9484 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD20

Endangered and Threatened Wildlife

and Plants; Proposed Special Rule for

the Conservation of the Northern

Spotted Owl on Non-Federal Lands

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed Special Rule.

SUMMARY: The implementing regulations

for threatened wildlife generally

incorporate the prohibitions of Section

9 of the Endangered Species Act (Act)

of 1973, as amended, for endangered

wildlife, except when a ‘‘special rule’’

promulgated pursuant to Section 4(d) of

the Act has been issued with respect to

a particular threatened species. At the

time the northern spotted owl, Strix

occidentalis caurina, (spotted owl) was

listed as a threatened species in 1990,

the Fish and Wildlife Service (Service)

did not promulgate a special section

4(d) rule and, therefore, all of the

section 9 prohibitions, including the

‘‘take’’ prohibitions, became applicable

to the species. Subsequent to the listing

of the spotted owl, a Federal LateSuccessional and Old-growth (LSOG)

forest management strategy (Plan) was

developed and then formally adopted

on April 13, 1994, in a Record of

Decision (ROD) that amended land

management plans for Federal forests in

northern California, Oregon, and

Washington. Although this proposed

rule refers to the Federal LSOG forest

strategy as the ‘‘Forest Plan’’, it is noted

that the strategy is not a stand-alone

management Plan but rather effected a

series of amendments to Forest Service

and the Bureau of Land Management

planning documents. In recognition of

the significant contribution the Plan

does make toward spotted owl

conservation and management, the

Service now proposes a special rule,

pursuant to section 4(d) of the Act, to

replace the blanket prohibition against

incidental take of spotted owls with a

narrower, more tailor-made set of

standards that reduce prohibitions

applicable to timber harvest and related

activities on specified non-Federal

forest lands in Washington and

California.

DATES: Comments from all interested

parties must be received by May 18,

1995.

The Service seeks comments from the

interested public, agencies, and interest

groups on this proposed special rule

and the potential environmental effects

of its implementation. A Draft

Environmental Impact Statement (DEIS)

is being developed to accompany this

proposed rule and will be published

soon after the proposed rule. The end of

the comment period on this proposed

rule will be extended to coincide with

the end of the public comment period

on the DEIS.

ADDRESSES: Comments and materials

concerning this proposed rule should be

sent to Mr. Michael J. Spear, Regional

Director, Region 1, U.S. Fish and

Wildlife Service, 911 N.E. 11th Avenue,

Portland, Oregon 97232–4181. The

complete file for this proposed rule will

be available for public inspection, by

appointment during normal business

hours, at the above address.

FOR FURTHER INFORMATION CONTACT: Mr.

Curt Smitch, Assistant Regional

Director, North Pacific Coast Ecosystem,

3704 Griffin Lane SE, Suite 102,

Olympia, Washington 98501 (206/534–

9330); or Mr. Gerry Jackson, Deputy

Assistant Regional Director, North

Pacific Coast Ecosystem, 911 N.E. 11th

Avenue, Portland Oregon 97232–4181,

(503/231–6159).

SUPPLEMENTARY INFORMATION:

Abstract

The implementing regulations for

threatened wildlife generally

incorporate the prohibitions of section 9

of the Endangered Species Act (Act) of

1973, as amended, for endangered

wildlife, except when a ‘‘special rule’’

promulgated pursuant to Section 4(d) of

the Act has been issued with respect to

a particular threatened species. When

the northern spotted owl, Strix

occidentalis caurina, (spotted owl) was

listed as a threatened species in 1990,

the Fish and Wildlife Service (Service)

did not promulgate a special 4(d) rule.

Therefore, all of the Section 9

prohibitions for endangered species

were made applicable to the spotted owl

throughout its range, including the

prohibitions against ‘‘take’’ that apply to

endangered species under the Act.

Subsequent to the listing of the

spotted owl, a new Federal forest

management strategy was developed

and proposed by the Forest Ecosystem

Management Assessment Team

(FEMAT), which was established by

President Clinton following the April 2,

1993, Forest Conference in Portland,

Oregon. FEMAT was established to

develop options for the management of

Federal LSOG-forest ecosystems in

northern California, Oregon, and

Washington within the range of the

spotted owl. FEMAT outlined those

options in the report, Forest Ecosystem

Management: An Ecological, Economic,

and Social Assessment, which drew

heavily upon previous scientific studies

conducted on the northern spotted owl.

On July 1, 1993, the President identified

‘‘Option 9’’ in the FEMAT Report as the

preferred alternative for managing

Federal LSOG-forests in northern

California, Oregon, and Washington.

