[Federal Register Volume 88, Number 36 (Thursday, February 23, 2023)]
[Proposed Rules]
[Pages 11600-11639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03526]



[[Page 11599]]

Vol. 88

Thursday,

No. 36

February 23, 2023

Part IV





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; California Spotted Owl; 
Endangered Status for the Coastal-Southern California Distinct 
Population Segment and Threatened Status With Section 4(d) Rule for the 
Sierra Nevada Distinct Population Segment; Proposed Rule

  Federal Register / Vol. 88, No. 36 / Thursday, February 23, 2023 / 
Proposed Rules  

[[Page 11600]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2022-0166; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG64


Endangered and Threatened Wildlife and Plants; California Spotted 
Owl; Endangered Status for the Coastal-Southern California Distinct 
Population Segment and Threatened Status With Section 4(d) Rule for the 
Sierra Nevada Distinct Population Segment

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list two distinct population segments (DPSs) of the California spotted 
owl (Strix occidentalis occidentalis), a bird species from California 
and Nevada, under the Endangered Species Act of 1973, as amended (Act). 
This determination also serves as our 12-month finding on a petition to 
list the California spotted owl. After a review of the best available 
scientific and commercial information, we find that listing the 
Coastal-Southern California DPS as endangered is warranted, and that 
listing the Sierra Nevada DPS as threatened is warranted. Accordingly, 
we propose to list the Coastal-Southern California DPS as an endangered 
species under the Act and the Sierra Nevada DPS as a threatened species 
with a rule issued under section 4(d) of the Act (``4(d) rule''). If we 
finalize this rule as proposed, it will add these two DPSs to the List 
of Endangered and Threatened Wildlife and extend the Act's protections 
to them.

DATES: We will accept comments received or postmarked on or before 
April 24, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by April 10, 2023.

ADDRESSES: 
    Written comments: You may submit comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R8-ES-2022-0166, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R8-ES-2022-0166, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.regulations.gov under Docket No. FWS-R8-ES-2022-0166.

FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Sacramento, CA 
95825; telephone 916-414-6700. Individuals in the United States who are 
deaf, deafblind, hard of hearing, or have a speech disability may dial 
711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
Sierra Nevada DPS of the California spotted owl meets the definition of 
a threatened species, and the Coastal-Southern California DPS of the 
California spotted owl meets the definition of an endangered species; 
therefore, we are proposing to list them as such. Listing a species as 
an endangered or threatened species can be completed only by issuing a 
rule through the Administrative Procedure Act rulemaking process (5 
U.S.C. 551 et seq.).
    What this document does. We propose the listing of the Sierra 
Nevada DPS of the California spotted owl as a threatened species with a 
rule under section 4(d) of the Act and the Coastal-Southern California 
DPS of the California spotted owl as an endangered species under the 
Act.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.
    We have determined that both the Sierra Nevada population and the 
coastal-southern California population of the California spotted owl 
are discrete and significant under our DPS policy and are, therefore, 
listable entities under the Act. The Sierra Nevada DPS is found in the 
Sierra Nevada Mountain Ranges and foothills in California and western 
Nevada. The Coastal-Southern California DPS is found in the Coast, 
Transverse, and Peninsular Ranges of California. These two DPSs 
together represent the entirety of the California spotted owl's range.
    The Sierra Nevada DPS of the California spotted owl is currently 
being impacted by high-severity fire, tree mortality, drought, and 
barred owls. This DPS still has resiliency throughout its range, and 
some areas remain in stable condition; however, we expect the magnitude 
of impacts from high-severity fire, tree mortality, drought, climate 
change, and other threats to increase into the future. Because the 
Sierra Nevada DPS is likely to become in danger of extinction within 
the foreseeable future, we propose to list it as threatened.
    The Coastal-Southern California DPS has low resiliency, redundancy, 
and representation. The entirety of the range of this DPS is at 
extremely high risk of fire, and available habitat is fragmented. All 
areas of the Coastal-Southern California DPS are currently declining, 
and the DPS faces additional threats from tree mortality and drought. 
Because the Coastal-Southern California DPS is currently in danger of 
extinction, we propose to list it as endangered.

[[Page 11601]]

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional populations of this species;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status of this species.
    (5) Information on regulations that may be necessary and advisable 
to provide for the conservation of the Sierra Nevada DPS of the 
California spotted owl and that we can consider in developing a 4(d) 
rule for the species. In particular, information concerning the extent 
to which we should include any of the section 9 prohibitions in the 
4(d) rule or whether we should consider any additional exceptions from 
the prohibitions in the 4(d) rule.
    (6) Whether we should include in our 4(d) rule for the Sierra 
Nevada DPS the provision at 50 CFR 17.7 for raptors in captivity.
    (7) Which areas may be appropriate as critical habitat for the 
species and why areas should or should not be proposed for designation 
as critical habitat in the future, including whether there are threats 
to the species from human activity that would be expected to increase 
due to the designation and whether that increase in threat would 
outweigh the benefit of designation such that the designation of 
critical habitat may not be prudent.
    (8) Specific information on:
    (a) The amount and distribution of habitat for the Sierra Nevada 
DPS and the Coastal-Southern California DPS of the California spotted 
owl which should be considered for proposed critical habitat;
    (b) What may constitute the physical or biological features 
essential to the conservation of the species within the geographical 
range currently occupied by the species;
    (c) Where these features are currently found;
    (d) Whether any of these features may require special management 
considerations or protection;
    (e) What areas are currently occupied and contain features 
essential to the conservation of the species that should be included in 
the designation and why; and
    (f) What unoccupied areas may be essential for the conservation of 
the species and why.
    Please include sufficient information, such as scientific journal 
articles or other publications, to allow us to verify any scientific or 
commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act (16 U.S.C. 1533(b)(1)(A)) directs that determinations as to 
whether any species is an endangered or a threatened species must be 
made solely on the basis of the best scientific and commercial data 
available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the Coastal-
Southern California DPS is threatened instead of endangered, or that 
the Sierra Nevada DPS is endangered instead of threatened, or we may 
conclude that neither DPS warrants listing as either an endangered 
species or a threatened species. In addition, we may change the 
parameters of the prohibitions or the exceptions to those prohibitions 
in the 4(d) rule for the Sierra Nevada DPS if we conclude it is 
appropriate in light of comments and new information received. For 
example, we may expand the incidental-take prohibitions or the 
exceptions to those prohibitions in the 4(d) rule for the Sierra Nevada 
DPS to include prohibiting additional activities if we conclude that 
those additional activities are not compatible with conservation of the 
DPS. Conversely, we may establish additional exceptions to the 
incidental-take prohibitions in the final rule if we conclude that the 
activities would facilitate or are compatible with the conservation and 
recovery of the DPS.

Public Hearing

    Section 4(b)(5) of the Act (16 U.S.C. 1533(b)(5)) provides for a 
public hearing on this proposal, if requested. Requests must be 
received by the date specified in DATES. Such requests must be sent to 
the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule 
a public hearing on this proposal, if requested, and announce the date, 
time, and place of the hearing, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing. We may hold the public hearing in person or 
virtually via webinar. We will announce any public hearing on our 
website, in addition to the Federal Register. The use of virtual public 
hearings is consistent with our regulations at 50 CFR 424.16(c)(3).

List of Abbreviations and Acronyms

    We use many abbreviations and acronyms in this proposed rule. For 
the convenience of the reader, we define some of them here:

ac = acres
BLM = Bureau of Land Management

[[Page 11602]]

CAL FIRE = California Department of Forestry and Fire Protection
CDWR = California Department of Water Resources
CI = confidence interval
cm = centimeters
dbh = diameter at breast height
DPS = distinct population segment
ft = feet
HCP = habitat conservation plan
ha = hectares
in = inches
km = kilometers
IPCC = Intergovernmental Panel on Climate Change
m = meters
mi = miles
MOU = memorandum of understanding
NPS = National Park Service
PAC = protected activity center
RCP = representative concentration pathway
SPI = Sierra Pacific Industries
SSA = species status assessment
USFS = U.S. Forest Service

Previous Federal Actions

    For a detailed history of prior petitions, listing actions, and 
litigation, please see the 12-month finding published on May 24, 2006 
(71 FR 29886). Subsequent to that finding, we were petitioned twice to 
list the California spotted owl as endangered or threatened and to 
designate its critical habitat under the Act (16 U.S.C. 1531 et seq.). 
The first petition was submitted in December 2014, by the Wild Nature 
Institute and John Muir Project of Earth Island Institute, and the 
second in August 2015, by Sierra Forest Legacy and Defenders of 
Wildlife. On September 18, 2015, we published a 90-day finding that the 
petitions presented substantial scientific or commercial information 
indicating that listing may be warranted for the California spotted owl 
(80 FR 56423). On November 8, 2019, we published a 12-month finding 
that listing the California spotted owl was not warranted at that time 
(84 FR 60371).
    In August 2020, Sierra Forest Legacy, Defenders of Wildlife, and 
the Center for Biological Diversity filed a complaint challenging our 
12-month not-warranted finding. By stipulated settlement agreement 
approved by the court on November 30, 2021, we agreed to submit to the 
Federal Register a new 12-month finding for the California spotted owl 
on or before February 15, 2023 (Sierra Forest Legacy, et al. v. U.S. 
Fish and Wildlife Service, et al., No. 5:20-cv-05800-BLF (N.D. Cal.)). 
This document serves as our 12-month finding and completes our 
obligations under that settlement agreement.

Peer Review

    In 2022, a species status assessment (SSA) team prepared an SSA 
report for the California spotted owl. The SSA team was composed of 
Service biologists, in consultation with other species experts. The SSA 
report represents a compilation of the best scientific and commercial 
data available concerning the status of the species, including the 
impacts of past, present, and future factors (both negative and 
beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the California spotted owl SSA 
report. The Service sent the SSA report to four independent peer 
reviewers and received one response. Results of this structured peer 
review process can be found at https://www.regulations.gov. In 
preparing this proposed rule, we incorporated the results of these 
reviews, as appropriate, into the SSA report, which is the foundation 
for this proposed rule.

Summary of Peer Reviewer Comments

    We received comments from one peer reviewer on the draft SSA 
report. We reviewed all comments we received from the peer reviewer for 
substantive issues and new information regarding the information 
contained in the SSA report. The peer reviewer generally provided 
additional references, clarifications, and suggestions, including 
further definitions of some of the terms used. We updated the SSA 
report based on the peer reviewer's comments, including changing the 
approach to our scoring system for the current and future habitat 
analyses, clarifying specific points where appropriate, and adding 
additional details and suggested references where needed. Peer reviewer 
comments are addressed in the following summary and were incorporated 
into the SSA report as appropriate.
    Comment 1: The peer reviewer stated that there was not enough 
discussion in the SSA report about how habitat factors have been 
observed to impact owls, particularly in regards to the existing 
studies analyzing demographic trends of California spotted owls. 
Further, the peer reviewer stated that the SSA report should discuss 
the methodology used in the demography studies.
    Our response: We acknowledge that habitat factors and demographic 
factors are interrelated, and that understanding the relation between 
those two issues is crucial. We discuss how habitat factors influence 
demographic factors, and vice versa, in sections 3.1 and 3.2 of the SSA 
report (Service 2022, pp. 14-24). We have also incorporated all 
available information on how the two are related. Additionally, not all 
of the demographic studies discuss the relationship between vital rates 
or population trends and habitat factors, but we incorporated the 
information into the SSA report where available.
    Regarding the methodology used in the demography studies, we added 
a paragraph to the SSA report that discusses different methodologies 
used in the different types of population studies available in the 
literature (Service 2022, p. 24). We will provide a list of all 
literature cited should any readers wish to review those studies in 
more detail, and we will provide any studies not readily available on 
https://www.regulations.gov.
    Comment 2: The peer reviewer further questioned the assumption in 
the SSA report that high-quality habitat is equivalent to population 
stability, or vice versa.
    Our response: While we recognize that data are limited, the best 
available scientific and commercial data, including all available 
information on habitat use and species needs for the California spotted 
owl, concluded that the relationship between high-quality habitat and 
population stability is sufficiently certain to rely upon for our 
analysis of species viability.
    Comment 3: While recognizing that some protected activity center 
(PAC) information is out of date, the peer reviewer suggested adding 
the amount of PAC area to the analysis units in section 5.3 of the SSA 
report.
    Our response: The detailed analysis unit descriptions describe the 
current condition of each unit. Because PAC information does not 
provide insight on the current condition of each analysis unit, it 
would not be appropriate to include in section 5.3 of the SSA report (a 
PAC is a designation made by the USFS to protect the best available 121 
ha (300 ac) of habitat in as compact of a unit as possible around a 
nest tree). We do, however, incorporate information from PACs 
throughout the SSA report and this proposed rule to understand the 
impact, breadth, and distribution of threats across the landscape.
    Comment 4: The peer reviewer questioned whether we should use the 
same criteria to analyze conditions in the Sierra Nevada and in 
coastal/southern California.
    Our response: In order to present a standardized comparison across 
all analysis units, we used the same scoring criteria for the Sierra 
Nevada and

[[Page 11603]]

coastal/southern California. However, we recognize that California 
spotted owls may use different-sized trees in the coastal-southern 
California population than in the Sierra Nevada population. We 
presented a separate analysis acknowledging this, and we included the 
difference in tree sizes found in the two geographic areas (Service 
2022, tables 9, 13, and 18).

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
California spotted owl (Strix occidentalis occidentalis) is presented 
in the SSA report (version 2.0; Service 2022, pp. 8-14).
    California spotted owls are medium-sized brown owls measuring 46.6-
48.3 cm (18.3-19.0 in) with a mottled appearance, round face, large 
pale brown facial disks, dark brown eyes, and a yellowish green bill 
(Verner et al. 1992, p. 55; Guti[eacute]rrez et al. 2020, 
``Appearance'' section). Females are generally slightly larger than 
males (Verner et al. 1992, p. 55).
    The American Ornithological Society (formerly the American 
Ornithologists' Union (AOU)) currently recognizes three distinct 
subspecies of spotted owls: northern spotted owl (Strix occidentalis 
caurina), California spotted owl, and Mexican spotted owl (Strix 
occidentalis lucida) (AOU 1957). Given similarities between the 
subspecies of spotted owls, the SSA report and this proposed rule use 
available relevant literature for both the northern spotted owl and the 
Mexican spotted owl as necessary and appropriate and clearly identify 
when we refer to those entities. The term ``spotted owl'' is used when 
talking about Strix occidentalis as a whole. Additionally, under the 
Act, the term ``species'' includes any subspecies of fish or wildlife 
or plants. For the purposes of this proposed rule, we in general use 
``species'' to refer to the California spotted owl rather than 
``subspecies.''
    There is some overlap in range between northern spotted owls and 
the California spotted owl, and interbreeding between the two 
subspecies occasionally occurs (Haig et al. 2004, p. 690; Barrowclough 
et al. 2011, pp. 581, 583-586; Miller et al. 2017, pp. 6871, 6875-6877; 
Hanna et al. 2018, pp. 3947-3948, 3950-3951). California spotted owls 
have the lowest genetic diversity among the subspecies compared to 
northern and Mexican spotted owls, suggesting that the California 
spotted owl is of more recent origin than the other spotted owl 
subspecies or that populations of the California spotted owl are much 
smaller than the northern and Mexican spotted owl populations 
(Barrowclough et al. 1999, pp. 919, 927; Haig et al. 2004, p. 683). 
Within the California spotted owl, genetic differences between 
individuals found in the Sierra Nevada and individuals found in 
mountain ranges throughout southern California suggest limited 
interbreeding between these two areas (Barrowclough et al. 2005, pp. 
1113-1114; Hanna et al. 2018, pp. 3947-3948, 3950). However, these 
genetic studies are limited by sample size and sampling locations. We 
are only aware of one study that includes California spotted owls from 
coastal California; this study shows gene flow between geographically 
adjacent spotted owl samples, with some evidence of asymmetrical gene 
flow between California spotted owls in Carmel, California (coastal 
California), and the Sierra Nevada (Barrowclough et al. 2005, p. 1114).
    California spotted owls are distributed across habitat in 
California and Nevada including the Sierra Nevada, coastal California, 
and southern California. The California spotted owl has also been 
documented in the Sierra San Pedro Martir mountains in Baja California 
Norte, Mexico, with a few scattered records of the spotted owl in Baja 
California between 1887 and 1972 (Grinnell 1928, p. 242; Wilbur 1987, 
p. 170). However, many researchers now question whether the species 
ever actually occurred in Baja California (Erickson in litt. 2022; 
Unitt in litt. 2022). There are only a few accounts of the species, 
with none of those accounts mentioning breeding or evidence of breeding 
pairs. Therefore, we consider the California spotted owl to be only a 
rare visitor of Mexico, and do not consider Baja California as its own 
population.
    California spotted owls are continuously distributed throughout the 
forests of the western side of the Sierra Nevada from Shasta County 
south to the Tehachapi Pass in Kern County (Guti[eacute]rrez et al. 
2017, pp. 13-14). They are sparsely distributed on the eastern side of 
the Sierra Nevada into western Nevada (GBBO 2012, p. Spp-47-4). Outside 
of the Sierra Nevada, the species' range is not contiguous. Along the 
California coast and into southern California, the species is found in 
the Coast, Transverse, and Peninsular mountain ranges from Monterey 
County in the north to San Diego County in the south (Guti[eacute]rrez 
et al. 2020, ``Distribution'' section). However, there is a large break 
in the species' range around San Luis Obispo County, where the species 
is not known to occur. The Tehachapi Pass between the Sierra Nevada to 
the east and the Transverse Range to the west represents a gap between 
California spotted owls in the Sierra Nevada and California spotted 
owls in coastal and southern California (Verner et al. 1992, p. 4). 
California spotted owls are absent from the Santa Cruz Mountains (part 
of the Coast Range) in California, where suitable habitat appears to be 
present (Guti[eacute]rrez et al. 2017, p. 240).
    California spotted owls are currently found throughout their known 
historical range, although there is evidence of a decrease in abundance 
in parts of the range including both the Sierra Nevada and southern 
California (Franklin et al. 2004, pp. 23-42; Tempel et al. 2014b, pp. 
90-94; Conner et al. 2016, pp. 7-18; Hanna et al. 2018, pp. 3947-3949; 
Tempel et al. 2022, p. 18). The majority of California spotted owls are 
found in mid-elevation, mixed-conifer forest on the west slope of the 
Sierra Nevada (Guti[eacute]rrez et al. 2017, p. xviii).
    California spotted owls are long-lived (approximately 16-23 years) 
with high adult survival and low reproductive output (Seamans and 
Guti[eacute]rrez 2007, p. 57; Guti[eacute]rrez et al. 2020, 
``Demography and Populations'' section). Pairs exhibit high territory 
fidelity (Guti[eacute]rrez et al. 2020, ``Sounds and Vocal Behavior'' 
and ``Behavior'' sections). Territories--the area actively defended by 
a breeding pair--can overlap with neighboring pairs and are smaller 
than home ranges (Guti[eacute]rrez et al. 2017, pp. xvi, 294). 
Estimates of territory size have varied from 203 ha (502 ac) to 813 ha 
(2,009 ac), with higher estimates in the northern Sierra Nevada and 
lower estimates in southern California (Bingham and Noon 1997, p. 136; 
Blakesley et al. 2005, p. 1556; Seamans and Guti[eacute]rrez 2007b, p. 
568; Tempel et al. 2014b, p. 2091). Higher quality territories measured 
in adult survival, territory colonization, and territory extinction, 
tend to have a greater proportion of higher canopy cover (Tempel et al. 
2014b, p. 2089; Guti[eacute]rrez et al. 2017, pp. 271-273). Home 
ranges, or areas used by a pair to meet requirements for survival and 
reproduction, are about 400-1,200 hectares (ha) (1,000-3,000 acres 
(ac)) in size (Guti[eacute]rrez et al. 2017, p. xviii). Home ranges are 
typically larger in the northern portion of the range (>1,000 ha (2,470 
ac)) and smaller in the southern portion of the range (<1,000 ha (2,470 
ac)) due to differences in selected prey species (Guti[eacute]rrez et 
al. 2017, p. xviii).
    Breeding season begins in mid-February, and the juvenile dependency 
period can last through mid-September;

[[Page 11604]]

nesting generally starts earlier at lower elevations (Guti[eacute]rrez 
et al. 2020, ``Breeding'' section). During the breeding season, 
California spotted owls tend to spend the majority of their time at 
activity centers of around 121 ha (299 ac) (Verner et al. 1992, p. 87; 
Berigan et al. 2012, p. 299). Activity centers are the areas where 
California spotted owls they nest, roost, and forage (Verner et al. 
1992, p. 87; Guti[eacute]rrez et al. 2017, pp. 270-271). Spotted owls 
typically have only one nest per breeding season, and they rarely re-
nest if the first nests fails (Guti[eacute]rrez et al. 2020, 
``Breeding'' section). Females typically lay 1-3 eggs, with survival of 
offspring into adulthood highest when two young fledge in comparison to 
singletons and triplets (Peery and Guti[eacute]rrez 2013, p. 132; 
Guti[eacute]rrez et al. 2020, ``Demography and Populations'' section). 
Although difficult to estimate due to dispersal, juvenile survival in 
California spotted owls is low (Blakesley et al. 2001, p. 667; LaHaye 
et al. 2004, p. 1056).
    Spotted owls always disperse from their natal areas in the year 
they hatch. Natal dispersal occurs during the fall, after juveniles 
have reached adult weight and parental care stops (Guti[eacute]rrez et 
al. 2020, ``Breeding'' section). Average juvenile dispersal in southern 
California is 9.7-11.3 km (6-7 mi), and ranges from 3.2-37.0 km (2-23 
mi) (LaHaye et al. 2001, p. 691). Larger dispersal distances, up to 177 
km (110 mi), have been documented in both northern and Mexican 
subspecies (Guti[eacute]rrez and Carey 1985, p. 60; Ganey et al. 1998, 
p. 206; Hollenbeck et al. 2018, p. 533). Adult California spotted owls 
typically do not shift territories or undergo breeding dispersal from 
an established territory (Blakesley et al. 2006, p. 76; Zimmerman et 
al. 2007, p. 963; Guti[eacute]rrez et al. 2011, p. 592); however, some 
breeding dispersal occurs in adults or pairs that have been 
unsuccessful in mating or if habitat is altered (Blakesley et al. 2006, 
p. 71).
    Breeding only occurs once a pair is formed and settled into a 
territory (Guti[eacute]rrez et al. 2017, p. 15). Pairs can breed in 
consecutive years, but in certain conditions may postpone reproduction 
until temporarily poor environmental conditions improve (Stearns 1976, 
pp. 4, 15-26; Franklin et al. 2000, p. 539; Guti[eacute]rrez et al. 
2017, p. xvi). The number of young fledged annually per territorial 
California spotted owl female in several areas within the Sierra Nevada 
ranged from 0.478-0.988 (Blakesley et al. 2010, pp. 1, 18).
    In general, California spotted owls nest in areas of mature, 
multistoried forests with complex structure, larger trees, multi-
layered high canopy cover, and large amounts of coarse woody debris, 
while areas with higher heterogeneity of forest types and the edges 
between them are important for foraging (Guti[eacute]rrez et al. 2017, 
p. xvii). In the Sierra Nevada, a majority of California spotted owls 
occur within mid-elevation ponderosa pine (Pinus ponderosa), mixed-
conifer, white fir (Abies concolor), and mixed-evergreen forest types, 
with few occurring in the lower elevation oak woodlands of the western 
foothills (Guti[eacute]rrez et al. 2017, p. 109). In coastal and 
southern California, California spotted owls are found in riparian/
hardwood forests and woodlands, live oak/big cone fir forests, and 
redwood/California laurel forests (Guti[eacute]rrez et al. 2017, p. 
xxvi). In southern California, vegetation types differ relative to the 
Sierra Nevada, and what is considered a large tree in southern 
California may not be comparable to what is considered a large tree in 
the Sierra Nevada. However, California spotted owls in southern 
California still select for territories containing larger trees (LaHaye 
et al. 1997, pp. 42, 47) and predominantly closed canopy cover (Smith 
et al. 2002, pp. 137, 142, 144).
    California spotted owls can use a variety of habitat types for 
nesting. At higher elevations, the species primarily uses conifers, and 
as elevations decrease, they increasingly use hardwoods 
(Guti[eacute]rrez et al. 2020, ``Habitat'' section). Important 
components of nesting habitat include high canopy cover, larger trees, 
and high habitat heterogeneity. For nest trees, California spotted owls 
use a subset of larger trees or snags, with the average nest tree 
measuring 124 cm (49 in) diameter at breast height (dbh) and 31 m (103 
ft) tall in the Sierra Nevada (Guti[eacute]rrez et al. 2017, p. 50). In 
southern California, California spotted owls use cavity, broken-top, 
and platform nests with different characteristics (LaHaye et al. 1997, 
pp. 42, 47; Tanner 2022, pers. comm.). In southern California, 
California spotted owl use of platform or old raptor nests is more 
common; thus, owls with these types of nests were observed using 
smaller trees than used in other nest types (LaHaye et al. 1997, p. 
45). Within their nesting territory, California spotted owls select for 
nest sites farther away from the forest edge (Phillips et al. 2010, p. 
312). Overall, California spotted owl occupancy, colonization, adult 
survival, and reproductive success are all positively associated with 
an increasing amount of structurally complex habitat on the landscape 
(Franklin et al. 2000, p. 578; Blakesley et al. 2005, p. 1562; Tempel 
et al. 2014a, pp. 2103-2104).
    California spotted owls can also use a variety of habitats to 
forage. California spotted owls primarily prey upon a variety of small 
to medium-sized mammals, including, but not limited to, flying 
squirrels, woodrats, and pocket gophers, as well as birds, lizards, and 
insects (Guti[eacute]rrez et al. 2017, p. 28). In the Sierra Nevada, 
above approximately 1,200 m (3,937 ft) in coniferous forests, 
California spotted owls most commonly consume Humboldt's flying 
squirrels (Glaucomys oregonensis) (Laymon 1988, pp. 130-154; Verner et 
al. 1992, pp. 4, 65-69; Munton et al. 2002, pp. 99, 101-104). Preferred 
habitat conditions of Humboldt's flying squirrels include cool, moist, 
mature forest with abundant standing and down snags where they can 
forage on mostly fungi and lichens (Cassola 2016, p. 3). In lower 
elevation oak woodlands and riparian-deciduous forests in the Sierra 
Nevada and southern California, California spotted owls select for 
woodrats (Neotoma spp.) (Verner et al. 1992, pp. 4, 65, 68-69; Smith et 
al. 1999, pp. 22, 24-28; Munton et al. 2002, pp. 99, 101-104). Due to 
this elevational gradient in prey distribution, California spotted owls 
select foraging sites characteristic of flying squirrel habitats at 
higher elevations and woodrat habitats at lower elevations (Kramer et 
al. 2021b, pp. 12-14). Some individuals have smaller home ranges where 
woodrats are the primary prey source, presumably because woodrats have 
a higher caloric gain per successful foraging event and are found in 
higher densities than northern flying squirrels (Zabel et al. 1995, pp. 
433, 435-438). There is some evidence that California spotted owl diet 
may shift following wildfires. In national parks in the Sierra Nevada 
that have implemented longstanding fire management efforts (i.e., 
prescribed fire and managed wildfire), the California spotted owl diet 
contains a higher proportion of woodrats and pocket gophers relative to 
flying squirrels (Hobart et al. 2021, pp. 254, 256).
    In regard to foraging habitat, important components include the 
presence of larger trees, high canopy cover, and coarse woody debris. 
California spotted owls tend to forage in larger trees, likely due to 
the canopy cover provided by larger trees and the important resources 
such as shelter and food that larger trees provide for prey species 
(Laymon 1988, pp. 47, 71, 77, 100; Verner et al. 1992, pp. 9-10, 60, 
88; Moen and Guti[eacute]rrez 1997, pp. 1281, 1284). However, 
California spotted owls use medium-size trees (defined by the authors 
as >25 cm dbh (9 in)) for

