spatial changes in 
habitat and snowshoe hare populations to

[[Page 66035]]

support interbreeding lynx populations or metapopulations over time. We 
have determined that management plans that incorporate the LCAS provide 
adequate management or protection for lynx because they meet the three 
criteria identified above. Specifically--(1) the management plans have 
been finalized and incorporate the provisions of the LCAS, which 
provides the best scientifically-based conservation measures known for 
lynx at this time; at a minimum, the incorporation of the LCAS 
conservation measures to address risk factors affecting lynx 
productivity into a management plan provides adequate management and 
protection for lynx and features essential to the conservation of lynx; 
(2) where Federal agencies and non-federal entities (including Tribes) 
have amended or revised their management plans to incorporate 
provisions of the LCAS, these provisions become the management 
direction for that particular land base; conservation measures in the 
LCAS are designed to be implemented at the programmatic and project 
level scale; and (3) the land management entities have incorporated 
provisions of the LCAS in order the provide for the conservation of the 
lynx; the conservation measures in the LCAS are intended to conserve 
lynx and to reduce or eliminate adverse effects from the spectrum of 
management activities on Federal lands (or other lands where the 
conservation measures are applied). At this time, there is no other 
scientifically-based land management guidance available for lynx; these 
management plans are in effect until future plan revisions or plan 
amendments supercede the current plans.
    We evaluated areas to determine if they meet the definition of 
critical habitat by (1) containing physical or biological features 
essential to the conservation of the lynx, and (2) if the essential 
features may require special management or protection. We determined 
that these lands did contain features essential to the conservation of 
the lynx. However, based on the provisions in the LCAS beneficial to 
the lynx, we determined that the essential features on lands covered by 
management programs or plans that have been revised or amended to adopt 
the LCAS do not require special management or protection and, 
therefore, these lands do not meet the definition of critical habitat 
pursuant to section 3(5)(A) of the Act. These lands, described below, 
are not included in the designation:

Superior National Forest

    The Superior National Forest located in northeastern Minnesota has 
revised its Land and Resource Management Plan (LRMP) to include 
specific measures to conserve lynx based on the LCAS (Ruediger et al. 
2000, entire; USFS 2004a, Appendix E; USFS 2004b, p. 16; Service 2004, 
p. 2). Much of the boreal forest habitat in northeastern Minnesota is 
found on Superior National Forest (Service 2004, p. 28), and a large 
proportion of the recent lynx records in Minnesota have been detected 
on the Superior National Forest (Moen et al. 2004, p. 10; Minnesota DNR 
2005 Web page). The revised LRMP went through stakeholder meetings, 
section 7 consultation with the Service, and public review. The LRMP 
will guide day-to-day management decisions for the next 15 years, 
whereupon the LRMP will again undergo revision (USFS 2004a section 1, 
pp. 2 and 4).
    The Superior LRMP adopted the standards, guidelines, and objectives 
of the LCAS (Ruediger et al. 2000, entire; McAllister 2002, entire) 
that the USFS determined were appropriate and relevant to lynx 
conservation in Minnesota, in consultation with the Service. To remove 
redundancies with other management direction, the LRMP excluded certain 
LCAS standards, guidelines, and objectives and reclassified some to 
increase their potential to benefit lynx, to avoid confusion with terms 
found elsewhere in the LRMP, and to allow for management flexibility 
that would not compromise lynx conservation. In addition, it designated 
the Boundary Waters Canoe and Wilderness Area as a Lynx Refugium, in 
which natural processes will be the predominant determinant of lynx 
habitat conditions with some active management that would be 
``compatible with wilderness values'' (USFS 2004a, Appendix E, p. 5 and 
section 3, p. 58).
    The Superior National Forest has delineated Lynx Analysis Units 
(LAUs) within which it applies the lynx conservation measures 
prescribed in the LRMP. The LAUs are the smallest landscape scale 
analysis units upon which direct, indirect, and cumulative effects 
analyses for lynx will be performed (Ruediger et al. 2000, p. 7-2; USFS 
2004a Appendix E, p. 4). They encompass lynx habitat (on all 
ownerships) within the administrative unit that has been mapped (in 
coordination with adjacent management agencies and the Service) using 
specific criteria to identify appropriate vegetation and environmental 
conditions (U.S. Forest Service 2004a Appendix E, p. 4).
    On the basis of the conservation benefits afforded the lynx from 
the measures in the approved, revised LRMP and the definition of 
critical habitat contained in section 3(5)(A) of the Act, we have not 
included those lands encompassed in LAUs mapped by the Superior 
National Forest or delineated by the Forest as a Lynx Refugium in this 
designation because we have determined that special management or 
protection of these lands and the features essential to the 
conservation of the lynx is not required. The Superior National Forest 
manages its lands within the LAUs with measures to conserve lynx and 
features essential to its conservation and takes into consideration 
habitat conditions for lynx throughout a LAU regardless of land 
ownership. Therefore, the numerous small non-federal inholdings within 
the proclamation boundary of the Forest were removed from the 
designation because, although such lands may support lynx habitat, they 
have a negligible influence on the features essential to the 
conservation of the lynx compared to the significant role of the 
Superior National Forest lands.
    Based on public comments and information received following the 
publication of the proposed designation, we coordinated with the 
Superior National Forest on those lands that remained within the 
proposed designation. We reevaluated these lands relative to the LRMP 
for the Superior National Forest to determine if the essential features 
within these areas were being managed for and protected under the plan. 
Based on our discussions with the National Forest and a further review 
of the plan, we have determined that the features within these lands 
are being adequately managed and protected for lynx conservation, and 
therefore do not meet the definition of critical habitat pursuant to 
section 3(5)(A) of the Act. As such, these lands have been removed from 
the final designation of critical habitat for the lynx.

Garnet Resource Area, Bureau of Land Management

    The BLM's Garnet Resource Management plan has been amended to 
incorporate all provisions of the LCAS (BLM 2003, entire; Wilson 2004, 
entire). The Garnet Resource Area supports blocks of boreal forest that 
currently support lynx populations on the southern edge of the Northern 
Rockies Unit. The amendment to the management plan went through public 
review and consultation with us under

[[Page 66036]]

section 7 of the Act; a finding of no significant impact was issued by 
BLM in 2004 (BLM 2003, entire; Wilson 2004, entire).
    On the basis of the conservation benefits afforded the lynx and 
features essential to its conservation from the measures in the amended 
Garnet Resource Management Plan and the definition of critical habitat 
contained in section 3(5)(A) of the Act, we have not included those 
lands that are within the boundaries of the approved Garnet Resource 
Management Plan in this designation of critical habitat for the lynx. 
These lands, and essential features thereon, are being adequately 
managed and protected for lynx and, as a result, do not meet the 
definition of critical habitat pursuant to section 3(5)(A) of the Act. 
Because the BLM already manages these lands, and features thereon, 
consistent with lynx conservation, we have determined that no special 
management or protection pursuant to section 3(5)(A) of the Act is 
required.

Flathead Indian Reservation

    The tribal lands in the Northern Rockies unit (portions of the 
Flathead Indian Reservation) are managed by the Confederated Salish and 
Kootenai Tribes (CSKT) under their Forest Management Plan that 
incorporates the provisions of the LCAS (CSKT 2000, p. 285). On the 
basis of the conservation benefits afforded the lynx from the measures 
in the CSKT's Forest Management Plan and the definition of critical 
habitat contained in section 3(5)(A) of the Act, we have not included 
lands that are within the boundaries of the Flathead Indian Reservation 
in this designation of critical habitat for the lynx. These lands, and 
physical or biological features essential to the conservation of the 
lynx thereon, are being adequately managed and protected for lynx and, 
as a result, do not meet the definition of critical habitat. Because 
the Tribes already manage these lands, and essential features thereon, 
consistent with lynx conservation, no special management or protection 
pursuant to section 3(5)(A) of the Act is required.

Spokane District, Bureau of Land Management

    Small portions of lands administered by the BLM's Spokane District 
are encompassed in the area containing features essential to the 
conservation of the lynx in the North Cascades unit in Washington. The 
BLM Spokane District Resource Management Plan was modified in 2003 to 
incorporate all of the provisions of the LCAS through what is called 
``Resource Management Plan Maintenance'' (BLM 2003, entire).
    On the basis of the conservation benefits afforded the lynx and the 
physical and biological features essential to its conservation from the 
measures in the approved Spokane District Resource Management Plan 
Maintenance and the definition of critical habitat contained in section 
3(5)(A) of the Act, we have not included those lands that are within 
the boundaries of the BLM's Spokane District Resource Management Plan 
in this designation of critical habitat for the lynx. The BLM already 
manages this area, and essential features thereon, consistent with lynx 
conservation; therefore, special management or protection pursuant to 
3(5)(A)of the Act is not required.
    In summary, we find that these management plans protect essential 
lynx features and habitat and provide appropriate management to provide 
for the conservation of lynx and features essential to its 
conservation. The management plans have been finalized and incorporate 
the provisions of the LCAS, which, as described above provides the 
best, scientifically-based conservation measures for lynx and features 
essential to its conservation known at this time. Federal land and 
resource management plans provide the overarching direction under which 
Federal lands are managed until future plan revisions or plan 
amendments supercede the current plans.
    The conservation measures in the LCAS are intended to conserve lynx 
and to reduce or eliminate adverse effects from the spectrum of 
management activities on Federal lands (or other lands where the 
conservation measures are applied). At this time, it constitutes the 
best and only scientifically-based land management guidance available 
for lynx. By not including areas in the designation that are already 
being managed for lynx conservation, land managers are encouraged to 
proactively institute lynx conservation measures and reduce 
administrative effort and costs associated with engaging in 
consultations for critical habitat pursuant to section 7 of the Act.

Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion and the 
Congressional record is clear that in making a determination under this 
section, the Secretary has discretion regarding which factors will be 
used and how much weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If an 
exclusion is contemplated, then we must determine whether excluding the 
area would result in the extinction of the species. In the following 
sections, we address a number of general issues that we considered 
relevant to the benefits of including and excluding lands. The text of 
these sections applies to all lands that we have excluded from this 
designation.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995) and at least 80 percent of endangered or threatened species occur 
either partially or solely on private lands (Crouse et al. 2002). Stein 
et al. (1995) found that only about 12 percent of listed species were 
found almost exclusively on Federal lands (that is, 90 to100 percent of 
their known occurrences restricted to Federal lands) and that 50 
percent of federally listed species are not known to occur on Federal 
lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species,

[[Page 66037]]

habitat restoration, and habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery. The Service promotes these private-sector 
efforts through the Four Cs philosophy--conservation through 
communication, consultation, and cooperation. This philosophy is 
evident in Service programs such as Habitat Conservation Plans, Safe 
Harbor Agreements, Candidate Conservation Agreements, Candidate 
Conservation Agreements with Assurances, and conservation challenge 
cost-share. Many private landowners, however, are wary of the possible 
consequences of encouraging endangered species to their property, and 
there is mounting evidence that some regulatory actions by the Federal 
Government, while well-intentioned and required by law, under certain 
circumstances can have unintended negative consequences for the 
conservation of species on private lands (Wilcove et al. 1996; Bean 
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 
2003). Many landowners fear a decline in their property value due to 
real or perceived restrictions on land-use options where threatened or 
endangered species are found. Consequently, harboring endangered 
species is viewed by many landowners as a liability, resulting in anti-
conservation incentives because maintaining habitats that harbor 
endangered species represents a risk to future economic opportunities 
(Main et al. 1999; Brook et al. 2003).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose on non-federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999; Bean 
2002; Brook et al. 2003). The magnitude of this negative outcome is 
greatly amplified in situations where active management measures (such 
as reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002).
    The Service believes that the judicious use of excluding specific 
areas of non-federally owned lands from critical habitat designations 
can contribute to species recovery and provide a superior level of 
conservation than critical habitat alone. The Department of the 
Interior's Four Cs philosophy--conservation through communication, 
consultation, and cooperation--is the foundation for developing the 
tools of conservation. These tools include conservation grants, funding 
for Partners for Fish and Wildlife Program, the Coastal Program, and 
cooperative-conservation challenge cost-share grants. Our Private 
Stewardship Grant program and Landowner Incentive Program provide 
assistance to private land owners in their voluntary efforts to protect 
threatened, imperiled, and endangered species, including the 
development and implementation of Habitat Conservation Plans.
    Conservation agreements with non-Federal landowners (such as 
Habitat Conservation Plans (HCPs), contractual conservation agreements, 
easements, and stakeholder-negotiated State regulations) enhance 
species conservation by extending species protections beyond those 
available through section 7 consultations. In the past decade, we have 
encouraged non-Federal landowners to enter into conservation 
agreements, based on a view that we can achieve greater species 
conservation on non-Federal land through such partnerships than we can 
through coercive methods (61 FR 63854; December 2, 1996).

