[Federal Register Volume 77, Number 162 (Tuesday, August 21, 2012)]
[Notices]
[Pages 50526-50530]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20479]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R1-ES-2012-N181; FXES11120100000F2-123-FF01E00000]


Proposed Safe Harbor Agreement for the Northern Spotted Owl, 
Skamania, Klickitat, and Yakima Counties, WA, and Hood River and Wasco 
Counties, OR

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.

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

SUMMARY: SDS Company LLC (SDS) and the Broughton Lumber Company (BLC), 
hereafter referred to as the applicants, have applied to the U.S. Fish 
and Wildlife Service (Service) for an enhancement of survival permit 
(permit) under the Endangered Species Act of 1973, as amended (ESA). 
The permit application includes a draft Safe Harbor Agreement (SHA) and 
a draft Implementing Agreement (IA). Pursuant to the Service's 
responsibility to comply with the National Environmental Policy Act 
(NEPA), the application package also includes a draft Environmental 
Assessment (EA). The Service invites the public to review and comment 
on the draft SHA, the draft IA, and draft EA.

DATES: To ensure consideration, please send your written comments by 
September 20, 2012.

ADDRESSES: You may download copies of the draft SHA, draft IA, and 
draft EA and obtain additional information on the Internet at http://www.fws.gov/westwafwo/. You may submit comments or requests for more 
information by any of the following methods. You may request hard 
copies or a CD-ROM of the documents.
     Email: [email protected]. Include ``SDS BLC SHA'' in the 
subject line of the message.
     U.S. Mail: Mark Ostwald, U.S. Fish and Wildlife Service, 
Washington Fish and Wildlife Office, 510 Desmond Drive, Southeast, 
Suite 102, Lacey, WA 98503.
     In-Person Drop-off, Viewing, or Pickup: Call (360) 753-
9440 to make an appointment (necessary for view/pickup only) during 
regular business hours at Washington Fish and Wildlife Office, 510 
Desmond Drive, Southeast, Suite 102, Lacey, WA 98503.

FOR FURTHER INFORMATION CONTACT: Mark Ostwald, U.S. Fish and Wildlife 
Service (see ADDRESSES), telephone (360) 753-9564. If you use a 
telecommunications device for the deaf, please call the Federal 
Information Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: The applicants have applied to the Service 
for an enhancement of survival permit under section 10(a)(1)(A) of the 
ESA (16 U.S.C. 1531 et seq.). The permit application includes a draft 
SHA, draft IA, and draft EA.
    The SHA covers about 81,587 acres of managed private forest lands 
in Washington and Oregon. The proposed term of the permit and the SHA 
is 60 years. The permit would authorize incidental take of the 
threatened northern spotted owl (Strix occidentalis caurina) at a level 
that enables the applicants ultimately to return the

[[Page 50527]]

enrolled property back to agreed-upon baseline conditions. The permit 
would also authorize incidental take of the spotted owl as a result of 
management activities during the term of the permit.
    Approximately 16,031 acres of the forest lands covered under the 
proposed SHA, inclusive of baseline habitat acres, have also been 
proposed by the Service as critical habitat for the spotted owl (77 FR 
14062; March 8, 2012). These lands are being considered for exclusion 
from the final critical habitat designation based on the anticipated 
conservation benefits of this SHA (if it is approved) and economic or 
other relevant factors.