[[Page 11605]]

foraging while avoiding areas dominated by small trees (<25 cm dbh (9 
in)) (Kramer et al. 2021a, pp. 4, 6). Coarse woody debris is also an 
important habitat feature for California spotted owls because it 
provides food, shelter, and protection for prey species, especially 
woodrats (Waters and Zabel 1995, pp. 861-862; Pyare and Longland 2002, 
pp. 1016-1017; Innes et al. 2007, pp. 1523, 1526; Kelt et al. 2013, p. 
1208). Heterogeneous forests, such as those found on private lands, may 
provide more habitat for California spotted owls than was previously 
understood (Atuo et al. 2019, p. 295), as some privately owned study 
areas have higher numbers of occupied sites than adjacent USFS study 
areas (Roberts et al. 2017, p. 113).
    California spotted owl roosting habitat is very similar to nesting 
habitat. Specific components of roosting habitat include multi-layered 
high canopy cover and presence of large trees. It is believed that such 
forests provide young California spotted owls with protection from 
predators and from high temperatures. California spotted owls have a 
low heat tolerance in comparison to other bird species, beginning to 
show heat stress at 30-34 degrees Celsius ([deg]C) (86-93 degrees 
Fahrenheit ([deg]F)). The cooler microclimates that multi-layered high 
canopy cover provides are important for both juveniles and adults 
during warm summers (Weathers 1981, pp. 358-359; Barrows 1981, pp. 303-
305; Weathers et al. 2001, pp. 678-679). Presence of large trees is 
also important for California spotted owl roosting, as individuals tend 
to roost in large trees, likely due to the canopy cover provided by 
large trees and the resources they provide for prey species (Laymon 
1988, pp. 47, 71, 77, 100; Verner et al. 1992, pp. 9-10, 60, 88; Moen 
and Guti[eacute]rrez 1997, pp. 1281-1284).
    Within the SSA report and this proposed rule, we define a 
population as a group of interbreeding California spotted owls that are 
more likely to breed among that group than outside of that group. We 
use information from genetic studies and habitat features to identify 
two California spotted owl populations: one in the Sierra Nevada, and 
another in coastal and southern California (hereafter referred to as 
the coastal-southern California population).
    In the western Sierra Nevada, habitat is relatively continuous, 
without significant gaps in distribution (Guti[eacute]rrez et al. 2017, 
p. xviii); however, in the eastern Sierra Nevada, habitat is more 
discontinuous with disjunct patches (Dilts 2022, pp. 5-9). Despite this 
fragmentation, California spotted owls still have substantial gene flow 
within the Sierra Nevada. However, there is limited gene flow to 
coastal or southern California, and large-scale fragmentation of 
suitable habitat divides the Sierra Nevada from this other population 
(Barrowclough et al. 2005, pp. 1114-1116). We are not aware of specific 
information about individual California spotted owls moving between 
these two population areas.
    In coastal and southern California, the California spotted owl 
population consists of subpopulations distributed among discrete 
mountain ranges, resulting in habitat ``islands'' surrounded by 
unsuitable habitat (Verner et al. 1992, p. 187). Areas between these 
habitat islands are typically lowland desert scrub and chaparral that 
is unsuitable for California spotted owls, or substantially modified by 
human-induced development and fragmentation (Verner et al. 1992, p. 
187). Some of the subpopulations are separated by relatively narrow 
gaps, such as the gap between the San Gabriel and San Bernardino 
Mountains, while other gaps are more significant, such as the gap 
between the Northern and Southern Santa Lucia Mountains. California 
spotted owls in coastal and southern California are less well-studied 
than those in the Sierra Nevada, but there is a notable lack of 
documented California spotted owl movement between the coastal and 
southern subpopulations, and we are not aware of any dispersal between 
them. This population is also described in the literature as being a 
presumed metapopulation (Verner et al. 1992, pp. 187-206; LaHaye et al. 
1994, entire; Guti[eacute]rrez et al. 2017, p. 241) despite the 
documented lack of connectivity, even though dispersal among 
populations is a defining characteristic of a metapopulation (see 
Hanski and Gilpin 1991 for more on metapopulation theory). However, 
spatial structure of a metapopulation within and among subpopulations 
is critical for metapopulation functioning, and available evidence does 
not document successful dispersal between the San Bernardino, San 
Gabriel, and San Jacinto Mountains, which are adjacent mountain ranges, 
indicating that if mixing does occur it is very rare (LaHaye et al. 
2001, entire; LaHaye et al. 2004, entire; Guti[eacute]rrez et al. 2017, 
pp. 242, 250). Further, not all subpopulations within the 
metapopulation have equal likelihood of ``blinking out'' or being 
rescued/recolonized by other subpopulations, which are important 
components of metapopulation theory (Guti[eacute]rrez et al. 2017, pp. 
241-242, 250). Within the coastal-southern California population, the 
subpopulation inhabiting the San Bernardino and San Gabriel mountains 
is the largest subpopulation and is the subject of most ecological 
studies. The persistence of this subpopulation has been identified as 
important for persistence of the coastal-southern California population 
(Verner et al. 1992, pp. 197-206).
    To conduct a more focused analysis of how different portions of 
each of the populations' ranges contribute to that population's overall 
resiliency, we further divided the Sierra Nevada and southern 
California populations into analysis units (see figure 1, below). We 
chose analysis units roughly based on public land management boundaries 
because of varying demographic data and management strategies across 
the range. Dividing the population up into analysis units based on land 
management boundaries allows a better assessment of the varying 
conditions across the range. We identified a total of 15 analysis 
units: Lassen, Plumas, Tahoe, Eldorado, Humboldt-Toiyabe, Stanislaus, 
Yosemite, Sierra, Sequoia-Kings Canyon, Sequoia, Inyo, Las Padres, Las 
Padres-Angeles, San Bernardino, and Cleveland.
BILLING CODE 4333-15-P

[[Page 11606]]

[GRAPHIC] [TIFF OMITTED] TP23FE23.008

Figure 1--Populations and Analysis Units of the California Spotted Owl 
(CSO)

BILLING CODE 4333-15-C

Distinct Population Segment Evaluation

    Under the Act, the term ``species'' includes any subspecies of fish 
or wildlife or plants, and any distinct population segment of any 
species of vertebrate fish or wildlife which interbreeds when mature 
(16 U.S.C. 1532(16)). To guide the implementation of the DPS provisions 
of the Act, we and the National Marine Fisheries Service (National 
Oceanic and Atmospheric Administration--Fisheries), published the 
Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments Under the Endangered Species Act (DPS Policy) in the Federal 
Register on February 7, 1996 (61 FR 4722). Under our DPS Policy, we use 
two elements to assess whether a population segment under consideration 
for listing may be recognized as a DPS: (1) The population segment's 
discreteness from the remainder of the species to which it belongs, and 
(2) the significance of the population segment to the species to which 
it belongs. If we determine that a population segment being considered 
for listing is a DPS, then the population

[[Page 11607]]

segment's conservation status is evaluated based on the five listing 
factors established by the Act to determine if listing it as either 
endangered or threatened is warranted.
    As discussed above in Previous Federal Actions, we were petitioned 
to list the California spotted owl subspecies throughout its range. In 
response to the petitions, we divided the species into two populations 
and our analysis covers the full range of the species. Under the Act, 
we have the authority to consider for listing any species, subspecies, 
or, for vertebrates, any distinct populations segment of these taxa if 
there is sufficient information to indicate that such action may be 
warranted. Therefore, we considered whether the two populations of the 
California spotted owl (the Sierra Nevada portion of the California 
spotted owl's range, and the coastal and southern California portions 
of the California spotted owl's range) meet the DPS criteria under the 
Act. These two populations comprise the entirety of the California 
spotted owl's range (and thus the entirety of the petitioned entity), 
and we have determined that it is appropriate to analyze them 
individually under our DPS policy.

Discreteness

    Under our DPS Policy, a population segment of a vertebrate taxon 
may be considered discrete if it satisfies either of the following 
conditions: (1) It is markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation; or (2) it is 
delimited by international governmental boundaries within which 
differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    We conclude the two segments satisfy the ``markedly separate'' 
condition. The Sierra Nevada part of the range is separated from the 
coastal and southern California parts of the range by large-scale 
fragmentation of suitable habitat, with the Tehachapi Pass in Kern 
County identified as the dividing line between these areas (Verner et 
al. 1992, p. 4; Barrowclough et al. 2005, pp. 1114-1116). The distance 
between suitable habitat in the closest parts of the Sierra Nevada and 
the Transverse Range of southern California is only 40 km (25 mi). 
Although this distance is near the known average dispersal of juvenile 
California spotted owls, we are not aware of specific information about 
individual California spotted owls moving between the Sierra Nevada and 
California spotted owl habitat in coastal and southern California 
(Service 2022, p. 18).
    As discussed above in Background, there are few genetic studies on 
the California spotted owl. However, existing analyses provide evidence 
that gene flow between the two parts of the range is limited and may 
have been restricted to historical asymmetrical gene flow from areas in 
the central California coast to the Sierra Nevada (Barrowclough et al. 
2005, p. 1113), although the study acknowledges that more data are 
needed to inform this conclusion. Our DPS policy notes that we do not 
consider it appropriate to require absolute reproductive isolation as a 
prerequisite to recognizing a distinct population segment. As the 
policy states, this would be an impracticably stringent standard, and 
one that would not be satisfied even by some recognized species that 
are known to sustain a low frequency of interbreeding with related 
species.
    Therefore, because the two populations are markedly separated from 
each other, we have determined that both the Sierra Nevada and the 
coastal and southern California parts of the range both individually 
meet the condition for discreteness under our DPS Policy.

Significance

    Under our DPS Policy, once we have determined that a population 
segment is discrete, we consider its biological and ecological 
significance to the larger taxon to which it belongs. This 
consideration may include, but is not limited to: (1) Evidence of the 
persistence of the discrete population segment in an ecological setting 
that is unusual or unique for the taxon, (2) evidence that loss of the 
population segment would result in a significant gap in the range of 
the taxon, (3) evidence that the population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historical range, or 
(4) evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics.
    For the California spotted owl, we first considered evidence that 
loss of a population segment would result in a significant gap in the 
range of the taxon. As discussed above, the southwestern and 
northeastern parts of the range are separated by approximately 40 km 
(25 mi). The loss of the coastal and southern California parts of the 
range would result in the loss of the entire southwestern part of the 
species' range and decrease species redundancy and ecological and 
genetic representation, thus decreasing the species' ability to 
withstand demographic and environmental stochasticity. The loss of the 
Sierra Nevada range would result in the loss of 70 percent of the 
species' range, also reducing the species' ability to withstand 
demographic and environmental stochasticity. Therefore, the loss of 
either part of the range would result in a significant gap in the range 
of the California spotted owl.
    We then considered evidence whether either of the discrete 
population segments occur in an ecological setting that is unusual or 
unique for the taxon. In the Sierra Nevada, a majority of California 
spotted owls occur within mid-elevation mixed-conifer and mixed-
evergreen forest types, with few occurring in the lower elevation oak 
woodlands of the western foothills (Guti[eacute]rrez et al. 2017, p. 
109). As described above, in coastal and southern California, 
California spotted owls are found in riparian/hardwood forests and 
woodlands, live oak/big cone fir forests, and redwood/California laurel 
forests, more so than the mixed-conifer communities (Guti[eacute]rrez 
et al. 2017, p. xxvi). Use of these other communities is specific and 
unique to owls in these areas. What is considered a large tree in 
southern California may not be comparable to what is considered a large 
tree in the Sierra Nevada. California spotted owls use a subset of 
larger trees or snags as their nest trees, with the average nest tree 
measuring 124 cm (49 in) dbh and 31 m (103 ft) tall in the Sierra 
Nevada (Guti[eacute]rrez et al. 2017, p. 50). In southern California, 
use of platform or old raptor nests is more common; thus, owls with 
these types of nests were observed using trees as small as 33 cm (13 
in) dbh (Tanner 2022, pers. comm.) with mean values of 75.0 cm (29.5 
in) dbh (LaHaye et al. 1997, p. 45). Therefore, we conclude that, for 
the two populations of California spotted owls, each persists in a 
unique ecological setting for the species.
    The evidence that a significant gap in the range of the taxon would 
result from the loss of either discrete population segment meets the 
significance criterion of the DPS Policy. Additionally, there is 
evidence that the coastal and southern California and the Sierra Nevada 
parts of the range have persisted in a unique ecological setting for 
the species. Therefore, under the Service's DPS Policy, we find that 
the Sierra Nevada and the coastal and southern California parts of the 
California spotted owl's

[[Page 11608]]

range are significant to the taxon as a whole.

Distinct Population Segment Conclusion

    Our DPS Policy directs us to evaluate the significance of a 
discrete population in the context of its biological and ecological 
significance to the remainder of the species to which it belongs. Based 
on an analysis of the best available scientific and commercial data, we 
conclude that both parts of the California spotted owl's range are 
significant, because loss of either part would result in a significant 
gap in the range of the taxon, and because the population segments 
represent evidence that both parts of the range have persisted in a 
unique ecological setting for the species. Therefore, we conclude that 
both the Sierra Nevada and the coastal and southern California parts of 
the California spotted owl's range are both discrete and significant 
under our DPS Policy and are, therefore, uniquely listable entities 
under the Act.
    Based on our DPS Policy (61 FR 4722; February 7, 1996), if a 
population segment of a vertebrate species is both discrete and 
significant relative to the taxon as a whole (i.e., it is a distinct 
population segment), its evaluation for endangered or threatened status 
will be based on the Act's definition of those terms and a review of 
the factors enumerated in section 4(a) of the Act. Having found that 
both parts of the California spotted owl's range meet the definition of 
a distinct population segment, we evaluate the status of both the 
Sierra Nevada DPS and the Coastal-Southern California DPS of the 
California spotted owl to determine whether either meets the definition 
of an endangered or threatened species under the Act.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act

[[Page 11609]]

and its implementing regulations and policies.
    To assess California spotted owl viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogens). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.
    The following is a summary of the key results and conclusions from 
the SSA report (Service 2022, entire); the full SSA report can be found 
at Docket No. FWS-R8-ES-2022-0166 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
California spotted owl and its resources, and the threats that 
influence the species' current and future condition, in order to assess 
the species' overall viability and the risks to that viability.
    We note that the California spotted owl SSA report discusses 
California spotted owls at the individual, population, and species 
level. The SSA does not make any analysis or conclusions with regard to 
policy decisions, such as DPS findings, and does not include mention of 
the two populations of the subspecies as DPSs. Instead, the SSA report 
provides the biological information that our decisionmakers can then 
use to inform those policy decisions. This proposed rule and its 
supporting record contain the policy decisions and rationale. 
Throughout this Summary of Biological Status and Threats discussion, we 
discuss the coastal-southern California population of California 
spotted owl, which we identify as the Coastal-Southern California DPS, 
and the Sierra Nevada population of California spotted owl, which we 
identify as the Sierra Nevada DPS.

California Spotted Owl Needs

Individual Needs
    In this section, we assess the best available information to 
identify the specific habitat components needed to support individual 
fitness at all life stages for California spotted owls. Individual owls 
must have adequate nesting, foraging, and roosting habitat to be 
successful. For the purpose of the SSA report and this proposed rule, 
the components of nesting, foraging, and roosting habitat that we 
considered most significant include canopy cover, larger trees, and 
habitat heterogeneity. Habitat heterogeneity is important to California 
spotted owls as it provides protection from predators and extreme 
weather conditions, variable microclimates, and habitat for different 
prey species.
    We acknowledge that these habitat components are not all-inclusive 
and there may be other components of nesting, foraging, and roosting 
habitat that are not being considered (such as prey). We also 
acknowledge that a history of fire suppression in the western United 
States, including throughout the range of both the Sierra Nevada DPS 
and the Coastal-Southern California DPS, has caused many ecological 
changes that are not fully understood (Mallek et al. 2013, p. 2). 
However, we chose to focus on habitat components for which there are 
available spatial data across the range of the species. Further, prey 
is indirectly considered in our analysis since the primary California 
spotted owl prey species also select for high canopy cover and coarse 
woody debris (Waters and Zabel 1995, p. 858), which are considered here 
as components of habitat heterogeneity. Populations of California 
spotted owls require the same habitat components as individuals but at 
larger scales.
    Multi-layered, or complex, high canopy cover is considered an 
important resource for spotted owls because it provides cool shaded 
microclimates, camouflage and cover for protection from predators and 
extreme weather conditions, and habitat for prey species (Forsman 1975, 
pp. 4, 90, 105; Barrows 1981, p. 302; Forsman et al. 1984, p. 5). High 
canopy cover from tall trees is associated with higher probability of 
successful prey capture by California spotted owls (Zulla et al. 2022, 
p. 8) and is an important predictor for California spotted owl nesting 
habitat (North et al. 2017, pp. 166, 172-175). Multi-layered high 
canopy cover around the nest tree and in territories is an important 
factor associated with California spotted owl reproductive success 
(Hunsaker et al. 2002, pp. 693-699; Blakesley et al. 2005, pp. 1554, 
1558-1562). Areas with canopy cover greater than 70 percent are 
considered optimal for California spotted owl nest sites and occupancy 
sharply declines when canopy cover is less than 40 percent (Blakesley 
et al. 2005, p. 1559; Seamans 2005, pp. iii, 90, 100; Seamans and 
Guti[eacute]rrez 2007b, pp. 566, 568; Tempel et al. 2014a, pp. 2089, 
2091, 2101; Tempel et al. 2016, pp. 747, 759). Even in southern 
California where the habitat is naturally more fragmented with less 
canopy cover available, California spotted owls still select for areas 
with higher canopy cover relative to what is available (Smith et al. 
2002, pp. 142-143). Further, California spotted owls in Yosemite 
National Park had territory centers with average values of 40 percent 
canopy cover in burned forests (Schofield et al. 2020, pp. 4-5).
    The presence of large trees, defined as trees that are greater than 
61 cm (24 in) dbh (Seamans and Guti[eacute]rrez 2007b, pp. 566, 571-
574; Tempel et al. 2014b, p. 2094; Jones et al. 2018, p. 344), is 
important for California spotted owl foraging, roosting, and nesting. 
California spotted owls tend to forage and roost in large trees, likely 
due to the canopy cover provided by large trees and the important 
resources such as shelter and food that large trees provide for prey 
species (Laymon 1988, pp. 47, 71, 77, 100; Verner et al. 1992, pp. 9-
10, 60, 88; Moen and Guti[eacute]rrez 1997, pp. 1281, 1284). The 
presence of tall (>48 m (157 ft)) trees, and the canopy cover they 
provide, is the best predictor for California spotted owl occupancy, 
and areas with a high density of large trees are considered high-
quality habitat (Blakesley et al. 2005, pp. 1554, 1558-1562; North et 
al. 2017, pp. 166, 171-176). California spotted owls use a

[[Page 11610]]

subset of large trees or snags as their nest trees (LaHaye et al. 1997, 
pp. 42, 47; Blakesley et al. 2005, pp. 1554, 1558-1562; 
Guti[eacute]rrez et al. 2017, p. 50), and the nest tree itself is 
critical for California spotted owl reproductive success because it 
provides the space and structure needed for nests, along with 
protection from predators and inclement weather. California spotted 
owls do not build their own nests but rely on larger trees that provide 
multi-layered high canopy cover with open cavities (created as a result 
of fallen branches, woodpeckers, etc.), broken tops, platforms, and old 
raptor nests (Guti[eacute]rrez et al. 2020, ``Habitat'' and 
``Breeding'' sections). The nest tree chosen within a territory is 
typically one of the oldest and largest live or dead trees within the 
nesting territory with many defects like cracks, disease scars, or 
decaying wood (Verner et al. 1992, pp. 6, 60, 71; North et al. 2000, p. 
797).
    The preferential use of mature forests with high canopy cover and 
large trees is well-known for California spotted owls (Guti[eacute]rrez 
et al. 2017, p. iii). However, there have been several recent studies 
showing the importance of other habitat types, habitat edges, and 
habitat heterogeneity (Atuo et al. 2019; Hobart et al. 2019; Kramer et 
al. 2021b; Zulla et al. 2022; Wilkinson et al., in prep.). California 
spotted owl occupancy, colonization, adult survival, and reproductive 
success are all positively associated with the proportion of 
structurally complex forests (Franklin et al. 2000, p. 539; Blakesley 
et al. 2005, p. 1562; Tempel et al. 2014b, p. 2089; Tempel et al. 2016, 
p. 747). The biological and physical components that create habitat 
heterogeneity and complex structure are areas of multi-layered high 
canopy cover, large trees, coarse woody debris, understory and mid-
story vegetation, patches of burned habitat, riparian habitat, large 
diameter standing dead trees (snags), and some open areas within a 
California spotted owl's home range.
    Coarse woody debris (fallen dead trees and the remains of large 
branches on the ground) is an important habitat feature for California 
spotted owls because it provides food, shelter, and protection for 
California spotted owl prey species, especially woodrats (Waters and 
Zabel 1995, pp. 861-862; Pyare and Longland 2002, pp. 1016-1017; Innes 
et al. 2007, pp. 1523, 1526; Kelt et al. 2013, p. 1208). Coarse woody 
debris in areas of multi-layered high canopy cover is conducive for 
fungal growth, a food source for many California spotted owl prey 
species (Verner et al. 1992, pp. 71-72; Pyare and Longland 2002, pp. 
1016-1017). Rates of prey capture by California spotted owls are 
observed to be higher in taller multilayered forests, in areas with 
higher vegetation heterogeneity, and near forest-chapparal edges 
(Wilkinson et al. in prep., p. 2). There are a variety of habitats 
within a heterogeneous landscape that California spotted owls use and 
which may provide specific resources. The size of a California spotted 
owl's home range increases as the heterogeneity, or number of different 
vegetation patches, increase (Williams et al. 2011, p. 333); the 
hypothesis is that there may be an optimal point of habitat 
heterogeneity for California spotted owls beyond which territory 
quality declines (Williams et al. 2011, p. 333).
Population Needs
    Populations of California spotted owls must have adequate amounts 
of nesting, foraging, and roosting habitat containing the habitat 
components described above in sufficient amounts and the appropriate 
configuration on the landscape to support a stable or increasing growth 
rate. They also need connectivity between territories and home ranges. 
Populations meeting these requirements are better able to withstand 
stochastic events. In many instances, however, data are insufficient or 
completely lacking regarding a population's size and growth rate. In 
the absence of such data, we examine other characteristics that may 
serve as surrogate indicators of general population health and, 
subsequently, resiliency. Essentially, an assessment of the 
availability of a species' identified needs (suitable habitat, food, 
breeding sites) may allow us to make assumptions about the potential 
resiliency of any given population. However, unless there is a 
documented positive correlation between the availability of species' 
needs and a population's known demographic condition, the uncertainty 
regarding such assumptions must be made clear.
    In the SSA report, we describe the demographic factors that are 
considered important for California spotted owls, including natal 
dispersal, survival, fecundity, occupancy, and population growth. We 
describe the importance of each demographic factor to California 
spotted owl persistence and how the individual needs influence these 
factors.
    There is little available information about dispersal and dispersal 
habitat between the defined California spotted owl populations and 
analysis units within the SSA report and this proposed rule. Dispersal 
habitat is described for northern spotted owl as 50 percent of the 
forest matrix outside of activity centers in stands with an average of 
28 cm (11 in) dbh and 40 percent canopy closure (Thomas et al. 1990, p. 
15). This contrasts with dispersal for Mexican spotted owls, which may 
move across large areas of unforested habitat to access suitable 
habitat on different mountain ranges (Guti[eacute]rrez et al. 1995, p. 
5; Guti[eacute]rrez et al. 2017, p. 242). It is unknown how far 
California spotted owls will disperse across unsuitable habitat to find 
a new territory, but adult northern spotted owls have been found to 
occasionally move long distances if forced out of a territory (Forsman 
in litt. 2018, p. 22).
    For dispersal to be successful, many of the individual needs must 
be present within the areas to which California spotted owls disperse. 
Canopy cover, large trees, and coarse woody debris all must be 
available in sufficient amounts and the appropriate configuration on 
the landscape (habitat heterogeneity) for juveniles or sub-adults to 
successfully settle into a territory to begin breeding.
    Survival for California spotted owls is closely linked to 
population growth and is important for maintaining population 
resiliency (Seamans and Guti[eacute]rrez 2007a, p. 57; Blakesley et al. 
2010, p. 27). Adult California spotted owls have high annual survival 
rates ranging from 0.796-0.814 in different study areas within analysis 
units in southern California (LaHaye et al. 2004, p. 1056; Franklin et 
al. 2004, p. 22), and 0.811-0.891 in study areas within analysis units 
in the Sierra Nevada (Blakesley et al. 2001, p. 671; Franklin et al. 
2004, p. 22; Blakesley et al. 2010, p. 10; Tempel et al. 2014a, p. 92). 
In comparison, juvenile survival is difficult to estimate due to 
dispersal, and has been found to be low, ranging from 0.087-0.333 in 
study areas within analysis units in the Sierra Nevada (Blakesley et 
al. 2001, p. 671; Tempel et al. 2014a, p. 92), and 0.368 for southern 
California (LaHaye et al. 2004, p. 1056). For northern spotted owl, 
juveniles tend to have high mortality during the dispersal phase 
(Miller 1989, pp. 41-44; Forsman et al. 2002, p. 18).
    All the individual needs discussed above influence survival. For 
example, survival is related to the amount of forest dominated by 
medium to large trees, high canopy cover, and habitat complexity 
(Blakesley et al. 2005, p. 1554; Tempel et al. 2014b, pp. 2089, 2098; 
McGinn et al. 2022, p. 9). In northern spotted owls, habitat 
heterogeneity is correlated with higher survival rates (Franklin et al. 
2000, p. 539).
    Fecundity is defined as the ability to produce offspring and is 
measured by the number of viable female offspring