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. The designation can help focus and promote 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for the lynx. In general, the educational 
benefit of a critical habitat designation always exists, although in 
some cases it may be redundant with other educational effects. For 
example, Federal land management plans have significant public input 
and may largely duplicate the educational benefit of a critical habitat 
designation. This benefit is closely related to a second, more indirect 
benefit: that designation of critical habitat would inform State 
agencies and local governments about areas that could be conserved 
under State laws or local ordinances.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where a Federal action or ``nexus'' occurs--if there is no 
Federal nexus, designation itself does not restrict actions that 
destroy or adversely modify critical habitat. Second, it only limits 
destruction or adverse modification. By its nature, the prohibition on 
adverse modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
reasonable and prudent alternatives to the proposed Federal action 
would only be issued when the biological opinion results in a jeopardy 
or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. The Court ruled that the

[[Page 66038]]

Service could no longer equate the two standards and that adverse 
modification evaluations require consideration of impacts on the 
recovery of species. Thus, under the Gifford Pinchot decision, critical 
habitat designations may provide greater benefits to the recovery of a 
species. However, we believe the conservation achieved through 
implementing Federal land management plans, habitat conservation plans 
(HCPs), or other habitat management plans is typically greater than 
what would be achieved through multiple site-by-site, project-by-
project, section 7 consultations involving consideration of critical 
habitat. This is especially true for lynx populations that require 
differing successional stages of habitat juxtaposed appropriately 
throughout large landscapes. The majority of lynx habitat is located on 
large land ownerships, including Federal, State, county, conservation 
organization, and private corporate forestlands, capable of influencing 
forest management at a landscape-scale. Management plans or other 
commitments on these large land holdings can commit resources to 
implement long-term management and protection to particular habitat for 
at least one, and possibly other, listed or sensitive species. Section 
7 consultations only commit Federal agencies to prevent adverse 
modification to critical habitat caused by the particular project; they 
are not committed to provide conservation or long-term benefits to 
areas not affected by the proposed project. Thus, in most cases, an HCP 
or management plan which considers enhancement or recovery as the 
management standard will always provide as much or more benefit than a 
consultation for critical habitat designation conducted under the 
standards required by the Ninth Circuit in the Gifford Pinchot 
decision.

Benefits of Excluding Lands From Critical Habitat With Management Plans 
or HCPs

    The benefits of excluding lands with management plans or HCPs from 
critical habitat designation include relieving landowners, communities, 
counties, and States of any additional regulatory burden that might be 
imposed by a critical habitat designation even if it is only the 
administrative burden of confirming no harm to the critical habitat. 
Most conservation plans take many years to develop and, upon 
completion, are, in most cases, consistent with the recovery objectives 
for listed species that are covered within the plan area. In fact, 
designating critical habitat in areas covered by a pending conservation 
plan or HCP could result in the loss of some species' benefits if 
participants abandon the planning process, in part because of the 
strength of the perceived additional regulatory compliance that such 
designation would entail. For example, the time and cost of regulatory 
compliance for a critical habitat designation do not have to be 
quantified for the regulated public to perceive them as additional 
Federal regulatory burden sufficient to discourage continued 
participation in plans targeting listed species' conservation.
    A related benefit of excluding lands within management plans from 
critical habitat designation is the unhindered, continued ability to 
seek new partnerships with future plan participants including States, 
counties, local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within approved 
management plan areas are designated as critical habitat, it would 
likely have a negative effect on our ability to establish new 
partnerships to develop these plans, particularly plans that address 
landscape-level conservation of species and habitats. For example, by 
excluding these lands, we preserve our current partnerships and 
encourage additional conservation actions in the future.
    Furthermore, a Federal land management plan or an HCP application 
must itself be consulted upon. Such a consultation would review the 
effects of all activities covered by the management plan or HCP which 
might adversely impact the species under a jeopardy standard, including 
possibly significant habitat modification (see definition of ``harm'' 
at 50 CFR 17.3), even without the critical habitat designation. 
Similarly, land management plans on private lands paid for by Federal 
landowner incentive programs (e.g., NRCS Healthy Forest Reserve 
Program, USFWS Landowner Incentive Program) must also be consulted 
upon. In addition, Federal actions not covered by the management plan 
or HCP in areas occupied by listed species would still require 
consultation under section 7 of the Act even absent a critical habitat 
designation and would be reviewed for possibly significant habitat 
modification in accordance with the definition of harm referenced 
above.
    After consideration under section 4(b)(2) of the Act, specific 
lands have been excluded from the designation of critical habitat for 
the lynx. A detailed analysis of our exclusion of these lands under 
section 4(b)(2) of the Act by critical habitat unit is provided in the 
paragraphs that follow.

Relationship of Critical Habitat to Tribal Lands

    Tribal lands included in the proposed designation were those of the 
Houlton Band of Maliseet Indians, Aroostook Band of Micmac Indians, 
Passamaquoddy Tribe, and Penobscot Indian Nation in the Maine unit and 
Grand Portage Indian Reservation and Vermillion Lake Indian Reservation 
in the Minnesota unit. The amount of tribal lands proposed was 
relatively small in size (totaling approximately 223 km\2\ (86 mi\2\) 
in the Maine unit and 192 km\2\ ( 74 mi\2\) in the Minnesota unit). As 
previously mentioned, we contacted and met with a number of tribes to 
discuss the proposed designation and we also received comments from 
tribes requesting that their lands not be designated as critical 
habitat because of their sovereign rights, in addition to concerns 
about economic impacts and the effect on their ability to manage 
natural resources.

Benefits of Inclusion

    The benefit of including these tribal lands in critical habitat for 
the lynx is low. The lands are fairly small in size relative to the 
large landscape required to sustain the lynx population in these areas. 
The larger landscape in Maine is lands managed for commercial forestry, 
and in Minnesota the larger landscape is managed by the Superior 
National Forest that has revised its forest plan to address the needs 
for lynx. Therefore, although these tribal lands support lynx habitat 
and the PCE, they have a minor role in lynx conservation compared to 
the commercial forestlands in Maine and Superior National Forest in 
Minnesota.

Benefits of Exclusion

    In accordance with Secretarial Order 3206, ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act'' (June 5, 1997); the President's memorandum of April 29, 
1994, ``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments;'' and the relevant 
provision of the Departmental Manual of the Department of the Interior 
(512 DM 2), we believe that 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. Such designation is often viewed by tribes as

[[Page 66039]]

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.
    For example, through Federal grant programs, the Passamaquoddy 
Tribe is conducting surveys and habitat models for lynx and snowshoe 
hare, the Houlton Band of Maliseet Indians is conducting lynx surveys 
and lynx habitat is being assessed on Grand Portage Reservation lands. 
Information from these efforts will be used to inform management plans 
or strategies to promote the conservation of lynx on Tribal lands. 
Additionally, we received general comments from Tribes and/or 
authorities representing the natural resource interests of Tribes 
voicing their commitment to ensuring that lynx remain a viable part of 
the ecosystem.

Benefits of Exclusion Outweigh Benefits of Inclusion

    We believe that conservation of lynx can be achieved off of Tribal 
lands within the critical habitat unit and on tribal lands with the 
cooperation of Tribes. Given the importance of our government-to-
government relationship with Tribes, the benefit of maintaining our 
commitment to the Executive Order by excluding these lands outweighs 
the benefit of including them in critical habitat. Therefore, Tribal 
lands have not been designated as critical habitat pursuant to section 
4(b)(2) of the Act.

Unit 1 (Maine)

Lands Managed for Commercial Forestry

    This category of specific properties include private lands on which 
timber is grown, harvested, and processed for wood and wood fiber for 
the manufacture of pulp and paper, and the production of solid and 
engineered wood products. These lands are generally large in size and 
comprise the majority of the lands in Maine we considered for inclusion 
in our critical habitat designation.
Benefits of Inclusion
    As previously discussed, we believe that there may be some 
education benefits to designating critical habitat for lynx on lands 
managed for commercial forestry. However, we believe that there is 
already substantial awareness of the lynx and conservation issues 
related to the lynx through the species being listed; through the 
public review process for the critical habitat proposal; information 
provided to the public from Maine Department of Inland Fisheries and 
Wildlife, North Maine Woods Association; information provided from 
University of Maine Department of Wildlife Ecology, Maine Cooperative 
Fish and Wildlife Research Unit, and the Maine Cooperative Forestry 
Research Unit; the Service's numerous contacts with Federal agencies 
that may have projects in northern Maine; the State-listing process in 
2006; and extensive media coverage on the status of the Canada lynx in 
Maine.
    Commercial forest lands in northern Maine are considered to be 
occupied by the lynx. Detailed habitat maps and habitat models (Hoving 
et al. 2004, p. 290, 2005, p. 747 Robinson 2006 pp. 107-119) and a lynx 
occurrence database maintained by Maine Inland Fisheries and Wildlife 
provide the Service with the most recent interpretation of the 
distribution of lynx and their habitat. For Federal actions, 
consultation under section 7 of the Act is required if an action may 
affect the lynx or its habitat. Accordingly, there are few 
opportunities for the Service to influence silviculture in Maine 
through Section 7 of the Act, especially at a landscape scale. Forest 
management and associated activities require no Federal permits, and 
Federal funding is rarely employed on private forest lands. Since 
listing the lynx in 2000, the Service has consulted on fewer than 50 
projects in Maine under Section 7 of the Act. Consultation has been 
limited primarily to small woodlot owners and tribes applying for 
Federal assistance. All consultations were concluded informally with 
fewer than five requiring any measures to conserve lynx. Most have been 
small projects (less than 6 ha (15 ac)), are located on small 
ownerships (less than 202 ha (500 ac)), and were located on the 
periphery of the lynx range in Maine. Given the historically low level 
of consultations, the opportunity to address forestry practices on 
private lands managed for commercial forestry, especially at a large 
landscape scale, through consultation is limited.
    Accordingly, we believe the benefits of inclusion are few. Because 
of our limited opportunities to consult under section 7 we believe we 
will achieve greater benefit from the ongoing management and 
partnerships than from the regulation that results from designating 
critical habitat on private lands in northern Maine. Maintaining a 
strong working relationship with both the State and private landowners 
is essential to ensuring continued voluntary management that conserves 
lynx, past and continuing voluntary forest management has been and 
continues to be beneficial to lynx in Maine. Timber salvaging 
associated with the eastern spruce budworm (Choristoneura fumiferana) 
outbreak of 1972 to 1986 resulted in hundreds of thousands of acres of 
clearcuts, which created contiguous stands of regenerating spruce-fir 
as large as 2,023 ha (5,000 ac) across much of northern Maine. These 
areas are now in an advanced stage of regeneration and support high 
hare densities (Fuller and Harrison 2005, p. 716; Homyack et al. 2006; 
Robinson 2006, p. 9), which is sustaining the lynx population (Hoving 
et al. 2004, pp. 291-292; Fuller 2006, pp. 36-47; Robinson 2006, p. 
122). Spruce budworm salvage created extensive mosaics of habitat 
within Maine that support lynx and features essential to the 
conservation of the lynx, such as structure for denning and dense 
understories within boreal forest able to support snowshoe hares and 
lynx. These optimal habitat conditions will persist for the next 10 to 
15 years until the regenerating clearcut stands mature to an age and 
structure (~30 years old) when they will no longer provide optimal 
habitat for hares and lynx.
    Forest practices in Maine generally are favorable to lynx. For 
example, many of the timber lands in Maine considered for inclusion in 
lynx critical habitat are managed under forest certification programs 
(e.g., Sustainable Forestry Initiative (SFI), Forest Stewardship 
Council (FSC)) that require members to maintain coarse woody debris, 
which provides lynx denning habitat (although denning habitat does not 
seem to be limited in northern Maine). Land managers participating in 
these programs are audited regularly for compliance (for example, Plum 
Creek is SFI certified and was audited as recently as 2005).
    The Huber Resource Corporation provided maps of current and future 
lynx habitat based on the Maine Forest Products Council analysis (see 
below). Currently, 36 percent of their 102,291 ha (252,766 ac) of 
forest ownership is in large blocks of early successional softwoods 
(spruce and fir). J. D. Irving concluded there would be no significant 
change in the spatial arrangement or amount of habitat in the next 10 
to 20 years (Gilbert 2006, p2). Plum Creek provided information to the 
Service demonstrating that they have four lynx habitat units (47,000, 
43,000, 33,000, and 30,000 acres) that contain optimal mid-regeneration 
conditions for lynx in the Moosehead Lake area.
    The Maine Forest Products Council provided a comprehensive lynx