The proposed management scenario

under Option 9 of FEMAT established a

system of late-successional forest and

riparian reserves that would, in

conjunction with Administratively

withdrawn and Congressionally

reserved areas, provide the foundation

of protected ‘‘old growth’’ habitat that

would benefit spotted owls, marbled

murrelets, salmon and many other old

growth associated species; adaptive

management areas (AMAs) and

surrounding ‘‘matrix’’ lands would

constitute the remaining forest

management designations on Federal

lands in the planning area. Future

timber harvesting activities on Federal

lands within the range of the northern

spotted owl were expected to occur

primarily in AMAs and Federal lands

determined to constitute the ‘‘matrix.’’

A draft Supplemental Environmental

Impact Statement was issued in July

1993 to assess the environmental

impacts of the alternatives which were

set forth in the FEMAT Report. A final

SEIS was completed in February 1994,

and a Record of Decision was signed on

April 13, 1994. This process culminated

in the formal administrative adoption of

Alternative 9 (a revised version of

Option 9 as it had been presented in the

FEMAT Report), which has now become

known, simply, as the Forest Plan or

Plan. This Plan provides a firm

foundation for the conservation needs of

the spotted owl, especially in light of

the net addition of approximately

600,000 acres of Federal forest lands to

protected reserve status between its

original formulation in the FEMAT

Report and the Record of Decision. On

December 21, 1994, Federal District

Court Judge William L. Dwyer, issued

his order upholding the adequacy of the

Plan. Judge Dwyer said ‘‘The order now

entered,* * *, will mark the first time

in several years that the owl-habitat

forests will be managed by the

responsible agencies under a plan found

lawful by the courts. It will also mark

the first time that the Forest Service and

BLM have worked together to preserve

ecosystems common to their

jurisdictions.’’

Despite enhanced owl protection

under the final Forest Plan, however,

the Service believes that some

supplemental support from non-Federal

forest lands remains necessary and
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9485

advisable for owl conservation in

certain parts of the range of the owl.

Based upon the possibility that the

preferred alternative of FEMAT (Option

9) would eventually be adopted, the

Service published a Notice of Intent

(NOI) in the Federal Register (58 FR

69132) on December 29, 1993, and sent

out a mailer advising the public of its

intention to prepare an Environmental

Impact Statement (EIS) for a proposed

special rule that would ease restrictions

for the spotted owl on certain nonFederal forest lands. In response, the

Service received and evaluated more

than 8,500 public comments. Taking

these comments into consideration, and

based upon additional analyses, the

Service now proposes a special rule that

would reduce the prohibition against

incidental take of spotted owls in the

course of timber harvest and related

activities on specified non-Federal

forest lands in Washington and

California.

For reasons discussed in more detail

later, the Service is not including

Oregon, at this time, within the

geographic scope of this proposed

special rule. The Service is aware of

ongoing efforts within Oregon between

the Governor’s office and large and

small landowners to fashion an ‘‘Oregon

Alternative’’ to the Service’s proposed

action for the State, as set out in the

December 29, 1993, NOI. The Service is

supportive of this effort and will

maintain the regulatory status quo for

spotted owls in Oregon in anticipation

that an ‘‘Oregon Alternative’’ approach

to owl conservation will be developed.

Thus, by excluding Oregon altogether

from this proposed special rule, the

Service retains for Oregon the original

level of protection against take for the

owl established when the species was

listed on June 26, 1990.

In assessing the conservation needs of

the northern spotted owl on non-Federal

lands, the Service was particularly

mindful of—(1) The level of protection

to be provided the owl under the

Federal reserve and riparian buffer

systems established under the Forest

Plan, as well as the matrix and adaptive

management area prescriptions under

the Plan; (2) the range, location, and

number of spotted owls on non-Federal

and Federal lands; (3) recently

developed State programs to regulate

forest practices to benefit the spotted

owl; and (4) emerging non-Federal

landowner habitat management and owl

conservation strategies such as Habitat

Conservation Plans and agreements to

avoid the incidental take of owls.

This special rule proposes to replace

the currently applicable blanket

prohibition against incidental take on

non-Federal lands throughout the owls’

range with a more particularized set of

prohibitions for Washington and

California. For the State of Washington,

incidental take restrictions would be

relaxed for approximately 5.24 million

acres of non-Federal land in conifer

forests. While only a considerably

smaller acreage figure of non-Federal

forest land is presently affected by

incidental take prohibitions for the

spotted owl, the fear of future owl

restrictions is a significant concern of

forest landowners throughout the range

of the spotted owl. This proposed rule

would ease incidental take restrictions

on designated non-Federal lands by

limiting the incidental take prohibition

for timber harvest activities to actions

that fail to maintain the 70 acres of

suitable owl habitat closest to a site

center for a spotted owl. By proposing

this action, the Service is not implying

that incidental take cannot occur until

harvest activities approach and actually

invade an owl’s activity center. Rather,

the Service is proposing that, in certain

portions of the owl’s range, the

incidental take of an owl will no longer

be a prohibited activity unless it

involves harvest activities within an

activity center.