[[Page 11611]]

that an individual can produce over a specific time period. Annual 
reproductive output, measured by presence or absence of offspring in a 
nest, for female California spotted owls in a demographic study in the 
Sierra Nevada was found to range from 0.478-0.988 (Blakesley et al. 
2010, p. 1). Reproduction throughout all the demographic studies has 
ranged from no reproduction within a study area to nearly all birds 
reproducing in a study area in a particular year (Franklin et al. 2004, 
pp. 32-33; Seamans and Guti[eacute]rrez 2007a, p. 65; Blakesley et al. 
2010, p. 17; MacKenzie et al. 2012, p. 597; Tempel et al. 2014a, p. 91; 
Stoelting et al. 2015, p. 46). Fecundity, measured as female young 
produced per female annually, has been found to range from 0.284-0.409 
in the Sierra Nevada and to be 0.362 in southern California (Franklin 
et al. 2004, pp. 11, 23).
    Many of the individual needs discussed above influence fecundity. 
Reproductive output decreases as non-forest habitat increases within 
the area around the nest, and nest success increases as the presence of 
large remnant trees within the nest stand increases (Blakesley et al. 
2005, p. 1554). Reproduction is positively correlated to the foliage 
volume above the nest tree (North et al. 2000, p. 797), although 
habitat heterogeneity is also important for reproduction (Franklin et 
al. 2000, p. 539; Tempel et al. 2014b, p. 2089; McGinn et al. 2022, p. 
9) and foraging (Zulla et al. 2022, pp. 7-8). Annual variation in 
weather also plays a role in reproductive success (North et al. 2000, 
p. 797; Seamans and Guti[eacute]rrez 2007a, p. 57; MacKenzie et al. 
2012, p. 597; Stoelting et al. 2015, p. 46). For example, California 
spotted owls experienced increased fecundity when a dry breeding season 
followed a previously wet year (LaHaye et al. 2004, pp. 1056, 1062). 
Although survival of breeding California spotted owls is an important 
factor that is closely connected to population growth, reproductive 
output may be more influential to population growth because it varies 
more than adult survival (Blakesley et al. 2001, p. 667; Seamans and 
Guti[eacute]rrez 2007a, p. 57).
    In the SSA report and this proposed rule, we define California 
spotted owl occupancy as the stable (not transient) presence of at 
least one adult within a territory. California spotted owls select and 
defend territories in which they spend most of their life. California 
spotted owl pairs will only reproduce once they have established an 
occupied territory. The measure of occupancy has been found to be 
strongly correlated with regional abundance of California spotted owls 
and can provide reliable inferences on population trends (Tempel and 
Guti[eacute]rrez 2013, pp. 1093-1093).
    Many of the individual needs discussed above need to be present in 
order for California spotted owls to occupy a territory. Occupancy is 
generally higher and more consistent with an increasing proportion of 
the territory containing large trees and high canopy cover (Blakesley 
et al. 2005, p. 1554; Seamans and Guti[eacute]rrez 2007b, p. 572; 
Roberts et al. 2011, p. 610; Tempel et al. 2014b, p. 2089; 
Guti[eacute]rrez et al. 2017, p. vxii). As the proportion of forest 
types that are not used for nesting (smaller, similar-aged young trees) 
increases, occupancy tends to decrease (Blakesley et al. 2005, pp. 
1554, 1560).
    In the SSA report and this proposed rule, we define California 
spotted owl population growth as the change in the number of 
individuals within a particular study area, which correspond to our 
analysis units. Population growth is determined by the demographic 
factors of survival, fecundity, and occupancy, with fecundity likely 
the most influential because it is more variable (Blakesley et al. 
2001, p. 667; Seamans and Guti[eacute]rrez 2007a, p. 57; Seamans and 
Guti[eacute]rrez 2007b, p. 566; Blakesley et al. 2010, p. 27; Tempel 
and Guti[eacute]rrez 2013, pp. 1093-1094; Guti[eacute]rrez et al. 2017, 
p. 99). Population growth is variable throughout study areas in the 
Sierra Nevada DPS where we have available information, with documented 
declines ranging from -50 percent to -31 percent in some study areas 
and a population increase of 25 percent in another (Tempel et al. 
2014a, pp. 86, 90-92; Conner et al. 2016, p. 15). The only available 
demographic data for the Coastal-Southern California DPS is from the 
San Bernardino National Forest. A population decline of -9 percent was 
observed from 1987-1998, with more recent occupancy analyses showing 
further declines in population size (LaHaye et al. 2004, pp. 1056, 
1064; Tempel et al. 2022, p. 20, table 5). All individual needs 
described above need to be present for positive California spotted owl 
population growth.
Species Needs
    At the species level, we assess the redundancy and representation 
of the entire California spotted owl's range to better understand the 
viability of the species. For the California spotted owl, we evaluate 
redundancy by considering the number of resilient populations 
distributed across the species' range. Having resilient populations 
distributed across the range increases the species' ability to 
withstand catastrophic events.
    For this species, we evaluate representation by considering the 
distribution of populations across their various ecological settings 
and whether those populations are able to maintain adequate amounts of 
genetic diversity. Having a variety of ecological settings that the 
species can occupy and a breadth of genetic diversity increases the 
species' ability to withstand and adapt to long-term environmental 
changes.

Threats

    Following are summary evaluations of eight threats analyzed in the 
SSA report for the California spotted owl: wildfire (Factor A), tree 
mortality (Factor A), drought (Factor A), climate change (Factor A), 
fuels reduction and forest management (Factor A), competition and 
hybridization with barred owls (Strix varia) (Factor E), rodenticides 
(Factor E), and development (Factor A). We also evaluate existing 
regulatory mechanisms (Factor D) and ongoing conservation measures.
    In the SSA report, we also considered four additional threats: 
Overutilization due to recreational, educational, and scientific use 
(Factor B); disease (Factor C); predation (Factor C); and recreation 
(Factor E). We concluded that, as indicated by the best available 
scientific and commercial information, these threats are currently 
having little to no impact on the California spotted owl and thus the 
overall effect of these threats now and into the future is expected to 
be minimal. Therefore, we will not present summary analyses of those 
threats in this document, but we considered them in the current and 
future condition assessments in the SSA report, and we will consider 
them in our determination of the species' status. For full descriptions 
of all threats and how they impact the species, please see the SSA 
report (Service 2022, pp. 25-68).
    For the purposes of this assessment, we consider the foreseeable 
future to be the amount of time on which we can reasonably determine a 
likely threat's anticipated trajectory and the anticipated response of 
the species to those threats. For this proposed rule, we consider the 
foreseeable future to be 40-50 years. This time period represents our 
best professional judgment of future conditions related to climate 
change for California, the California spotted owl's generation time, 
and the regeneration time of medium to large trees.
Wildfire
    Fire is a natural part of California spotted owl habitat (Verner et 
al. 1992, pp. 247-248) and is necessary for maintaining heterogenous 
forests and

[[Page 11612]]

overall habitat heterogeneity. Wildfire and associated tree mortality 
can be beneficial or detrimental for the California spotted owl 
depending on scale and severity. Fires with predominantly low to 
moderate severity burn patterns, with small patches of high-severity 
fire scattered throughout the fire perimeter, can increase habitat 
heterogeneity, ultimately result in higher prey densities, increase 
amounts of forest edge for California spotted owl foraging, and provide 
for unburned refugia within the fire perimeter that have higher tree 
survival and more vegetative cover during the immediate postfire years 
(Roberts et al. 2011, p. 610; Lee et al. 2012, p. 792; Bond et al. 
2013, pp. 114, 122; Eyes et al. 2017, p. 384; Blomdahl et al. 2019, pp. 
1046, 1048, 1049). There is also evidence to suggest that more 
pyrodiverse (spatial or temporal variability in fire effects; Jones and 
Tingley 2021, p. 1) landscapes support greater habitat heterogeneity, 
which may promote greater biodiversity (Steel et al. 2021, pp. 7-8; 
Stephens et al. 2021, p. 5). For example, in areas where woodrats are 
the primary prey species, a juxtaposition of mature forests and open 
canopy patches promotes higher prey diversity and abundance, and 
northern spotted owls preferentially select for these areas (Zabel et 
al. 1995, p. 433; Ward and Noon 1998, p. 79; Franklin et al. 2000, p. 
539; Zabel et al. 2003, p. 1027).
    Although burned areas can reduce the amount of canopy cover 
available, California spotted owls forage on the edge of and within 
areas that have been burned at a range of severities (Bond et al. 2009, 
p. 1116; Bond et al. 2016, p. 1290; Eyes et al. 2017, p. 375) although 
typically avoiding larger areas of high-severity fire (Jones et al. 
2016a, p. 304; Eyes et al. 2017, p. 383). Thus, many researchers 
advocate for the use of ecologically beneficial fire to help sustain 
California spotted owl habitat and report that low to moderate severity 
fire minimizes the effects of future high-severity wildfire (Stephens 
et al. 2019, pp. 395-396; Stephens et al. 2020, entire; Stephens et al. 
2021, p. 5; Taylor et al. 2022, p. 4).
    In contrast, large-scale, high-severity fires have a detrimental 
effect on both the California spotted owl and its habitat. Large-scale 
high-severity fire (often referred to as a megafire) is generally 
defined as over 10,000 ha (24,711 ac) of area burned with 75-100 
percent canopy mortality (Jones et al. 2016a, p. 300; Linley et al. 
2022, pp. 6, 8). Megafires can degrade or destroy California spotted 
owl habitat, completely incinerating large trees and canopy cover (Eyes 
2014, p. ii; Roberts et al. 2015, pp. 112-115; Jones et al. 2016a, pp. 
300-305). Habitat suitability for northern spotted owls decreased 
postfire and depended on fire severity (higher fire severity resulted 
in greater declines of habitat suitability) (Wan et al. 2020, p. 7); 
thus, megafires have a greater potential to alter the availability of 
suitable habitat.
    The loss of habitat from large-scale, high-severity fires also 
results in direct impacts to California spotted owl individuals and 
populations. As megafires alter the number of large trees (including 
nest trees), multi-layered high canopy cover, habitat heterogeneity, 
and patch size, California spotted owl dispersal, fecundity, and 
occupancy are subsequently reduced. It has been observed that large 
patches of high-severity fire significantly reduce colonization 
(dispersal), occupancy, and habitat use across the California spotted 
owl's range (Eyes 2014, p. 42; Tempel et al. 2014b, p. 2089; Jones et 
al. 2016a, pp. 300, 303-305; Eyes et al. 2017, pp. 381, 384; Jones et 
al. 2019, p. 26; Jones et al. 2020, entire; Schofield et al. 2020, pp. 
5-6; Jones et al. 2021a, p. 5; Tempel et al. 2022, p. 13) and for other 
subspecies (Rockweit et al. 2017, entire; Lesmeister et al. 2019, p. 
13; Duchac et al. 2021, p. 12). Fires may cause direct mortality to 
eggs and juveniles during the nesting season, and fast-moving fires 
also have the potential to cause direct mortality to adult California 
spotted owl individuals (Jones et al. 2016a, p. 305). No data are 
available on how many California spotted owls are killed annually by 
direct impacts of large-scale, high-severity fire. Although most birds 
are able to move to escape direct morality from fires, smoke from fires 
can impact birds by damaging their lungs (Verstappen and Dorrestein 
2005, p. 139). While many species have existed with frequent fire over 
evolutionary time, megafires and extreme smoke events are novel 
influences that may act as an additional selective pressure on certain 
species (Nimmo et al. 2021, p. 5689). There is limited research on the 
effects of wildfire smoke on wildlife in general, but there is clear 
evidence that smoke can have both acute and chronic health impacts on a 
variety of taxa, which may ultimately affect demographic rates 
(Sanderfoot et al. 2021, p. 13).
    As discussed above, high-severity fire has negative effects on 
individual California spotted owls and their habitat, ranging from 
reduced occupancy to direct mortality of individuals. However, several 
publications conclude that spotted owls will continue to use areas 
burned at high-severity and, therefore, there are no negative effects 
of high-severity fire for California spotted owls (Lee and Bond 2015, 
entire; Hanson et al. 2018, entire; Hanson et al. 2021, entire; Lee 
2018, entire). We have reviewed these publications and acknowledge this 
disagreement in the literature. However, our review of all the best 
available science, including those sources that conclude no negative 
effects, has led us to agree with the vast majority of science, which 
concludes that overall spotted owls avoid large patches of high-
severity fire and that high-severity fire is increasing throughout 
California and the western United States. For more analysis on the 
conflicting results of these studies and our analysis, please see the 
SSA report (Service 2022, pp. 27-28).
    Current conditions in the California spotted owl's range may 
contribute to ongoing fire risk, and depending on the portion of the 
range and the land manager, fire management activities may vary. 
Decades of fire suppression have led to overall higher canopy cover 
from small and medium trees, higher dead biomass density, and more 
surface fuels in forests of the western United States (Verner et al. 
1992, pp. 247-248; Agee and Skinner 2005, p. 83). The historical fire 
return interval for the Sierra Nevada was around 11-16 years, but fire 
suppression over the last 100 years has led to a change in fire 
behavior of larger, more severe fires in recent years (Safford and 
Stevens 2017, pp. v-vi). The multi-layered high canopy cover and 
biomass provide important habitat for California spotted owls but also 
tend to increase the vulnerability of forests to high-severity fire 
(Verner et al. 1992, pp. 251-258; Agee and Skinner 2005, p. 83) in 
present day fire-suppressed forests. The higher fuel loads, 
particularly large, dead wood (like snags and logs), tend to burn at 
higher severity as densities increase (Lydersen et al. 2019, p. 7). In 
a recent megafire, dead biomass directly contributed to the fire 
effects observed, as areas with high amounts of dead biomass pre-fire 
burned at high severity (Stephens et al. 2022, p. 8).
    On top of the higher fuel loads, extended droughts and longer 
wildfire seasons have led to larger and more severe fires in the 
California spotted owl's range and throughout western North America 
(Miller and Safford 2012, p. 41; Mallek et al. 2013, p. 1; Nigro and 
Molinari 2019, p. 20; Parks and Abatzoglou 2020, p. 4; Safford et al. 
2022, p. 12). In 2020 and 2021, more than 1 million ha (2.4 million ac) 
burned in California, resulting in more area burned over these 2 years 
than in the past 7 years of all California fires

[[Page 11613]]

combined (Safford et al. 2022, p. 5). An increase in high-severity fire 
changes how fire interacts with important habitat features for 
California spotted owls. For example, fire often killed, but left 
standing, trees that would subsequently serve as locations for 
California spotted owl nests. However, large patches of high-severity 
fire burn hotter and can end up entirely consuming the features 
important to California spotted owls. Between the years of 2000 and 
2014, 7 percent of suitable California spotted owl nesting habitat (a 
total of 85,046 ha (210,153 ac) out of 1,166,560 ha (2,882,633 ac)) was 
burned either partially at moderate severity (typically 25-50 percent 
tree basal area mortality) or entirely at high severity (typically >75 
percent tree basal area mortality), causing >=50 percent tree basal 
area mortality and reducing canopy cover to <25 percent (Stephens et 
al. 2016, pp. 1, 9).
    The size and severity of a fire determines how much it will impact 
California spotted owls at the population level. If a high-severity 
fire occurs in a large enough area, it can eliminate entire territories 
or home ranges of California spotted owls, displacing individuals that 
may or may not establish a new territory (Jones et al. 2016a, pp. 300-
305). Site occupancy by California spotted owls after wildfire appears 
to be a function of the amount of suitable habitat remaining after the 
fire (Guti[eacute]rrez et al. 2017, p. xxiii). If habitat becomes 
unsuitable, it takes decades for large trees to reestablish on the 
landscape. Based on fire activity and anticipated trends over the next 
75 years, the cumulative amount of nesting habitat burned at >=50 
percent tree basal area mortality will exceed the total existing 
habitat in the Sierra Nevada (Stephens et al. 2016, pp. 1, 12). In 
other words, the loss of suitable California spotted owl habitat would 
exceed the rate of new forest growing post-fire (Stephens et al. 2016, 
pp. 11-13). Thus, future habitat persistence for California spotted 
owls is concerning given that high-severity fire appears to be 
increasing across all lands (both public and private) occupied by 
California spotted owls and throughout the western United States (Parks 
and Abatzoglou 2020, pp. 4-5). When private lands are considered 
separately, the odds of high severity fire occurring on industrially 
managed forests and adjacent lands were 1.8 and 1.4 times higher, 
raising some concern over California spotted owl persistence on private 
lands (Levine et al. 2022, p. 4).
    In the Sierra Nevada, the proportion of high severity fire 
throughout the California spotted owl's range has dramatically 
increased in recent years. The proportion of high-severity fire in 
California montane forests in 2020 was on average 43-76 percent higher 
than the combined average between 1984 and 2008, and was three to six 
times higher than the estimates of pre-Euroamerican settlement (Safford 
et al. 2022, p. 17). Between 1984-2019, 1,084,171 ha (2,679,044 ac; 
55.7 percent) burned throughout the California spotted owl range in the 
Sierra Nevada with 317,605 ha (784,820 ac; 46.6 percent) burned at high 
severity (Keane in litt. 2022, p. 3). In contrast, between 2020 and 
2021, 862,625 ha (2,131,593 ac; 44.3 percent) burned throughout the 
California spotted owl's range with almost 363,812 ha (899,000 ac; 53.4 
percent) of that at high severity (Keane in litt. 2022, p. 3). This 
comparison illustrates how megafires in 2020 and 2021 burned more 
habitat at high severity in 2 years than fires over the past three and 
a half decades. In addition, between 1984 and 2021, 50 percent of 
California spotted owl PAC acres have been impacted by wildfire, with 
56 percent of that total burned in 2020 and 2021. Further, of the 56 
percent that burned between 2020 and 2021, 65 percent burned at high 
severity (Keane in litt. 2022, p. 5). Because California spotted owls 
are displaced from areas where the entire PAC or majority of the PAC 
has burned at high severity, it is unlikely the species will continue 
to persist in these areas until the habitat can recover, which can take 
decades.
    We conducted a fire severity analysis within the entire California 
spotted owl's range; details of the methodology used in this analysis 
are available in the SSA report (Service 2022, pp. 29-30). Of the 
California spotted owl's range, approximately 47 percent burned between 
1984 and 2021, with 15 percent at high severity. Most of the area 
burned at high severity occurred in 2020 and 2021, with 2 percent and 4 
percent, respectively (Service 2022, table 3). Additionally, based on 
an existing dataset from the California Department of Forestry and Fire 
Protection of the potential threat of future wildfire in California, 
the majority of the California spotted owl's range occurs within the 
very high wildfire threat category (Service 2022, figure 8). Much of 
the coastal-southern California population of the California spotted 
owl falls within the extreme fire risk. This dataset contains fire 
information through 2014, and so does not consider how the recent fires 
from 2014 to 2021 affect future fire threat. Overall, we expect that 
the pattern of both area burned and wildfire severity will continue or 
increase into the future due to the effects of climate change.
    Some regulatory mechanisms and conservation measures can reduce the 
potential severity or scale of wildfires. Wildfire fuel reduction 
treatments, such as prescribed fire and mechanical thinning, can reduce 
the amount or degree of spotted owl habitat loss from a high-severity 
fire, and a balanced approach to fuel reduction treatments may ensure 
suitable California spotted owl habitat is maintained (Jones et al. 
2016a, p. 305; Service 2017, pp. 24-25; Chiono et al. 2017, p. 1; Jones 
et al. 2021a, entire). The 2004 USFS Sierra Nevada Forest Plan 
Amendment has a goal of actively restoring fire-adapted ecosystems by 
reducing unnaturally dense conditions, and there are also measures in 
place in the framework to avoid disturbance within California spotted 
owl PACs to the greatest extent possible (USFS 2004, pp. 34-35). Fuel 
reduction treatments are actively taking place on USFS land, but 
special considerations, including the timing of treatments to avoid the 
breeding season and the methods that are used, are evaluated to avoid 
impacts to owls within PACs. In 2017 and in 2020, an MOU was signed by 
Sierra Pacific Industries, California Department of Forestry and Fire 
Protection, National Fish and Wildlife Foundation, and the USFS to 
coordinate on certain actions that may contribute to forest fuel 
reductions and California spotted owl conservation. The purpose of the 
MOU is to try to minimize the threat of large-scale, high-severity fire 
while still providing quality habitat for California spotted owls. 
However, large-scale, high-severity fire cannot be completely addressed 
by regulatory mechanisms. Fuel reduction treatments may not prevent 
catastrophic damage in an extreme fire event; however, when fire is a 
part of the fuel reduction treatment, future fire severity can be 
reduced and more fire treatments should be included to achieve fuels 
reduction goals, including areas surrounding spotted owl nests and 
riparian corridors (North et al. 2021, pp. 527, 529; Taylor et al. 
2022, p. 4).
    High-severity fire is likely to continue to be a threat into the 
future for California spotted owls. Although some individuals could be 
harmed or killed by large fires, the primary impact of this threat is 
habitat-based. These habitat changes also affect demographic 
parameters: following high severity fires, colonization declines and 
territory extinction increases, leading to overall declines in 
occupancy (Tempel et al. 2022, pp. 13-16). Overall, large-scale, high-
severity fire is currently and will