[[Page 66040]]

landscape-level habitat analysis of current and future lynx habitat (20 
years hence) for their member landowners and landowner representative 
lands, which comprise the majority of the proposed critical habitat. 
The map suggests that about 404,686 ha (1 million ac) of lynx habitat 
currently exists in Maine and 404,686 ha (1 million ac) of future lynx 
habitat will be present 20 years hence and widely distributed on the 
landscape. Lynx habitat models for Maine (Hoving et al. 2004 , pp. 291-
292, 2005; Robinson 2006, p. 122) corroborate the fact that current 
habitat is prevalent and widely distributed. We agree that lynx habitat 
in Maine is abundant and widespread, and acknowledge that this is 
largely due to management for timber harvest.
    Most of the lands we considered for inclusion as lynx critical 
habitat are in unorganized townships and within the jurisdiction of the 
Maine Land Use Regulation Commission. Most of the area is zoned for 
commercial forestry, and development is sparse except for a few 
organized towns around the periphery of the proposed critical habitat.
    The Maine Land Use Regulation Commission and Plum Creek have 
recently shared plans with the Service for a proposed rezoning of about 
172,396 ha (426,000 ac) in the Moosehead Lake area to implement a 
concept plan to develop 975 new residential lots, resorts, and other 
facilities covering approximately 1,497 ha (3,700 ac). Plum Creek is 
offering mitigation in the form of a 162,684-ha (402,000-ac) 
Conservation Framework, including a 108,860-ha (269,000-ac) 
conservation easement (some donated) and 21,044 ha (52,000 ac) sale to 
conservation groups. This is the largest development project in Maine's 
history. The Maine Land Use Regulation Commission will make a 
determination on the concept plan in 2007. The proposed developments 
occur within the areas we considered for inclusion as lynx critical 
habitat and include areas that are known to be occupied by lynx. Major 
developments such as this proposal usually require Clean Water Act 
permits, which provide a Federal nexus for a consultation under section 
7 of the Act. Any Federal actions related to development of these lands 
that may affect the lynx will undergo consultation between with the 
Service and Federal permitting agencies. We believe the current scale 
of the development project can be effectively evaluated through section 
7 consultation in a way to protect lynx and conserve its habitat with 
or without a critical habitat designation because the project is not 
likely to be at a scale that would adversely modify the critical 
habitat.
    The area of the proposed lynx critical habitat is highly roaded 
with small, single-lane, gravel or dirt logging roads. Road density 
typically varies from 50-120 km of road/100km\2\ township (31-75 mi of 
road/38mi\2\ township). Lynx road mortality (12 animals) documented in 
Maine has occurred on logging roads (n = 9) and paved public roads (n = 
3) (MDIFW, unpub. data). Most logging road mortality occurred on two-
lane haul roads where higher traffic volume and speed would occur. We 
do not know if mortality is from forestry-related or visitor vehicles 
because these roads are open to the public. Road complexes on 
commercial forest land have largely been built out. It is unlikely that 
a substantial number of new woods roads will be built in northwestern 
Maine. It is also unlikely that roads will be upgraded or paved into 
two-lane high speed roads that would increase risk to lynx. Road 
building for forest purposes is exempt from Clean Water Act wetland 
permits and thus, there is no Federal nexus to address forest roads 
through Section 7. However, we do not anticipate an increase in forest 
road building in northern Maine in the foreseeable future.
Benefits of Exclusion
    Forest landowners in Maine expressed concerns about the stigma, 
``shadow-effect,'' or uncertainty associated with imposing a new far-
reaching Federal regulation on their lands. Until recently, the 
traditional owners of large tracts of forest lands in northern Maine 
were forest products companies with their own mills and their own 
timberland base to supply fiber. Landowners expressed concerns that 
another Federal regulation over their land would add a layer of 
uncertainty that could affect land valuation, deter investors, or cause 
hardships through costly litigation.
    In addition, the current environment of timber land sales and mill 
closures in Maine has led to efforts to conserve the north Maine woods. 
Conservation groups have purchased conservation easements on hundreds 
of thousands of acres of forestland. These easements are negotiated 
with private timber companies to assure protection from development and 
promote sustainable forestry and wildlife management. Most of these 
easements have required significant Federal funds, especially from 
Forest Legacy and the North American Wetland Conservation Act. 
Currently, about 809,371 ha (2 million ac) of the of 2.6 million ha 
(6.4 million ac) in Maine considered for inclusion in lynx critical 
habitat are under permanent easements, with several hundred thousand 
acres more under negotiation. Easement negotiations are often tenuous, 
and several landowners expressed concern that designation of critical 
habitat may create a Federal nexus that would discourage landowners 
against accepting Federal funding and participating in future easement 
negotiations. Maine Inland Fisheries and Wildlife expressed concerns 
that if these landscape-level conservation efforts fail in the future 
because of this perception, conservation of lynx will be set back. 
Landowners expressed sincere concerns about the uncertainty of legal 
actions related to a critical habitat designation and how this would 
affect their interest in entering into future conservation easement 
agreements.
    The primary benefit of excluding corporate forest lands from 
critical habitat is preserving the partnerships that have been and will 
be developed to conserve habitat for the lynx. The Service believes 
that partnerships and cooperative conservation have proved to be 
beneficial in Maine and are the most effective means of achieving 
conservation for the lynx on private lands. Partnerships have many 
benefits, including access by researchers and State and Federal 
biologists to private lands; cooperation with industry in funding 
research, monitoring, and management; and development of forest 
management plans on private lands.
    Maine forest industry has demonstrated cooperation by providing 
access to State and Federal wildlife agencies. For example, since 1999, 
Clayton Lake Woodlands, Seven Islands, and J. D. Irving Limited 
provided access and housing to Maine Inland Fisheries and Wildlife 
biologists to conduct radio-telemetry studies of lynx. Many landowners 
have granted permission for State and Federal biologists to conduct 
winter snow tracking surveys for lynx. Many landowners have granted 
permission for University of Maine graduate students to access lands to 
conduct studies and assess snowshoe hare populations. Landowners have 
also provided access to sensitive corporate data on forest stands to 
help State and Federal agencies with lynx and hare research. Landowners 
have suggested that future access to lands and data may be limited if 
critical habitat is designated, which would preclude us from getting 
valuable information on lynx distribution in Maine and which would be 
counter to lynx recovery efforts.

[[Page 66041]]

    Since 1975, corporate landowners have pooled research funds to 
support research to improve forest management through the University of 
Maine's Cooperative Forestry Research Unit. The Unit currently consists 
of 27 members, including most of the large corporate landowners within 
the Maine critical habitat unit. Since 2000, the effect of forest 
management on snowshoe hares and lynx has been a research priority. The 
Unit has joined the Service in funding six graduate students studying 
forest management, hares, and lynx. Many landowners are also members of 
the National Council for Air and Stream Improvement, Inc., which has 
also provided substantial funding support for the aforementioned 
research projects. The Maine Cooperative Fish and Wildlife Research 
Unit and University of Maine Department of Wildlife Ecology have been 
instrumental in conducting this research. These partnerships have 
allowed open dialogue and productive information sharing between 
landowners and Federal, State, and university biologists. Landowners 
have expressed concerns that designating critical habitat could 
jeopardize these valuable partnerships. These partnerships are 
essential for conserving lynx in Maine.
    The Maine Forest Products Council has represented Maine forest 
industry for over 40 years and currently has about 400 member 
companies. Collectively, their members own 2.2 million ha (5.4 million 
ac) (~84 percent) of the land we considered for inclusion in lynx 
critical habitat within Maine. Fourteen of their members own greater 
than 20,234 ha (50,000 ac) and will have a significant role in 
conserving current and future lynx habitat in Maine. The Council 
received unanimous backing from their members to act on their behalf 
and submitted comments to the Service regarding the critical habitat 
proposal. Included in their comments was a proposal in the form of a 
Conservation Strategy for the Canada Lynx in Maine. The strategy would 
provide a 10-year commitment to forestry practices that maintain and 
enhance lynx habitat by regenerating spruce fir forests, conducting a 
landscape assessment of lynx habitat every 5 years, continuing to 
support lynx and hare research, and meeting with the State and Federal 
wildlife agencies annually to share information and discuss research 
priorities. The specifics of this conservation strategy were provided 
to the Service in a draft Memorandum of Understanding. While the MOU 
has not yet been finalized it demonstrates the Council's commitment to 
continued lynx conservation. According to the Strategy, at the end of 
the 10-year period, the Council, Service, and State would conduct a 
joint evaluation to determine if the lynx strategy should be renewed 
for another 10-year period.
    Maine forest industry's Conservation Strategy for the Canada Lynx 
in Maine offers a framework for the Service to work in partnership with 
forest landowners to achieve recovery for the lynx and provides 
substantial benefits over what can be achieved through adverse 
modification standards of critical habitat through section 7 of the 
Act. The Strategy provides planning and cooperation at a landscape 
level meaningful to lynx; allows the opportunity for coordination and 
planning for lynx habitat across multiple land ownerships; allows 
researchers access to corporate landscape-level habitat information; 
and promotes continued funding support by corporate landowners for 
habitat-related research that will inform future conservation planning. 
Most importantly, the Strategy establishes a framework for landowners, 
Federal and State governments and university researchers to work 
together to protect and enhance lynx habitat in Maine while preserving 
and enhancing Maine's working forest. The Service acknowledges that 
forest practices have created the abundant lynx habitat in Maine today 
and can continue to do so in the future.
    Individual landowner lynx management plans are important for the 
recovery of lynx in the Northeast. The Service's recovery outline for 
the Canada lynx notes that ``timber harvest and associated activities 
on non-federal lands exert the most influence to lynx habitat in the 
Northeast and have created the favorable conditions that currently 
exist for lynx and snowshoe hares in northern Maine'' (Service 2005, p. 
9), and that one of the most important recovery actions needed is to 
``establish management commitments in core areas that will provide for 
adequate quality and quantity of habitat such that there is a 
reasonable expectation that persistent lynx populations can be 
supported * * * for at least the next 100 years.'' The Maine Forest 
Products Council offers a memorandum of understanding or agreement 
whereby the Service ``will work with and provide incentives to the 
Council and its members to develop forest management plans whose 
objectives are to promote the strategy and preserve Maine's working 
forest environment.'' Our lynx recovery outline (Service 2005, p. 12) 
provides a recovery action ``on non-Federal core areas, develop and 
implement best management practices and long-term management agreements 
for lynx with key State, private, and/or tribal forest managers.''
    In July, 2006, the Natural Resources Conservation Service (NRCS) 
and Service offered financial incentives to landowners to prepare lynx 
management plans through the pilot Healthy Forest Reserve Program. NRCS 
successfully enrolled three landowners in the Maine Unit, the 
Passamaquoddy Tribe, the Maine Chapter of the Nature Conservancy, and 
the Forest Society of Maine acting on behalf of a conservation easement 
holder for the West Branch Project, which will result in lynx 
management plans on 201,533 ha (498,000 ac), or about 8 percent of the 
lands considered for inclusion in lynx critical habitat in Maine. Other 
large landowners in Maine attended the Healthy Forest information 
meetings and expressed interest in these kinds of programs. The Service 
believes this demonstrates the interest and willingness of landowners 
to step down the Maine Forest Products Council Strategy to individual 
landowner plans, especially if Healthy Forest or other cooperative 
conservation incentives are provided in the future.
    The genuine commitment of Maine forest industry to develop 
individual and collective lynx management plans represents a 
significant benefit of excluding corporate forest landowners from the 
critical habitat. The discussion of lynx habitat planning has been 
greatly accelerated during our development of this critical habitat 
rule. Throughout the process, the Maine forest industry has been open 
and forthright about its commitments and its offer of a strategy, and 
the memorandum of understanding documents this commitment. These 
commitments may be off the table if critical habitat is designated, 
which would be a major setback to lynx recovery. The Service believes 
lynx forest management plans can conserve lynx at the landscape scales 
meaningful to lynx and will be far more effective at achieving the 
conservation essential to the recovery of lynx than small-scale site-
by-site evaluations of adverse modification in Section 7 consultations.
    We have evaluated the recent past and current forestry practices 
for lands managed for commercial forestry within the proposed 
designation of critical habitat for the lynx in Maine and found that 
they have produced a mosaic of lands important for lynz conservation. 
We also recognize that it is unlikely federal section 7 consultations 
could

[[Page 66042]]

achieve the same conservation and recovery benefits provided by these 
voluntary activities. Based on this evaluation, we find that the 
benefits of excluding these specific lands include: maintaining 
relationships with existing partners, encouraging new partnerships with 
landowners, and avoiding potential costly regulations having limited 
conservation benefits. The preservation and/or initiation of 
partnerships is essential for the conservation and recovery of lynx in 
part because it is crucial to the ongoing research and surveys for 
lynx, snowshoe hare, and lynx habitat relationships.
Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding lands managed for commercial forestry as 
critical habitat outweigh the benefits of including them as critical 
habitat for the lynx. As we discuss above, we believe that there would 
be greater benefit from excluding lands managed for commercial forestry 
from the final designation because it will maintain or encourage 
partnerships and allow for continued access to these lands for research 
and monitoring of lynx, snowshoe hares, and their habitat. Further, as 
indicated in the final rule listing the lynx (March 24, 2000; 65 FR 
16052), the primary threat to the lynx was the lack of Federal land 
management plan guidance to conserve lynx. We have concluded that the 
threats to the lynx in Maine have been ameliorated through voluntary 
actions of the Maine Forest Products Council. In addition, the proposed 
Conservation Strategy for the Canada Lynx in Maine, which covers more 
than 85 percent of the lands containing features essential to the 
conservation of the lynx in Maine demonstrates the Council's voluntary 
commitment extends into the future. Subsequent lynx forest management 
plans with individual landowners will further strengthen landscape-
level habitat protection. In addition, we believe that critical habitat 
designation provides little gain in the way of increased public 
recognition and education because of the information provided from 
ongoing research and monitoring, material provided on various Web 
sites, and other information provided to the public in Maine. We also 
believe that there would be few, if any, little additional conservation 
benefit realized through the regulatory burden of a critical habitat 
designation on these lands under section 7 of the Act because Federal 
actions are uncommon. Therefore, on the basis of the above discussion 
and the conservation measures provided the lynx and features essential 
to its conservation through the Maine Forest Products Council 
Conservation Strategy for the Canada Lynx in Maine, we do not believe 
that the exclusion of lands managed for commercial forestry in this 
unit would result in the extinction of the lynx.