Background

    Under a SHA, participating property owners voluntarily undertake 
management activities to enhance, restore, or maintain habitat 
benefiting species listed under the ESA. SHAs are intended to encourage 
private and other non-Federal property owners to implement conservation 
actions for listed species by assuring the participating property 
owners that they will not be subject to increased property use 
restrictions as a result of increasing the abundance of covered 
(listed) species due to their efforts to improve conditions for covered 
species on their property. When a participating landowner meets all the 
terms of an approved SHA, the Service authorizes incidental taking of 
the covered species at a level that enables the property owner 
ultimately to return the enrolled property back to agreed-upon baseline 
conditions. Such authorization is provided under a permit issued 
pursuant to the provisions of section 10(a)(1)(A) of the ESA.
    For an applicant to receive a permit through a SHA, the applicant 
must submit an application form that includes the following:
    1. The common and scientific names of the listed species for which 
the applicant requests incidental take authorization;
    2. A description of how incidental take of the listed species 
pursuant to the SHA is likely to occur, both as a result of management 
activities and as a result of the return to baseline; and
    3. A SHA that complies with the requirements of the Service's Safe 
Harbor policy.
    The issuance criteria for a permit are as follows:
    1. The take of listed species will be incidental to an otherwise 
lawful activity and will be in accordance with the term of the SHA;
    2. The implementation of the terms of the SHA is reasonably 
expected to provide a net conservation benefit to the covered species 
by contributing to its recovery, and the SHA otherwise complies with 
the Service's Safe Harbor policy;
    3. The probable direct and indirect effects of any authorized take 
will not appreciably reduce the likelihood of survival and recovery in 
the wild of any listed species;
    4. Implementation of the terms of the SHA is consistent with 
applicable Federal, State, and Tribal laws and regulations;
    5. Implementation of the terms of the SHA will not be in conflict 
with any ongoing conservation or recovery programs for listed species 
covered by the permit; and
    6. The applicant has shown capability for and commitment to 
implementing all of the terms of the SHA.
    The Service's Safe Harbor policy (64 FR 32717; June 17, 1999) and 
Safe Harbor regulations (September 10, 2003, 68 FR 53320; May 3, 2004, 
69 FR 24084) provide important terms and concepts for developing SHAs. 
The Service's Safe Harbor policy and regulations are available at: 
http://www.fws.gov/endangered/laws-policies/regulations-and-policies.html.

Spotted Owl Special Emphasis Areas

    In Washington State, ten Spotted Owl Special Emphasis Areas 
(SOSEAs) have been established under Washington Forest Practices Rules 
(WAC 222-16-086) to provide for the conservation needs of the spotted 
owl. Each SOSEA includes land area goals for spotted owl demographic 
and dispersal support. Different SOSEAs have different biological goals 
for spotted owls, depending on the geographic location of the SOSEA and 
the conservation needs of the spotted owl. The covered lands under the 
proposed SHA include portions of the White Salmon and the Columbia 
Gorge SOSEAs.
    Under Washington Forest Practices Rules, the following amounts of 
suitable habitat are generally assumed to be necessary to maintain the 
viability of each spotted owl site center within each SOSEA in the 
absence of more specific data or a mitigation plan: (a) All suitable 
spotted owl habitat within 0.7 miles of each spotted owl site center; 
and (b) a total of 2,605 acres of suitable spotted owl habitat within 
the median home range circle with a radius of 1.8 miles. Under 
Washington Forest Practices Rules, proposed forest practices likely to 
adversely affect spotted owl habitat in either category (a) or (b) 
above are likely to have significant adverse impacts on the spotted 
owl, and such activities would require a Class IV special forest 
practice authorization and an environmental impact statement per the 
State Environmental Policy Act (SEPA), and likely require an incidental 
take permit (ITP) under section 10(a)(1)(B) of the ESA.
    Outside of SOSEAs, 70 acres of the highest quality suitable spotted 
owl habitat surrounding a spotted owl site center should be maintained 
during the nesting season in accordance with Washington Forest 
Practices Rules (WAC 222-10-041 (5)). Washington Forest Practices Rules 
also provide for exceptions to operating under the above standard 
rules. These exceptions include conducting forest management operations 
under a Service-approved habitat conservation plan and an ITP 
authorized under section 10(a)(1)(B) of the ESA or a SHA and a permit 
authorized under section 10(a)(1)(A) of the ESA.
    Under Washington Forest Practices Rules, spotted owl habitat is 
categorized as follows: (1) ``Old forest habitat,'' which provides all 
of the characteristics of spotted owl nesting, roosting, foraging, and 
dispersal habitat; (2) ``sub-mature habitat,'' which provides all of 
the characteristics of spotted owl roosting, foraging, and dispersal 
habitat; (3) ``young forest marginal habitat,'' which provides some of 
the characteristics of spotted owl roosting, foraging, and dispersal 
habitat; and (4) ``dispersal habitat,'' which is not considered 
suitable for spotted owl nesting, roosting, or foraging, but does 
provide for spotted owl dispersal (WAC 222-16-085). The proposed SHA 
relies on these habitat definitions.