Current incidental take restrictions

would be retained for those spotted

owls whose site centers are located

within six designated zones or ‘‘Special

Emphasis Areas’’ (SEAs) in the State of

Washington. The six SEAs include the

western portion of the Olympic

Peninsula, the Finney Block area, the I–

90 Corridor, the Mineral Block area, the

Siouxon Creek area and the Columbia

Gorge/White Salmon areas. These areas

were generally chosen to fill in gaps in

protection under the Forest Plan where

the Federal land base alone appears

currently to be inadequate to provide for

the conservation of the owl.

In addition, the Service proposes to

implement a ‘‘Local Option

Conservation Planning’’ program in

Washington to provide an opportunity

for additional relief from incidental take

prohibitions for non-Federal

landowners who own between 80 and

5,000 acres of forest lands within an

SEA. The Local Option process is

envisioned to be the equivalent of a

‘‘short form’’ Habitat Conservation Plan.

The local option conservation planning

process would not apply to those areas

where the Service determines that

suitable owl habitat (nesting, roosting or

foraging habitat) on non-Federal lands

within SEAs can reasonably be expected

to provide important demographic

support for Federal owl reserves. These

‘‘Local Option’’ conservation plans

would provide non-Federal landowners

with the flexibility to develop

alternative prescriptions or restrictions

for their lands which could achieve a

level of protection comparable to the

conservation objectives set forth for the

owl in this rule.

For the State of California, this

proposed rule would recognize the

significant conservation benefits

accorded the northern spotted owl

under California law by easing the

Federal prohibition against incidental

take from timber harvest activities in

most of the Klamath province of that

State. The zone in which this would

occur would be called the Klamath

Province Relief Area. The incidental

take prohibition for timber harvests in

this Relief Area would be limited to

actions which fail to maintain the 70

acres of suitable owl habitat closest to

a site center for a spotted owl.

Additional relief could be provided to

non-Federal landowners in four

potential ‘‘California Conservation

Planning Areas’’ (CCPAs) referred to as

the California Coastal Area, Hardwood

Region, Wells Mountain-Bully Choop

area, and the California Cascades

pursuant to the planning process under

the California Natural Communities

Conservation Planning (NCCP) Act or

through completion of a Habitat

Conservation Plan (HCP) under Section

10(a)(1)(B) of the Act (Figure 1 to

§ 17.41(c)).

Except for acreage actually located

within owl activity centers, the Service

also proposes that small landowners

who own no more than 80 acres of forest

lands within a given SEA in Washington

or one of the four potential CCPAs in

California, as of the publication date of

this proposed rule in the Federal

Register, would be relieved of the

general prohibition against incidental

take. The only exception to this

proposal would be for any small

landowner who owns any or all of the

70 acres of forested lands closest to an

owl site center. The incidental take

restriction would continue to apply

within such 70 acres.

The Service also proposes to provide

landowners within SEAs in Washington

or potential CCPAs in California

additional flexibility for avoiding

incidental take liability if their lands are

intermingled with Federal matrix or

Adaptive Management Area (AMA)

lands. In such situations, non-Federal

landowners would be provided the

alternative option at their choosing of

adopting the final harvest prescriptions

delineated for the surrounding Federal

matrix or AMA lands, in lieu of

management practices which comply

with current incidental take restrictions.

The one exception to this policy would
9486 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

be where the adoption of final matrix or

AMA harvest prescriptions could result

in the incidental take of an owl whose

site center is located within a Forest

Plan reserve or Congressionally reserved

or Administratively withdrawn areas. In

such a case, the incidental take

restrictions would continue to apply for

at least two more years, pending review

of the status of owls in affected reserve

or withdrawn areas.

For Tribal forest lands in Washington

and California, the Service proposes to

lift the Federal prohibition against the

incidental take of the spotted owl except

for harvest activities within the

immediate 70 acres around a site center.

Timber harvests conducted in

accordance with Tribal resource

regulations would not be subjected to

any additional Federal prohibitions

against incidental take of the owl.