State Lands

    State land ownership (about 225,441 ha (557,077 ac), or about 9 
percent of the lands considered for inclusion in lynx critical habitat 
in Maine) is comprised of Baxter State Park (83,137 ha (205,436 ac)), 
Maine Department of Conservation Bureau of Parks and Lands (140,295 ha 
(346,676 ac)), and Maine Inland Fisheries and Wildlife management areas 
(2,009 ha (4,965 ac)). A small part of Baxter State Park, the 
Scientific Forest Management Area, and many Bureau of Parks and Public 
Lands lots are managed for sustainable forestry. Collectively, these 
lands comprise a small part of the landscape occupied by lynx.
Benefits of Inclusion
    We believe that there may be some education benefits to designating 
critical habitat for lynx on State-owned lands. However, we believe 
that there is already substantial awareness of the lynx and 
conservation issues related to the lynx through the species being 
listed, through the public review process for considering the lynx for 
State listing in 2006, information provided from Maine Department of 
Inland Fisheries and Wildlife, and research being conducted through the 
University of Maine's Department of Wildlife Ecology, Cooperative Fish 
and Wildlife Research Unit, and Maine Cooperative Forestry Research 
Unit, and through the publication, and subsequent outreach and public 
hearings for the proposed critical habitat.
    Other benefits of including State lands in critical habitat are 
low. Lands under State ownership are considered to be occupied by the 
lynx. As such, Federal actions require consultation under section 7 of 
the Act if the action may affect the lynx or its habitat. On these 
State lands, it is uncommon for there to be a Federal action that 
triggers consultation under section 7 of the Act, therefore little 
benefit would be realized through section 7 consultation if such lands 
were included in the designation. Since the lynx was listed in 2000, 
there have been no consultations on Federal expenditures or permits on 
State-owned lands in the area of Maine considered for inclusion in 
critical habitat. Therefore, if there are few consultations, critical 
habitat would not be of much benefit to lynx.
    Further, the benefits of inclusion are low because of appropriate 
current management of State lands. We believe the benefits of including 
State lands managed for commercial forestry in the designation are low 
due to recent past and current silviculture practices on managed State 
lands that are similar to those on adjacent corporate forest land that 
have created mosaics of habitat supporting lynx and features essential 
to the conservation of the lynx, such as structure for denning and 
dense understories within boreal forest able to support snowshoe hares 
and lynx. At this time we have no specific evidence to suggest that 
large-scale changes in these practices are planned on State lands. 
Other State lands (the majority of Baxter State Park, Allagash 
Wilderness Waterway, and other small State parks) are managed in a 
``forever wild'' status. Given that lynx in Maine respond to young 
forests regenerating from a disturbance, there is little opportunity to 
manage for lynx in State parks unless natural disturbance regimes--
fire, insect infestation, wind throw--create habitat conditions 
favorable to lynx. We are aware of no State policies or management in 
State parks that would adversely modify critical habitat.
    The Maine Bureau of Parks and Lands has an Integrated Resource 
Policy (http://www.maine.gov/doc/parks/programs/planning/) that 
requires 10-year management plans on public reserved and nonreserved 
lands that require ``exemplary land management practices, including 
silvicultural, wildlife, and recreation practices as a demonstration of 
State policies governing forested and related types of lands.'' These 
plans require identification of important wildlife areas, including a 
policy to work with the Service and Maine Inland Fisheries and Wildlife 
to conserve biodiversity and habitat for federally State-listed 
endangered and threatened species. Plans for the Seboomook and 
Flagstaff units and Allagash Wilderness Waterway (all considered for 
inclusion as critical habitat) are under development. The Service is 
unaware whether the plans being drafted incorporate habitat planning 
for lynx, but we believe the State will incorporate habitat planning 
for lynx per their policies.
Benefits of Exclusion
    The primary benefit of excluding State lands from critical habitat 
is the partnerships that have and will be

[[Page 66043]]

developed to conserve habitat for the lynx. The Service believes that 
partnerships and cooperative conservation are the most effective means 
of achieving conservation for the lynx on private lands. Partnerships 
have many benefits, including funding research, monitoring, and 
management; and development of forest management. The State of Maine 
has been an excellent partner for lynx conservation.
The Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2), we have determined that the 
benefits of excluding State lands in the Maine Unit as critical habitat 
outweigh the benefits of including them as critical habitat for the 
lynx. As we discuss above, we believe there would be greater benefit 
from excluding State lands because it will maintain or encourage 
partnerships and allow for continued access to these lands for research 
and monitoring of lynx, snowshoe hares and their habitat. Further, as 
indicated in the final rule listing the lynx (March 24, 2000; 65 FR 
16052), the primary threat to the lynx was the lack of Federal land 
management plan guidance to conserve lynx. We believe that the threats 
to the lynx have been ameliorated because of the Maine Bureau of Parks 
and Lands policy to manage parks for multiple-use, including managing 
habitat for endangered species, and requiring the development of 
management plans. In addition, we believe that critical habitat 
designation provides little gain in the way of increased public 
recognition and education because of the information provided from 
ongoing research and monitoring, material provided on various Web sites 
and other information provided to the public in Maine. We also believe 
that there would be little additional conservation benefit realized 
through the regulatory burden of a critical habitat designation on 
these lands under section 7 of the Act because Federal actions are 
uncommon. Therefore, on the basis of the above discussion and the 
conservation measures required by the policies of the Maine Bureau of 
Parks and Lands, we do not believe that the exclusion of State lands in 
this unit would result in the extinction of the lynx.

Lands Owned by the Nature Conservancy

    Lands owned by The Nature Conservancy (over 80,937 ha (200,000 ac), 
or about 3 percent of the lands considered for inclusion in critical 
habitat within Maine) are comprised of the St. John River unit, 
Katahdin Forest, and Debsconeag Lakes unit. In addition, The Nature 
Conservancy is the conservation easement holder on several hundred 
thousand acres of private commercial forest land within the area 
proposed as critical habitat in Maine.
Benefits of Inclusion
    We believe that there may be some education benefits to designating 
critical habitat for lynx on lands owned by The Nature Conservancy in 
the Maine Unit. However, we believe that there is already substantial 
awareness of the lynx and conservation issues related to the lynx 
through the species being listed, through the public review process for 
considering the lynx for State listing in 2006, information provided 
from Maine Department of Inland Fisheries and Wildlife, and research 
being conducted through the University of Maine's Department of 
Wildlife Ecology, Cooperative Fish and Wildlife Research Unit, and 
Maine Cooperative Forestry Research Unit, and through the publication, 
and subsequent outreach and public hearings for the proposed critical 
habitat.
    Lands owned by The Nature Conservancy are considered to be occupied 
by the lynx. For Federal actions, consultation under Section 7 of the 
Act is required if the action may affect the lynx or its habitat. On 
these lands, it is uncommon for there to be a Federal action that 
triggers consultation under section 7 of the Act, therefore little 
benefit would be realized through section 7 consultation if such lands 
were included in the designation. Since the lynx was listed in 2000, 
there have been no consultations on Federal expenditures or permits on 
The Nature Conservancy lands in Maine. Therefore the benefit of 
including The Nature Conservancy lands is low because there is seldom a 
Federal action on these lands.
    The benefit of inclusion of The Nature Conservancy lands is also 
low because of ongoing management of the lands for conservation. The 
Nature Conservancy is committed to continued forest management on their 
largest 72,843-ha (180,000-ac) ownership in the upper St. John River 
region. The Conservancy's management plan includes plans for 
maintaining lynx habitat. The Conservancy recently enrolled its St. 
John River lands in the Healthy Forest Reserve Program and is committed 
to developing a forest management plan using Canada lynx as an umbrella 
species for young forest species and pine marten as an umbrella species 
for mature forest species. The plan will incorporate lynx management 
guidelines and will be developed with the cooperation of The Forest 
Society of Maine, University of Maine Department of Wildlife Ecology, 
Maine Inland Fisheries and Wildlife, and the Service. We believe the 
benefits of including managed lands in the designation are low because 
the recent past and current forestry practices on Conservancy lands are 
similar to those on adjacent corporate forest land, which have created 
mosaics of habitat supporting lynx and features essential to the 
conservation of the lynx, such as structure for denning and dense 
understories within boreal forest able to support snowshoe hares and 
lynx. At this time we have no specific evidence to suggest that large-
scale changes in these practices are planned. Other Conservancy lands 
(the majority of Debsconeag Lakes Unit, 16,592 ha (41,000 ac) will be 
managed in a ``forever wild'' status as ecological reserves. We are 
aware of no Conservancy policies or management in their ecological 
reserve lands that would adversely modify critical habitat.
Benefits of Exclusion
    The Conservancy has policies regarding biodiversity and endangered 
species conservation (www.nature.org) that compliment the State and 
Service missions to conserve endangered wildlife. The Service has no 
reservations about the quality of lynx habitat conservation plans that 
The Nature Conservancy will develop for their lands in Maine. 
Therefore, the Service believes that its ongoing partnership with The 
Nature Conservancy will be improved from the exclusion of these lands 
from critical habitat.
Benefits of Exclusion Outweigh Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding The Nature Conservancy lands in Maine as 
critical habitat outweigh the benefits of including them as critical 
habitat for the lynx. As discussed above, we believe there would be 
greater benefit from excluding The Nature Conservancy lands because it 
will maintain or encourage partnerships and allow for continued access 
to these lands for research and monitoring of lynx, snowshoe hares and 
their habitat. Further, as indicated in the final rule listing the lynx 
(March 24, 2000; 65 FR 16052), the primary threat to the lynx was the 
lack of Federal land management plan guidance to conserve lynx. We 
believe that the threats to the

[[Page 66044]]

lynx have been ameliorated because of The Nature Conservancy policies 
to manage their lands for biodiversity and endangered species. In 
addition, we believe that critical habitat designation provides little 
gain in the way of increased public recognition and education because 
of the information provided from ongoing research and monitoring, 
material provided on various Web sites and other information provided 
to the public in Maine. We also believe there would be little 
additional conservation benefits realized through the regulatory burden 
of a critical habitat designation on these lands under section 7 of the 
Act because Federal actions are uncommon. Therefore, on the basis of 
the above discussion and the conservation measures required by the 
policies of The Nature Conservancy, we do not believe that the 
exclusion of Conservancy lands in this unit would result in the 
extinction of the lynx.

Small Landowners and Lands Not Managed for Commercial Forestry

    Lands owned by small landowners and lands not managed for 
commercial forestry (about 100,128 ha (247,421 ac), or about 4 percent 
of the area considered for inclusion in lynx critical habitat in Maine) 
are primarily comprised of small woodlot owners near the towns of 
Ashland, Millinocket, Eagle Lake, Smyrna Mills, and Greenville. Such 
lands also include National Park Service lands consisting of a linear 
buffer along the Appalachian Trail to its northern terminus at Mt. 
Katahdin. Collectively, these lands comprise a small percentage of the 
area occupied by lynx.
Benefits of Inclusion
    We believe that there may be some education benefits to designating 
critical habitat for lynx on lands owned by small landowners and other 
lands not managed for commercial forestry in Maine. However, we believe 
that there is already substantial awareness of the lynx and 
conservation issues related to the lynx through the species being 
listed, through the public review process for considering the lynx for 
State listing in 2006, information provided from Maine Department of 
Inland Fisheries and Wildlife, and research being conducted through the 
University of Maine's Department of Wildlife Ecology, Cooperative Fish 
and Wildlife Research Unit, and Maine Cooperative Forestry Research 
Unit, and through the publication, and subsequent outreach and public 
hearings for the proposed critical habitat.
    Lands owned by small landowners and lands not managed for 
commercial forestry are considered to be occupied by the lynx. As such, 
for Federal actions, consultation under section 7 of the Act is 
required if those actions may affect the lynx or its habitat. On these 
lands it is uncommon for there to be a Federal action that triggers 
consultation under section 7 of the Act, therefore little benefit would 
be realized through section 7 consultation if such lands were included 
in the designation. Maine averages about 10 to 15 consultations per 
year that involve Canada lynx. Most of these lynx consultations in 
Maine have involved small landowners (less than 121 ha (300 ac) 
ownerships) requesting Federal assistance through the Natural Resource 
Conservation Service's Wildlife Habitat Incentive Program or Maine 
Forest Service's Woodswise Program (U.S. Forest Service funding). 
Nearly all of these forestry projects are small (less than 4 ha (10 
ac)), occur around the periphery of the Maine Unit, and have no adverse 
effects on lynx because of the small scale and nature of the projects. 
Because actions on these lands rarely, if ever, adversely affect lynx, 
designation of critical habitat would be of little conservation value.
    We believe the benefits of including these lands in the designation 
are low because such lands are fairly small in size relative to the 
large landscape required by an individual lynx to support its home 
range. Therefore, although such lands may support lynx habitat, they 
have a negligible influence on the features essential to the 
conservation of the lynx, especially compared to the significant role 
of the corporate lands managed for commercial forestry.
Benefits of Exclusion
    We have evaluated lands owned by small landowners and lands not 
managed for commercial forestry within the proposed designation of 
critical habitat for the lynx. Based on this evaluation, we find that 
the benefits of excluding these specific lands include maintaining 
relationships with landowners and a reduction of potential regulations 
having limited conservation benefits. Partnerships are essential for 
the conservation and recovery of lynx, in part because they are crucial 
to the ongoing research and surveys for lynx, snowshoe hare, and lynx 
habitat relationships. The educational benefits of critical habitat, 
including informing the public of areas that are essential for the 
long-term conservation of the lynx, are still accomplished from ongoing 
research and surveys as discussed above, various Web sites, and through 
public notice-and-comment procedures.