Oregon Forest Protection Act

    In Oregon, the Oregon Forest Protection Act (OFPA) protects 
resource sites through a notification process, but the State Forester 
does not issue permits or approvals. The OFPA protects active spotted 
owl nesting sites or activity centers occupied by a pair of adult owls 
capable of breeding by providing for a 70-acre core habitat area around 
the nest site. The State Forester is required to maintain an inventory 
of protected resource sites that are used by threatened and endangered 
species, including the spotted owl. A written plan is required when the 
State Forester determines a proposed forest management operation will 
conflict with the protection of a spotted owl nesting site or when the 
forest management operation is within 300 feet from any nesting site of 
any threatened or endangered species.

Proposed Action

    The applicants have submitted a draft SHA for the spotted owl that 
covers

[[Page 50528]]

approximately 81,587 acres of managed private forest lands in portions 
of Skamania, Klickitat, and Yakima Counties in Washington, and in 
portions of Hood River and Wasco Counties in Oregon. All of the covered 
lands are east of the crest of the Cascade Mountains. The majority of 
the covered lands have been previously managed, and about 75 percent 
are younger than 80 years old. The SHA also includes provisions for 
adding and subtracting lands to the covered area.
    The WDNR has mapped spotted owl habitat under Washington Forest 
Practices Rules only within the 1.8-mile radius home range circle 
around spotted owl sites within SOSEAs. For purposes of this SHA, the 
applicants have used the WDNR's spotted owl habitat information 
whenever possible. However, outside of the SOSEAs and within the 
SOSEAs, but outside of the 1.8-mile-radius circles, the applicants have 
used and will continue to use stand age to estimate spotted owl habitat 
acreage.
    In preparing the SHA, SDS hired a contractor to determine what 
forest age was likely to represent ``young forest marginal habitat'' on 
the covered lands. The results of this study indicate that while some 
stands younger than age 60 achieved ``young forest marginal habitat'' 
characteristics, at age 60 and older the chance of achieving ``young 
forest marginal habitat'' was highly likely. On that basis, forest 
stands on the SHA-covered lands that are age 60 or older will be 
considered to meet the definition of ``young forest marginal habitat.'' 
Forest stands younger than 60 years may also be considered to meet the 
definition of ``young forest marginal habitat,'' if the conditions 
associated with that habitat are verified by surveys using appropriate 
methods or forest stands are actively managed in a manner that is 
likely to achieve that outcome by applying specific habitat 
enhancements. The Service recognizes that the age of a forest stand is 
one of many ways to describe spotted owl habitat, and while it may not 
be as precise as some other approaches, with the forest inventory 
information available for the lands covered under the proposed SHA, it 
is a reasonable estimate.