Additionally, the Service proposes to

include a ‘‘sunset’’ provision that would

lift the incidental take restrictions

within an SEA or CCPA once the owl

conservation goals for that area are

achieved. The Service also proposes to

provide a ‘‘safe harbor’’ of certainty for

harvest activities within SEAs or CCPAs

where more than 40 percent suitable

owl habitat would be retained after

harvest within an owl’s median annual

home range. In those instances where

the ‘‘safe harbor’’ provision would

apply, landowners would not be subject

to a take prohibition violation under any

circumstances should an incidental take

of an owl nevertheless occur despite the

landowner’s efforts to avoid take. The

‘‘safe harbor’’ provision would not

apply, however, to any timber harvest

activities within the closest 70 acres of

suitable owl habitat surrounding an owl

site center regardless of the percentage

of suitable owl habitat left within an

owl’s median annual home range.

In addition, the proposal sets out a

new approach to provide incentives to

non-Federal landowners to restore or

enhance degraded spotted owl habitat,

or to maintain existing suitable owl

habitat, without being penalized if their

conservation efforts subsequently attract

spotted owls.

Definitions

As used in this proposed rule:

‘‘Activity center’’ means the closest 70

acres of suitable habitat around the nest

tree of a pair of owls or around the

primary roost of a non-nesting pair or

territorial single owl (see ‘‘site center’’).

‘‘Adaptive management area’’ means

the ten landscape units that were

adopted in the April 13, 1994, Record of

Decision for development and testing of

technical and social approaches to

achieving specific ecological, economic,

and other social objectives.

‘‘Administratively withdrawn area’’

means lands that are excluded from

planned or programmed timber harvest

under current agency planning

documents or the preferred alternative

for draft agency planning documents.

‘‘California Conservation Planning

Area (CCPA)’’ means areas in which the

State of California Resources Agency

could conduct planning for spotted owls

under the auspices of the California

Natural Communities Conservation

Planning Act (CNCCPA) of 1991.

‘‘Congressionally reserved area’’

means those lands with Congressional

designations that preclude timber

harvest, as well as other Federal lands

not administered by the Forest Service

or Bureau of Land Management,

including National Parks and

Monuments, Wild and Scenic Rivers,

National Wildlife Refuges, and military

reservations.

‘‘Conservation’’ as defined in the

Endangered Species Act generally

means the use of all methods and

procedures that are necessary to bring

any endangered or threatened species to

the point at which the measures

provided pursuant to the Act are no

longer necessary.

‘‘Demographic support’’ refers to the

effects on a population from a

combination of births and deaths such

that the net result is a stable or

increasing population. For the spotted

owl this would occur through provision

and maintenance of: (1) Both suitable

and dispersal habitat to support

individual owls; (2) small clusters or

larger groups of successfully breeding

owls; and (3) the successful interaction

and movement between individuals and

pairs.

‘‘Dispersal’’ refers to movements

through all habitat types by: (1) juvenile

spotted owls from the time they leave

their natal area until they establish their

own territory; (2) non-territorial single

spotted owls; or (3) displaced adults

searching for new territories.

‘‘Dispersal habitat’’ means forest

stands with adequate tree size,

structure, and canopy closure to

provide—(1) cover for dispersing owls

from avian predators; and (2) foraging

opportunities during dispersal events.

‘‘Federal reserve’’ or ‘‘Forest Plan

reserve’’ means those Federal lands

delineated in the April 13, 1994, Record

of Decision in which programmed

timber harvest is not allowed and is

otherwise severely limited. There are

two types of reserves—late-successional

reserves, which are designed to produce

contiguous blocks of older forest stands,

and riparian reserves, which consist of

protected strips along the banks of

rivers, streams, lakes, and wetlands

which act as a buffer between these

water bodies and areas where timber

harvesting is allowed.

‘‘Habitat Conservation Plan’’ (HCP)

means an agreement between the U.S.

Fish and Wildlife Service and either a

private entity, local or county

government or State under section

10(a)(1)(B) of the Act that specifies

conservation measures that would be

implemented in exchange for a permit

that would allow the incidental take of

a listed species.

‘‘Home range’’ means the area a

spotted owl uses and traverses in the

course of normal activities in fulfilling

its biological needs during the course of

its life span.

‘‘Incidental Take’’ means any taking

otherwise prohibited, if such taking is

incidental to, and not the purpose of,

the carrying out of an otherwise lawful

activity.

‘‘Matrix’’ means those Federal lands

generally available for programmed

timber harvest which are outside of the

Congressionally reserved and

Administratively withdrawn areas,

Federal reserves and adaptive

management areas as delineated in the

Standards and Guidelines adopted in

the April 13, 1994, Record of Decision.