Benefits of Exclusion Outweigh Benefits of Inclusion

    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding small landowners and lands not managed 
for forestry in Maine as critical habitat outweigh the benefits of 
including them as critical habitat for the lynx. As discussed above, we 
believe there would be greater benefit from excluding these lands 
because it will maintain or encourage partnerships and allow for 
continued access to these lands for research and monitoring of lynx, 
snowshoe hares and their habitat. Further, as indicated in the final 
rule listing the lynx (March 24, 2000; 65 FR 16052), the primary threat 
to the lynx was the lack of Federal land management plan guidance to 
conserve lynx. We believe that critical habitat designation provides 
little gain in the way of increased public recognition and education 
because of the information provided from ongoing research and 
monitoring, material provided on various Web sites and other 
information provided to the public in Maine. We also believe that there 
would be little additional conservation benefits realized through the 
regulatory burden of a critical habitat designation on these lands 
under section 7 of the Act because Federal actions are uncommon and 
because of the small scale, adverse modification is very unlikely. 
Therefore, on the basis of the above discussion, we do not believe that 
the exclusion of small landowners and lands not managed for forestry in 
this unit would result in the extinction of the lynx.

Unit 2 (Minnesota)

Lands Managed for Commercial Forestry

    This category of specific properties includes private, county, and 
State lands on which timber is grown, harvested, and processed for wood 
and wood fiber for the manufacture of pulp and paper, and the 
production of solid and engineered wood products. These lands 
constitute a relatively large land base within the area considered for 
inclusion as critical habitat, and are generally adjacent to the much 
larger Superior National Forest, which supports the majority of lands 
containing features essential to the conservation of the lynx in 
Minnesota.

[[Page 66045]]

Benefits of Inclusion
    As previously discussed, we believe there may be some education 
benefits to designating critical habitat for lynx on lands managed for 
commercial forestry. However, we believe there is already substantial 
awareness of the lynx and conservation issues related to the lynx 
through the species being listed, through the public review process for 
revision and implementation of the Superior National Forest Land and 
Resource Management Plan, information provided by Minnesota Department 
of Natural Resources (http://www.dnr.state.mn.us/ecological_services/nhnrp/research/lynx_sightings.html), research being conducted by the 
University of Minnesota's Natural Resources Research Institute (http://www.nrri.umn.edu/lynx/), and through the publication of the proposed 
critical habitat and associated outreach and public hearings.
    Lands under this category are considered to be occupied by the 
lynx. As such, for Federal actions, consultation under section 7 of the 
Act is required if those actions may affect the lynx or its habitat. 
Some forestry practices may affect the lynx or its habitat. However, 
the ability to address such forestry practices through consultation is 
limited because, since the lynx has been listed, instances where a 
Federal action occurred on non-federal lands managed for commercial 
forestry that would trigger consultation under section 7 of the Act 
have been infrequent, therefore, the benefit of including these lands 
is low.
    Further, we believe the benefits of including these lands in the 
designation are low because of recent past and current forestry 
practices that have created a mosaic of differing successional boreal 
forest stages within this unit. Some components of this mosaic support 
lynx and features essential to the conservation of the lynx, including 
dense understories within boreal forest able to support snowshoe hares 
and lynx and structure for denning. At this time we have no specific 
evidence to suggest that large-scale changes in these practices are 
planned. Thus, because of the limited Federal nexuses and the recent 
past and current forestry practices, we believe there would be little 
benefit obtained from including these lands in the designation.
    Many of the lands managed for commercial forestry are enrolled in 
the Sustainable Forestry Initiative (SFI) program. The SFI program, 
which is described in more detail above in response to comment number 
8, has a number of principles and objectives that generally pertain to 
overall forest health. The SFI objective that is most pertinent to lynx 
conservation is ``To manage the quality and distribution of wildlife 
habitats and contribute to the conservation of biological diversity by 
developing and implementing stand- and landscape-level measures that 
promote habitat diversity and the conservation of forest plants and 
animals, including aquatic fauna.'' As discussed above, recent past and 
current forestry practices have created a mosaic of differing 
successional boreal forest stages within this unit that supports lynx 
and features essential to the conservation of the lynx; SFI 
participation has provided some oversight for these land management 
activities. Thus, because SFI participation has partially been 
responsible for the forestry practices that have created the extensive 
mosaic of lynx habitat in this unit, we believe there would be little 
benefit from including these lands in the designation.
    Finally, the primary factor causing the lynx to be listed was 
inadequate regulatory mechanisms on Federal lands. In Minnesota, the 
Superior National Forest lands are the most important for the 
conservation of lynx because they support the majority of lynx 
occurrence records and lynx habitat containing the features essential 
to the conservation of lynx. Since the lynx was listed, the Superior 
National Forest has revised its Land and Resource Management Plan to 
incorporate conservation measures for lynx (see 3(5)(A) discussion 
above). Because factors on non-Federal lands played a subordinate role 
in the listing and conservation of the lynx compared to National Forest 
and BLM lands, we believe there is little benefit of including non-
Federal lands managed for commercial forestry in the designation.
Benefits of Exclusion
    We have evaluated the recent past and current practices for lands 
managed for commercial forestry within the proposed designation of 
critical habitat for the lynx. Based on this evaluation, we find that 
the benefits of excluding these specific lands include maintaining 
relationships with existing partners and encouraging the potential 
establishment of new partnerships with public and private landowners. 
Partnerships are essential for the conservation and recovery of lynx in 
part because it is crucial to the ongoing research and surveys for 
lynx, snowshoe hare, and lynx habitat relationships. For example, these 
landowners allow lynx researchers access to their lands, without access 
to these lands, research and monitoring that inform our understanding 
of lynx ecology would be severely restricted. The educational benefits 
of critical habitat, including informing the public of areas that are 
essential for the long-term conservation of the lynx, are still 
accomplished from ongoing research and surveys as discussed above and 
outreach.
Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding lands managed for commercial forestry as 
critical habitat outweigh the benefits of including them as critical 
habitat for the lynx. As we discuss above, we believe that there would 
be greater benefit from excluding lands managed for commercial forestry 
from the final designation because it will maintain or encourage 
partnerships and allow for continued access to these lands for research 
and monitoring of lynx, snowshoe hares and their habitat. Further, as 
indicated in the final rule listing the lynx (March 24, 2000; 65 FR 
16052) the primary threat to the lynx was the lack of Federal land 
management plan guidance to conserve lynx. We believe that within this 
unit the threats to the lynx have been ameliorated because the Superior 
National Forest, which supports the majority of lands containing 
features essential to the conservation of the lynx in this unit, has 
revised its LRMP to provide conservation measures for the lynx. Thus, 
while non-Federal lands managed for commercial forestry provide habitat 
for lynx, they only supplement those lynx management efforts on 
Superior National Forest. In addition, we believe that critical habitat 
designation provides little gain in the way of increased public 
recognition and education. The public may become aware of the location 
and importance of lynx habitat via the information provided from 
ongoing research and monitoring, information provided to the public 
(e.g., on various Web sites), and from the publication of the proposed 
critical habitat and associated outreach and public hearings. We also 
have concluded that there would be little additional conservation 
benefits realized through the regulatory burden of a critical habitat 
designation on these lands under section 7 of the Act because Federal 
actions are uncommon. Therefore, on the basis of the above discussion 
and the conservation

[[Page 66046]]

measures provided the lynx and features essential to its conservation 
through the Superior National Forest, we do not believe that the 
exclusion of lands managed for commercial forestry in this unit would 
result in the extinction of the lynx.

Small Landowners and Lands Not Managed for Commercial Forestry

    This category of specific properties includes private, county, 
municipal, National Monument, and State lands that have a myriad of 
uses and individually are small compared to the large spatial scale 
required by lynx. Cumulatively, these lands constitute a limited land 
base within the proposed critical habitat unit compared to the Superior 
National Forest lands and are scattered throughout the proposed unit.
Benefits of Inclusion
    As previously discussed, we believe that there may be some 
educational benefits to designating critical habitat for lynx on non-
Federal lands not managed for commercial forestry. However, we believe 
that there is already substantial awareness of the lynx and 
conservation issues related to the lynx as a result of ongoing outreach 
conducted by the Service and its partners.
    Lands under this category are considered to be occupied by the 
lynx. As such, for actions having a Federal nexus, consultation under 
section 7 of the Act is required if a Federal action may affect the 
lynx or its habitat. Federal actions having adverse affects on lynx on 
these lands may be addressed through a section 7 consultation. Since 
the lynx was listed the opportunity to address such actions through 
consultation has been limited because there is infrequently a Federal 
nexus on these lands. Therefore, the benefit of designation of these 
lands as critical habitat is low because there are few instances in 
which a Federal nexus occurs.
    Further, we believe the benefits of including these lands in the 
designation are low because such lands are fairly small in size 
relative to the large landscape required by an individual lynx to 
support its home range and they are scattered throughout the proposed 
unit. Therefore, although such lands may support lynx habitat, they 
have a minor influence on the features essential to the conservation of 
the lynx, especially compared to the significant role of the Superior 
National Forest lands. Thus, due to the negligible affect of these 
small properties and lands not managed for commercial forestry on the 
features essential to the conservation of lynx and the infrequency of 
Federal actions we believe that there would be little benefit obtained 
from including these lands in the designation.
Benefits of Exclusion
    We have evaluated lands not managed for commercial forestry within 
the proposed designation of critical habitat for the lynx. Based on 
this evaluation, we find that the benefits of excluding these specific 
lands include maintaining the potential to develop relationships with 
landowners. Partnerships are essential for the conservation and 
recovery of lynx in part because it is crucial to the ongoing research 
and surveys for lynx, snowshoe hare, and lynx habitat relationships. 
These landowners allow researchers access to their lands, without 
which, research and monitoring would be hampered. As previously 
discussed, we believe that there may be some educational benefits to 
designating critical habitat for lynx on small properties and lands not 
managed for commercial forestry. However, we believe that there is 
already substantial awareness of the lynx and conservation issues 
related to the lynx as a result of ongoing outreach conducted by the 
Service and its partners.
Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding lands not managed for commercial 
forestry as critical habitat outweigh the benefits of including them as 
critical habitat for the lynx. As we discuss above, we believe that 
there would be greater benefit from excluding these smaller properties 
and lands not managed for commercial forestry from the final 
designation because it will maintain relationships and allow for 
continued access to these lands for research and monitoring of lynx, 
snowshoe hares and their habitat. Further, as indicated in the final 
rule listing the lynx (March 24, 2000; 65 FR 16052) the primary threat 
to the lynx was the lack of Federal land management plan guidance to 
conserve lynx. We believe that within this unit the threats to the lynx 
have been ameliorated because the Superior National Forest, which 
supports the majority of lands containing features essential to the 
conservation of the lynx in this unit, has revised its LRMP to provide 
conservation measures for the lynx. Smaller land holdings that are not 
managed for commercial forestry have a minor influence on the features 
essential to the conservation of lynx compared to the National Forest 
lands. In addition, we believe that critical habitat designation 
provides little gain in the way of increased public recognition and 
education because of the information provided from ongoing research and 
monitoring. We also believe that there would be little additional 
conservation benefits realized through the regulatory burden of a 
critical habitat designation on these lands under section 7 of the Act 
because Federal nexuses are uncommon. Therefore, on the basis of the 
above discussion and the conservation measures provided the lynx and 
features essential to its conservation through the Superior National 
Forest, we do not believe that the exclusion of lands not managed for 
commercial forestry in this unit would result in the extinction of the 
lynx.