Current Conditions in Washington

    Survey data for spotted owl site centers on or near the applicants' 
covered lands suggest that very few of these sites are occupied, or 
possibly that spotted owls are not responding to traditional survey 
methods. As of 2011, only one site, within the White Salmon SOSEA, is 
known to contain a spotted owl pair (T. Fleming, National Council for 
Stream and Air Improvement, Inc., pers comm.); however, several sites 
have not been regularly surveyed in recent years. About 62,434 acres, 
or 77 percent, of SHA-covered lands occur in Washington. Approximately 
34,064 acres, or 42 percent, of the SHA-covered lands in Washington 
occur within the Columbia Gorge and White Salmon SOSEAs. Under 
Washington Forest Practices Rules, the biological goal of both the 
Columbia Gorge and White Salmon SOSEAs is to provide for spotted owl 
dispersal and demographic support by maintaining spotted owl habitat to 
protect the viability of the owl(s) associated with each spotted owl 
site center or by providing a variety of habitat conditions that 
support spotted owl dispersal, foraging, and roosting activities.
    Within the Columbia Gorge SOSEA, the covered lands intersect the 
1.8-mile radius home range circle of four spotted owl sites. Within the 
White Salmon SOSEA, the covered lands intersect the 1.8-mile home range 
radius circle of 14 spotted owl sites. Within these two SOSEAs, the 
covered lands intersect the 0.7-mile radius home range circle of 8 of 
the 18 total spotted owl sites. Of these spotted owl sites, only one 
owl site center is located on the covered lands (in the White Salmon 
SOSEA).
    In the White Salmon SOSEA, the WDNR has identified 3,694 acres of 
the applicants' covered lands (741 acres of ``sub-mature habitat'' and 
2,953 acres of ``young forest marginal habitat'') as part of the 
highest quality spotted owl habitat within the 1.8-mile-radius home 
range circles of 14 spotted owl site centers.
    In the Columbia Gorge SOSEA, the WDNR has not identified the 
highest quality habitat acres; however, the WDNR has identified 313 
acres of ``sub-mature habitat'' and 690 acres of ``young forest 
marginal habitat'' occurring on the covered lands within 1.8 miles of 
the four spotted owl site centers in this SOSEA. Whether or not 1,003 
acres of habitat within 1.8 miles of these four site centers is the 
highest quality habitat, the applicants are treating them as such for 
purposes of establishing the spotted owl habitat baseline acres for 
this SHA.
    The applicants have used the total of the above spotted owl habitat 
acreages (4,697 acres) within these two SOSEAs to define the spotted 
owl habitat baseline for this SHA on the basis that absent this SHA and 
permit, if these 4,697 acres of habitat were proposed for timber 
harvest, the applicants would need to file an application for a class 
IV special forest practices permit, prepare a SEPA environmental impact 
statement, and also likely obtain an ITP under the ESA from the 
Service. Conversely, all other acres of spotted owl habitat currently 
existing on the covered lands were excluded from the baseline on the 
basis that the proposed harvest of these forest stands would not 
require a Class IV special forest practice permit, a SEPA environmental 
impact statement, or an ITP under the ESA. See the SHA for a full 
description of the baseline and spotted owl habitat current conditions 
on the covered lands. However, for purposes of this SHA, the applicants 
and the Service have agreed upon a higher baseline of 9,424 acres (651 
acres of submature habitat, 4,061 acres of young forest marginal 
habitat, and 4,712 acres of dispersal habitat).

Current Conditions in Oregon

    Approximately 19,153 acres or 23 percent of SHA-covered lands occur 
in Oregon. There are no spotted owl site centers on the covered lands 
in Oregon, thus, there are no harvest restrictions under the OFPA. 
Since the covered lands in Oregon are not known to intersect a spotted 
owl 70-acre core, the spotted owl habitat baseline for covered lands in 
Oregon is considered as 0 acres in the proposed SHA because there are 
no timber harvest restrictions under the OFPA. There are six spotted 
owl sites on National Forest lands in proximity to the covered lands. 
However, none of the 70-acre cores around these sites intersect the 
covered lands. It is unlikely that timber harvest activities on the 
covered lands would require an ITP under the ESA.

Spotted Owl Conservation Under the SHA

    The applicants have worked closely with the Service to develop 
their proposed SHA and the voluntary conservation measures that are 
expected to provide a net conservation benefit to the spotted owl. The 
Service and the applicants have agreed upon baseline conditions that 
will provide a net benefit to the spotted owl above the level that 
would occur by managing the current habitat conditions without the SHA. 
Under the applicants' proposed SHA, spotted owl habitat on the covered 
lands would be managed at scales other than the 1.8-mile radius home 
range circles within each of the two SOSEAs on the covered lands in 
Washington. Under this approach, the distribution of spotted owl 
habitat will not remain static on the covered lands for the duration of 
the SHA. Instead, the SHA provides for a wider distribution of spotted 
owl habitat across the covered lands, both inside and outside of the 
SOSEAs, by leaving habitat on the