[[Page 11614]]

likely continue to be a threat throughout the range of the California 
spotted owl, including for both the Sierra Nevada and the coastal-
southern California populations.
Tree Mortality
    Widespread increases in tree mortality have been occurring in 
California due to drought, disease, and bark beetles above historical 
levels of mortality (van Mantgem et al. 2009, pp. 521-523; Asner et al. 
2015, p. 249; McIntyre et al. 2015, p. 1458; Preisler et al. 2017, p. 
166). When tree stand densities are too high compared to available 
resources (water, light, nutrients), trees become stressed due to 
competition for resources and thus are more vulnerable to mortality 
(USFS 2017, p. 9). Large trees are often especially prone to drought, 
disease, and beetle-related mortality (Smith et al. 2005, p. 266; 
Mueller et al. 2005, p. 1085; Allen et al. 2010, p. 668; McIntyre et 
al. 2015, p. 1458). Increased tree mortality may be contributing to 
loss of California spotted owl habitat (Guti[eacute]rrez et al. 2017, 
p. 137), but the magnitude of the impacts on California spotted owls is 
uncertain. Large-scale tree mortality reduces the availability of 
canopy cover and large trees, potentially resulting in California 
spotted owl population declines because of reduced habitat available 
for dispersal and occupancy. However, some tree mortality events can 
have some positive effects on California spotted owl habitat, as these 
events contribute to habitat heterogeneity and the availability of 
coarse woody debris for prey species.
    Between 2010 and 2016, an estimated 102 million trees died across 
about 3,106,367 ha (7,676,000 ac) throughout California (Tree Mortality 
Task Force 2017, p. 2). By February 2019, total tree mortality in 
California increased to an estimated 147 million dead trees (Cal Fire 
and USFS 2019, p. 1). The latest estimate shows that between 2010 and 
2021, the drought combined with subsequent beetle attacks resulted in 
approximately 173 million dead trees in California with approximately 
3.3 percent of the surveyed forest area in 2021 showing signs of 
elevated mortality (USFS 2021, p. 5). The tree mortality events are 
particularly severe in the southern Sierra Nevada area. Most of the 
tree mortality observed is due to effects from the 2012-2016 drought, 
with less mortality occurring from 2018-2021; however, another drought 
period started in 2020 (USFS 2021, p. 5).
    In 2015, the Governor of California declared a state of emergency 
due to the unprecedented number of dead and dying trees in the State. 
In response, the California Tree Mortality Task Force, which is now the 
Forest Mortality Working Group within the California Wildfire and 
Forest Resilience Task Force, was created to coordinate emergency 
protective actions and monitor ongoing conditions. The group collects 
and manages the tree mortality data, provides recommendations to land 
managers, presents grants for research funding, and provides public 
outreach. The task force will likely continue to provide the services 
listed into the future due to the ongoing and large-scale nature of the 
tree mortality events in California.
    Regulatory mechanisms and management actions could provide some 
protection from the effects of tree mortality. Efforts to restore 
historical forest conditions and reduce stand densities through fuels 
reduction treatments (mechanical thinning, prescribed fire, etc.) may 
indirectly contribute to reducing future tree mortality by reducing 
competition. Further, the goal should be to eliminate the excessive 
levels of tree mortality currently being observed in the landscape and 
not limit all tree mortality, as tree mortality is a natural part of 
the forest ecosystem and ultimately creates features important to 
California spotted owls (snags, tree cavities). Tree mortality is 
likely to continue throughout the range of the California spotted owl 
due to predicted increases in drought conditions that will likely 
continue to weaken trees and make them susceptible to bark beetles and 
disease (Millar and Stephenson 2015, pp. 823-826; Young et al. 2017, 
pp. 78, 85). Excessive tree mortality is likely to continue to be a 
threat into the future for the California spotted owl.
Drought
    California has experienced extreme drought conditions in 2007-2009 
and 2012-2016 (Williams et al. 2015, pp. 6823-6824; CDWR 2021, p. 4), 
and as of May 2022, a majority of the California spotted owl's range is 
considered in severe to moderate drought (CDWR 2022, entire). 
Anthropogenic warming likely contributed to more recent drought 
anomalies and increases the overall likelihood of extreme droughts in 
California into the future (Williams et al. 2015, pp. 6819, 6826; CDWR 
2022, entire).
    Drought conditions can negatively impact the California spotted 
owl's ecological needs. As described above, drought conditions 
contribute to tree mortality, which reduces canopy cover, likely 
leading to a decline in occupancy. Further, drought conditions likely 
reduce the availability of prey species (Franklin et al. 2000, p. 589; 
Glenn et al. 2010, p. 2549; Glenn et al. 2011, p. 174). Drought and hot 
temperatures in the previous summer are linked to lower reproductive 
success in California spotted owls (LaHaye et al. 2004, p. 1066) and 
lower survival and recruitment in northern spotted owls in the next 
breeding season (Glenn et al. 2011, pp. 159, 174). Inversely, increases 
in precipitation either before or after the nesting season are linked 
to increased survival and fecundity in all three subspecies of spotted 
owls (Seamans et al. 2002, p. 321; LaHaye et al. 2004, pp. 1056, 1064; 
Glenn et al. 2011, pp. 159, 174). Thus, drought likely negatively 
impacts the California spotted owl's habitat components, and its 
demographic needs of dispersal, survival, fecundity, and occupancy. No 
regulatory mechanisms or conservation measures in place ameliorate the 
direct impacts of drought. It is likely that drought conditions will 
continue to be a threat into the future across the California spotted 
owl's range and will likely worsen due to the effects of climate 
change.
Climate Change
    Scientific measurements spanning several decades demonstrate that 
changes in climate are occurring and that the rate of change has been 
faster since the 1950s. There is strong scientific support for 
projections that warming will continue through the 21st century, and 
that the magnitude and rate of change will be influenced substantially 
by the extent of greenhouse gas emissions (Meehl et al. 2007, pp. 760-
764, 797-811; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, 
pp. 527, 529; IPCC 2013, pp. 19-23).
    Projected changes in climate and related impacts can vary 
substantially across and within different regions of the world (IPCC 
2013, pp. 15-16). Therefore, we used downscaled projections from 
California's Fourth Climate Change Assessment, including the following 
four regional assessments that cover the California spotted owl's 
range: Sierra Nevada (Dettinger et al. 2018, entire), the Central Coast 
Region (Langridge 2018, entire), Los Angeles (Hall et al. 2018, 
entire), and San Diego (Kalansky et al. 2018, entire). Ten global 
climate models were used for all four regional assessments, and each 
model considered two different emissions scenarios, one in which 
greenhouse gas emissions continue to increase into the next century 
(RCP 8.5) and one in which greenhouse gas emissions stabilize by mid-
century and then decline to levels

[[Page 11615]]

seen in the 1990s by the end of the century (RCP 4.5) (Dettinger et al. 
2018, pp. 15, 17; Hall et al. 2018, p. 9; Kalansky et al. 2018, p. 18; 
Langridge 2018, p. 12).
    Under both emissions scenarios, projected annual average 
temperatures throughout the California spotted owl's range are 
projected to increase. The largest increases under both emissions 
scenarios and timeframes are projected for the eastern portions of the 
Sierra Nevada (Dettinger et al. 2018, p. 17, figure 2.3). Projected 
changes will result in greater temperatures than historically 
experienced in the Sierra Nevada, and this degree of temperature change 
will likely result in a shift in the rain to snow transition by 1,500-
3,000 feet (Dettinger et al. 2018, pp. 17, 20). Projected temperature 
increases are more pronounced in the inland portions of the Central 
Coast Region, with the ocean acting as a buffer for coastal areas 
(Langridge 2018, p. 14, figure 4). In addition, the average number of 
extremely hot days (defined as days that exceed the 98th percentile of 
observed, historical (1961-1990) daily maximum temperatures between 
April 1 and October 31) are expected to increase throughout the Central 
Coast Region (Langridge 2018, pp. 14-15, table 4).
    Regional assessments covering southern California include the Los 
Angeles and San Diego Regional Assessments (Hall et al. 2018, entire; 
Kalansky et al. 2018, entire). Projected annual average maximum 
temperatures throughout the Los Angeles Region increase under both 
emissions scenarios (Hall et al. 2018, p. 10, figure 2). For the San 
Diego Region, projected annual average maximum and minimum temperatures 
also increase under both emissions scenarios. Similar to the Central 
Coast Region, these changes will be more pronounced in the interior 
portions of the Los Angeles and San Diego Regions (Hall et al. 2018, p. 
11, figure 3).
    In addition to temperature projections, the regional assessments 
for California's Fourth Climate Change Assessment also considered 
future changes in precipitation, both the amount and the timing. Within 
the Sierra Nevada Region, changes in precipitation are projected to be 
relatively small and will vary depending on the area. In general, 
average annual precipitation in the southern portion of the Sierra 
Nevada Region is projected to stay similar or decrease by 5 percent, 
regardless of emission scenario. In other portions of the Sierra Nevada 
Region, particularly along the eastern side, the amount of 
precipitation is projected to increase by up to 10 percent. In addition 
to projections showing the northern portions of the range will receive 
more precipitation than southern portions, areas at higher elevations 
are also more likely to receive an increase in precipitation. Although 
the average change in precipitation is projected to be small, the 
models show there will be an increase in extreme conditions with more 
dry days overall interspersed with higher intensity precipitation 
events, when they do occur (Dettinger et al. 2018, p. 19). Further, in 
some areas more precipitation will fall as rain instead of snow, as the 
rain to snow transition is projected to shift by 457-914 m (1,500-3,000 
ft) (Dettinger et al. 2018, pp. 17, 20).
    Similar to the Sierra Nevada Region, interannual variability within 
the Central Coast Region is expected to increase with more dry days 
overall, but more precipitation when rain events do occur (Langridge 
2018, p. 16). In southern California, the amount of precipitation in 
the Los Angeles and San Diego Regions is highly variable (Hall et al. 
2018, p. 12, figure 5; Kalansky et al. 2018, p. 24). Similar to other 
regions, projections for the Los Angeles and San Diego Regions show an 
increase in extreme conditions such as high-intensity precipitation 
events, known as atmospheric rivers, and severe drought conditions 
(Hall et al. 2018, pp. 13-14, figure 6; Kalansky et al. 2018, pp. 24-
25, figures 7 and 9).
    Because the California spotted owl has a wide geographic range and 
the projected changes in climate vary across the range, the effects 
those changes will have on the species and its habitat will vary. 
Future climate projections of Sierra Nevada vegetation distribution 
indicate that low- and mid-elevation forests are vulnerable to 
conversion to unsuitable habitat for California spotted owls, such as 
shrublands and grasslands (Guti[eacute]rrez et al. 2017, p. 215). These 
changes in climate may also include potential shifts in forest 
communities upslope, which would have impacts on both the California 
spotted owl's habitat and prey habitat (Guti[eacute]rrez et al. 2017, 
pp. 132, 215, 288). This potential upslope shift in suitable habitat 
may mitigate some climate-induced habitat threats over ecological time, 
although it would require many decades for suitable large nest trees to 
develop in areas where they do not currently exist (Guti[eacute]rrez et 
al. 2017, p. 215). These differences in net habitat loss versus net 
habitat gained under future climate scenarios will likely depend not 
only on the rate of warming but also how individual plant and prey 
species respond (Seamans and Guti[eacute]rrez 2007a, p. 61).
    Changing climatic conditions may have direct impacts on California 
spotted owl physiology, survival, reproduction, recruitment, or 
population growth. The thermal neutral zone (the range of temperatures 
tolerated by a warm-blooded animal) for California spotted owls is 
18.2-35.2 [deg]C (64.8-95.4 [deg]F) (Weathers et al. 2001, p. 682). 
Above this zone, California spotted owls experience heat stress 
(Weathers et al. 2001, p. 678). The relatively low thermal neutral zone 
may make California spotted owls more susceptible to increased 
temperatures or cause behavioral or habitat shifts to cooler 
microclimates on the landscape. Behaviorally, California spotted owls 
can select cooler microclimates for roosting, especially within warmer 
forest stands (McGinn et al. in review, p. 2). Changing climatic 
conditions may also have indirect impacts including changes in habitat 
and prey distribution, abundance, and quality. California spotted owls 
must be able to adjust to the changing climate through behavioral 
changes, spatial shifts, or adaptation in order to persist. Under 
projected warming conditions in the future, cooler microclimate refugia 
are likely to be critically important for the persistence of California 
spotted owl individuals and populations (McGinn et al. in review, p. 
3). It is likely that climate change will reduce the quantity and 
quality of California spotted owl habitat, which would likely result in 
population impacts, including a decrease in dispersal, fecundity, and 
occupancy. Both the habitat components and demographic factors of 
California spotted owls will likely be impacted by climate change, but 
the full extent of impacts climate change may have on California 
spotted owls is poorly understood (Wan et al. 2018, p. 690).
    Climate modeling specific to the central Sierra Nevada portion of 
the California spotted owl's range has shown that maintaining high 
canopy cover, especially at higher elevations, will be important for 
California spotted owls to persist into the future, as high canopy 
cover helps maintain future refugia for individuals to select for 
cooler microclimates (Jones et al. 2016b, entire). Under both a low 
climate change prediction scenario (RCP 2.6) and a high climate change 
scenario (RCP 8.5), California spotted owl occupancy decreases in 
comparison to baseline climate conditions (Jones et al. 2016b, p. 901). 
However, this model did not consider projected increases in frequency 
and size of high-severity fires due to climate change, which would 
likely result in more significant declines

[[Page 11616]]

in occupancy than predicted by the model (Jones et al. 2016b, p. 903). 
Earlier modeling of spotted owl response to projected climate changes 
show that different subspecies and populations of spotted owls are 
anticipated to respond differently across their ranges (Peery et al. 
2011, p. 14).
    The climate change projections described above suggest increasing 
interannual climate variability throughout the range of the California 
spotted owl. Interannual climate variability is defined as when annual 
weather patterns differ from historical average climate, including 
prolonged drought conditions, heavy rain conditions, and higher or 
lower than average temperatures. Interannual climate variability has 
been shown to have impacts on the survival and reproductive success of 
California spotted owls. Drought conditions and hot temperatures during 
the summer have been found to reduce fecundity in California spotted 
owls during the next breeding season (LaHaye et al. 2004, p. 1056). 
Increases in precipitation either before or after the nesting season 
are linked to increased survival and fecundity, whereas increased 
precipitation during the nesting season reduces reproductive success 
(North et al. 2000, p. 804; LaHaye et al. 2004, pp. 1056, 1064). It is 
hypothesized that northern spotted owls exhibit a bet-hedging 
reproduction strategy and that an absence of reproduction is linked to 
environmental conditions (Franklin et al. 2000, pp. 539, 576). 
California spotted owls likely have a similar bet-hedging reproductive 
strategy (Stoelting et al. 2015, p. 46; Guti[eacute]rrez et al. 2017, 
pp. 14-15). California spotted owls are sensitive to warm temperatures 
and, therefore, may be physiologically sensitive to weather patterns 
with increased temperatures (Weathers et al. 2001, p. 684). 
Temperature, either too hot or too cold, may affect spotted owls 
directly by increasing energy demands (Guti[eacute]rrez et al. 2017, p. 
20). This increase may have direct impacts on the physiology of spotted 
owls or on breeding if mates must bring more food to the nest for the 
female to survive. Increased interannual climate variability due to 
climate change will likely impact the California spotted owl throughout 
its range, which would result in lower fecundity.
    Regulatory mechanisms and management actions that are or could 
potentially provide some protection from the effects of climate change 
include the Clean Air Act (42 U.S.C. 7401 et seq.) and the California 
Global Warming Solutions Act. Both address climate change by reducing 
greenhouse gas emissions within the United States and California, 
respectively. There are no regulatory mechanisms or management actions 
that fully address the effects of the climate change.
    The effects of climate change will continue to impact California 
spotted owls into the future by exacerbating the negative influencing 
factors described above, especially extreme weather events such as 
prolonged drought and severe storms. The loss or reduction of suitable 
habitat throughout the California spotted owl's range will likely 
reduce the subspecies' reproduction, occupancy, survival, recruitment, 
and population growth.
Fuels Reduction and Forest Management
    Forest management has long been a controversial topic regarding 
species that require old growth forest habitat, including the spotted 
owl (Guti[eacute]rrez 2020, p. 337). With the increasing frequency and 
extent of high-severity fire in California in recent decades, fire 
mitigation has become a key issue for spotted owl management and 
conservation. The goal of fuels management is to reduce the buildup of 
fuels in forests that contribute to these large-scale, high-severity 
fires, which can effectively mitigate subsequent fire behavior and 
their effects, even under extreme weather (Hessburg et al. 2021, p. 7; 
Prichard et al. 2021, p. 9). The long-term benefits of properly managed 
fuel treatments for reducing the risk of severe wildfire are likely to 
outweigh the short-term negative impacts to spotted owl habitat (Ager 
et al. 2007, pp. 54-55; Roloff et al. 2012, p. 7; Jones et al. 2021b, 
pp. 4-5). These trade-offs are complex and ultimately depend on the 
extent that treatments have negative impacts to owl habitat and the 
magnitude of effects from subsequent wildfires (Jones et al. 2021b, p. 
2). Fuels reductions and forest management practices vary throughout 
the California spotted owl's range. Below, we discuss clearcutting, 
mechanical thinning, salvage logging, and prescribed fire, and the 
positive and negative influences that these practices can have on the 
species.
    Clearcutting, sometimes referred to as even-aged management, is 
defined as an even-age regeneration or harvest method that removes all 
trees in the stand, producing a fully exposed microclimate for the 
development of a new age class in one entry (Guti[eacute]rrez et al. 
2017, p. 292). The natural range of variation for forest gaps in the 
Sierra Nevada has been found to range from 0.03-1.17 ha (0.07-2.89 ac) 
(Safford and Stevens 2017, p. 140), and within the SSA report and this 
proposed rule, clearcutting refers to complete removal greater than the 
natural range of variation.
    Clearcutting is a mostly historical threat to California spotted 
owls, although it still occurs in some areas of the Sierra Nevada. By 
removing entire stands of trees, clearcutting reduces the amount of 
large trees, high canopy cover, and coarse woody debris available for 
California spotted owls. Commercial timber harvest no longer occurs 
within the California spotted owl's range on public lands in the 
Coastal-Southern California DPS (Guti[eacute]rrez et al. 2017, p. 254). 
Clearcutting also does not occur on USFS lands on the eastern side of 
the Sierra Nevada range (Boatner in litt. 2022). Clearcutting still 
occurs on private timber harvest lands but is limited to 8.1-ha (20-ac) 
parcels by California State forest practice rules (California Code of 
Regulations (CCR), title 14, article 3 (14 CCR 913 et seq.)). 
Additionally, there must be at least 91.44 m (300 ft) of forested area 
between clearcuts, and adjacent lands cannot be cut for at least 5 
years (14 CCR 913 et seq.). Even with the reduction of clearcutting in 
recent history, it will take decades or centuries for large trees to 
grow back from the past removal practices; therefore, there are 
residual effects that may be impacting California spotted owl 
populations and the habitat that is available (Jones et al. 2018, p. 
1). California spotted owls may use clearcut habitat, likely for 
foraging activities, but these areas are used significantly less than 
high canopy cover and large tree areas (Atuo et al. 2019, pp. 295, 301-
302).
    Mechanical thinning is a forest management strategy to thin trees 
either in even or uneven-aged stands by removing trees in rows, strips, 
or by using fixed pacing intervals, usually implemented to meet forest 
management objectives. It can be done for commercial harvest of trees 
or to reduce fuel loads to decrease the likelihood of large-scale, 
high-severity fires (Guti[eacute]rrez et al. 2017, p. 292). Within the 
SSA report and this proposed rule, we use ``mechanical thinning'' to 
include both individual tree selection (new age classes are created in 
uneven-aged stands by removing individual trees of all size classes 
more or less uniformly throughout the stand to achieve desired stand 
structure) and group tree selection (treatment involves salvage harvest 
in a stand where small groups of trees are harvested because of tree 
mortality due to windstorm, wildfire, insects, disease, or other 
animals).
    Mechanical thinning is actively used to manage forests occupied by 
California

[[Page 11617]]

spotted owls and can have positive or negative impacts on the 
California spotted owl's habitat and demographics depending on the 
specific methods used. The 2004 Sierra Nevada Forest Plan Amendment 
promotes reducing, using methods including mechanical thinning, 
unnaturally dense forest conditions on the landscape to reduce the risk 
of large-scale, high-severity fire (USFS 2004, pp. 34-35). Minimal area 
is treated mechanically, especially when compared to area burned by 
wildfire (566,560 ha (1,400,000 ac) burned between 2017-2020 versus 
61,852 ha (152,842 ac) previously treated; North et al. 2021, p. 524). 
Treatments are located to avoid California spotted owl activity centers 
to the greatest extent possible (USFS 2004, pp. 34-35), which often 
leaves the PACs untreated and potentially vulnerable to stand-replacing 
fires (Stephens et al. 2019, p. 395). Further, strategic thinning can 
promote forest resiliency, but removing some large, fire-intolerant 
tree species like fir and cedar may be necessary to promote future 
resilience of forested habitat (Stephens et al. 2020, entire; North et 
al. 2021, p. 530).
    Resilience of California spotted owl habitat results from low stand 
densities, which reduces competition and allows trees to grow, so more 
intensive fuels treatments (mechanical thinning and prescribed fire) 
may be needed to achieve historically lower levels of tree densities 
(North et al. 2022, p. 6). When conducted outside California spotted 
owl activity centers, mechanical thinning will likely reduce the amount 
of damage the habitat may experience due to high-severity fire while 
also minimizing short-term habitat impacts (Stephens et al. 2014, p. 
904; Tempel et al. 2015, p. 1; Chiono et al. 2017, p. 1). Strategic 
mechanical thinning to reduce fuel loads and reduce the risk of large-
scale, high-severity fire, while also maintaining the necessary forest 
structure components of large trees, multi-layered high canopy cover, 
habitat heterogeneity, and coarse woody debris, will be important for 
California spotted owl management into the future (Jones et al. 2016a, 
p. 305; Tempel et al. 2016, p. 305; Jones et al. 2019, p. 22). 
Strategically placed landscape fuel treatments can decrease future fire 
severity while also increasing seedling densities (Tubbesing et al. 
2019, p. 54). Many studies emphasize the importance of scaling-up fuel 
reduction treatments (mechanical thinning and prescribed fire) and 
suggest an increased benefit of treating within California spotted owl 
territories for long-term persistence, although positive effects would 
not be observed until mid-century and treatments should still strive to 
maintain large trees and high canopy cover forest (Jones et al. 2021b, 
p. 3; Safford et al. 2022, p. 17).
    This fuels management technique has little to no impact on 
occupancy if carried out in a strategic way (for example, maintaining 
some patches of high canopy cover mixed with patches of moderate canopy 
cover to provide for the primary habitat of California spotted owls and 
incorporating limited operating periods that restrict activities from 
occurring during the critical nesting period) (Tempel et al. 2016, p. 
747). However, mechanical thinning can decrease California spotted owl 
occupancy and is negatively correlated with reproduction (Tempel et al. 
2014a, p. 2089; Stephens et al. 2014, p. 903; Tempel et al. 2022, p. 
19). Although one study detected some negative effects of fuels 
reduction treatments on California spotted owls in southern California, 
the authors suggested that occupancy declines were small compared to 
the potential negative effects of fire (Tempel et al. 2022, p. 22). 
Similarly, there is evidence of reduced foraging in fuel treatment 
areas that have a moderate to high proportion of forest gaps with 
little to no canopy cover (Gallagher et al. 2018, pp. 487, 494-499). 
Forest thinning has complex effects on both California spotted owls and 
their mammalian prey species. Thinning may have negative short-term 
effects on prey species by increasing the risk of predation by removing 
above-ground cover and reducing canopy connectivity, and thinning may 
remove suitable nesting substrates; however, there may be positive 
effects in the long term (over decades) by promoting growth of the 
midstory layer of trees that is favorable to certain mammalian prey 
species (Wilson and Forsman 2013, p. 79).
    Salvage logging is a practice where damaged or dying trees are 
removed to recover their economic value and promote forest health 
(Guti[eacute]rrez et al. 2017, p. 293; Jones et al. 2020, p. 11). 
Salvage logging often occurs after natural disturbances such as 
wildfires, disease, and insect infestation (Lindenmayer et al. 2008, p. 
4). Post-fire fuels treatment that includes the removal of smaller 
trees and surface and ladder fuels is not generally considered a threat 
to California spotted owls relative to the threat posed by megafires 
(Jones et al. 2021b, p. 7). Negative effects of salvage logging have 
been documented for wildlife, vegetation, and soils, but there is a 
paucity of literature on the subject, which may lead to inaccurate 
comparisons when studies occur across varied geographic regions; 
nevertheless, the negative effects may be mediated by altering 
equipment, timing of operations, and harvest prescriptions to leave 
more large snags (Nemens et al. 2019, entire). California spotted owls 
inhabit areas of low-medium severity fire, patchy high-severity fire, 
and areas with dead trees; therefore, salvage logging likely reduces 
the amount of habitat available for California spotted owls 
(Guti[eacute]rrez et al. 2017, p. 276). Salvage logging can result in 
short-term decreased vegetation regrowth (Wagenbrenner et al. 2015, p. 
176), which would likely impact prey species for California spotted 
owls. However, salvage logging does not appear to make much difference 
in long-term vegetation regrowth, so salvage logged areas have the 
potential to again become suitable habitat after the centuries it takes 
to establish large trees in the area (Peterson and Dodson 2016, p. 56). 
Salvage logging in certain instances may also be necessary to reduce 
future fire severity as high levels of dead biomass are associated with 
high-severity fire (Lydersen et al. 2019, p. 7; Stephens et al. 2022, 
p. 8); salvage logging may also be required for restoration personnel 
to safely access an impacted site for re-planting activities (Sawyer in 
litt. 2022).
    The California spotted owl's response to salvage logging appears to 
be at least partly dependent on the characteristics of the fire after 
which it occurs, which can make it difficult to analyze these 
relationships (detailed in Jones et al. 2019). For example, salvage 
logging that occurs within a large, burned area is less likely to 
negatively impact spotted owls relative to salvage logging that occurs 
within a smaller burned area (Jones et al. 2020, p. 12). There is some 
evidence that northern spotted owl (Clark et al. 2012, p. 15) and 
California spotted owl occupancy decreases with salvage logging (Lee et 
al. 2013, p. 1327; Lee and Bond 2015, p. 228; Hanson and Chi 2021, p. 
5), while other evidence suggests that salvage logging has no effect on 
California spotted owl persistence or colonization (Jones et al. 2021b, 
p. 5). Salvage logging can be a threat to California spotted owls when 
their habitat components of large trees, coarse woody debris, and 
habitat heterogeneity are removed from the landscape, resulting in a 
decrease in occupancy at the population level. The 2004 Sierra Nevada 
Forest Plan Amendment prohibits salvage harvest in California spotted 
owl PACs unless a biological evaluation determines that the areas 
proposed for harvest have been rendered unsuitable for the purpose they 
were intended (i.e., California