Unit 3 (Northern Rockies--(Montana and Idaho))

Montana Department of Natural Resources and Conservation Forested Trust 
Land Habitat Conservation Plan (MDNRC HCP)

    The MDNRC HCP encompasses 241,108 ac (377 mi\2\) (97,573 ha/976 
km\2\) of State Forested Trust lands distributed throughout 
northwestern, southwestern and central Montana. Lynx have been 
documented to occur throughout these areas, primarily in the northwest 
and southwest areas where MDNRC has delineated Lynx Management Areas 
(LMAs). A portion of these lands occur within the area proposed as 
critical habitat. Although the MDNRC HCP is not yet final, the lynx 
conservation strategy portion of the HCP has undergone technical and 
public review (Pierce 2005, entire); MDNRC entered into an agreement 
with the Service wherein the MDNRC committed to develop an HCP using 
Congressionally appropriated funding (USFWS and MDNRC 2000, entire, 
Clinch 2002, entire; Wilson 2003, entire); scoping for an Environmental 
Impact Statement (EIS) is complete and development of the EIS is 
underway (81 FR 22412 Apr 28, 2003; Parametrix 2004, entire). The 
incidental take permit for the HCP is anticipated to be issued in 2008 
(O'Herron 2006).
    The MDNRC HCP contains measures to minimize and mitigate potential 
impacts to the lynx and its habitat from forest management activities. 
The primary components for minimization and mitigation include: 
minimizing potential for disturbance to known active den sites; mapping 
winter foraging habitat, young foraging habitat,

[[Page 66047]]

other suitable habitat and temporary non-suitable habitat; providing 
stand structure or attributes that offer habitat for prey species, 
particularly in winter; retaining coarse woody debris and other denning 
attributes on managed sites; limiting conversion of suitable lynx 
habitat to temporary non-suitable habitat per decade in key geographic 
areas of notable importance for lynx (LMAs); ensuring that adequate 
amounts of foraging habitat are maintained in defined LMAs; providing 
for habitat connectivity on the landscape where vegetation and 
ownership patterns allow; providing assurances for maintenance of 
suitable lynx habitat on DNRC scattered lands outside LMAs (MDNRC 2005, 
entire). All of these measures provide the features essential to the 
conservation of the lynx.
    The MDNRC HCP and its accompanying Implementing Agreement, which 
will delineate the responsibilities of the Service and MDNRC for the 
implementation of the HCP, are designed to minimize the impacts of 
forest management activities on lynx and to manage for habitat elements 
important for lynx and prey that contribute to their landscape-scale 
occurrence.
    Furthermore, MDNRC has had lynx habitat management guidance in 
place since 1998, prior to lynx being listed under the Act. In 2003, 
MDNRC developed a mapping protocol for identifying lynx habitat on 
State lands and adopted administrative rules for lynx conservation.
Benefits of Inclusion
    We expect the MDNRC HCP to provide substantial protection of 
features essential to the conservation of lynx on MDNRC Forested Trust 
Lands and to provide a greater level of management for the lynx on 
these State lands than would designation of critical habitat on State 
lands. Habitat management provisions for lynx are already in place on 
MDNRC lands. Moreover, inclusion of these non-Federal lands as critical 
habitat would not necessitate additional management and conservation 
activities that would exceed the MDNRC HCP and its implementing 
agreement upon approval. As a result, we do not anticipate any action 
on these lands would destroy or adversely modify the areas designated 
as critical habitat. Therefore, we do not believe that including these 
lands in the final designation would lead to any changes to actions on 
the MDNRC Forested Trust lands to avoid destroying or adversely 
modifying that habitat.
    On these State lands it is uncommon for there to be a Federal 
action that triggers consultation under section 7 of the Act, therefore 
little benefit would be realized through section 7 consultation if such 
lands were included in the designation. The MDNRC HCP will undergo 
section 7 consultation prior to permit issuance.
    As previously discussed, we believe there may be some education 
benefits to designating critical habitat for lynx on MDNRC Forested 
Trust lands. However, we believe there is already substantial awareness 
of the lynx and conservation issues related to the lynx through the 
species being listed, through the public review process for the MDNRC 
HCP and the USFS Northern Rockies Lynx Amendment, lynx and snowshoe 
hare research being conducted by the USFS Rocky Mountain Research 
Station and the University of Montana, surveys conducted by Montana 
Fish, Wildlife and Parks, and independent researchers, various Web 
sites and through the publication of the proposed critical habitat and 
associated outreach and public hearings.
Benefits of Exclusion
    The exclusion of these lands from critical habitat will help 
preserve the partnerships that we have developed with the MDNRC, 
particularly in the development of the MDNRC HCP, which provides for 
long-term lynx conservation. Comments received from MDNRC explain that 
the agency has a long history of lynx conservation efforts and, 
therefore, designation on MDNRC lands is unnecessary and inappropriate 
(Sexton 2006, p. 2). The educational benefits of critical habitat, 
including informing the public of areas that are essential for the 
long-term conservation of the lynx, are still accomplished from ongoing 
research and surveys as discussed above, various Web sites, and through 
public notice-and-comment procedures. For these reasons, we believe 
that designating critical habitat has little benefit in areas covered 
by the MDNRC HCP.
Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding MDNRC Forested Trust Lands as critical 
habitat outweigh the benefits of including them as critical habitat for 
the lynx. As we discuss above, we believe that there would be greater 
benefit from excluding MDNRC Forested Trust Lands from the final 
designation because it will preserve our partnership with MDNRC. The 
provisions of the MDNRC HCP are expected to provide greater benefits to 
the features essential to the conservation of lynx than would be 
provided under a critical habitat designation.
    We also believe that there would be little additional conservation 
benefits realized through the regulatory burden of a critical habitat 
designation on these lands under section 7 of the Act because Federal 
nexuses are uncommon. Therefore, on the basis of the above discussion 
and the habitat conservation measures that are already being provided 
to the lynx on MDNRC lands and the detailed minimization and mitigation 
measures of the pending MDNRC HCP that will further address the 
features essential to conservation of the lynx, we do not believe that 
the exclusion of MDNRC lands would result in the extinction of the 
lynx.

Lands Managed for Commercial Forestry

    This category of specific properties includes private lands on 
which timber is grown, harvested, and processed for wood and wood fiber 
for the manufacture of pulp and paper, and the production of solid and 
engineered wood products. These lands constitute a substantially 
smaller land base than that of the National Forests (Flathead National 
Forest, Helena National Forest, Idaho Panhandle National Forests, 
Kootenai National Forest, Lewis and Clark National Forest, and the Lolo 
National Forest) that constitute the vast majority of habitat 
containing the features essential to the conservation of lynx in this 
unit. The owner of the majority of private lands managed for commercial 
forestry in this unit is Plum Creek Timber Company.
Benefits of Inclusion
    As previously discussed, we believe there may be some education 
benefits to designating critical habitat for lynx on lands managed for 
commercial forestry in Montana. However, we believe there is already 
substantial awareness of the lynx and conservation issues related to 
the lynx through the species being listed, through the USFS Northern 
Rockies Lynx Amendment, lynx and snowshoe hare research being conducted 
by the USFS Rocky Mountain Research Station and the University of 
Montana, surveys conducted by Montana Fish, Wildlife and Parks and 
independent researchers, various Web sites and through the publication 
of the proposed critical habitat and associated outreach and public 
hearings. For example, Plum Creek Timber Company is clearly aware

[[Page 66048]]

of issues related to the Act, in general, and lynx, in particular, 
based on comments the company submitted on the critical habitat 
proposal (Kraft 2006a, b, entire).
    Lands under this category are considered to be occupied by the 
lynx. As such, for Federal actions, consultation under section 7 of the 
Act is required if those actions may affect the lynx or its habitat. 
Some forestry practices may affect the lynx or its habitat, however, 
the ability to address such forestry practices through consultation is 
limited because, since the lynx has been listed, it is uncommon for 
there to be a Federal action on private lands managed for commercial 
forestry that would trigger consultation under section 7 of the Act. 
Because there is a low likelihood of projects involving a Federal 
action on these lands, the benefits of inclusion are low.
    Many of the lands managed for commercial forestry are enrolled in 
the SFI program. The SFI program, which is described in more detail 
above in response to comment number 8, has a number of principles and 
objectives that generally pertain to overall forest health. The SFI 
objective most pertinent to lynx conservation is ``To manage the 
quality and distribution of wildlife habitats and contribute to the 
conservation of biological diversity by developing and implementing 
stand- and landscape-level measures that promote habitat diversity and 
the conservation of forest plants and animals, including aquatic 
fauna.'' As discussed above, lands managed for commercial forestry in 
this unit support lynx and lynx habitat. SFI participation has provided 
some oversight for these land management activities. Plum Creek Timber 
Company is a participant in the SFI program. Plum Creek notes its 
structure retention program that provides lynx denning habitat as an 
example of its compliance with the above objective (Kraft 2006a, p. 7 
technical comments). Additionally, Plum Creek cites implementation 
examples for Montana that include its continued experimentation with 
alternative precommercial thinning methods to enhance snowshoe hare 
habitat (based on university research) and distributing a biodiversity 
and threatened species brochure to over 500 small private landowners to 
broaden the practice of sustainable forestry, including management 
practices to benefit lynx (Kraft 2006a p. 7, technical comments).
    Thus, because SFI participation has partially been responsible for 
the forestry practices that have created the extensive mosaic of lynx 
habitat in this unit, we believe there would be little benefit from 
including these lands in the designation.
    Finally, the primary factor causing the lynx to be listed was 
inadequate regulatory mechanisms on Federal lands. In the Northern 
Rockies, six National Forests and BLM lands provide an extensive mosaic 
of boreal forest supporting different successional stages that provide 
features essential to the conservation of lynx. These Forests are in 
the process of amending their LRMPs to incorporate conservation 
measures for lynx (see 3(5)(A) discussion above). Currently, these six 
Forests adhere to a conservation agreement that ensures that these 
Forests will continue to be managed for lynx conservation by: (1) 
continuing to manage these lands consistent with the LCAS until their 
LRMPs are revised, which we have determined largely avoids adverse 
effects to lynx in the interim period (Service 2000, p. 47); and (2) 
ensuring sufficient conservation of the lynx and its habitat upon 
revision of LRMPs (see Application of Section 3(5)(A) of the Endangered 
Species Act discussion, above). Because factors on non-federal lands 
played a subordinate role in the listing and conservation of the lynx 
compared to National Forest and BLM lands, we believe there is little 
benefit of including non-federal lands managed for commercial forestry 
in the designation.
Benefits of Exclusion
    We have evaluated lands managed for commercial forestry within the 
proposed designation of critical habitat for the lynx. Based on this 
evaluation, we find that the benefits of excluding these specific lands 
include maintaining relationships with existing partners and 
encouraging the establishment of new partnerships with landowners and a 
reduction of potential regulations having limited conservation 
benefits. Partnerships are essential for the conservation and recovery 
of lynx in part because it is crucial to the ongoing research and 
surveys for lynx, snowshoe hare, and lynx habitat relationships. For 
example, these landowners, especially Plum Creek, allow researchers 
access to their lands; without access to these lands, research and 
monitoring that informs our understanding of lynx ecology would be 
severely restricted. Additionally, Plum Creek provides funding and 
other resources to enable lynx and snowshoe hare research. Plum Creek 
Timber Company has demonstrated its willingness to be a partner in the 
conservation of fish and wildlife through its Native Fish Habitat 
Conservation Plan and from being a signatory to the Swan Valley Grizzly 
Bear Conservation Agreement, both of which provide some ancillary 
benefits to lynx. The educational benefits of critical habitat, 
including informing the public of areas that are essential for the 
long-term conservation of the lynx, are still accomplished from ongoing 
research and surveys as discussed above, various Web sites and through 
public notice-and-comment procedures.
Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding lands managed for commercial forestry as 
critical habitat outweigh the benefits of including them as critical 
habitat for the lynx. As we discuss above, we believe that there would 
be greater benefit from excluding lands managed for commercial forestry 
from the final designation because it will maintain or encourage 
partnerships and allow for continued access to these lands for research 
and monitoring of lynx, snowshoe hares and their habitat. Further, as 
indicated in the final rule listing the lynx (March 24, 2000; 65 FR 
16052) the primary threat to the lynx was the inadequacy of regulatory 
mechanisms on Federal lands. National Forest lands support the vast 
majority of lynx habitat and the features essential to the conservation 
of lynx in the Northern Rockies. We believe that within this unit the 
threats to the lynx have been ameliorated because the USFS adheres to a 
conservation agreement that ensures that these Forests will continue to 
be managed for lynx conservation. Thus, while non-federal lands managed 
for commercial forestry provide habitat for lynx, they only supplement 
those lynx habitat management efforts on National Forest lands. In 
addition, we believe that critical habitat designation provides little 
gain in the way of increased public recognition and education because 
of the information provided from ongoing research and monitoring, 
materials provided on various Web sites, through the public review 
process for the MDNRC HCP and the USFS Northern Rockies Lynx Amendment, 
and through the publication of the proposed critical habitat and 
associated outreach and public hearings. As described above, based on 
Plum Creek Timber Company's comments on the critical habitat proposal, 
the company is aware of issues related to the Act, in general, and 
lynx, in particular. We also believe that there would be little 
additional conservation benefits realized through the regulatory burden 
of a critical habitat designation on these lands under

[[Page 66049]]

section 7 of the Act because Federal actions that would trigger 
consultation are uncommon. Therefore, on the basis of the above 
discussion and the conservation measures provided the lynx and features 
essential to its conservation through the National Forests, we do not 
believe that the exclusion of lands managed for commercial forestry in 
this unit would result in the extinction of the lynx.