‘‘Province’’ or ‘‘Physiographic

Province’’ means one of twelve

geographic areas throughout the range of

the northern spotted owl which have

similar sets of biological and physical

characteristics and processes due to

effects of climate and geology which

result in common patterns of soils and

broad-scale vegetative communities.

‘‘Record of Decision’’ means the April

13, 1994, Record of Decision for

Amendments to Forest Service and

Bureau of Land Management Planning

Documents Within the Range of the

Northern Spotted Owl (USDA/USDI

1994).

‘‘Site Center’’ means the actual nest

tree of a pair of spotted owls or the

primary roost of a non-nesting pair or

territorial single owl.

‘‘Special Emphasis Area (SEA)’’

means one of six specific areas in the

State of Washington where the Service

has determined that it would be

necessary and advisable to continue to

apply broad protection from incidental

take to support conservation efforts for

the spotted owl.

‘‘Suitable Habitat’’ means those areas

with the vegetative structure and

composition that generally have been

found to support successful nesting,

roosting, and foraging activities of a

territorial single or breeding pair of

spotted owls. Suitable habitat is
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9487

sometimes referred to as nesting,

roosting, and foraging (NRF) habitat.

‘‘Take’’ means to harass, harm,

pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to

engage in any such conduct with respect

to a spotted owl.

‘‘Threatened Species’’ means a plant

or wildlife species defined through the

Endangered Species Act that is likely to

become within the foreseeable future an

endangered species throughout all or a

significant portion of its range.

‘‘Timber harvest and related activity’’

means any activity that would result in

the removal or degradation of suitable

habitat.

Background

Regulatory History of the Northern

Spotted Owl

The Service listed the northern

spotted owl as a threatened species on

June 26, 1990, because of the past and

continued projected loss of suitable

habitat throughout its range (55 FR

26114). This habitat loss has been

caused primarily by timber harvesting,

but has been exacerbated by the effects

of catastrophic events such as fire,

volcanic eruption, and wind storms.

The inadequacy of regulatory

mechanisms existing in 1990 under

State and Federal law also contributed

to the decision to list the northern

spotted owl as a threatened species.

During the period immediately prior to

listing, when the status of the owl was

under review, the annual Federal timber

harvest in Oregon and Washington

averaged approximately 5 billion board

feet per year. Much of that harvest

comprised suitable spotted owl habitat.

Thus, Federal timber harvest policies at

that time contributed significantly to the

decline of the owl.

State protection for the owl in 1990

was also inadequate. Since that time,

California, Oregon and Washington have

all recognized the plight of the owl and

have adopted forest management rules

designed to protect this threatened

species. The degree of protection

accorded the northern spotted owl

currently varies under State law. The

northern spotted owl is listed under

Washington law as an endangered

species, under Oregon law as

threatened, and under California law as

a sensitive species.

On January 15, 1992, the Service

designated critical habitat for the

northern spotted owl (57 FR 1796). The

critical habitat designation

encompassed 6.9 million acres of

Federal land in 190 critical habitat units

in the States of California, Oregon, and

Washington; non-Federal lands were not

included in the critical habitat

designation. Of the total acreage that

was designated, 20 percent is in

California, 47 percent is in Oregon, and

32 percent is in Washington.

Following the April 2, 1993, Forest

Conference in Portland, Oregon,

President Clinton established a Forest

Ecosystem Management Assessment

Team (FEMAT) to develop options for

the management of Federal LSOG-forest

ecosystems to provide habitat that

would support stable populations of

species associated with latesuccessional forests, including the

northern spotted owl. FEMAT

developed ten options for the

management of LSOG-forest ecosystems

on Federal lands in California, Oregon,

and Washington, which are outlined in

the Team’s report, ‘‘Forest Ecosystem

Management: An Ecological, Economic,

and Social Assessment’’ (USDA et al.

1993). On July 1, 1993, the President

identified Option 9 as the preferred

alternative for amending the Federal

agencies’ land management plans with

respect to LSOG forest habitat. A

modified version of Option 9 was

adopted in the April 13, 1994, Record of

Decision for Amendments to Forest

Service and Bureau of Land

Management Planning Documents

Within the Range of the Northern

Spotted Owl (ROD). It is based on a

system of late-successional reserves,

riparian reserves, adaptive management

areas, and a matrix of Federal lands

interspersed with non-Federal lands.

These designations complemented

existing Administratively withdrawn

and Congressionally reserved lands.

The adoption of the Forest Plan was

subsequently upheld in Federal court.