[[Page 11618]]

spotted owl habitat) by a catastrophic stand-replacing event (USFS 
2004, pp. 52-53).
    Prescribed fire or cultural burning as a tool for ecosystem 
management had been used for millennia by Native Americans; with the 
colonization of North America, Europeans introduced a culture of fire 
suppression onto the landscape (Marks-Block et al. 2021, p. 3). 
Wildfire suppression is still the dominant management practice over 
prescribed or controlled burning across much of western North America 
(Stephens et al. 2019, p. 391). Between 2017 and 2020, approximately 
49,000 ha (120,000 ac) per year were treated with prescribed burning 
across Federal, State, and Tribal lands in California (Gabbert 2022, 
entire). The State of California recently released a report outlining a 
plan to increase the use of ``beneficial fire'' to 162,000 ha (400,000 
ac) annually by 2025 (California Wildfire & Forest Resilience Task 
Force 2022, p. 3). Spotted owls can persist in low- and moderate-
severity fire areas with similar probabilities to unburned landscapes 
(Roberts et al. 2011, p. 617), demonstrating their adaptation to a 
natural fire regime (Verner et al. 1992, pp. 247-248; Stephens et al. 
2019, p. 394). However, studying the relationship between spotted owls 
and prescribed fire alone is difficult because there are usually 
confounding factors of past timber harvest or salvage logging (Clark et 
al. 2012, p. 15). Prescribed ``ecologically beneficial'' fire is an 
important tool for protecting nesting and roosting habitat from 
catastrophic fires and for maintaining diverse California spotted owl 
habitat throughout the landscape (Roberts et al. 2011, p. 617; Stephens 
et al. 2019, p. 394).
    Fuels reductions and forest management practices within the 
California spotted owl's range include clearcutting, mechanical 
thinning, salvage logging, and prescribed fire. Depending on the method 
used and how it is implemented, fuels reductions and forest management 
practices can have both positive and negative influences on the 
species. The existing regulatory mechanisms and conservation measures 
do not completely ameliorate the negative impacts of fuels reductions 
and forest management practices to California spotted owls; however, 
land management direction, including the Sierra Nevada Forest Plan 
Amendment, includes protective standards and guidelines that must be 
adhered to while conducting management activities in California spotted 
owl habitat.
    Fuels reduction in some form is necessary to ensure California 
spotted owl habitat persistence because long-term gains in habitat 
protection outweigh the short-term negative effects, especially when 
conservation measures are implemented appropriately (Jones et al. 
2021a, p. 2; Jones et al. 2021b, entire; North et al. 2022, entire; 
Safford et al. 2022, entire). Differences in forest management may help 
explain why California spotted owl populations occurring in some mixed 
ownership landscapes have higher occupancy, density, and probability of 
reproduction compared to public land (Roberts et al. 2017, p. 113; 
Hobart et al. 2019, p. 198; SPI et al. 2022, pp. 9, 17). The need to 
increase the pace and scale of fuels reduction efforts is recognized 
across agencies, and, recently, the Department of the Interior 
announced funding through the Bipartisan Infrastructure Law 
(Infrastructure Investment and Jobs Act, Pub. L. 117-58, 135 Stat. 429) 
to increase fuels treatments across the United States (DOI 2022, 
entire). The USFS also identified preliminary projects to address fuel 
reduction projects through its wildfire crisis landscape investments, 
and two projects are expected in the near term within the California 
spotted owl's range that include mechanical thinning and prescribed 
fire (Tahoe National Forest and the Stanislaus National Forest; USFS 
2022a, entire). Fuels reductions and forest management practices will 
likely continue to have varied effects on California spotted owls 
throughout the species' range.
Competition and Hybridization With Barred Owls
    The barred owl is a closely related species to the spotted owl, 
native to eastern North America (Mazur and James 2000, ``Introduction'' 
section). Since the 1960s, the barred owl has been extending its range 
westward, first coming in contact with northern spotted owls and more 
recently moving into the California spotted owl's range (Peterson and 
Robins 2003, p. 1162; Livezey 2009, p. 49; Keane et al. 2018, p. 5). 
Barred owls were first detected in northwestern California in 1982 
(Evens and LeValley 1982, p. 890), the Sierra Nevada in 1991 (Dark et 
al. 1998, p. 53), and along the coast as far south as Marin County in 
California by 2002 (Jennings et al. 2011, p. 105).
    Barred owls and spotted owls have similar habitat requirements, 
with old forests representing high-quality habitat for both, although 
barred owls use a broad mix of forest types (Wiens et al. 2014, pp. 14, 
32). Because barred owls have more habitat flexibility than spotted 
owls, there is potential for barred owls to expand into spotted owl 
habitat through corridors of lower quality habitat. For example, recent 
barred owl sightings from Davis, California (eBird 2022, entire), 
suggest that barred owls could expand across the Central Valley into 
California spotted owl habitat from the west in addition to the more 
likely pathway through forests in the Sierra Nevada. Although the 
California spotted owl's range has a gap between the Sierra Nevada DPS 
and the Coastal-Southern California DPS, barred owls may be able to 
colonize the coastal-southern California spotted owl's range because of 
the barred owl's ability to use other forest types. Detections of 
barred owls in coastal forests in the Santa Cruz Mountains in San Mateo 
County, California, an area without known occurrences of the California 
spotted owl, suggests a pathway towards connectivity to the coastal 
portion of the California spotted owl's range.
    Barred owls are aggressively outcompeting and displacing spotted 
owls on the landscape (Wiens et al. 2014, p. 1; Guti[eacute]rrez et al. 
2017, p. xvi; Long and Wolfe 2019, entire). Barred owls are larger than 
spotted owls (Guti[eacute]rrez et al. 2007, pp. 185-186) and 
behaviorally dominant (Van Lanen et al. 2011, pp. 2197-2198). Although 
diet overlaps between the two species, with both predominantly feeding 
on nocturnal mammals, barred owls are generalists that consume many 
more prey species in comparison to spotted owls (Wiens et al. 2014, pp. 
24-25; Kryshak et al. 2022, pp. 12-13).
    Competition between the two species results in negative effects to 
the survival, productivity, and recruitment of northern spotted owls 
(Dugger et al. 2016, pp. 69-91), and barred owls have been described as 
demographically superior to northern spotted owls because they have 
higher survival estimates and produced, on average, 4.4 times more 
young than northern spotted owls over a 3-year period (Wiens et al. 
2014, p. 28). The presence of barred owls has caused lower detection 
rates and occupancy probabilities in northern spotted owls (Olson et 
al. 2005, p. 918; Crozier et al. 2006, p. 760; Kroll et al. 2010, p. 
1264; Yackulic et al. 2012, p. 1953; Yackulic et al. 2014, p. 265). 
Although there is some evidence that lower detection rates may be in 
part due to northern spotted owls responding less frequently in the 
presence of barred owls (Crozier et al. 2006, p. 760), the negative 
effects of barred owls on spotted owls are clear.
    Although there is no evidence of barred owls wounding or killing 
northern spotted owls (Wiens et al. 2014, p. 33), competition 
ultimately has

[[Page 11619]]

population-level effects because of impacts to occupancy and 
reproduction. Additionally, barred owls can hybridize with spotted owls 
(Guti[eacute]rrez et al. 2017, p. 211). There are likely broader 
impacts on the ecosystem from the barred owl's range expansion, such as 
an imbalance in predator/prey relationships, causing even greater 
impacts to spotted owl interspecific competition (Holm et al. 2016, p. 
615). Because of the wide and diverse diet of barred owls in comparison 
to spotted owls, barred owls will not be ecological replacements to the 
spotted owls that they displace, and this could have widespread 
ecological impacts (Kryshak et al. 2022, pp. 15-16).
    Barred owl detections within the California spotted owl's range 
have continued to increase. From 1989 to 2013, 51 barred owls and 27 
barred owl/spotted owl hybrids had been detected in the Sierra Nevada 
(Guti[eacute]rrez et al. 2017, p. xxv). By 2017, the number of barred 
and barred owl/spotted owl hybrid detections in the Sierra Nevada 
increased to approximately 145 (Keane et al. 2018, p. 7), with another 
2.6-fold increase between 2017 and 2018 (Wood et al. 2020, p. 4). Even 
these seemingly low numbers of barred owls in the California spotted 
owl's range are of concern, given that in the northern spotted owl's 
range, replacement of northern spotted owls began at a slow rate in the 
early years of the expansion, followed by a rapid rate of replacement 
once the barred owl population reached a critical mass (Forsman in 
litt. 2018, p. 1). As shown, over the last 10 years in particular, 
barred owl detections throughout the California spotted owl's range 
have increased at a higher rate (Service 2022, figure 11).
    Experimental barred owl removal studies were first initiated and 
are currently ongoing in the northern spotted owl's range (e.g., Diller 
et al. 2012, entire; Wiens et al. 2020, entire). In Washington and 
Oregon, removals successfully decreased site use by barred owls and 
increased northern spotted owl use within treatment areas (Wiens et al. 
2021, entire). Further, successful barred owl removals can result in 
competitive release for spotted owls (Wiens et al. 2021, pp. 4-5) 
(competitive release describes a situation in which one of two similar 
species competing for the same resources is removed, allowing the 
remaining species to use more of the resources; this is generally 
considered beneficial for the remaining species). In another (smaller) 
example of barred owl removals within the northern spotted owl's range, 
after nine barred owls were removed from historical northern spotted 
owl sites, all sites were re-occupied by northern spotted owls within a 
year of removal: four by the original residents and five by new 
residents (Diller et al. 2012, p. 405). However, barred owls again 
replaced the northern spotted owls at three sites within 1-4 years of 
the northern spotted owls reoccupying those territories (Diller et al. 
2012, p. 405). Overall, evidence to date indicates some measure of 
success for northern spotted owls related to barred owl removal efforts 
in at least some cases. However, species experts caution that forest 
conditions, densities of barred owls, and numbers of spotted owls would 
all factor into whether or not similar results could be obtained in 
other areas (Wiens et al. 2020, p. 1).
    Experimental barred owl removal studies have also recently been 
initiated in the California spotted owl's range, specifically in the 
Sierra Nevada (Hofstadter et al. 2022, entire). In 2017, a California 
spotted owl conservation assessment concluded that control measures for 
barred owls in the California spotted owl's range were likely to be 
more successful and cost efficient while densities of barred owls are 
still relatively low in the California spotted owl's range, and that if 
control measures were not taken, barred owls would most likely replace 
California spotted owls on the landscape in the future (though the 
timescale of this replacement was uncertain) (Guti[eacute]rrez et al. 
2017, pp. xxxi, xxv; see also Wood et al. 2020, pp. 5-7). Within the 
California spotted owl's range, barred owl removal experiments were 
initiated in 2018, and have continued through 2022 (Hofstadter et al. 
2022, entire). Between 2018 and 2020, researchers removed 76 owls (63 
barred owls and 13 hybrids) from the Sierra Nevada, decreasing barred 
owl occupancy by a factor of 6.3 down to 0.03 (confidence interval: 
0.01-0.04). Experimental removals were guided by passive acoustic 
monitoring, which was also used to measure the efficacy of removals. 
Partnerships were crucial to the regional-scale removal, with public-
private partnerships allowing access to 92 percent of the California 
spotted owl's range in the Sierra Nevada, including almost all known 
barred owls in the area and minimizing refugia for barred owls. 
California spotted owls rapidly colonized territories where barred owls 
were removed: 15 out of 27 territories were recolonized by California 
spotted owls within 1 year of barred owl removals, with successful 
breeding documented in five of these territories (Hofstadter et al. 
2022, pp. 4-5). Early and effective experimental removals of barred 
owls within the California spotted owl's range in the Sierra Nevada has 
dampened the urgency of this threat, but the potential for continued 
and persistent expansion into the range remains. Funding is currently 
available to continue barred owl removal experiments in the California 
extent of the Sierra Nevada through 2024 (Peery in litt. 2022). 
However, continued barred owl monitoring and experimental removal would 
likely need to continue into the future (Hofstadter et al. 2022, p. 6). 
Management options are currently being evaluated for potential future 
implementation.
    Regulatory mechanisms and management actions that are providing or 
could potentially provide some protection from the effects of barred 
owl expansion include management teams, management plans, and habitat 
conservation plans (HCPs) that coordinate, fund, and implement the 
experimental removals described above. However, barred owls are a 
significant threat to the persistence of California spotted owls, and 
we expect the magnitude of the threat to increase into the foreseeable 
future, particularly if management efforts are not continued.
Rodenticides
    Exposure of nontarget wildlife to anticoagulant rodenticides 
threatens many species, including California spotted owls, likely 
because of ingestion of exposed prey animals, known as secondary 
exposure (Gabriel et al. 2018, p. 5; Franklin et al. 2018, p. 2). 
Secondary exposure to anticoagulant rodenticides in predators such as 
raptors can be lethal, with higher levels causing severe blood loss and 
internal hemorrhaging that can result in organ failure and death (Gomez 
et al. 2022, p. 147). Although this threat has potential impacts to 
individuals, the loss of just a few individuals may reduce survival and 
the population growth rate because the California spotted owl is a 
long-lived species with low reproductive rates. This threat would be 
particularly detrimental if a parent were exposed during the breeding 
season because hatchlings and juveniles rely on parental care to 
survive, so the loss of just one parent would likely result in the loss 
of offspring as well.
    Rates of mortality in free-living wild birds due to anticoagulant 
rodenticides are often unknown due to the difficulty of linking 
exposure to death and the lack of understanding of toxicity thresholds 
in different species (Gomez et al. 2022, pp. 147-148). Documentation of 
anticoagulant

[[Page 11620]]

rodenticides in ovaries of female barred owl suggests the possibility 
for in-utero transfer to chicks (Hofstadter et al. 2021, pp. 7-8). Sub-
lethal effects of anticoagulant rodenticides in other owl species 
include reduced clutch size, brood size, fledging success, slower 
clotting time, residual transfer to eggs, anemia, and impaired 
mobility; however, these impacts have not yet been documented in 
spotted owls (Rattner et al. 2012, p. 832; Salim et al. 2014, p. 113; 
Gabriel et al. 2018, p. 7; Gomez et al. 2022, p. 148).
    Although there is little information specific to California spotted 
owls regarding the exposure rates and resulting impacts of 
rodenticides, available literature on other species suggests the 
potential for widespread exposure. Exposure of nontarget species to 
anticoagulant rodenticides is commonly associated with agricultural or 
urban settings, but exposure in forest settings in northern California 
is detrimental to northern spotted owls and barred owls (Gabriel et al. 
2018, p. 5; Franklin et al. 2018, p. 2). Seven out of 10 northern 
spotted owl carcasses tested positive for anticoagulant rodenticides, 
and 40 percent of 84 barred owls tested in the northern spotted owl's 
range had been exposed (Gabriel et al. 2018, pp. 4-5). In another study 
using barred owls as a proxy for spotted owls, almost half of barred 
owls sampled (n=40) and one northern spotted owl sampled demonstrated 
exposure to anticoagulant rodenticides (Wiens et al. 2019, p. 4). High 
rates of exposure were also demonstrated in barred owls and barred owl/
spotted owl hybrids in California, with females having higher rates of 
exposure than males (Hofstadter et al. 2021, pp. 6-7). Large amounts of 
rodenticides and other pesticides have been found on USFS land in the 
southern Sierra Nevada (Thompson et al. 2013, pp. 95-99). Approximately 
85 percent of fisher (Martes pennanti--a carnivorous predator with 
similar habitat requirements as California spotted owls) carcasses 
tested in the Sierra National Forest had been exposed to rodenticides 
(Gabriel et al. 2012, pp. 1-14; Thompson et al. 2013, pp. 91).
    Anticoagulant rodenticide use has increased throughout California 
with increases in illegal marijuana cultivation, as anticoagulant 
rodenticides are used to control rodent damage to the plants (Franklin 
et al. 2018, p. 1). A comparison of marijuana cultivation site 
likelihood with northern spotted owl suitable habitat found almost 50 
percent overlap between the two (Wengert et al. 2021, p. 10). Although 
the number of illegal marijuana growing operations within the 
California spotted owl's range is unknown, considering the number of 
illegal marijuana growing operations found throughout the State, there 
are likely thousands within the California spotted owl's range (Gabriel 
et al. 2012, pp. 12-13; Thompson et al. 2013, pp. 95-99; Gabriel et al. 
2018, p. 6).
    In 2014, the California Department of Pesticide Regulation 
restricted the purchase, possession, and use of anticoagulant 
rodenticides in the State to purchase and use by a certified pesticide 
applicator with a permit issued by the county agricultural commissioner 
in order to protect wildlife; however, anticoagulant rodenticides 
associated with illegal marijuana grows are more likely the source of 
contaminants. If illegal marijuana grows are found, State law 
enforcement will shut the operations down, but there is currently no 
standardized clean-up protocol and a limited amount of funding to 
ensure removal of all rodenticides. Recently there has been an 
increased effort to locate and shutdown illegal marijuana grows on 
public lands in California called Operation Forest Watch (Department of 
Justice 2018, entire). Overall, anticoagulant rodenticides are likely 
affecting owls across their range, and we expect this threat will 
continue into the foreseeable future.
Development
    Anthropogenic land use (including both cultivation and development) 
in California is expected to increase 28 percent by 2100 with a 
projected 3 percent decrease in overall forest land cover (Sleeter et 
al. 2017, pp. 1068, 1075). Urbanization is projected to be a primary 
driver of land use and land cover change in California over this time 
frame (Sleeter et al. 2017, p. 1076). Urban development is a threat 
throughout the range of California spotted owls; however, the threat is 
more substantial in the coastal and southern California population 
(Sleeter et al. 2017, p. 1081, figures 6 and 7). A majority of 
California spotted owl habitat occurs on public lands (approximately 71 
percent of total range); therefore, this threat is primarily limited to 
a small amount of private lands.
    Southern California faces high development demands with specific 
threats of wind farms and large reservoirs impacting connectivity 
within the California spotted owl's range (Guti[eacute]rrez et al. 
2017, pp. 253-254). Loss of riparian areas due to water diversion in 
southern California has created barriers to dispersal among small 
populations (Guti[eacute]rrez et al. 2017, pp. 253-254). The southern 
California area of the California spotted owl's range is fragmented, 
with low dispersal between populations, so more development could 
further exacerbate fragmentation (LaHaye et al. 2001, p. 692; 
Barrowclough et al. 2005, p. 1116; Guti[eacute]rrez et al. 2017, pp. 
253-254).
    In the Sierra Nevada, low- to mid-elevation development is 
considered a threat to the California spotted owl and its habitat 
(Verner et al. 1992, pp. 264-265). Low- and mid-elevation zones in the 
Sierra Nevada continue to experience human population growth, which may 
increase the demand for development. Fifty percent of known California 
spotted owl sites on the west slope of the Sierra Nevada are considered 
wildland-urban interface and may be vulnerable to further development 
(Guti[eacute]rrez et al. 2017, p. 207). The northern Sierra Nevada is 
expected to have a higher level of forest harvest compared to other 
parts of the California spotted owl's range (Sleeter et al. 2017, p. 
1081, figure 7). Overall, development is likely affecting owls across 
their range, and we expect this threat will continue into the 
foreseeable future.
Conservation Efforts and Regulatory Mechanisms
    Mechanisms and actions related to the California spotted owl and 
its habitat include State and Federal laws and regulations, federal 
incidental take permits, and forest management on USFS lands. In this 
proposed rule, we describe the key actions related to the California 
spotted owl and its habitat. For a full description of all conservation 
efforts and regulatory mechanisms, please see the SSA report (Service 
2022, pp. 57-66).
    The USFS has been a part of ongoing conservation efforts for 
California spotted owls, including the 2004 Sierra Nevada Forest Plan 
Amendment, which includes USFS land in the Lassen, Plumas, Tahoe, 
Humboldt-Toiyabe, Eldorado, Stanislaus, Sierra, Inyo, and Sequoia 
California spotted owl analysis units, and the 2005 Southern California 
National Forest Land Management Plans, which includes the Los Padres, 
Angeles, San Bernardino, and Cleveland California spotted owl analysis 
units. In 2019, the Inyo National Forest completed its own land 
management plan, and revised forest plans for the Sierra and Sequoia 
National Forests are expected to be final in 2023 (Miller in litt. 
2022). Once these plans are finalized, the Inyo, Sierra, Sequoia 
National Forests will follow their individual plans and no longer 
follow

[[Page 11621]]

the 2004 Sierra Nevada Forest Plan Amendment. All of these are 
regulatory documents that provide conservation measures for California 
spotted owls on USFS lands (USFS 2004, entire; USFS 2005, entire; USFS 
2019a, pp. 43-47; USFS 2022b, pp. 59-68; USFS 2022c, pp. 59-68). The 
main goals of these conservation efforts include protection and 
management of California spotted owl activity centers and home range 
core areas, increasing the frequency of large trees on the landscape, 
and increasing structural habitat diversity. The goals relate to 
increasing the condition of the species' ecological needs to increase 
resiliency and provide conservation efforts related to the threats of 
large-scale, high-severity fire; clearcutting; mechanical thinning; and 
salvage logging.
    The 2004 and 2005 USFS land management plans and the 2019 Inyo 
National Forest and 2022 draft versions of the Sierra and Sequoia 
National Forest plans maintain the designation of PACs for California 
spotted owls, which encompass the best available 121 ha (300 ac) of 
habitat in as compact of a unit as possible around a nest tree (USFS 
2004, p. 37; USFS 2005, p. 109; USFS 2019a, p. 43; USFS 2022b, p. 61; 
USFS 2022c, pp. 61-62). There are special considerations for any land 
management activities or projects that may take place within a PAC. 
Depending on the plan, management standards and guidelines include 
conducting surveys during the planning process of vegetation treatments 
where appropriate (i.e., in areas of suitable habitat for California 
spotted owls), limiting activities to reducing surface and ladder fuels 
through prescribed fire, limiting mechanical treatments to only allow 
fuel reduction treatments in some wildland urban defense zones where 
prescribed fire is not feasible, identifying maximum size of canopy 
gaps created within California spotted owl territories, requiring a 
limited operating period for when vegetation treatments can occur, and 
limiting the impacts a vegetation treatment can have on a PAC per year 
(USFS 2004, pp. 50-51, 54, 60-61; USFS 2005, pp. 7, 82-83; USFS 2019a, 
pp. 43-47; USFS 2022b, pp. 63-68; USFS 2022c, pp. 63-68).
    In addition to protections, the 2004 Sierra Nevada Forest Plan 
Amendment and the 2022 version of the Sierra and Sequoia National 
Forest Plans outline desired conditions for PACs and other large 
habitat blocks within the home range that include at least two tree 
canopy layers, dominant and co-dominant trees with average diameters of 
at least 61 cm (24 in) dbh, at least 60 percent to 70 percent canopy 
cover, some very large snags (greater than 114 cm (45 in) dbh), and 
snag and course woody debris levels that are higher than average (USFS 
2004, pp. 37, 39-40; USFS 2022b, pp. 60-61; USFS 2022c, pp. 60-61). As 
discussed below, in April 2019, the USFS finalized a new California 
spotted owl conservation strategy for the Sierra Nevada (USFS 2019b, 
entire). The intention of the strategy is to be used for adaptive 
management and to be incorporated into future forest plan updates, 
although it is not legally enforceable and does not commit agency 
action or inaction.
    As described above in ``Fuels Reduction and Forest Management,'' 
there is disagreement about whether or not measures in these plans, 
such as mechanical thinning, are beneficial or detrimental to 
California spotted owls, and whether or not protections afforded to 
PACs are sufficient to ameliorate impacts to California spotted owls 
(John Muir Project of Earth Island Institute and The Wild Nature 
Institute 2014, pp. 70-71, 98, 108; Sierra Forest Legacy and Defenders 
of Wildlife 2015, pp. 39-40). However, a meta-analysis of California 
spotted owl occupancy and forest management practices indicated that 
mechanical thinning treatments that maintain canopy cover at 40 percent 
or greater would not substantially reduce California spotted owl 
occupancy, although canopy cover at 50 percent or above is more 
strongly correlated with California spotted owl occupancy (Tempel et 
al. 2016, pp. 761-762). Forest management practices from the 2004 
Sierra Nevada Framework generally maintain at least 50 percent canopy 
cover as well as large trees within PACs, and in the 2005 Southern 
California plan, 40-50 percent canopy cover must be maintained. The 
2019 Conservation Strategy also maintains a minimum of 50 percent 
canopy cover within PACs (USFS 2019b, p. 28). Overall, PACs are 
designated to preserve key habitat used by California spotted owls, and 
some researchers have concluded that PACs are a key conservation tool 
that should continue to be implemented (Berigan et al. 2012, pp. 300, 
303). In contrast, other research has shown that PACs can be more 
susceptible to the effects of high-severity fire due to the relatively 
larger amounts of surface fuel (North et al. 2012, p. 395).
    In April 2019, the USFS completed an updated California spotted owl 
conservation strategy for the Sierra Nevada national forests (USFS 
2019a, entire). The updated strategy includes new scientific 
understanding since the 2004 Sierra Nevada Forest Plan Amendment and 
will be incorporated into national forest land management plans as they 
are updated in the coming years, in accordance with USFS regulations in 
title 36 of the Code of Federal Regulations (CFR) at part 219. Until 
the revised national forest land management plans can be completed, the 
Pacific Southwest Region of the USFS sent a letter of direction to the 
Sierra Nevada national forests on April 19, 2019, to provide guidance 
on implementing the new conservation strategy in the interim (USFS 
2019b, entire). The new conservation strategy gives direction for 
increased pace and scale of ecological restoration to provide more 
resilient habitat for California spotted owls, while simultaneously 
continuing to protect the most important habitat attributes and areas 
for California spotted owls.
    The three main goals for the 2019 conservation strategy include: 
(1) Maintain a well-distributed and stable California spotted owl 
population across the Sierra Nevada by minimizing impacts from non-
habitat threats (such as barred owls and contaminants); (2) promote and 
maintain well-distributed California spotted owl habitat by developing 
key habitat elements and connectivity; and (3) promote California 
spotted owl persistence by enhancing habitat resilience to multiple 
disturbances, considering climate change. This increased habitat 
resilience will lead to improved conditions on the landscape and 
greater population resiliency. The new strategy provides adaptive 
management and metrics for success in order to ensure the conservation 
measures outlined in the plan are beneficial to California spotted 
owls.
    In addition to the conservation strategy, the USFS is planning to 
implement a new monitoring plan using acoustic recording units to cover 
the Sierra Nevada portion of the California spotted owl's range. The 
goal is to use the information from the new monitoring plan to allow 
the USFS to conduct a future California spotted owl occupancy modeling 
effort to provide information over a larger portion of the California 
spotted owl's range and allow greater potential for inference on broad-
scale effects of restoration and disturbance (USFS 2019c, pp. 14-15). 
Elements of the strategy may entail some short-term, localized 
reduction in occupancy. These elements allow for more forest management 
flexibility in application of fuels reduction and other landscape 
treatment projects as compared to the 2004 Sierra Nevada Forest Plan 
Amendment both within PACs and on the landscape, as well as more 
flexibility in the retirement of