Small Landowners and Lands Not Managed for Commercial Forestry

    This category of specific properties includes private, county, 
municipal government, conservation lands (e.g., The Nature 
Conservancy), Federal (except National Forest or National Park lands) 
and State lands that have a myriad of uses and individually are small-
scale compared to the large spatial scale required by lynx. 
Cumulatively, these lands constitute an extremely limited land base 
within the proposed critical habitat unit compared to the amount of 
lynx habitat provided by seven National Forests, and are scattered 
throughout the proposed unit.
Benefits of Inclusion
    As previously discussed, we believe that there may be some 
education benefits to designating critical habitat for lynx on lands 
not managed for commercial forestry. However, we believe that these is 
already substantial awareness of the lynx and conservation issues 
related to the lynx through the species being listed, through the 
public review process for the MDNRC HCP and the USFS Northern Rockies 
Lynx Amendment, lynx and snowshoe hare research being conducted by the 
USFS Rocky Mountain Research Station and the University of Montana, 
surveys conducted by Montana Fish, Wildlife and Parks, and independent 
researchers, various Web sites (e.g., http://www.nature.org/wherewework/northamerica/states/montana/press/press2654.html) and 
through the publication of the proposed critical habitat and associated 
outreach and public hearings.
    Lands under this category are considered to be occupied by the 
lynx. As such, for Federal actions, consultation under section 7 of the 
Act is required if a Federal action may affect the lynx or its habitat. 
While actions having adverse affects for lynx may be addressed through 
a consultation, since the lynx was listed the opportunity to address 
such actions through consultation has been extremely limited because 
there have been few consultations under section 7 of the Act for 
actions on these lands because there is rarely a Federal action. 
Therefore the benefits of inclusion are low because of the few 
instances in which projects are federally funded, permitted or approved 
on these lands.
    Further, we believe the benefits of including these lands in the 
designation are low because such lands are fairly small in size 
relative to the large landscape required by an individual lynx to 
support its home range and these lands are scattered throughout the 
proposed unit. Therefore, although such lands may support lynx habitat, 
they have a negligible influence on the features essential to the 
conservation of the lynx, especially compared to the significant role 
of the National Forest lands. Thus, due to the negligible affect of 
these small properties on the features essential to the conservation of 
lynx and the infrequency of Federal actions we believe that there would 
be little benefit obtained from including these lands in the 
designation.
Benefits of Exclusion
    We have evaluated lands not managed for commercial forestry within 
the proposed designation of critical habitat for the lynx. Based on 
this evaluation, we find that the benefits of excluding these specific 
lands include maintaining relationships with landowners and a reduction 
of potential regulations having limited conservation benefits. 
Partnerships are essential for the conservation and recovery of lynx in 
part because it is crucial to the ongoing research and surveys for 
lynx, snowshoe hare, and lynx habitat relationships. The educational 
benefits of critical habitat, including informing the public of areas 
that are essential for the long-term conservation of the lynx, are 
still accomplished from ongoing research and surveys as discussed 
above, various Web sites, and through public notice-and-comment 
procedures.
Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding lands not managed for commercial 
forestry as critical habitat outweigh the benefits of including them as 
critical habitat for the lynx. As we discuss above, we believe that 
there would be greater benefit from excluding these smaller properties 
from the final designation because it will maintain relationships and 
allow for continued access to these lands for research and monitoring 
of lynx, snowshoe hares and their habitat. Further, as indicated in the 
final rule listing the lynx (March 24, 2000; 65 FR 16052) the primary 
threat to the lynx was the inadequacy of regulatory mechanisms on 
Federal lands. National Forest lands support the vast majority of lynx 
habitat and the features essential to the conservation of lynx in the 
Northern Rockies. We believe that within this unit the threats to the 
lynx have been ameliorated because the USFS adheres to a conservation 
agreement that ensures that these Forests will continue to be managed 
for lynx conservation. These smaller properties that are not managed 
for commercial forestry have a minor influence on the features 
essential to the conservation of lynx compared to that of the National 
Forest lands. In addition, we believe that critical habitat designation 
provides little gain in the way of increased public recognition and 
education because of the information provided from ongoing research and 
monitoring, materials provided on various Web sites, through the public 
review process for the MDNRC HCP and the USFS Northern Rockies Lynx 
Amendment, and through the publication of the proposed critical habitat 
and associated outreach and public hearings. We also believe that there 
would be little additional conservation benefits realized through the 
regulatory burden of a critical habitat designation on these lands 
under section 7 of the Act because Federal actions are rare. Therefore, 
on the basis of the above discussion and the conservation measures 
provided the lynx and features essential to its conservation through 
the National Forests, we do not believe that the exclusion of lands not 
managed for commercial forestry in this unit would result in the 
extinction of the lynx.

Unit 4 (North Cascades (Washington))

Washington Department of Natural Resources Lynx Habitat Management Plan 
for DNR-Managed Lands (WDNR HMP)

    The WDNR HMP encompasses 126,212 ac (197 mi2) (51,076 
ha/511 km2) of WDNR-managed lands distributed throughout 
northcentral and northeastern Washington in areas delineated as Lynx 
Management Zones in the Washington state recovery plan for the lynx 
(Stinson 2001, p. 39; WDNR 2006 pp. 5-13 (January draft). The WDNR HMP 
was finalized in 2006 and is a revision of the lynx plan that WDNR has 
been implementing since 1996 (WDNR 1996, entire). The 1996 plan was 
developed as a substitute for a species-specific critical habitat 
designation required by Washington Forest Practices rules in response 
to the

[[Page 66050]]

lynx being State-listed as threatened (WDNR 2006, p. 5). The 2006 HMP 
provides further provisions to avoid the incidental take of lynx 
(Martin 2002, entire; WDNR 2006, p. 6). Washington DNR is committed to 
following the HMP until 2076 or until the lynx is delisted, whichever 
is shorter (WDNR 2006, p. 6).
    The WDNR HMP contains measures to guide WDNR in creating and 
preserving quality lynx habitat through its forest management 
activities. The objectives and strategies of the HMP are developed for 
multiple planning scales (Ecoprovince and Ecodivision, Lynx Management 
Zone, Lynx Analysis Unit (LAU), and Ecological community) and include: 
encouraging genetic integrity at the species level by preventing 
bottlenecks between British Columbia and Washington by limiting size 
and shape of temporary non-habitat along the border and maintaining 
major routes of dispersal between British Columbia and Washington; 
maintaining connectivity between subpopulations by maintaining 
dispersal routes between and within zones and arranging timber harvest 
activities that result in temporary non-habitat patches among 
watersheds so that connectivity is maintained within each zone; 
maintaining the integrity of requisite habitat types within individual 
home ranges by maintaining connectivity between and integrity within 
home ranges used by individuals and/or family groups; and providing a 
diversity of successional stages within each LAU and connecting denning 
sites and foraging sites with forested cover without isolating them 
with open areas by prolonging the persistence of snowshoe hare habitat 
and retaining coarse woody debris for denning sites (WDNR 2006, p. 29). 
The plan identifies specific guidelines to achieve the objectives and 
strategies at each scale; it also describes how WDNR will monitor and 
evaluate the implementation and effectiveness of the HMP (WDNR 2006, 
pp. 29-63).
Benefits of Inclusion
    We expect the WDNR HMP to provide substantial protection of 
features essential to the conservation of lynx on WDNR managed lands 
and to provide a greater level of management for the lynx on these 
State lands than would designation of critical habitat on State lands. 
The measures contained in the WDNR HMP exceed any measures that may 
result from critical habitat designation because the HMP provides lynx-
specific objectives and strategies for different planning scales, 
provides guidelines to meet the objectives and monitoring to evaluate 
the implementation and effectiveness of the HMP. As a result, we do not 
anticipate any action on these lands would destroy or adversely modify 
the areas designated as critical habitat. Therefore, we do not expect 
that including these areas in the final designation would lead to any 
changes to actions on the WDNR managed lands to avoid destroying or 
adversely modifying that habitat, and therefore the benefits of 
inclusion are low. Furthermore, on these State lands it is uncommon for 
there to be a Federal action that triggers consultation under section 7 
of the Act, therefore little benefit would be realized through section 
7 consultation if such lands were included in the designation.
    As previously discussed, we believe there may be some education 
benefits to designating critical habitat for lynx on WDNR managed 
lands. However, we believe there is already substantial awareness of 
the lynx and conservation issues related to the lynx through the 
species being listed both under the Act and Washington State law; 
through the public review process for the WDNR HMP, Washington's Lynx 
Recovery Plan and the revision of the Okanogan-Wenatchee Forest Plan; 
lynx and snowshoe hare research being conducted by the USFS Pacific 
Northwest Research Station, Washington State University, University of 
Washington, and the University of Montana, among others; surveys 
conducted by Washington Department of Fish and Wildlife and the USFS; 
State of Washington Web sites, among others (e.g., http://wdfw.wa.gov/wlm/diversty/soc/recovery/lynx/lynx.htm, www.dnr.wa.gov/htdocs/amp/sepa/lynx/1_toc.pdf) and through the publication of the proposed 
critical habitat and associated outreach and public hearings.
Benefits of Exclusion
    The exclusion of these lands from critical habitat will help 
preserve the partnerships that we have developed with the WDNR over the 
years of development and implementation of both this 2006 HMP and the 
original 1996 lynx plan, which provides for long-term lynx 
conservation. The educational benefits of critical habitat, including 
informing the public of areas that are essential for the long-term 
conservation of the lynx, are still accomplished from ongoing research 
and surveys as discussed above, various Web sites, and through public 
notice-and-comment procedures. For these reasons, we believe that 
designating critical habitat has little benefit on State lands covered 
by the WDNR HMP.
Benefits of Exclusion Outweigh Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding WDNR managed lands as critical habitat 
outweigh the benefits of including them as critical habitat for the 
lynx. As we discuss above, we believe that there would be greater 
benefit from excluding WDNR managed lands from the final designation 
because it will preserve our partnership with WDNR. The provisions of 
the WDNR HMP will provide greater benefits to the features essential to 
the conservation of lynx than would be provided under a critical 
habitat designation.
    We also believe that there would be little additional conservation 
benefits realized through the regulatory burden of a critical habitat 
designation on these lands under section 7 of the Act because Federal 
actions are uncommon. Therefore, on the basis of the above discussion 
and the habitat conservation measures that are already being provided 
to the lynx on WDNR managed lands under the WDNR HMP that address the 
features essential to conservation of the lynx, we do not believe that 
the exclusion of WDNR HMP lands would result in the extinction of the 
lynx.

Small Landowners and Lands Not Managed for Commercial Forestry

    This category of specific properties includes private lands that 
are small-scale compared to the large spatial scale required by lynx. 
Cumulatively, these lands constitute an extremely limited land base 
within the proposed critical habitat unit compared to the amount of 
lynx habitat provided by the Okanogan-Wenatchee National Forest, and 
are scattered fragments within the proposed unit.
Benefits of Inclusion
    As previously discussed, we believe that there may be some 
education benefits to designating critical habitat for lynx on small 
private lands not managed for commercial forestry. However, we believe 
there is already substantial awareness of the lynx and conservation 
issues related to the lynx through the species being listed both under 
the Act and Washington State law; through the public review process for 
the WDNR HMP, Washington's Lynx Recovery Plan and the revision of the 
Okanogan-Wenatchee Forest Plan; lynx and snowshoe hare research being 
conducted by the USFS Pacific Northwest Research Station,

[[Page 66051]]

Washington State University, University of Washington, University of 
Montana, among others; surveys conducted by Washington Department of 
Fish and Wildlife and the USFS; State of Washington Web sites, among 
others, and through the publication of the proposed critical habitat 
and associated outreach and public hearings.
    On these private lands it is rare for there to be a Federal action 
that triggers consultation under section 7 of the Act, therefore, 
little benefit would be realized through section 7 consultation if such 
lands were included in the designation.
    Further, we believe the benefits of including these lands in the 
designation are low because such lands are extremely small in size 
relative to the large landscape required by an individual lynx to 
support its home range. Therefore, although such lands may support lynx 
habitat, they have a negligible influence on the features essential to 
the conservation of the lynx, especially compared to the significant 
role of the National Forest lands in this area. Thus, due to the 
negligible affect of these small properties on the features essential 
to the conservation of lynx and the infrequency of Federal actions 
triggering consultation, we believe that there would be little benefit 
obtained from including these lands in the designation.
Benefits of Exclusion
    We have evaluated small private lands not managed for commercial 
forestry within the proposed designation of critical habitat for the 
lynx. Based on this evaluation, we find that the benefits of excluding 
these specific lands include maintaining relationships with landowners 
and a reduction of potential regulations having limited conservation 
benefits. Partnerships are essential for the conservation and recovery 
of lynx in part because it is crucial to the ongoing research and 
surveys for lynx, snowshoe hare, and lynx habitat relationships. These 
landowners might allow researchers access to their lands, without 
which, research and monitoring would be hampered. The educational 
benefits of critical habitat, including informing the public of areas 
that are essential for the long-term conservation of the lynx, are 
still accomplished from ongoing research and surveys as discussed 
above, various Web sites and through public notice-and-comment 
procedures.
Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding small private lands not managed for 
commercial forestry as critical habitat outweigh the benefits of 
including them as critical habitat for the lynx. As we discuss above, 
we believe that there would be greater benefit from excluding these 
smaller properties from the final designation because it will maintain 
relationships to promote research and monitoring of lynx, snowshoe 
hares and their habitat. Further, as indicated in the final rule 
listing the lynx (March 24, 2000; 65 FR 16052) the primary threat to 
the lynx was the inadequacy of regulatory mechanisms on Federal lands. 
National Forest lands support the vast majority of lynx habitat and the 
features essential to the conservation of lynx in the North Cascades. 
These smaller properties that are not managed for commercial forestry 
have a minor influence on the features essential to the conservation of 
lynx compared to that of the Okanogan-Wenatchee National Forest lands. 
In addition, we believe that critical habitat designation provides 
little gain in the way of increased public recognition and education 
because of the information provided from ongoing research and 
monitoring, materials provided on various Web sites, through the public 
review process for the WDNR HMP, Washington's Lynx Recovery Plan and 
the revision of the Okanogan-Wenatchee Forest Plan; lynx and snowshoe 
hare research being conducted by the USFS Pacific Northwest Research 
Station, Washington State University, University of Washington, 
University of Montana, among others; and through the publication of the 
proposed critical habitat and associated outreach and public hearings. 
We also believe that there would be little additional conservation 
benefits realized through the regulatory burden of a critical habitat 
designation on these lands under section 7 of the Act because Federal 
actions are rare. Therefore, on the basis of the above discussion and 
the conservation measures provided the lynx and features essential to 
its conservation through the National Forests, we do not believe that 
the exclusion of small private lands not managed for commercial 
forestry in this unit would result in the extinction of the lynx.