On December 21, 1994, Federal District

Court Judge William L. Dwyer rejected

plaintiffs’ challenges and issued an

order upholding the President’s Forest

Plan.

An underlying premise for the

President’s selection of the Forest Plan

was that Federal lands should carry a

disproportionately heavier burden for

providing for the conservation of the

northern spotted owl, enabling an

easing of restrictions on incidental take

for the owl on large areas of non-Federal

lands. President Clinton thus directed

the U.S. Fish and Wildlife Service to

issue regulations pursuant to section

4(d) of the Act looking to ease, where

appropriate, restrictions on the

incidental take of spotted owls on nonFederal lands.

On December 29, 1993, the Service

published in the Federal Register a

Notice of Intent (NOI) to prepare an

Environmental Impact Statement in

support of a 4(d) rule for the spotted owl

(58 FR 69132). The NOI spelled out

various alternative approaches for a 4(d)

rule, including a preferred approach or

proposed action. This provided a

preliminary opportunity for public

input prior to the actual publication of

this proposed rule.

Summary of Public Comments on

Scoping Notice on 4(d) Rule

The Service received more than 8,500

comments from the public on its

scoping notice for a section 4(d) rule EIS

for the spotted owl. Most comments

received were in response to a January

3, 1994, special mailer sent by the

Service to approximately 80,000

recipients. The Service specifically

asked for suggestions on issues to be

addressed in the 4(d) rule. In general,

the comments reinforced issues and

concerns identified in previous

planning efforts for the spotted owl.

In the scoping notice, the Service

sought comments on ten specific issues.

The comments received are summarized

below, by issue:

(1) Biological, commercial, trade, or

other relevant data on the distribution

and abundance of the northern spotted

owl on non-Federal lands in California,

Washington and Oregon.

No new data or information was

provided to the Service relative to this

issue.

(2) Biological, commercial, trade or

other relevant data on the distribution

and abundance of the northern spotted

owl that identifies the effects of the

alternatives for a section 4(d) rule on the

northern spotted owl.

No new data or information was

provided to the Service relative to this

issue.

(3) The scope of the issues that have

been identified for the environmental

impact statement on a proposed special

rule.

In addition to the issues identified in

the scoping notice, commenters

identified several additional issues for

the Service to consider. Several

commenters objected to any provision

requiring that 40 percent of suitable

habitat be retained within the median

annual home range circle of an owl

located within SEAs, and, because it

means that 60 percent of suitable habitat

within a home range may be lost,

requested an explanation of the

biological basis for such a provision.

They also requested that the Service

consider how habitat modification on

non-Federal land will affect owls on

adjacent Federal lands.

Comments from non-Federal

landowners requested that the Service

consider the possible economic benefits

of a variety of silvicultural regulations
9488 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

to protect owl habitat. They also asked

that the Service evaluate whether the

SEA concept fully takes into account the

contributions already provided by State

agencies and those already in place on

Federal lands, and whether the

regulatory burden of the SEAs is

disproportionate to the benefits.

(4) The range of alternatives that have

been identified for the environmental

impact statement on a proposed special

rule.

A number of commenters provided

suggestions for additional alternatives

for Service consideration. These

included requests to increase or relieve

the prohibitions against incidental take,

to consider the development of a

program based entirely on voluntary

participation by forest land managers, to

not use SEAs and use only 70 acre owl

circles rangewide, and to provide

incidental take protection only to

landowners who sell to domestic

markets. Some commenters requested

that the Service provide an alternative

with incentives for growing habitat, or

to buy or exchange land instead of

promulgating a section 4(d) rule.

Another suggestion was to transplant

spotted owls rather than use a special

rule to provide for connectivity, and

depend on Federal lands to provide the

land base for connectivity.

Other suggested alternatives included

using existing exceptions to

prohibitions, such as the HCP process,

in combination with a final recovery

plan for the owl; protecting previously

proposed critical habitat on private

lands in addition to, or instead of, the

SEAs; and applying the 50–11–40 rule

to SEAs in addition to, or instead of,

retaining 40 percent of suitable habitat

within a home range.

Modifications of the alternatives were

also suggested. Some examples include

replacing the SEAs in Washington with

the areas proposed to the Washington

Forest Practices Board in a report by the

Spotted Owl Scientific Advisory Group

(SAG report), to add an SEA for

southwestern Washington, and to

reduce or exclude the Olympic

Peninsula SEA.

Comments specific to California

alternatives included requests to

provide a separate 4(d) rule for

California; to apply the Washington/

Oregon approach with SEAs to

California; to repeal existing owl rules

and designate specific ‘‘no take’’ areas;

and to maintain existing prohibitions of

take and adopt the California Board of

Forestry’s new late-successional forest

rules.