[[Page 11622]]

PACs when they are no longer occupied. Additional flexibility in these 
landscape treatments provides access to additional tools to maintain 
and restore California spotted owl habitat (USFS 2019a, entire). We 
anticipate that the short-term impacts that may occur for the purpose 
of fuel reduction and forest health will be outweighed by the long-term 
benefit as more sustainable and dynamic habitat is developed through 
active management (USFS 2019a, p. 2).
    On August 30, 2017, an MOU (hereafter referred to as the Fire MOU) 
was signed by SPI, CAL FIRE, National Fish and Wildlife Foundation, and 
the USFS, which will impact all lands from Lassen National Forest south 
through Stanislaus National Forest. The purpose of the Fire MOU is to 
document the agreement between the parties to coordinate on certain 
actions to reduce the risk of large-scale, high-severity wildfire 
through forest fuels reduction to benefit California spotted owl 
conservation. This MOU involves establishing a strategic conservation 
framework to help restore and protect areas where California spotted 
owls are threatened by habitat degradation due to uncharacteristically 
extensive and severe adverse fire effects. The Fire MOU is designed for 
signatories to engage in collaborative landscape-level fuels and fire 
risk reduction treatments to: (1) Minimize potential fire-related 
impacts to California spotted owl activity centers on Federal, State, 
and private lands; and (2) better coordinate implementation of fuels 
reduction work on Federal, State, and private lands to maximize the 
effectiveness of this work. Sites for fuels treatment are selected to 
minimize risk to known occupied California spotted owl activity 
centers. Measures associated with the Fire MOU include fire management 
activities such as increased mechanical thinning that may benefit 
California spotted owls by decreasing risk of large-scale, high-
severity fire. If mechanical thinning is planned with consideration of 
the California spotted owl's habitat needs, there may be some negative 
impacts, but these would be outweighed by reducing the risk of large-
scale, high-severity fire in California spotted owl activity centers 
(Jones et al. 2016a, p. 305; Service 2017, pp. 24-25; Chiono et al. 
2017, p. 1; Jones et al. 2021b, p. 6).
    The USFS, SPI (a private corporation), and CAL FIRE manage forest 
lands in California that are frequently adjacent to each other and have 
ongoing programs to protect and enhance habitat for fish and wildlife. 
On these lands, forest fuels are managed to reduce fire risk and its 
potential impacts on wildlife species. Under State law, SPI has the 
authority to participate in fire suppression on its own lands, while 
CAL FIRE, contract counties, USFS, and other government agencies have 
primary fire suppression responsibility for all Federal, State, and 
private wildlands in California. The parties also have responsibilities 
and interests in the inventory of their respective lands for species 
recognized as endangered, threatened, proposed as endangered or 
threatened, candidate, and sensitive species by the Federal or State 
government. The parties also have responsibility and interest in the 
development of appropriate protection measures for these species. Due 
to these natural resource challenges, the Fire MOU parties believe it 
is important to establish a coordinated, multi-stakeholder agreement to 
help protect and enhance forest resources.
    Though the Fire MOU was initially set to expire on December 2019, 
an amendment was signed in April 2019 to extend the terms of the MOU 
through December 2024. In March 2020, a new MOU that supersedes the 
2017 MOU and 2019 amendment was signed by the same parties. An 
amendment to the 2020 Fire MOU was signed in September 2020 to add a 
number of new commercial forest landowners. The terms of the 2020 MOU 
are effective through December 2024. The Service is actively engaged 
with the signatory parties to discuss fuels reduction efforts and 
associated monitoring.
    Barred owls have expanded into western North America over the past 
several decades, first through the Pacific Northwest and more recently 
into the Sierra Nevada. The Service and the USFS are funding 
researchers at the University of Wisconsin-Madison to carry out an 
ongoing barred owl removal study. The project grant was signed in 
August of 2018, and funding has been secured from the Service and 
potentially University of Wisconsin-Madison through 2025 (Peery in 
litt. 2022). The project addresses several key questions related to the 
range expansion of barred owls in the Sierra Nevada and will inform the 
development of a scientifically based barred owl management plan. 
Specifically, this project: (1) Assesses the current distribution and 
density of barred owls; (2) conducts experimental barred owl removals; 
(3) tests for reductions in barred owl site occupancy rates; (4) 
quantifies spatiotemporal patterns of barred owl recolonization; and 
(5) characterizes barred owl dispersal into and within the Sierra 
Nevada. This project takes place primarily in the northern and central 
Sierra Nevada, including Lassen National Forest, Lassen National Park, 
Plumas National Forest, Tahoe National Forest, Eldorado National 
Forest, Yosemite National Park, and Sequoia-Kings Canyon National Park.
    Additionally, on July 22, 2022, the Service published in the 
Federal Register (87 FR 43886) a notice of intent to prepare an 
environmental impact statement, initiating a 30-day public scoping 
period seeking input on barred owl management in the northern spotted 
owl's and California spotted owl's ranges. Preventative barred owl 
management for California spotted owls will likely be considered in the 
environmental impact statement. Northern spotted owls are the main 
focus right now, but barred owls have expanded into northern California 
into the California spotted owl's range and are expected to continue to 
expand without continued management.
    Currently, two HCPs include the California spotted owl. Habitat 
conservation plans are planning documents required as part of an 
application for an incidental take permit; they can apply to both 
listed and non-listed species, including those that are candidates or 
have been proposed for listing. They describe the anticipated effects 
of the proposed taking; how those impacts will be minimized or 
mitigated to the maximum extent practicable; and how the HCP is to be 
funded.
    Sierra Pacific Industries is the largest private forest land owner 
in California, with approximately 744,621 ha (1,840,000 ac) of 
timberland in northern California (SPI 2021, p. 1). Sierra Pacific 
Industries' habitat conservation plan for both the northern spotted owl 
and California spotted owl covers all areas on SPI-managed property 
where covered activities will occur within the range of the two spotted 
owl subspecies, which is more than 607,028 ha (1,500,000 ac) (SPI 2021, 
p. 2). Covered activities under the HCP include timber operations and 
other forest management activities. Major activities associated with 
the HCP include growing, harvesting, and transporting timber; timber 
stand regeneration and improvements; road and landing construction and 
maintenance; fuel break construction and maintenance; and monitoring 
and research (including for spotted owls) (Service 2020, p. 8). 
Implementation of the HCP is not expected to result in direct injury or 
mortality of California spotted owls due to the implementation of 
conservation measures that will be implemented throughout the 50-year 
permit term. These measures will support California spotted owl species 
needs and address threats currently affecting the species,

[[Page 11623]]

including reducing the risk of catastrophic fire and eradication of 
illegal marijuana plantations (Service 2020, pp. 10-13).
    In 2015, SPI began studying barred owls via removal experiments. In 
2018, the study was revised to include the following objectives: (1) 
assess the genetic differentiation of barred owl populations across 
northern and central California, (2) analyze allele frequency changes 
on the front of the range expansion, (3) estimate the amount of spotted 
owl-barred owl interbreeding (admixture) in each population, and (4) 
identify what barred owls are preying on in California. These efforts 
are ongoing, and SPI has committed to continue these efforts during the 
term of the permit, as feasible. Ongoing research and monitoring 
efforts for California spotted owls on SPI land have indicated that 
some California spotted owl populations in mixed-ownership landscapes 
have higher occupancy, density, and probability of reproduction 
compared to California spotted owl populations on public land (Roberts 
et al. 2017, p. 113; Hobart et al. 2019, p. 198; SPI et al. 2022, pp. 
9, 17).
    The Western Riverside County Multiple Species Habitat Conservation 
Plan (MSHCP) is one of the largest habitat conservation plans in the 
United States, covering 202,343 ha (500,000 ac). The California spotted 
owl is currently listed as a ``species not adequately conserved'' under 
the MSHCP until an MOU is executed with the USFS that addresses 
management of California spotted owls on USFS lands. The MSHCP plan 
area includes 21,901 ha (54,119 ac) of modeled habitat for California 
spotted owls. If the MOU with the USFS is signed, the loss of 5,223 ha 
(12,905 ac) (24 percent) of this modeled habitat is anticipated over 
the 75-year permit term. With the low density of California spotted 
owls in the plan area, loss of these 5,223 ha (12,905 ac) is not 
anticipated to result in direct mortality of adult birds. However, loss 
of foraging and nesting habitats to development will cause California 
spotted owls in impacted areas to disperse in search of other habitats. 
Thus, loss of breeding and foraging habitat may impact overall 
population numbers of California spotted owls within the plan area over 
the long term by reducing the number of areas suitable for use as 
foraging and nesting sites (Service 2004, p. 449). In order to offset 
these impacts, the MSHCP will conserve and manage 535 ha (1,321 ac) (2 
percent) of modeled habitat for California spotted owls within 
additional reserve lands. In total, 16,679 ha (41,214 ac) (76 percent) 
of the modeled habitat for California spotted owls will be included in 
the MSHCP conservation area. If the MOU with the USFS is signed, 
additional monitoring and management would occur in habitat for 
California spotted owls within USFS lands included in the MSHCP 
conservation area.
Combined Impacts of Threats
    The threats discussed above not only act independently, but also 
interact with each other. It is important to assess the relationship 
between threats because there may be new or exacerbated impacts that 
are not considered when a threat is assessed alone. There are a vast 
number of ways threats may be interacting with each other, but the SSA 
report and this proposed rule only focus on what is currently most 
relevant to the viability of the species.
    For example, climate change intensifies the threats of large-scale, 
high-severity fire; drought; and tree mortality, and it increases 
interannual climate variability (Kadir et al. 2013, pp. 132, 137; 
Stephens et al. 2018, p. 77). Development in wildland-urban interfaces 
also increases the likelihood of large-scale, high-severity fire (Mann 
et al. 2016, pp. 14-18). An increase of large-scale, high-severity 
fires with changing climate conditions can lead to accelerated, fire-
facilitated conversion of forest edge to non-forested habitat (Parks et 
al. 2019, pp. 1, 7). The impacts to the California spotted owl would 
likely range from direct physiological impacts to indirect habitat and 
prey impacts. The loss of trees due to high-severity fire, drought, and 
tree mortality would likely lead to increased salvage logging on the 
landscape, further reducing California spotted owl habitat. 
Additionally, the expansion of barred owls outcompeting California 
spotted owls in combination with timber harvest outside of PACs further 
worsens the outlook for habitat availability. Spotted owls living near 
the wildland-urban interface may be at a higher risk for exposure to 
anticoagulant rodenticides, as is the case for barred owls and hybrids 
(Hofstadter et al. 2021, p. 8).
    Barred owls are moving south into the California spotted owl's 
range, so the northern portion of the Sierra Nevada DPS will likely 
experience a greater magnitude of this threat, and earlier in time. 
Tree mortality is more concentrated in the Sierra Nevada DPS than other 
parts of the landscape and may experience more significant impacts from 
this threat. The threat of wildfire is of higher magnitude in the 
Coastal-Southern California DPS. Considering the temporal, spatial, and 
interactive components of all the threats together is important for 
understanding the viability of California spotted owls throughout their 
range now and into the future.

Current Condition

    For our current condition analysis in the SSA report and this 
proposed rule, we considered the status of the two populations of 
California spotted owls: the Sierra Nevada population and the coastal-
southern California population. As described above in Background, to 
analyze these populations in more detail, we further divided them into 
analysis units; however, we recognize that these units do not function 
independently, and in areas where the species' distribution is 
continuous, like the Sierra Nevada population, impacts to one unit may 
result in impacts to an adjacent unit. We assessed the condition of all 
California spotted owls' ecological needs where information was 
available for each analysis unit, including the demographic factors of 
survival, fecundity, occupancy, and population growth, and habitat 
components of large trees and canopy cover. In addition, because high-
severity fire has significant effects on the condition of habitat 
within an analysis unit, we also incorporated results from our fire 
analysis. For each population, we present an overview of the available 
information on ecological conditions and threats across the entire 
population, our analysis of the demographic factors and habitat 
components within each analysis unit to determine current condition, 
and a summary assessing population resiliency. In this proposed rule, 
for each DPS, we then assess California spotted owl redundancy and 
representation under the current condition analysis.
    For detailed information on how we determined all demographic and 
habitat scores, total scores for each population and analysis unit, and 
uncertainties considered in the analysis, please see the SSA report 
(Service 2022, pp. 70-77).
Sierra Nevada DPS Current Resiliency
    Resiliency is the ability of a species to withstand stochastic 
events, the normal year-to-year variations in both environmental 
conditions and demographic conditions (Redford et al. 2011, p. 40). 
Determined by the size and growth rate of the populations comprising 
the species, resiliency can be evaluated to gauge the ability of a 
species to weather the natural range of favorable and unfavorable 
conditions.
    Until recently, California spotted owls and suitable habitat were 
relatively

[[Page 11624]]

well-distributed in the Sierra Nevada with few barriers to dispersal 
(Guti[eacute]rrez et al. 2017, p. 94): as of 2017, an estimated 1.98 
million ha (4.9 million ac) of suitable habitat for California spotted 
owls were available in the Sierra Nevada, primarily on Federal lands 
(Guti[eacute]rrez et al. 2017, pp. xx, 123). Of that land, 75 percent 
is managed by the USFS, 7 percent is managed by the NPS, and 18 percent 
is either privately owned or managed by other government agencies 
(Guti[eacute]rrez et al. 2017, p. xx). However, recent large, 
catastrophic fires have reduced available habitat and have likely 
created new barriers for California spotted owl dispersal in this DPS. 
Other barriers to dispersal include urban and suburban development, 
large reservoirs, physiographic features such as non-forested or 
unsuitable habitat or vegetation communities, or lack of riparian areas 
to act as corridors through unsuitable extents (Guti[eacute]rrez et al. 
2017, pp. 94-95, 253-254).
    From our habitat analyses, we found that the Sierra Nevada has 
higher canopy cover and tree size values than southern California 
(Service 2022, tables 5, 9, and 13). When comparing the northern to the 
southern Sierra Nevada, the north contains higher canopy cover, which 
aligns with historical forest structure data that tend to show more 
dense forests in the northern Sierra Nevada (Van Wagtendonk et al. 
2006, p. 250), with the exception being on the east side of the Sierra 
Nevada (Humboldt-Toiyabe and Inyo analysis units), which contains more 
open and disjunct habitat than the west side. Higher canopy cover 
combined with higher precipitation levels tend to result in lower tree 
mortality in the northern Sierra Nevada, which may have helped reduce 
the potential for megafires in the northern Sierra Nevada in past 
years, but climate change impacts of reduced snowpack and increased 
temperatures show that increased fire risk is also occurring in the 
northern Sierra Nevada. We also found that the two units mostly 
composed of National Parks (Yosemite and Sequoia-Kings Canyon) contain 
the largest tree size percentages. Overall, the overlap values between 
canopy cover and large trees were low across all analysis units 
(Service 2022, table 9).
    The threats that are currently impacting the Sierra Nevada 
population include large-scale, high-severity fire; tree mortality; 
drought; climate change; various impacts from fuels reductions and 
forest management; competition with barred owls; and rodenticides. 
These threats are not equivalent across all analysis units within the 
Sierra Nevada population (Service 2022, pp. 77-87). For example, 
competition with barred owls is more pronounced in the northern part of 
this population than in the southern portion, and the threat from 
rodenticides is more pronounced at the wildlife-urban interface. 
However, some threats, like fire, are considered a threat across the 
population, and there is a general increasing trend in the annual 
acreage and relative proportion of high-severity fires in the Sierra 
Nevada (Keane in litt. 2022, p. 3). In 2020-2021, the percent of 
habitat that burned at high severity within California spotted owl PACs 
in the Sierra Nevada was almost twice as that from 1993-2019; in 1993-
2019, 44 percent of habitat burned, with 35 percent of that at high 
severity, compared to 65 percent of fire being high severity in 2020-
2021 (Keane in litt. 2022, p. 5).
    We conducted a separate fire analysis for the entire California 
spotted owl's range, which includes PACs as well as additional acreage 
outside PACs (Service 2022, pp. 29-30, appendix I). Our fire analysis 
shows similar results, with approximately 42 percent of the California 
spotted owl's range in the Sierra Nevada burned between 1984 and 2021, 
with 7 percent and 12 percent of that total from acreages burned in 
2020 and 2021, respectively. Of the 42 percent of California spotted 
owl's range burned within the Sierra Nevada, approximately 13 percent 
was burned at high severity (Service 2022, appendix I). In our 
supplemental analysis that analyzes habitat and fire metrics along an 
ecological boundary between the northern and southern Sierra Nevada, we 
found that both portions of the Sierra Nevada burned at similar amounts 
between 1984 and 2021 (Service 2022, appendix I). However, the majority 
of burned acreage in the northern Sierra Nevada occurred in 2021 (18 
percent burned with 9 percent at high severity compared to 5 percent or 
less in all other years and 2 percent or less at high severity from 
1984 to 2021). In the southern Sierra Nevada, 11 percent burned in 2020 
with 2 percent at high severity in 2020 and 2021, compared to 5 percent 
or less total burned and 1 percent or less at high severity from 1984 
to 2021 (Service 2022, appendix I). These results suggest higher levels 
of disturbance to the species and increased recovery time for habitat 
conditions to improve post-fire because such a large acreage burned 
over a relatively concentrated period of time.
    In addition to common threats acting on all analysis units within 
this population, there are also common management actions taking place 
within the Sierra Nevada population. For example, the USFS designates 
PACs around known California spotted owl nest trees, so analysis units 
containing national forests (e.g., all Sierra Nevada population 
analysis units except for Yosemite and Sequoia-Kings Canyon) include 
these protections. Further, barred owl removal experiments in the 
northern Sierra Nevada have so far been successful in avoiding the 
catastrophic impacts that could have occurred in the absence of any 
management.
    The current condition of analysis units throughout the Sierra 
Nevada population varies, with three analysis units currently 
considered stable, five declining, and three strongly declining 
(Service 2022, table 12). All three of the units ranked as strongly 
declining are on the upper boundary of our scoring system for the SSA 
report. Based on these results, the overall condition of the Sierra 
Nevada population is declining and, therefore, has low resiliency. 
However, though resiliency has declined from historical conditions and 
connectivity has decreased, the Sierra Nevada population is still 
distributed throughout its historical range, and ongoing conservation 
measures and regulatory mechanisms are decreasing the magnitude of 
threats. Therefore, the Sierra Nevada population maintains the ability 
to withstand stochastic events.
Sierra Nevada DPS Current Redundancy
    To assess current redundancy of the Sierra Nevada DPS, we consider 
the ability of a species to withstand catastrophic events, i.e., 
natural or anthropogenic stochastic events that would result in the 
loss of a substantial component of the overall species population. 
However, redundancy is not simply a measure of the total number of 
individuals or populations of a species, but instead must also be 
evaluated in the context of an assessment of reasonably plausible 
catastrophic events. For example, when we consider the redundancy of an 
entity comprised of a single population that is very large and widely 
distributed, it could have a high ability to withstand a catastrophic 
event that would only affect a small percentage of the overall 
population. Therefore, our characterization of the Sierra Nevada DPS's 
redundancy takes into consideration both an assessment of the size and 
distribution of its population, and an evaluation of the kinds and 
likelihood of reasonably plausible catastrophic events to which the 
species could be exposed.
    Of the two populations throughout the species' range, the Sierra 
Nevada population that makes up the Sierra Nevada DPS covers the most 
area and is

[[Page 11625]]

the largest population. Catastrophic events that could impact 
California spotted owls include very large, high-severity wildfire; 
extreme drought; extreme weather events; and prolonged and persistent 
competition and displacement due to barred owl expansion. Overall, 
current California spotted owl redundancy has declined from historical 
condition, which risks making the species more vulnerable to 
extirpations from catastrophic events. However, the Sierra Nevada DPS 
is large, contiguous, and still distributed throughout its historical 
range, meaning it is more able to recover from events such large, 
catastrophic wildfires.
Sierra Nevada DPS Current Representation
    In this proposed rule, to assess current representation, which is 
the California spotted owl's current ability to adapt to change, we 
considered the ecological setting and genetic diversity in the Sierra 
Nevada DPS. In the Sierra Nevada population, a majority of California 
spotted owls occur within mid-elevation ponderosa pine, mixed-conifer, 
white fir, and mixed-evergreen forest types, with few California 
spotted owls occurring in the lower elevation oak woodlands of the 
western foothills (Guti[eacute]rrez et al. 2017, p. xix). Further, 
California spotted owls in the northern portion of the Sierra Nevadas 
tend to have larger home range sizes than California spotted owls in 
the southern portion of the mountain range (Guti[eacute]rrez et al. 
2017, p. xviii). Within the Sierra Nevada, the northern portion of the 
range experiences more precipitation and lower mean temperatures than 
the southern portion of the range (Climate Engine 2017, unpaginated). 
The diversity in habitat and climate between and within the areas for 
which we have data suggests that the species has some flexibility to 
adapt to changing environmental conditions.
    Of the three spotted owl subspecies (northern, California, and 
Mexican), California spotted owls have the lowest genetic diversity 
when measured by unique haplotypes (Barrowclough et al. 1999, pp. 919, 
927; Haig et al. 2004, p. 683). This suggests that California spotted 
owls have lower genetic representation in general than either of the 
other two subspecies. However, whether the observed level of genetic 
diversity indicates low representation is unclear. Because the 
California spotted owl has persisted throughout much of its historical 
range for an extended period of time, the relatively low genetic 
diversity may be an historical artifact rather than an indication of 
concern for representation. Within the California spotted owl 
subspecies, genetic differences are found between California spotted 
owls found in the Sierra Nevada and those found in coastal-southern 
California; this provides some degree of genetic representation at the 
subspecies level, although not enough for each population to be 
considered a separate subspecies (Barrowclough et al. 1999, p. 927; 
Guti[eacute]rrez et al. 2017, p. 101; Hanna et al. 2018, pp. 3946-3947, 
3949). Whole-genome data indicate that there is greater genetic 
difference between California spotted owls (in the northern and 
southern extent of the subspecies' range) than there is between 
northern spotted owls and California spotted owls in the northern 
portion of the range; this is consistent with isolation-by-distance 
(geographic differences increase with geographic scale) (Hanna et al. 
2018, pp. 3946-3947). The genetic differences observed between 
populations, as well as the habitat and climate differences, may 
represent a moderate degree of adaptation and thus moderate 
representation at the subspecies level.
    Though the Sierra Nevada DPS has lower representation than the 
subspecies as a whole, the California spotted owl continues to inhabit 
different ecological settings throughout the Sierra Nevada. The overall 
condition of the DPS has declined, which has likely resulted in reduced 
genetic diversity. Therefore, current California spotted owl 
representation in the Sierra Nevada DPS has declined from historical 
condition, suggesting that the ability for the taxon to adapt to change 
is decreased.
Coastal-Southern California DPS Current Resiliency
    Habitat within the Coastal-Southern DPS is considered to be 
naturally fragmented, with little dispersal occurring between 
subpopulations due to discontinuous mountain ranges (Guti[eacute]rrez 
et al. 2017, pp. 93-95). This natural fragmentation has been further 
fragmented by development/habitat loss in the greater southern 
California area. Specific information about habitat and demographic 
conditions, when available, is incorporated below for each of our 
southern California analysis units. The available evidence does not 
document successful dispersal between the San Bernardino, San Gabriel, 
and San Jacinto Mountains, which are adjacent mountain ranges, 
indicating that if dispersal does occur within this population, it is 
very rare (LaHaye et al. 2001, entire; LaHaye et al. 2004, entire; 
Guti[eacute]rrez et al. 2017, pp. 242, 250).
    As previously discussed, within this population, occupancy data are 
only available for the San Bernardino Mountains. The San Bernardino 
Mountains have historically contained the largest number of California 
spotted owls, suggesting that information extrapolated from this area 
would lead to a too optimistic view for the overall population 
(Guti[eacute]rrez et al. 2017, p. 242). Data from one recent study 
showed higher occupancy in the San Bernardino Mountains than the San 
Jacinto and San Gabriel Mountains, and the authors suggest that other 
parts of southern California may also have experienced greater declines 
than this area (Tempel et al. 2022, pp. 20-21).
    As mentioned for the Sierra Nevada population, our habitat analyses 
found that habitat values for large trees and canopy cover were lower 
in southern California than in the Sierra Nevada (Service 2022, tables 
5, 9, and 13). Overlap between canopy cover and large trees was also 
low (Service 2022, table 13). In southern California, high canopy cover 
is positively associated with California spotted owl reproductive 
output, but large trees appeared to be more important than high canopy 
cover (Tempel et al. 2022, p. 22) and are also important for occupancy. 
Our analysis found large tree values for southern California are low, 
which may indicate lower habitat quality in this analysis unit. For 
this population, we conducted an additional analysis identifying the 
percentage of small trees within the overall population that could 
potentially support platform or stick nests (Service 2022, table 14). 
We found that 14 percent of the coastal-southern California analysis 
units contain these small trees compared to an overall value of 1 
percent for large trees only trees larger than 61 cm dbh are 
considered. When looking at the combined total of small trees and large 
trees, 16 percent of southern California contains potential trees that 
could support the California spotted owl's ecological needs (Service 
2022, table 14).
    The threats that are likely currently impacting this population 
include large-scale, high-severity fire; tree mortality; drought; 
climate change; various impacts from fuels reductions and forest 
management; and rodenticides. Competition with barred owls is not yet 
considered a current threat within this population. Impacts from these 
threats may not be equally distributed across the population and are 
not equivalent to the ways that these threats impact the Sierra Nevada 
population. For example, what might be considered a stochastic event 
(in this case, an event that removes one or a few individuals from the 
population) in the Sierra Nevada population could instead be considered