Correction of Administrative Error

    In this final rule, we are correcting an administrative error that 
occurred in the listing of the Canada lynx. The State of Pennsylvania 
should not be listed in the Historic Range column for this species in 
the table in 50 CFR 17.11(h). Therefore, we are removing Pennsylvania 
from the list of States in the Historic Range column.

Economic Analysis

    Section 4(b)(2)of the Act requires us to designate critical habitat 
on the basis of the best scientific information available and to 
consider the economic and other relevant impacts of designating a 
particular area as critical habitat. 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 concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis was 
made available for public review on September 11, 2006 (71 FR 53355). 
We accepted comments on the draft analysis until October 11, 2006.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the lynx. This information is intended to assist the 
Secretary in making decisions about whether the benefits of excluding 
particular areas from the designation outweigh the benefits of 
including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections and conservation efforts 
that may be co-extensive with the listing of the species. It also 
addresses distribution of impacts, including an assessment of the 
potential effects on small entities and the energy industry. This 
information can be used by the Secretary to assess whether the effects 
of the designation might unduly burden a particular group or economic 
sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic

[[Page 66052]]

impacts that result from these types of protections are not included in 
the analysis, as they are considered to be part of the regulatory and 
policy baseline.
    As discussed in the September 11, 2006, notice announcing the 
availability of the draft economic analysis ((71 FR 53355), the draft 
analysis estimates the potential total future costs to range from $175 
million to $889 million in undiscounted dollars over the next 20 years. 
Discounted future costs are estimated to be from $125 million to $411 
million over 20 years ($8.38 million to $27.6 million annually) using a 
3 percent discount rate, or $99.9 million to $259 million over 20 years 
($9.43 million to $24.4 million annually) using a 7 percent discount 
rate. After taking into consideration public comment on the proposal, 
the draft economic analysis and the draft NEPA document, we evaluated 
the benefits of conservation programs, plans, and partnerships relative 
to the regulatory benefits of critical habitat pursuant to section 
4(b)(2) of the Act. Please refer to Exclusions Under Section 4(b)(2) of 
the Act section of this final rule. As a result, we are only finalizing 
critical habitat for the lynx lands within Voyageurs, Glacier, and 
North Cascades National Parks. Based on our final analysis of potential 
economic cost resulting from this designation, we have determined that 
the annualized potential cost to the National Parks would be 
approximately $18,150.
    A copy of the draft and final economic analysis with supporting 
documents are included in our administrative record and may be obtained 
by contacting U.S. Fish and Wildlife Service, Montana Field Office (see 
ADDRESSES section) or for downloading from the Internet at http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm. 
    Pursuant to section 4(b)(2) of the Act, we must consider relevant 
impacts in addition to economic ones. We have determined that no lands 
being designated as critical habitat for the lynx are owned or managed 
by the Department of Defense. We anticipate no impact to national 
security, partnerships, or HCPs from this final critical habitat 
designation. Further, we do not believe that this final designation 
will result in any substantial and disproportionate economic impacts.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule.
    Further, Executive Order 12866 directs Federal Agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, the agency will then need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), we must then 
evaluate alternative regulatory approaches, where feasible, when 
promulgating a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts pursuant to section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat, providing the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. As such, we believe that the evaluation of the inclusion 
or exclusion of particular areas, or combination thereof, in a 
designation constitutes our regulatory alternative analysis.
    In the development of this final designation we took into 
consideration conservation partnerships, programs, and management 
plans. On the basis of our evaluation of the benefits of including 
lands covered under these programs, plans or partnerships, we 
determined that greater conservation benefits for the lynx would be 
realized from the exclusion of these lands from this final designation. 
As a result, we are only finalizing critical habitat for the lynx lands 
within Voyageurs, Glacier, and North Cascades National Parks. Based on 
our final analysis of potential economic cost resulting from this 
designation, we have determined that the annualized potential cost to 
the National Parks would be approximately $18,150. Thus, this final 
designation of critical habitat for the lynx will not have an annual 
effect on the economy of $100 million or more or affect the economy in 
a material way.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    The Service has concluded that there will not be a substantial 
impact on a significant number of small entities as a result of this 
final rule. The only areas designated are owned by the National Park 
Service (NPS). The NPS said, in its comments on this rule, it would 
likely not change its management of park lands as a result of this 
proposal. Any small entities likely to be affected by this rule would 
be park concessionaires or contractors. However, activities that are 
conducted by these small businesses are unlikely to result in adverse 
modification of lynx critical habitat. Therefore, there will be no 
impact on small entities from this rule.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (Number 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This final rule to designate critical habitat for the lynx is 
considered a significant regulatory action under Executive Order 12866, 
as it may raise novel legal and policy issues. However, because this 
final designation is restricted to National Park Service lands, it is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

[[Page 66053]]

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-federal entities receiving Federal 
funding, assistance, or permits, or otherwise requiring approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments, because this final designation is restricted 
to National Park Service lands; towns and developed areas have been 
excluded. As such, we do not believe that a Small Government Agency 
Plan is not required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the lynx in a takings implications 
assessment. The takings implications assessment concludes that this 
designation of critical habitat for the lynx does not pose significant 
takings implications.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from, and coordinated development of, the 
critical habitat designation with appropriate State resource agencies 
in Idaho, Maine, Minnesota, Montana, and Washington. We believe that 
this resulting final designation of critical habitat for the lynx will 
have little incremental impact on State and local governments and their 
activities. The designation may have some benefit to these governments 
in that the areas important to the conservation of the species are more 
clearly defined, and the primary constituent element of the habitat 
essential to the survival and conservation of the species is 
specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have designated critical habitat in accordance with 
the provisions of the Act. This final designation uses standard 
property descriptions and identifies the primary constituent element 
within the designated areas to assist the public in understanding the 
habitat needs of the lynx.

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

    This final rule does not contain any new collections of information 
that require approval by OMB under the Paperwork Reduction Act. This 
rule will not impose recordkeeping or reporting requirements on State 
or local governments, individuals, businesses, or organizations. An 
agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act

    We have undertaken a NEPA analysis for this critical habitat 
designation and notified the public of the availability of the draft 
environmental assessment for the proposed rule on September 11, 2006. 
The final environmental assessment, as well as a Finding of No 
Significant Impact (FONSI), is available upon request from the Field 
Supervisor, Montana Fish and Wildlife Office (see ADDRESSES section) or 
on our Web site at http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations With Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175 ``Consultation and 
Coordination With Indian Tribal Governments,'' and the Department of 
the Interior Manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
tribes on a government-to-government basis. Tribal lands have been 
excluded from this critical habitat designation. Please refer to our 
discussion of tribal lands under the Relationship of Critical Habitat 
to Tribal Lands section of this final rule.

[[Page 66054]]

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Web site http://mountain-prairie.fws.gov/species/mammals/lynx/ or upon request from the Field Supervisor, Montana Field 
Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
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]

0
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.


0
2. In Sec.  17.11(h), revise the entry for ``Lynx, Canada'' under 
``MAMMALS'' to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals
 
                                                                      * * * * * * *
Lynx, Canada.....................  Lynx canadensis.....  U.S.A. (AK, CO, ID,  CO, ID, ME, MI, MN,  T                       692     17.95(a)     17.40(k)
                                                          CO, ID, ME, MI,      MT, NH, NY, OR,
                                                          MN, MT, NH, NY,      UT, VT, WA, WI, WY.
                                                          OR, UT, VT, WA,
                                                          WI, WY), Canada,
                                                          circumboreal.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95(a), add critical habitat for ``Canada lynx'' in the 
same alphabetical order as this species occurs in Sec.  17.11(h) to 
read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
Canada lynx (Lynx canadensis)
    (1) Critical habitat units are depicted on the maps below for the 
following States and counties:
    (i) Minnesota: Koochiching and St. Louis counties;
    (ii) Montana: Flathead and Glacier counties; and
    (iii) Washington: Chelan County.
    (2) Within these areas, the primary constituent elements for the 
Canada lynx are boreal forest landscapes supporting a mosaic of 
differing successional forest stages and containing:
    (i) Presence of snowshoe hares and their preferred habitat 
conditions, which include dense understories of young trees or shrubs 
tall enough to protrude above the snow;
    (ii) Winter snow conditions that are generally deep and fluffy for 
extended periods of time; and
    (iii) Sites for denning having abundant, coarse woody debris, such 
as downed trees and root wads.
    (3) Critical habitat does not include waterbodies, including lakes, 
reservoirs, or rivers, or human-made structures existing on the 
effective date of this rule, such as buildings, paved and gravel 
roadbeds, and the land on which such structures are located.
    (4) Note: Index map for Canada lynx critical habitat follows:

BILLING CODE 4310-55-P

[[Page 66055]]

[GRAPHIC] [TIFF OMITTED] TR09NO06.001


[[Page 66056]]


    (5) Unit 1: Maine Unit; all lands within Unit 1 (Maine) were 
excluded from the final designation of critical habitat for the Canada 
lynx pursuant to section 4(b)(2) of the Act.
    (6) Unit 2: Minnesota Unit; Koochiching, and St. Louis Counties, 
Minnesota. Coordinate Projection: UTM, NAD83, Zone 15, Meters; 
Coordinate Definition: (easting, northing)
    (i) Starting at the intersection (coordinate: 488708, 5385732) of 
the Minnesota/Canada border and Voyageurs National Park (NP) boundary, 
follow the Voyageurs NP boundary to the beginning.
    (ii) Starting at coordinate (485661, 5382447), follow the Voyageurs 
NP boundary to the beginning.
    (iii) Starting at coordinate (486994, 5381780), follow the 
Voyageurs NP boundary to the beginning.
    (iv) Starting at coordinate (487475, 5383250), follow the Voyageurs 
NP boundary to the beginning.
    (v) Note: Map 1: Unit 2 (Minnesota) follows:

[[Page 66057]]

[GRAPHIC] [TIFF OMITTED] TR09NO06.002


[[Page 66058]]


    (7) Unit 3: Northern Rocky Mountains Unit; Flathead and Glacier 
counties, Montana. Coordinate Projection: UTM, NAD83, Zone 12, Meters; 
Coordinate Definition: (easting, northing).
    (i) Starting at the intersection (coordinate: 309104, 5430544) of 
the Montana/Canada border and Glacier National Park (NP) boundary, 
follow the Glacier NP boundary to the intersection with the 4,000-foot 
elevation contour at coordinate (309305, 5346020). Follow the 4,000-
foot elevation contour to the intersection of the Montana/Canada border 
at coordinate (247220, 5433213). Follow the Montana/Canada border to 
the intersection with the 4,000-foot elevation contour at coordinate 
(247373, 5433204). Follow the 4000 foot elevation contour to the 
intersection with the Montana/Canada border at coordinate (247562, 
5433194). Follow the Montana/Canada border to the beginning. This area 
is found within the following USGS 1:24000 Quads; Trailcreek, Kintla 
Lake, Kintla Peak, Mount Carter, Porcupine Ridge, Mount Cleveland, 
Gable Mountain, Chief Mountain, Polebridge, Quartz Ridge, Vulture Peak, 
Mount Geduhn, Ahern Pass, Many Glacier, Lake Sherburne, Babb, Demers 
Ridge, Camas Ridge West, Camas Ridge East, Mount Cannon, Logan Pass, 
Rising Sun, Saint Mary, McGee Meadow, Lake McDonald West, Lake McDonald 
East, Mount Jackson, Mount Stimson, Cut Bank Pass, Kiowa, West Glacier, 
Nyack, Stanton Lake, Mount Saint Nicholas, Mount Rockwell, Squaw 
Mountain, East Glacier Park, Pinnacle, Essex, Blacktail, Summit, 
Nimrod, and Mount Bradley.
    (ii) Starting at coordinate (269763, 5390173), follow the 4,000-
foot elevation contour to beginning. This area is found within the 
following USGS 1:24000 Quads: Huckleberry Mountain, McGee Meadow, and 
Hungry Horse.
    (iii) Note: Map 2: Unit 3 (Northern Rockies) follows:

[[Page 66059]]

[GRAPHIC] [TIFF OMITTED] TR09NO06.003


[[Page 66060]]


    (8) Unit 4: North Cascades Unit; Chelan County, Washington. 
Coordinate Projection: UTM, NAD83, Zone 11, Meters; Coordinate 
Definition: (easting, northing).
    (i) Starting at the intersection (coordinate: 221473, 5379664) of 
the ``Cascade Crest'' and the North Cascades National Park (NP) 
boundary, follow the North Cascades NP/Lake Chelan National Recreation 
Area boundary to the intersection of the 4,000-foot elevation contour 
at coordinate (232788, 5352734). Follow the 4,000-foot elevation 
contour to the intersection of the North Cascades NP boundary at 
coordinate (207433, 5371068). Follow the North Cascades NP boundary to 
intersection with the ``Cascade Crest'' at coordinate (201400, 
5372276). Follow the ``Cascade Crest'' to the beginning. This area is 
found within the following USGS 1:24000 Quads: Mount Logan, Mount 
Arriva, McGregor Mountain, McAlester Mountain, Gilbert, Sun Mountain, 
Stehekin, Goode Mountain, and Cascade Pass.
    (ii) Note: Map 3: Unit 4 (North Cascades) follows:

[[Page 66061]]

[GRAPHIC] [TIFF OMITTED] TR09NO06.004

* * * * *

    Dated: October 30, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-9090 Filed 11-8-06; 8:45 am]
BILLING CODE 4310-55-C