(5) Input on how suitable habitat for

the marbled murrelet should be

identified and how it should be

protected, and data on marbled murrelet

distribution and abundance on nonFederal lands.

Numerous comments were received

on the marbled murrelet, with most

stating that it is inappropriate to include

the murrelet in the regulatory process

for the spotted owl because not enough

information about murrelets is available

at this time to attempt a regulatory

definition of incidental take, and that

any rule for the murrelet should be done

separately. One commenter stated that

the Service should consider adopting an

interim 4(d) rule for marbled murrelets

that can be refined at a later date

because they are associated with the

same forest ecosystem as the spotted

owl, and that all suitable murrelet

habitat should be addressed including

marine habitat. Another suggested that,

in identifying marbled murrelet habitat,

the emphasis should be on a definition

that recognizes large contiguous areas of

habitat capable of supporting large

numbers of birds, and not on defining

the lowest possible quantity and stand

size used.

(6) Input on the use of ‘‘local options’’

to allow individuals to propose

adjustment to prohibitions against take

of northern spotted owls without going

through the normal habitat conservation

planning process.

The potential use of the local option

plan was responded to favorably by

many commenters. Most said that a

‘‘local option’’ plan should be included

as an additional tool to protect owls and

to provide landowner flexibility, and

that these should provide the same legal

protection as HCPs. Others stated that

the rule should provide flexibility for

applying local options based on the

expertise and knowledge of State

forestry associations, State governments,

and forest landowners.

(7) Consideration of a small

landowner exemption for noncommercial forest land of ten acres or

less.

Many commenters addressed this

issue with the majority recommending

that the Service carefully examine and

explain the rationale and biological

basis for such an exemption, and

suggesting that any provision to have

less restrictive measures for small

landowners would unfairly shift the

burden of responsibility to the larger

landowners. Others suggested that such

an exemption may tend to break large

ownerships into smaller ownerships.

Some expressed the view that while

appealing, it may set up an arbitrary

distinction between landowners based

on size, and that the 10 acre size

specified in the scoping notice was too

small to be meaningful.

(8) Boundaries of the SEAs in the

proposed action, including the impacts

and effects of alternative boundaries.

Few suggestions were received

relative to specific boundary changes.

Many comments were received

regarding the number of SEAs, the

designation or lack of designation of

specific SEAs, and the general use of the

SEA concept. Among the comments

specific to the boundaries was the

suggestion that the Mineral Block and I–

90 Corridor SEAs should extend no

farther west than necessary to provide

reasonable connectivity between the

Federal conservation areas to the north

and south.

Regarding the Olympic Peninsula

SEA, comments included the assertion

that there should be no SEA on the

Olympic Peninsula because Federal

lands should be relied on for owl

conservation in this area. Another

suggestion was that the Service move

the southern boundary of the proposed

Olympic Peninsula SEA northward to

run east and west from the southern

boundary of the Olympia National

Forest. It was further suggested that only

the State of Washington’s Olympic

Experimental Forest be included in the

SEA for the Olympic Peninsula, and

that this SEA be rescinded following the

approval of an HCP for the State Forest.

Many commenters were specifically

concerned about the failure to designate

the White Salmon landscape as an SEA

to provide demographic interchange

between owls on the Yakima Indian

Reservation and Federal lands in the

eastern Washington Cascades. Other

commenters noted that there is no

demonstrated need for an SEA in the

White Salmon or Hood River areas.

Many commenters asked that the

Service provide the scientific basis for

determining the configurations and

boundaries of the SEAs. There were

further suggestions that for SEA

boundaries, the rule must specify the

requirements of ‘‘owl shadows’’

(restrictions on adjacent lands near an

owl site center) both within and outside

of SEA’s. Some commenters stated that

the Service should eliminate all SEAs as

they would provide further harvest

restrictions which would be unduly

burdensome, and that they go beyond

the Act by mandating conservation

measures on privately owned land.

(9) Possible mitigation measures, such

as multi-species Habitat Conservation

Plans or conservation agreements that

provide long-term enforceable and

protective land management

prescriptions for non-Federal lands.

Several commenters referenced the

use of the HCP process, requesting that

the Service clarify the relationship
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9489

between HCPs and the 4(d) rule.

Specifically, they asked, in the absence

of an SEA designation, what guarantees

would there be that habitat will be

protected between the time the 4(d) rule

goes into effect (and relief is granted)

and the time HCPs are completed. There

was also concern expressed that there

may be a lack of incentives for other

landowners to develop HCPs if there is

no SEA designated. Others suggested

the 4(d) rule state that it will not apply

to lands covered by an approved HCP.