[[Page 50529]]

landscape longer, increasing the timber harvest rotation interval from 
45 to 60 years and other habitat enhancements provided by active 
management.
    While SDS and BLC lands intersect a number of spotted owl 
territories, the WDNR and the Gifford Pinchot National Forest are the 
majority landowners within these spotted owl territories. The SHA has 
been developed to manage for spotted owl conservation at a broader 
scale, similar to that applied by the WDNR and the Gifford Pinchot 
National Forest. Under this approach, the distribution of spotted owl 
habitat on the covered lands is intended to be dynamic, shifting across 
the covered lands over the proposed 60-year duration of the SHA.
    Although the baseline condition for spotted owl habitat within the 
White Salmon SOSEA is 3,694 acres, with implementation of the SHA, a 
higher baseline of 9,424 acres of spotted owl habitat, consisting of a 
minimum of 651 acres of ``sub-mature habitat,'' 4,061 acres of ``young 
forest marginal habitat,'' and 4,712 acres of ``dispersal habitat'' 
will be maintained within the White Salmon SOSEA for the duration of 
the SHA. This amount represents a minimum of 5,730 acres of spotted owl 
habitat above the current conditions of 3,694 acres. Absent this SHA, 
forest stands on those 5,730 acres would be subject to timber harvest.
    At the landscape (i.e., covered lands) scale, the applicants intend 
to manage the covered lands to provide as much as an additional 12,705 
acres of spotted owl ``dispersal habitat'' and ``young forest marginal 
habitat'' during the proposed 60-year term of the SHA by managing 
existing forest stands at a 60-year, rather than the current 45-year, 
harvest rotation interval. However, in some periods during the term of 
the SHA some of these 12,705 acres may be degraded by disease, 
windthrow, or fire.
    Over the proposed 60-year term of the SHA, spotted owl non-habitat 
will be allowed to develop into spotted owl habitat within the White 
Salmon SOSEA. Absent this SHA, that habitat development would not occur 
under current requirements of Washington Forest Practices Rules or the 
ESA. In the White Salmon SOSEA, 490 acres of forest within 0.7 miles of 
spotted owl site centers will be allowed to develop into ``young forest 
marginal habitat'' and ``dispersal habitat.'' Approximately 8,382 acres 
of forest in both SOSEAs outside the 0.7-mile radius circle but within 
the 1.8-mile radius circle around spotted owl site centers will be 
allowed to develop into ``young forest marginal habitat'' and 
``dispersal habitat'' under the SHA. By taking a proactive approach, 
the applicants will conduct commercial thinning operations, with 
implementation of their snag retention and creation program, to enhance 
spotted owl habitat development on the covered lands. Over the first 
decade of implementing the proposed SHA, within the White Salmon SOSEA, 
the applicants will thin a minimum of 500 acres of forest to accelerate 
its development into ``young forest marginal habitat'' to provide for 
some of the characteristics of spotted owl roosting and foraging 
habitat.
    Under the SHA, the applicants have proposed the following measures 
to provide a net conservation benefit to the spotted owl: (1) Maintain 
33 percent of their collective ownership within the White Salmon SOSEA, 
or about 9,424 acres, in spotted owl habitat (16.5 percent in 
``dispersal habitat'' and 16.5 percent in ``young forest marginal 
habitat'' or better habitat); (2) maintain 33 percent of their 
collective ownership in ``young forest marginal habitat'' or better 
habitat within 0.7 miles of spotted owl site centers located within the 
White Salmon SOSEA; (3) maintain existing spotted owl habitat on 
covered lands within the 0.7-mile-radius circles around four spotted 
owl sites where the applicants have more than 15 percent ownership by 
deferring any habitat removal for 10 years; (4) manage for an average 
60-year timber harvest rotation interval inside and outside of the 
SOSEAs that is expected to create more spotted owl ``dispersal 
habitat'' and ``young forest marginal habitat'' across the landscape; 
(5) provide two habitat set-aside reserves on the covered lands for the 
term of the SHA: one reserve of approximately 411 acres of spotted owl 
habitat along the Little White Salmon River and a second reserve of 
approximately 240 acres of spotted owl habitat around the one spotted 
owl nest site center on the covered lands; (6) implement a wildlife 
tree and snag management program that will provide more snags and green 
trees than required under Washington Forest Practices Rules to improve 
habitat for spotted owl prey species; (7) not pursue spotted owl circle 
decertification which, if approved, would remove protections for 
spotted owl sites under current Washington Forest Practices Rules; and 
(8) allow spotted owl non-habitat to grow into spotted owl habitat near 
spotted owl site centers, and accelerate suitable habitat development 
through active forest management such as commercial thinning. For a 
full description of the conservation program, see the proposed SHA.