[[Page 11626]]

catastrophic if it were to occur in the coastal-southern California 
population because of the lower number of California spotted owls 
within this population. Our fire analysis shows that 60 percent of the 
California spotted owl's range in southern California burned between 
1984 and 2021, 17 percent at high severity, with 6 percent of the total 
area burned in 2020 and 1 percent at high severity that year. There 
were no fires in 2021 within the range of this population. Typically, 4 
percent or less of habitat within this population burned per year, with 
1 percent or less burning at high severity, although some years burned 
at higher percentages (2003 at 6 percent with 3 percent high severity, 
and 2007 at 8 percent with 4 percent high severity; Service 2022, 
appendix I). In addition to common threats acting on all analysis units 
within this population, there are also common management actions taking 
place throughout the analysis units comprising the coastal-southern 
California population. For example, analysis units containing national 
forests include PACs around known California spotted owl nest trees.
    The current condition of analysis units within the Coastal-Southern 
California DPS is that two analysis units are strongly declining and 
two units are declining (Service 2022, table 17). Based on these 
results and our scoring of habitat conditions and available demographic 
information (Service 2022, table 18), the overall condition of the 
Coastal-Southern California DPS is strongly declining and, therefore, 
has very low resiliency.
Coastal-Southern California DPS Current Redundancy
    As with the Sierra Nevada DPS, our characterization of redundancy 
for the Coastal-Southern California DPS takes into consideration both 
an assessment of the size and distribution of its population, and an 
evaluation of the kinds and likelihood of reasonably plausible 
catastrophic events to which the species could be exposed.
    As with the Sierra Nevada DPS, catastrophic events that could 
impact the Coastal-Southern California DPS include very large, high-
severity wildfire; extreme drought; extreme weather events; and 
prolonged and persistent competition and displacement due to barred owl 
expansion. The population that makes up the Coastal-Southern California 
DPS is highly fragmented with gaps between occupied areas. In areas 
where demographic data are available (the San Bernardino analysis 
unit), declines have accelerated over the last 30 years, and as stated 
above, information extrapolated from a study area that historically 
contained the largest number of California spotted owls could lead to 
an overly optimistic view for other areas of the coastal-southern 
California population (Guti[eacute]rrez et al. 2017, p. 242). Overall, 
current California spotted owl redundancy in this DPS has declined from 
historical condition, making the species more vulnerable to 
extirpations and potentially extinction from catastrophic events.
Coastal-Southern California DPS Current Representation
    To assess current representation, which is the California spotted 
owl's current ability to adapt to change, we considered the ecological 
setting and genetic diversity among the two California spotted owl 
populations. In coastal and southern California, California spotted 
owls are found in riparian/hardwood forests and woodlands, live oak/big 
cone fir forests, and redwood/California laurel forests 
(Guti[eacute]rrez et al. 2017, p. xxvi). California spotted owls use 
stick nests more frequently in southern California compared to in the 
Sierra Nevada. Further, California spotted owls in the northern portion 
of the range tend to have larger home range sizes than California 
spotted owls in the southern portion of the range (Guti[eacute]rrez et 
al. 2017, p. xviii). The climate of the Coastal-Southern California DPS 
is more arid than that of the Sierra Nevada (Climate Engine 2017, 
unpaginated).
    In regard to genetic diversity, in the Coastal-Southern California 
DPS, the population has become highly fragmented, which likely has 
resulted in reduced genetic diversity. The increased fragmentation has 
reduced the amount of available habitat in throughout the coastal-
southern California population. Therefore, current California spotted 
owl representation in the coastal-southern California population has 
declined from historical condition, suggesting that the ability for the 
DPS to adapt to change is decreased.

Future Condition

    For our future condition analysis, we forecast the response of the 
Sierra Nevada DPS of the California spotted owl to two plausible future 
scenarios. These two scenarios represent the extremes of a range of 
future changes in environmental conditions and success of implemented 
conservation efforts. The future scenarios project the influences to 
viability discussed above in Current Condition into the future and 
consider the impacts those influences would potentially have on 
California spotted owl viability. We apply the concepts of resiliency, 
redundancy, and representation to the future scenarios to describe the 
future viability of California spotted owls in the Sierra Nevada DPS.
    For this analysis, we describe two future scenarios and assess 
future resiliency for the Sierra Nevada DPS. Scenario 1 assesses future 
viability with an increase in the trend and magnitude of threats with 
implemented management efforts having mixed success. Scenario 2 
assesses the viability of the species if the trend and magnitude of 
threats were to continue at the current trajectory into the future with 
implemented management efforts being fully successful. A full 
comparison of the assumptions made for each scenario is available in 
the SSA report (Service 2022, table 19). Using two scenarios 
representing the extremes of plausible future projections for the 
species allows us to consider the full range of future possibilities 
for predicting the future viability of the Sierra Nevada DPS and 
incorporates any uncertainty regarding the impact of future 
environmental conditions and the success of implemented conservation 
efforts. For the SSA report and this proposed rule, we assessed future 
conditions at approximately 40-50 years. For a detailed description of 
our methods and assumptions for each future scenario, as well as more 
details on how the impacts of threats would differ under each scenario, 
please see the SSA report (Service 2022, pp. 97-100).
    In the SSA report, we also applied our two future scenarios to the 
population of California spotted owls that makes up the Coastal-
Southern California DPS. Because we determined that the current 
condition of the Coastal-Southern California DPS is consistent with an 
endangered species (see Status of the Coastal-Southern California DPS 
of the California Spotted Owl Throughout All of Its Range, below), we 
are not presenting the results of the future scenarios in this proposed 
rule. Please refer to the SSA report (Service 2022, pp. 100-125) for 
the full analysis of future scenarios.
Scenario 1
    Scenario 1 considers viability of the Sierra Nevada DPS if some of 
the significant threats were to increase in magnitude into the future 
and future management efforts have mixed success in addressing those 
threats. Under this scenario, climate change models under RCP 8.5 
project temperature increases of 4.5-6 [deg]F, depending on the portion 
of the range. Increases in temperatures will

[[Page 11627]]

likely increase extreme weather events, including heat waves and 
drought conditions (Kadir et al. 2013, pp. 38, 48). With increased 
drought conditions, tree mortality and large-scale, high-severity fire 
are likely to increase in frequency and size, especially if fuel loads 
in forests are not decreased (Westerling and Bryant 2008, pp. S244-
S248; Abatzoglou and Williams 2016, pp. 11770, 11773; Young et al. 
2017, p. 78). Extreme weather events or significant changes in 
interannual climate variability may have negative impacts on the 
California spotted owl's survival and reproduction. Although there are 
some protections in place for California spotted owls on public lands, 
timber harvest values can vary year to year. Therefore, it is possible 
that increases in timber harvest targets may reduce California spotted 
owl habitat that is available now or that may be available in the 
future for California spotted owls to establish new territories and 
disperse beyond the PACs.
    Without continued ongoing experimental removals, barred owls will 
likely continue to expand their range into California spotted owl 
habitat, eventually reaching a point of exponential increase and 
significantly displacing and outcompeting California spotted owls on 
the landscape (Keane et al. 2018, pp. 8, 47). The timeline for barred 
owl expansion and replacement of California spotted owls on the 
landscape is unknown; however, because they were able to expand so 
quickly within the northern spotted owl's range, under future scenario 
1 we assume barred owls would move beyond the Sierra Nevada and 
continue to expand into southern California. This expansion could be 
due to current experimental removal efforts becoming less successful 
over time (i.e., decreased experimental removal efforts) or the barred 
owl being able to cross what was thought to be unsuitable habitat, like 
the Central Valley. Under scenario 1, it is also possible that 
rodenticide use could continue to increase in California due to the 
legalization of marijuana in 2016. There will likely continue to be an 
increase in demand for marijuana, which may increase illegal grow sites 
using anticoagulant rodenticides in California if the costs of buying 
land and acquiring/maintaining permits to legalize a grow operation are 
too high (Soboroff and Koss 2017, entire; Yakowicz 2018, entire; 
Harrison 2018, entire). In regards to disease and parasites, there is 
evidence that changing climate conditions could increase pathogen 
development and occurrence (Harvell et al. 2002, p. 2158), creating a 
slight chance that disease and parasites may become a more significant 
issue in the future. Finally, development may continue to encroach upon 
California spotted owl habitat as the California human population 
continues to grow (California Economic Forecast 2016, pp. xii-xiii, 
233-236).
    Under scenario 1, almost all analysis units degrade in condition, 
with four analysis units considered declining, four strongly declining, 
and three that will likely be extirpated (Service 2022, tables 20 and 
22). Two of the units that will likely be extirpated under scenario 1 
are currently small, peripheral units. Based on these results, under 
scenario 1 the future overall condition of the Sierra Nevada population 
will be strongly declining (average overall future condition score of 
0.82). Therefore, the Sierra Nevada population has very low resiliency 
under future scenario 1.
Scenario 2
    Scenario 2 considers a future where the threats continue at the 
current trajectory and ongoing management efforts are successful at 
addressing those threats. Under this scenario, climate change models 
under RCP 4.5 project temperature increases of 3.5-5 [deg]F, depending 
on the portion of the range. Under future scenario 2, drought 
conditions, tree mortality events, and high-severity fire will likely 
continue at the current trajectory. Currently, there are research 
actions in place to experimentally limit barred owl expansion within 
study areas, which have so far been successful and which we project 
will continue to be successful in limiting the barred owl's expansion 
under this scenario. Protections would continue to stay in place for 
California spotted owls on public lands, and timber harvest would 
remain at reduced levels on public lands. Rodenticide use would either 
remain the same or decrease due to continued law enforcement activity 
shutting down illegal marijuana grows. Under scenario 2, the current 
rate of human population growth will continue, leading to steadily 
increasing development, specifically in areas that are not on public 
land.
    As in future scenario 1, under future scenario 2, large-scale, 
high-severity fire will likely impact a majority of the California 
spotted owl's ecological needs, with negative impacts to prey, large 
trees, habitat heterogeneity, and available nest trees, and there may 
be some increase in California spotted owl mortality. With a reduction 
in some of the key habitat components due to large-scale, high-severity 
fires, fecundity, occupancy, and population growth will likely decline 
under future scenario 2.
    Under scenario 2, most analysis units degrade in condition, but 
some maintain their current condition. Overall, under scenario 2, we 
project the Sierra Nevada population will have four analysis units 
declining, five strongly declining, and two that will likely be 
extirpated (Service 2022, table 24). Based on these results, under 
scenario 2, the future condition of the Sierra Nevada population will 
be strongly declining, but to a lesser degree than under scenario 1. 
Therefore, the Sierra Nevada DPS has very low resiliency under future 
scenario 2.
Future Redundancy
    Under future scenario 1, we anticipate the population that makes up 
the Sierra Nevada DPS would be less resilient compared to current 
condition. The California spotted owl will likely maintain a wide 
distribution throughout the Sierra Nevada; however, the conditions of 
all analysis units within the Sierra Nevada population are declining, 
with over half the analysis units projected to be strongly declining or 
extirpated. Therefore, under scenario 1, redundancy would decline 
compared to the current condition, as the species would be less likely 
to be able to withstand catastrophic events with only one population 
with very low resiliency.
    Under future scenario 2, the Sierra Nevada DPS would be less 
resilient compared to the current condition. The California spotted owl 
will likely maintain a majority of its current distribution throughout 
the Sierra Nevada. Overall, the DPS would be less likely to be able to 
withstand catastrophic events, with its population losing resiliency 
and a majority of analysis units declining or strongly declining with 
the potential to be extirpated under scenario 2. For species 
redundancy, the outcome of scenario 1 and scenario 2 are very similar 
after 40-50 years. There are differences in how quickly the population 
would decrease in condition, the likelihood of the impacts, and how 
many analysis units within a population may actually become extirpated. 
It is more likely that redundancy would be reduced, potentially from a 
catastrophic event, under scenario 1.
Future Representation
    Predictions for future scenario 1 are that many of the habitat 
components identified for California spotted owls will likely have a 
limited ability to withstand predicted changes and are likely to 
further decline in condition in

[[Page 11628]]

the future. This would indirectly cause a decrease in representation 
for the Sierra Nevada DPS if the current degree of diversity in habitat 
and climate declines. Further, with continued declines in occupancy, 
fecundity, and survival, population growth will decline and will likely 
further reduce genetic diversity. Under scenario 1, representation 
would decline compared to current condition as the species would have 
less flexibility to adapt to changing environmental conditions.
    Under Scenario 2, most analysis units degrade in condition, but 
some maintain their current condition. Overall, under scenario 2 we 
project the Sierra Nevada population will have seven analysis units 
declining and four strongly declining (Service 2022, table 24). Based 
on these results, under scenario 2 the future condition of the Sierra 
Nevada population will be strongly declining (average overall future 
condition score of 1.9), but to a lesser degree than under scenario 1. 
An overall future condition score of 1.9 is at the very upper limit of 
our scoring boundary for a strongly declining population condition 
(Service 2022, tables 4 and 7). Therefore, the Sierra Nevada population 
has very low resiliency under future scenario 2, but it is closer to 
the boundary of low resiliency.

Table 1. Analysis Unit Current and Future Condition Comparisons 
(Changes From Current Condition in Bold).

BILLING CODE 4333-15-P
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[[Page 11629]]


[GRAPHIC] [TIFF OMITTED] TP23FE23.010

BILLING CODE 4333-15-C

Figure 2--Condition of California Spotted Owl (CSO) Analysis Units 
Under Current and Future Scenarios

Determination of California Spotted Owl's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely

[[Page 11630]]

to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. The Act requires 
that we determine whether a species meets the definition of an 
endangered species or a threatened species because of any of the 
following factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.

Status of the Sierra Nevada DPS of the California Spotted Owl 
Throughout All of Its Range

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Sierra Nevada DPS of the California spotted owl and its habitat. 
In this proposed rule, we present summary evaluations of eight threats 
analyzed in the SSA report for the California spotted owl: wildfire 
(Factor A), tree mortality (Factor A), drought (Factor A), climate 
change (Factor A), fuels reduction and forest management (Factor A), 
competition and hybridization with barred owls (Factor E), rodenticides 
(Factor E), and development (Factor A), as well as the combined effects 
of those threats. We also evaluated existing regulatory mechanisms 
(Factor D) and ongoing conservation measures.
    In the SSA, we also considered four additional threats: 
Overutilization due to recreational, educational, and scientific use 
(Factor B); disease (Factor C); predation (Factor C); and recreation 
(Factor E). We concluded that, as indicated by the best available 
scientific and commercial information, these threats are currently 
having little to no impact on the California spotted owl, and thus 
their overall effect now and into the future is expected to be minimal. 
However, we consider them in this determination, because although these 
minor threats may have low impacts on their own, combined with impacts 
of other threats, they could further reduce the number of California 
spotted owls. For full descriptions of all threats and how they impact 
the species, please see the SSA report (Service 2022, pp. 25-68).
    The California spotted owl needs an adequate amount of nesting, 
foraging, and roosting habitat to be successful, and requires the 
components of canopy cover, larger trees, and habitat heterogeneity. 
Over the last several decades, impacts from wildfire (Factor A), tree 
mortality (Factor A), and some forest management practices (Factor A), 
particularly the historical effects of clearcutting, have reduced the 
amount of forest with these habitat needs. Historical fire suppression 
has also contributed to the current increase in high-severity fire 
across the range of the Sierra Nevada DPS of the California spotted 
owl.
    High-severity wildfire is one of the most significant threats 
currently affecting the California spotted owl and its habitat, 
including the Sierra Nevada DPS. The Sierra Nevada DPS occurs within a 
very high wildfire threat category. Approximately 47 percent of the 
California spotted owl's range burned between 1984 and 2021, with 15 
percent burned at high severity. Most of the area burned at high 
severity occurred in 2020 and 2021. In the Sierra Nevada DPS 
specifically, over 1,000,000 ha (2,500,000 ac) burned between 1984-
2019, with 317,605 ha (784,820 ac) burned at high severity (Keane in 
litt. 2022, p. 3). Areas burned at high fire severity can take decades 
to recover. Based on fire activity data from 2000 through 2014, the 
cumulative amount of fire burned at high severity within the next 75 
years could exceed total existing habitat in the Sierra Nevada, such 
that the loss of suitable habitat may exceed the rate of new habitat 
growing post-fire (Stephens et al. 2016, pp. 1, 11-13). Although 
important actions are being taken by the USFS and its partners, 
particularly through the recent Fire MOUs to reduce the scope and 
magnitude of wildfires, this magnitude of the threat of wildfire is 
expected to continue into the foreseeable future.
    Under the current condition, 3 of the 11 Sierra Nevada analysis 
units are in stable condition, 5 analysis units are declining, and 3 
analysis units are strongly declining. Based on recent demographic 
information and our habitat analysis, we found the current resiliency 
of the Sierra Nevada population is very low. Overall, the subspecies' 
current redundancy has decreased from historical condition. Although 
the species is currently distributed throughout its historical range 
within the Sierra Nevada, the condition of most analysis units is 
currently declining, reducing the species' ability to withstand 
catastrophic events. However, the subspecies maintains suitable habitat 
condition and retains habitat needs, particularly throughout the Sierra 
Nevada. Additionally, conservation efforts and regulatory mechanisms 
are decreasing the magnitude of effects from threats, including 
experimental removals of barred owls.
    Effects from the threats described above are anticipated to 
increase into the foreseeable future, particularly drought and climate 
change (Factor A). Climate models project increased temperatures and 
more frequent drought in the Sierra Nevada DPS, with temperature 
increases projected to increase between 4-6 [ordm]F in the next 40 
years. Climate projections also forecast snow moving to higher 
elevations, as well as more extreme precipitation and drought events. 
Overall increases in drought will increase tree mortality and the risk 
of high-severity fire. Invasions by barred owls (Factor E) are 
projected to continue into the foreseeable future and may outpace 
experimental removal efforts. In both our future scenarios, analysis 
units within the range of the Sierra Nevada DPS will be either strongly 
declining or extirpated due to the combined effects of all threats. 
Overall, redundancy and representation would decline as conditions 
degrade throughout the range and population resiliency declines, 
reducing the species' ability to withstand catastrophic events and 
adapt to changing environmental conditions.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that the Sierra Nevada DPS is facing threats 
associated with high-severity fire, tree mortality, drought and climate 
change, rodenticides, and barred owls. Although it is declining in some 
parts of the DPS, the Sierra Nevada DPS currently retains resiliency, 
redundancy, and representation. Thus, it is not in danger of extinction 
now throughout all of its range. However, the threats of wildfire, 
climate change, and barred owls are anticipated to increase into the 
foreseeable future, and even in the more optimistic of the plausible 
future scenarios, habitat is still projected to severely decline, and 
we project that many parts of the range may become extirpated. Thus, 
after assessing the best available information, we conclude that the 
Sierra Nevada DPS is not currently in danger of extinction but is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range.

Status of the Sierra Nevada DPS of the California Spotted Owl 
Throughout a Significant Portion of Its Range

    We evaluated the range of the Sierra Nevada DPS of the California 
spotted owl to determine if the DPS is in danger of extinction now in 
any portion of its range. The range can theoretically be

[[Page 11631]]

divided into portions in an infinite number of ways. We focused our 
analysis on portions of the range that may meet the definition of an 
endangered species. For the Sierra Nevada DPS, we considered whether 
the threats or their effects on the DPS are greater in any biologically 
meaningful portion of the range than in other portions such that the 
DPS is in danger of extinction now in that portion.
    The statutory difference between an endangered species and a 
threatened species is the timeframe in which the species becomes in 
danger of extinction; an endangered species is in danger of extinction 
now while a threatened species is not in danger of extinction now but 
is likely to become so in the foreseeable future. Thus, we reviewed the 
best scientific and commercial data available regarding the time 
horizon for the threats that are driving the Sierra Nevada DPS of the 
California spotted owl to warrant listing as a threatened species 
throughout all of its range. We then considered whether these threats 
or their effects are occurring (or may imminently occur) in any portion 
of the range with sufficient magnitude such that the DPS is in danger 
of extinction now in that portion of its range. We examined the 
following threats: wildfire (Factor A); tree mortality (Factor A); 
drought (Factor A); climate change (Factor A); fuels reduction and 
forest management (Factor A); competition and hybridization with barred 
owls (Factor E); rodenticides (Factor E); development (Factor A); 
overutilization due to recreational, educational, and scientific use 
(Factor B); disease (Factor C); predation (Factor C); and recreation 
(Factor E), as well as the combined effects of those threats. We also 
evaluated existing regulatory mechanisms (Factor D) and ongoing 
conservation measures.
    We found a potential difference in biological condition of the DPS 
in the Humboldt-Toiyabe, Inyo, and Sequoia analysis units (see figure 
2, above), where our habitat analysis indicated that they are strongly 
declining in the current condition.
    Our habitat analysis found that the Humboldt-Toiyabe unit has low 
amounts of suitable habitat for the California spotted owl, and 16 
percent of the unit has recently burned. The Inyo unit is a small 
peripheral area with no recent detections, and habitat is considered 
degraded. The Sequoia unit has lower values for large trees and canopy 
cover than many other parts of the Sierra Nevada DPS, and wildfires 
have burned 60 percent of the unit between 1984 and 2021. We have no 
evidence that the magnitude of threats is higher in this portion of the 
range. However, the status of these units is degraded compared to the 
remainder of the DPS, and they may be in danger of extinction.
    We next considered whether or not these three analysis units are 
significant to the Sierra Nevada DPS. We asked whether this portion of 
the range (i.e., the Humboldt-Toiyabe, Inyo, and Sequoia analysis unit 
portions of the Sierra Nevada DPS's range) is significant. The 
Service's most recent definition of ``significant'' within agency 
policy guidance has been invalidated by court order (see Desert 
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011, 
1070-74 (N.D. Cal. 2018)). In undertaking this analysis for the Sierra 
Nevada DPS, we considered whether these three units may be significant. 
Therefore, in light of the court decision, for the purposes of this 
analysis when considering whether this portion is significant, we 
considered whether the portion may (1) occur in a unique habitat or 
ecoregion for the species; (2) contain high-quality or high-value 
habitat relative to the remaining portions of the range, for the 
species' continued viability in light of the existing threats; (3) 
contain habitat that is essential to a specific life-history function 
for the species and that is not found in the other portions (for 
example, the principal breeding ground for the species); or (4) contain 
a large geographic portion of the suitable habitat relative to the 
remaining portions of the range for the species.
    Overall, the three units make up approximately 14 percent of 
habitat in the DPS. There are limited owl detections in these areas, 
particularly in the Inyo and Humboldt-Toiyabe analysis units; thus, 
these areas are not contributing significantly to the resiliency of the 
Sierra Nevada population. The habitat in all three units is degraded. 
They also do not contain any unique or unusual habitat for the taxon, 
nor do they contain any habitat essential to any life-history functions 
that is not found in any other portions. Therefore, these portions do 
not meet the identified prongs for significance, as outlined above.
    We also analyzed the five analysis units in the DPS that are 
currently in declining condition. In our definition of current 
condition, this means that these analysis units are less likely to 
persist for the next 40-50 years, but are not in danger of extinction 
now. Limited population data are available for these analysis units. 
For the Lassen, Sierra, Eldorado, and portions of the Plumas unit, the 
most recent demography studies found that California spotted owls are 
declining under both occupancy and mark-recapture models (Tempel and 
Guti[eacute]rrez 2013, pp. 1091-1093; Tempel et al. 2014b, pp. 86, 90-
92, Conner et al. 2016, p. 15). Reproductive output has varied in 
Lassen, Plumas, and Sierra analysis units, and has been declining in 
the Eldorado unit (Franklin et al. 2004, p. 24; Blakesley et al. 2010, 
pp. 17-19), Apparent adult survival remained high in all units with 
demographic data (Blakesley et al. 2010, pp. 12-19; Conner et al. 2016, 
p. 11). Within the Lassen, Plumas, and Sierra units, new owls (sub-
adults and territorial adults) continued to be marked each year over 
the course of the demography studies (Conner et al. 2016, pp. 3, 7, 
table 1), indicating recruitment of owls into those areas through local 
reproduction or dispersal from other areas. Additionally, these units 
still maintain suitable habitat and species needs such as forest 
heterogeneity, tall trees, and canopy cover. These five analysis units 
overall retain contiguous suitable habitat, allowing for dispersal 
between areas. Because of this, these analysis units can recover from 
stochastic and catastrophic events, allowing this portion of the 
population as a whole to withstand threats and allowing potential 
dispersal or recolonization from surrounding analysis units. Thus, we 
conclude that these areas are not currently in danger of extinction.
    Therefore, we determine that the Sierra Nevada DPS is likely to 
become in danger of extinction within the foreseeable future throughout 
all of its range. This does not conflict with the courts' holdings in 
Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 
1011, 1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v. 
Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching 
this conclusion, we did not apply the aspects of the Final Policy on 
Interpretation of the Phrase ``Significant Portion of Its Range'' in 
the Endangered Species Act's Definitions of ``Endangered Species'' and 
``Threatened Species'' (Final Policy; 79 FR 37578, July 1, 2014), 
including the definition of ``significant,'' that those court decisions 
held to be invalid.