National Environmental Policy Act Compliance

    The development of the draft SHA and the proposed issuance of an 
enhancement of survival permit is a Federal action that triggers the 
need for compliance with the National Environmental Policy Act of 1969, 
as amended (42 U.S.C. 4321 et seq.) (NEPA). We have prepared a draft EA 
to analyze the impacts of permit issuance and implementation of the SHA 
on the human environment in comparison to the no-action alternative.

Public Comments

    You may submit your comments and materials by one of the methods 
listed in the ADDRESSES section. We request data, new information, or 
suggestions from the public, other concerned governmental agencies, 
Tribes, the scientific community, industry, or any other interested 
party on our proposed Federal action. In particular, we request 
information and comments regarding the following issues:
    1. The direct, indirect, and cumulative effects that implementation 
of the SHA or any alternatives could have on endangered and threatened 
species;
    2. Other reasonable alternatives consistent with the purpose of the 
proposed SHA as described above, and their associated effects;
    3. Measures that would minimize and mitigate potentially adverse 
effects of the proposed action;
    4. Identification of any impacts on the human environment that 
should have been analyzed in the draft EA pursuant to NEPA;
    5. Other plans or projects that might be relevant to this action;
    6. The proposed term of the Enhancement of Survival Permit and 
whether the proposed SHA would provide a net conservation benefit to 
the covered species; and
    7. Any other information pertinent to evaluating the effects of the 
proposed action on the human environment.

Public Availability of Comments

    All comments and materials we receive become part of the public 
record associated with this action. Before including your address, 
phone number, email address, or other personal identifying information 
in your comments, you should be aware that your entire comment--
including your personal identifying information--may be made publicly 
available at any time. While you can ask us in your comment to withhold 
your personal identifying information from public review, we

[[Page 50530]]

cannot guarantee that we will be able to do so. All comments received 
from organizations, businesses, or individuals representing 
organizations or businesses are available for public inspection in 
their entirety. Comments and materials we receive will be available for 
public inspection by appointment, during normal business hours, at our 
office (see ADDRESSES).

Next Steps

    The Service will evaluate the permit application, associated 
documents, and public comments submitted thereon to determine whether 
the permit application meets the requirements of section 10(a)(1)(A) of 
the ESA and NEPA regulations. The final NEPA and permit determinations 
will not be completed until after the end of the 30-day comment period 
and will fully consider all comments received during the comment 
period. If we determine that all requirements are met, we will sign the 
SHA and issue an enhancement of survival permit under section 
10(a)(1)(A) of the ESA to the Applicants for the take of northern 
spotted owl, incidental to otherwise lawful activities in accordance 
with terms of the SHA and IA.

Authority

    We provide this notice pursuant to section 10(c) of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), its 
implementing regulations (50 CFR 17.22), and the National Environmental 
Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.) and its 
implementing regulations (40 CFR 1506.6).

    Dated: August 7, 2012.
Cynthia U. Barry,
Acting Deputy Regional Director, Pacific Region, U.S. Fish and Wildlife 
Service, Portland, Oregon.
[FR Doc. 2012-20479 Filed 8-20-12; 8:45 am]
BILLING CODE 4310-55-P