Status of the Sierra Nevada DPS of the California Spotted Owl

    Our review of the best available scientific and commercial 
information indicates that the Sierra Nevada DPS meets the Act's 
definition of a threatened species. Therefore, we propose to list the 
Sierra Nevada DPS of the California spotted owl as a

[[Page 11632]]

threatened species in accordance with sections 3(20) and 4(a)(1) of the 
Act.

Status of the Coastal-Southern California DPS of the California Spotted 
Owl Throughout All of Its Range

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Coastal-Southern California DPS of the California spotted owl 
and its habitat. In this proposed rule, we present summary evaluations 
of eight threats analyzed in the SSA report for the California spotted 
owl: wildfire (Factor A), tree mortality (Factor A), drought (Factor 
A), climate change (Factor A), fuels reduction and forest management 
(Factor A), competition and hybridization with barred owls (Factor E), 
rodenticides (Factor E), and development (Factor A), as well as the 
combined effects of those threats. We also evaluated existing 
regulatory mechanisms (Factor D) and ongoing conservation measures.
    In the SSA, we also considered four additional threats: 
Overutilization due to recreational, educational, and scientific use 
(Factor B); disease (Factor C); predation (Factor C); and recreation 
(Factor E). We concluded that, as indicated by the best available 
scientific and commercial information, these threats are currently 
having little to no impact on the California spotted owl, and thus 
their overall effect now and into the future is expected to be minimal. 
As with the Sierra Nevada DPS, we now consider them in this 
determination, because although these minor threats may have low 
impacts on their own, combined with impacts of other threats, they 
could further reduce the number of California spotted owls. For full 
descriptions of all threats and how they impact the species, please see 
the SSA report (Service 2022, pp. 25-68).
    In the Coastal-Southern California DPS, impacts from wildfire are 
at very high magnitude, with all of the DPS considered to be at extreme 
fire risk. Our fire analysis shows that 60 percent of the range of the 
Coastal-Southern California DPS burned between 1984 and 2021, including 
17 percent at high severity. These high-severity fires in particular 
are removing the California spotted owl's needs of canopy cover, large 
trees, and habitat heterogeneity. Given that habitat in the Coastal-
Southern California DPS is already fragmented and that there is limited 
evidence of movement between habitat patches, any habitat burned at 
high severity is less likely to be able to recover from high-severity 
fires.
    Development has further degraded naturally fragmented habitat in 
the Coastal-Southern California DPS, and owls in this DPS are affected 
by ongoing drought conditions and tree mortality. In southern 
California, there are high development demands with wind farms and 
large reservoirs impacting connectivity within the California spotted 
owl's range, and riparian areas used by California spotted owls are 
being lost to water diversion. These threats are continuing to reduce 
the California spotted owl's needs of high canopy cover and large 
trees, both of which are already at low condition. Barred owls are 
currently only having a limited impact on this DPS.
    Limited population data are available for this part of the range, 
but in the San Bernardino Mountains, occupancy of territories has 
declined by half (Tempel et al. 2022, pp. 16, 18). Additionally, we 
were not able to find information about California spotted owls 
dispersing between mountain ranges in coastal or southern California. 
The number of owls in this part of the range is low. Therefore, what 
might be considered a stochastic event in the Sierra Nevada DPS leading 
to the removal of one or a few individuals from the population could 
have a much higher impact if it were to occur in the coastal-southern 
California DPS. Additionally, due to the highly developed nature of the 
areas between suitable patches of habitat in coastal and particularly 
southern California, there is no record of owls dispersing between 
occupied areas. All four analysis units in this DPS are currently 
declining.
    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that threats associated with wildfire, drought, and 
tree mortality, as well as the current impacts of climate change, have 
degraded habitat in the Coastal-Southern California DPS of the 
California spotted owl, such that most of this part of the range could 
become extirpated. These threats are impacting the DPS now; thus, this 
DPS does not meet the Act's definition of a threatened species. Due to 
the extreme risk of wildfire, degraded habitat conditions, no dispersal 
between subpopulations, and very low population resiliency and 
redundancy, we find that the Coastal-Southern California DPS meets the 
Act's definition of an endangered species. Thus, after assessing the 
best available information, we determine that Coastal-Southern 
California DPS of the California spotted owl is in danger of extinction 
throughout all of its range.

Status of the Coastal-Southern California DPS of the California Spotted 
Owl Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined that the Coastal-Southern California DPS 
is in danger of extinction throughout all of its range and accordingly 
did not undertake an analysis of any significant portion of its range. 
Because the Coastal-Southern California DPS warrants listing as 
endangered throughout all of its range, our determination does not 
conflict with the decision in Center for Biological Diversity v. 
Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), which vacated the 
provision of the Final Policy (79 FR 37578, July 1, 2014) providing 
that if the Services determine that a species is threatened throughout 
all of its range, the Services will not analyze whether the species is 
endangered in a significant portion of its range.

Status of the Coastal-Southern California DPS of the California Spotted 
Owl

    Our review of the best available scientific and commercial 
information indicates that the Coastal-Southern DPS of the California 
spotted owl meets the Act's definition of an endangered species. 
Therefore, we propose to list the Coastal-Southern California DPS as an 
endangered species in accordance with sections 3(6) and 4(a)(1) of the 
Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies, 
including the Service, and the prohibitions against certain activities 
are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate

[[Page 11633]]

goal of such conservation efforts is the recovery of these listed 
species, so that they no longer need the protective measures of the 
Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Sacramento Fish and Wildlife Office 
(see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If these DPSs are listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of California and Nevada 
would be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the California spotted owl. 
Information on our grant programs that are available to aid species 
recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Although the Sierra Nevada DPS and the Coastal-Southern California 
DPS of the California spotted owl are only proposed for listing under 
the Act at this time, please let us know if you are interested in 
participating in recovery efforts for these DPSs. Additionally, we 
invite you to submit any new information on the California spotted owl 
whenever it becomes available and any information you may have for 
recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, 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 the 
species or 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 the Service.
    Examples of actions that may be subject to the section 7 processes 
are land management or other landscape-altering activities on Federal 
lands administered by the USFS, BLM, DOD, NPS, and the Service, as well 
as actions on State, Tribal, local, or private lands that require a 
Federal permit (such as a permit from the U.S. Army Corps of Engineers 
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a 
permit from the Service under section 10 of the Act) or that involve 
some other Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency). 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 carried out 
by a Federal agency--do not require section 7 consultation. Examples of 
Federal agency actions that may require consultation for the California 
spotted owl could include forest and fuels management, land management 
planning, habitat restoration, recreation management, and road 
maintenance. Given the difference in triggers for conferencing and 
consultation, Federal agencies should coordinate with the local Service 
Field Office (see FOR FURTHER INFORMATION CONTACT, above) with any 
specific questions.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered wildlife within the United States or on the high 
seas. In addition, it is unlawful to import; export; deliver, receive, 
carry, transport, or ship in interstate or foreign commerce in the 
course of commercial activity; or sell or offer for sale in interstate 
or foreign commerce any species listed as an endangered species. It is 
also illegal to possess, sell, deliver, carry, transport, or ship any 
such wildlife that has been taken illegally. Certain exceptions apply 
to employees of the Service, the National Marine Fisheries Service, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
for scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.

[[Page 11634]]

    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. For the Sierra Nevada DPS of the 
California spotted owl, which we are proposing to list as threatened, 
the discussion below under II. Proposed Rule Issued Under Section 4(d) 
of the Act regarding protective regulations under section 4(d) of the 
Act complies with our policy.
    We now discuss specific activities related to the Coastal-Southern 
California DPS, which we are proposing to list as endangered. Based on 
the best available information, the following actions are unlikely to 
result in a violation of section 9 of the Act, if these activities are 
carried out in accordance with existing regulations and permit 
requirements; this list is not comprehensive:
    (1) Any actions that may affect the Coastal-Southern California DPS 
of the California spotted owl that are authorized, funded, or carried 
out by a Federal agency, when the action is conducted in accordance 
with the consultation requirements for listed species pursuant to 
section 7 of the Act;
    (2) Any action taken for scientific research carried out under a 
recovery permit issued by us pursuant to section 10(a)(1)(A) of the 
Act;
    (3) Land actions or management carried out under a habitat 
conservation plan approved by us pursuant to section 10(a)(1)(B) of the 
Act; and
    (4) Recreation activities that comply with local rules and that do 
not result in take of listed species, including hiking and backpacking.
    Based on the best available information, the following activities 
may potentially result in a violation of section 9 of the Act if they 
are not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Unauthorized modification of the forest landscape within the 
range of the Coastal-Southern California DPS; and
    (2) Unauthorized use of first- and second-generation anticoagulant 
rodenticides within the range of the Coastal-Southern California DPS.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act in regards to the Coastal-Southern 
California DPS of the California spotted owl should be directed to the 
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language similar to the language in section 4(d) of the Act 
authorizing the Secretary to take action that she ``deems necessary and 
advisable'' affords a large degree of deference to the agency (see 
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in 
the Act to mean 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. Additionally, the second sentence of section 4(d) of the Act 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
Thus, the combination of the two sentences of section 4(d) provides the 
Secretary with wide latitude of discretion to select and promulgate 
appropriate regulations tailored to the specific conservation needs of 
the threatened species. The second sentence grants particularly broad 
discretion to the Service when adopting one or more of the prohibitions 
under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do 
not address all of the threats a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this proposed 4(d) rule would promote 
conservation of the Sierra Nevada DPS of the California spotted owl by 
encouraging management of its habitat in ways that facilitate 
conservation for the species. The provisions of this proposed rule are 
one of many tools that we would use to promote the conservation of the 
Sierra Nevada DPS of the California spotted owl. This proposed 4(d) 
rule would apply only if and when we make final the listing of the 
Sierra Nevada DPS of the California spotted owl as a threatened 
species.
    As mentioned above in Available Conservation Measures, section 
7(a)(2) of the Act requires Federal agencies, including the Service, to 
ensure that any action they fund, authorize, or carry out is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species. In addition, section 
7(a)(4) of the Act requires Federal agencies to confer with the Service 
on any agency action that is likely to jeopardize the continued 
existence of any species proposed to be listed under the Act or result 
in the destruction or adverse modification of proposed 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. Examples of Federal actions that are subject to 
the section 7 consultation process are actions on State, Tribal, local, 
or private lands that require a Federal permit (such as a permit from 
the U.S. Army Corps of Engineers under section 404 of the Clean Water 
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 
10 of the Act) or that involve some other Federal action (such as 
funding from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). 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 carried out by a Federal agency--do not require 
section 7 consultation.
    These requirements are the same for a threatened species with a 
species-

[[Page 11635]]

specific 4(d) rule. For example, a Federal agency's determination that 
an action is ``not likely to adversely affect'' a threatened species 
will require the Service's written concurrence. Similarly, a Federal 
agency's determination that an action is ``likely to adversely affect'' 
a threatened species will require formal consultation and the 
formulation of a biological opinion.

Provisions of the Proposed 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a proposed rule that is designed to address the 
conservation needs of the Sierra Nevada DPS of the California spotted 
owl. As discussed previously in Summary of Biological Status and 
Threats, we have concluded that the Sierra Nevada DPS of the California 
spotted owl is likely to become in danger of extinction within the 
foreseeable future primarily due to wildfire, tree mortality, drought, 
climate change, rodenticides, and barred owls. Section 4(d) requires 
the Secretary to issue such regulations as she deems necessary and 
advisable to provide for the conservation of each threatened species 
and authorizes the Secretary to include among those protective 
regulations any of the prohibitions that section 9(a)(1) of the Act 
prescribes for endangered species. We find that, if finalized, the 
protections, prohibitions, and exceptions in this proposed rule as a 
whole satisfy the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of the Sierra Nevada DPS of the California spotted owl.
    The protective regulations we are proposing for the Sierra Nevada 
DPS of the California spotted owl incorporate prohibitions from the 
Act's section 9(a)(1) to address the threats to the DPS. Section 
9(a)(1) prohibits the following activities for endangered wildlife: 
importing or exporting; take; possession and other acts with unlawfully 
taken specimens; delivering, receiving, carrying, transporting, or 
shipping in interstate or foreign commerce in the course of commercial 
activity; or selling or offering for sale in interstate or foreign 
commerce. This protective regulation includes all of these prohibitions 
because the Sierra Nevada DPS of the California spotted owl is at risk 
of extinction in the foreseeable future and putting these prohibitions 
in place will help to prevent further declines, preserve the DPS's 
remaining populations, slow its rate of decline, and decrease 
synergistic, negative effects from other ongoing or future threats.
    In particular, this proposed 4(d) rule would provide for the 
conservation of the Sierra Nevada DPS of the California spotted owl by 
prohibiting the following activities, unless they fall within specific 
exceptions or are otherwise authorized or permitted: importing or 
exporting; take; possession and other acts with unlawfully taken 
specimens; delivering, receiving, carrying, transporting, or shipping 
in interstate or foreign commerce in the course of commercial activity; 
or selling or offering for sale in interstate or foreign commerce.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
take would help preserve the DPS's remaining populations, slow their 
rate of decline, and decrease synergistic, negative effects from other 
ongoing or future threats. Therefore, we propose to prohibit take of 
the Sierra Nevada DPS of the California spotted owl, except for take 
resulting from those actions and activities specifically excepted by 
the 4(d) rule.
    Exceptions to the prohibition on take would include all of the 
general exceptions to the prohibition against take of endangered 
wildlife, as set forth in 50 CFR 17.21 and certain other specific 
activities that we propose for exception, as described below.
    The proposed 4(d) rule would also provide for the conservation of 
the species by allowing exceptions that incentivize conservation 
actions or that, while they may have some minimal level of take of the 
Sierra Nevada DPS of the California spotted owl, are not expected to 
rise to the level that would have a negative impact (that is, would 
have only de minimis impacts) on the conservation of the DPS. The 
proposed exceptions to these prohibitions include the following 
provisions (described below) that are expected to have negligible 
impacts to the Sierra Nevada DPS of the California spotted owl and its 
habitat:
    (1) Forest or fuels management to reduce the risk or severity of 
wildfire (such as prescribed fire) where fuels management activities 
are essential to reduce the risk of catastrophic wildfire, and when 
such activities will be carried out in accordance with an established 
and recognized fuels or forest management plan that includes measures 
to minimize impacts to the California spotted owl and its habitat and 
results in conservation benefits to California spotted owls.
    (2) Habitat management and restoration efforts that are 
specifically designed to provide for the conservation of the California 
spotted owl's habitat needs and include measures that minimize impacts 
to the California spotted owl and its habitat. These activities must be 
carried out in accordance with finalized State or Federal agency 
conservation plans or strategies for the California spotted owl.
    (3) Management or cleanup activities that remove toxicants and 
other chemicals from trespass cannabis cultivation sites in California 
spotted owl habitat. Cleanup of these sites may involve activities that 
may cause localized, short-term disturbance to California spotted owls, 
as well as require limited removal of some habitat structures valuable 
to California spotted owls (e.g., hazard trees that may be a suitable 
nest site).
    We may, under certain circumstances, issue permits to carry out one 
or more otherwise-prohibited activities, including those described 
above. The regulations at 50 CFR 17.32 that govern permits for 
threatened wildlife state that the Director may issue a permit 
authorizing any activity otherwise prohibited with regard to threatened 
species. These include permits issued for the following purposes: for 
scientific purposes, to enhance propagation or survival, for economic 
hardship, for zoological exhibition, for educational purposes, for 
incidental taking, or for special purposes consistent with the purposes 
of the Act (50 CFR 17.32). The statute also contains certain exemptions 
from the prohibitions, which are found in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we must cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with us in accordance with section 6(c) of the Act, who is designated 
by his or her agency for such purposes, would be

[[Page 11636]]

able to conduct activities designed to conserve the Sierra Nevada DPS 
of the California spotted owl that may result in otherwise prohibited 
take without additional authorization.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or our ability to 
enter into partnerships for the management and protection of the Sierra 
Nevada DPS of the California spotted owl. However, interagency 
cooperation may be further streamlined through planned programmatic 
consultations for the DPS between us and other Federal agencies, where 
appropriate. We ask the public, particularly State agencies and other 
interested stakeholders that may be affected by the proposed 4(d) rule, 
to provide comments and suggestions regarding additional guidance and 
methods that we could provide or use, respectively, to streamline the 
implementation of this proposed 4(d) rule (see Information Requested, 
above).

III. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered 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.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not 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 also does not allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
likely result in destruction or adverse modification of the critical 
habitat, the Federal action agency and the landowner are not required 
to abandon the proposed activity, or to restore or recover the species; 
instead, they must implement ``reasonable and prudent alternatives'' to 
avoid destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific data available, those physical or biological features that 
are essential to the conservation of the species (such as space, food, 
cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
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 we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; 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; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered

[[Page 11637]]

or threatened species; and (3) the prohibitions found in section 9 of 
the Act and the 4(d) rule. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. These 
protections and conservation tools will continue to contribute to 
recovery of the species. 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, HCPs, or other species conservation planning efforts if 
new information available at the time of those planning efforts calls 
for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As discussed earlier in this document, there is currently no 
imminent threat of collection or vandalism identified under Factor B 
for this species, and identification and mapping of critical habitat is 
not expected to initiate any such threat. In our SSA report and 
proposed listing determination for the California spotted owl, we 
determined that the present or threatened destruction, modification, or 
curtailment of habitat or range is a threat to both the Sierra Nevada 
DPS and the Coastal-Southern California DPS of the California spotted 
owl, and that those threats in some way can be addressed by section 
7(a)(2) consultation measures. The two DPSs occur wholly in the 
jurisdiction of the United States, and we are able to identify areas 
that meet the definition of critical habitat. Therefore, because none 
of the circumstances enumerated in our regulations at 50 CFR 
424.12(a)(1) have been met and because the Secretary has not identified 
other circumstances for which this designation of critical habitat 
would be not prudent, we have determined that the designation of 
critical habitat is prudent for both the Sierra Nevada DPS and the 
Coastal-Southern California DPS of the California spotted owl.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
California spotted owl is determinable. Our regulations at 50 CFR 
424.12(a)(2) state that critical habitat is not determinable when one 
or both of the following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where this species is 
located and data that would be needed to perform other required 
analyses. A careful assessment of the economic impacts that may occur 
due to a critical habitat designation is not yet complete, and we are 
in the process of working with the States and other partners in 
acquiring the complex information needed to perform that assessment. 
Because the information sufficient to perform a required analysis of 
the impacts of the designation is lacking, we conclude that the 
designation of critical habitat for both the Sierra Nevada DPS and the 
Coastal-Southern California DPS of the California spotted owl is not 
determinable at this time. The Act allows the Service an additional 
year to publish a critical habitat designation that is not determinable 
at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

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), E.O. 13175 (Consultation and Coordination 
with Indian Tribal Governments), and the Department of the Interior's 
manual at 512 DM 2, we readily acknowledge our responsibility to 
communicate meaningfully with federally recognized Federal Tribes on a 
government-to-

[[Page 11638]]

government basis. In accordance with Secretarial Order 3206 of June 5, 
1997 (American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We sent letters to all affected Tribes when we began 
developing our 12-month finding for the California spotted owl. We will 
continue to work with Tribal entities during the development of a final 
determination on this proposal to list the Sierra Nevada DPS and the 
Coastal-Southern California DPS of the California spotted owl, as well 
as the proposed 4(d) rule for the Sierra Nevada DPS.

References Cited

    A complete list of references cited in this proposed rule is 
available on the internet at https://www.regulations.gov and upon 
request from the Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the 
Sacramento Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. In Sec.  17.11, amend paragraph (h) by adding entries for ``Owl, 
California spotted [Coastal-Southern California DPS]'' and ``Owl, 
California spotted [Sierra Nevada DPS]'' to the List of Endangered and 
Threatened Wildlife in alphabetical order under BIRDS to read as 
follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                               Listing citations
          Common name              Scientific name         Where listed            Status        and applicable
                                                                                                     rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                                      Birds
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Owl, California spotted          Strix occidentalis  California (All                       E   [Federal Register
 [Coastal-Southern California     occidentalis.       California spotted                        citation when
 DPS].                                                owls in the vicinity                      published as a
                                                      of the Coast,                             final rule].
                                                      Transverse, and
                                                      Peninsular mountain
                                                      ranges from Monterey
                                                      County in the north to
                                                      San Diego County in
                                                      the south, and south
                                                      of the Tehachapi Pass
                                                      within Kern County).
Owl, California spotted [Sierra  Strix occidentalis  California and Nevada                 T   [Federal Register
 Nevada DPS].                     occidentalis.       (All California                           citation when
                                                      spotted owls in the                       published as a
                                                      vicinity of the Sierra                    final rule]; 50
                                                      Nevada mountain range                     CFR
                                                      and the Sierra Nevada                     17.41(n).\4d\
                                                      foothills from Shasta
                                                      and Lassen Counties in
                                                      the north, but north
                                                      of the Tehachapi Pass,
                                                      Kern County to the
                                                      south, and east to
                                                      Carson City, Douglas,
                                                      and Washoe Counties in
                                                      Nevada).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.41 by adding a paragraph (n) to read as follows:


Sec.  17.41  Special rules--birds.

* * * * *
    (n) California spotted owl (Strix occidentalis occidentalis), 
Sierra Nevada DPS.
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to the Sierra Nevada distinct population 
segment (DPS) of the California spotted owl. Except as provided under 
paragraph (n)(2) of this section and Sec. Sec.  17.4, 17.5, and 17.7, 
it is unlawful for any person subject to the jurisdiction of the United 
States to commit, to attempt to commit, to solicit another to commit, 
or cause to be committed, any of the following acts in regard to this 
DPS:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of a commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this DPS, you may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife, and (c)(6) and (7) for endangered migratory birds.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, in accordance with the provisions set forth at Sec.  
17.21(d)(2) for Federal and state law enforcement officers regarding 
endangered wildlife, and in (d)(3) and (4) for certain persons as 
described therein with respect to sick, injured and/or orphaned 
endangered migratory birds.
    (v) Take incidental to an otherwise lawful activity caused by:
    (A) Forest or fuels management to reduce the risk or severity of 
wildfire

[[Page 11639]]

(such as prescribed fire) where fuels management activities are 
essential to reduce the risk of catastrophic wildfire, and when such 
activities will be carried out in accordance with an established and 
recognized fuels or forest management plan that includes measures to 
minimize impacts to the California spotted owl and its habitat and 
results in conservation benefits to California spotted owls.
    (B) Habitat management and restoration efforts that are 
specifically designed to provide for the conservation of the California 
spotted owl's habitat needs and include measures that minimize impacts 
to the California spotted owl and its habitat. These activities must be 
carried out in accordance with finalized State or Federal agency 
conservation plans or strategies for the California spotted owl.
    (C) Management or cleanup activities that remove toxicants and 
other chemicals from trespass cannabis cultivation sites in California 
spotted owl habitat. Cleanup of these sites may involve activities that 
may cause localized, short-term disturbance to California spotted owls, 
as well as require limited removal of some habitat structures valuable 
to California spotted owls (e.g., hazard trees that may be a suitable 
nest site).

Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-03526 Filed 2-22-23; 8:45 am]
BILLING CODE 4333-15-P