Specific to California were

recommendations that the Service

encourage the State to continue to

recognize Federally approved HCPs as a

valid means of complying with

regulations the State adopts as a result

of the 4(d) process.

(10) Retention of Federal incidental

take restrictions for Indian forest lands

included within the boundary of an

SEA.

Many comments were received

regarding this issue, and most suggested

that it may be inappropriate to impose

Federal take prohibitions on tribal

lands. One commenter stated that in

promulgating the special rule, the

Service should direct attention to the

special status of Indian tribal lands as

distinct and separate in treatment from

other non-Federal State and private

lands; the Service should adopt a

special rule that exempts Indian forest

lands from the prohibitions against

incidental take, including any that may

be in SEAs.

Some proponents of owl protection

stated that the Service should not lift

take prohibitions on tribal lands in the

absence of criteria to ensure that the owl

is adequately protected by tribal

management practices. They noted that

progress on the part of the tribes is

variable, and this should be evaluated

before lifting restrictions within SEAs.

Others commented that the special rule

should ensure that measures governing

incidental take of the owl on Indian

forest lands contribute to the

conservation of the species.

In addition to the ten issues for which

the Service requested input, comments

were received on numerous other issues

relative to the proposed action. Three

general areas of interest were common

in the comments from non-industrial

landowners—(1) the proposed section

4(d) rule was a disincentive to grow

habitat for spotted owls and to practice

good silviculture; (2) the proposed rule

represented an unconstitutional taking

of private property and that private

landowners should be compensated;

and (3) the proposed 4(d) rule places an

unfair burden on non-Federal lands and

actually provides little relief to private

lands.

Comments from industrial

landowners included a request for ‘‘safe

harbor’’ from prosecution if the

requirements of the 4(d) rule were met

and more that 40 percent suitable

habitat was left within an owl circle

after harvest; and the suggestion that the

4(d) rule assist in addressing the issue

of access across Federal lands to nonFederal lands. Concern also was

expressed about potential conflict with

anti-trust laws when implementing,

among several landowners, the

requirement that 40 percent suitable

habitat be left within a home range

circle, and some asked that an anti-trust

exemption be provided for multiple

landowners who have to deal with

landscape issues. One commenter also

asserted that the creation of SEAs is a

de facto designation of critical habitat

that must comply with the requirements

of § 4(B)(2). Several commenters stated

that there is no legal basis under the Act

for burdening private lands with

recovery of a threatened species, and

that the 4(d) rule was essentially a

recovery mechanism being forced on

private lands.

Proponents of spotted owl protection

alleged that the scientific basis for the

proposed action is unclear, and it is

particularly unclear in how it relates to

the recovery standards and objectives

for the owl. They suggested that any

special rule for the spotted owl must be

part of a coordinated recovery approach

among all Federal agencies with

responsibility for the owl. There were

numerous references to the SAG report,

and that the special rule should provide

the level of protection as proposed in

the SAG report.

Several commenters asked that the

rule provide clearer definitions for

‘‘take’’ and ‘‘suitable habitat.’’ There

were requests for information on the

land ownership within SEAs, the

number of owls present, and the

anticipated level of incidental take.

Others also requested information

regarding the specific acreage of State

and private lands off limits to harvest

under the proposed action. There also

were questions about how the rule

would describe and determine the 70

acres to be protected around active

spotted owl nests outside of SEAs.

After reviewing these public

comments, as well as other owl

management strategies and analyses, the

Service now proposes this special rule

in response to the President’s directive

to review the blanket set of incidental

take prohibitions for the northern

spotted owl that has been in effect since

the listing. In particular, this proposed

rule would relax incidental take

restrictions for the owl for timber

harvests for certain non-Federal lands in

Washington and northern California.

This proposed special rule excludes

Oregon, however, and does not propose

any changes in the regulatory

prohibitions to protect the owl which

are currently applicable within that

State. In March and December 1994, the

Service received letters from the Oregon

Congressional Delegation requesting

that further work on a 4(d) rule for

Oregon be suspended to provide an

opportunity for consensus to emerge

among State officials and private

landowners on a strategy for the

conservation of the spotted owl.

Recognizing the benefits that such a

consensus approach offers, the Service

agreed in May 1994, to suspend further

work on a federally developed 4(d)

special rule proposal for Oregon in

order to encourage the development of

a ‘‘stakeholder’’ based ‘‘Oregon

Alternative’’.

The Governor’s office in Oregon has

taken the lead in working cooperatively

with non-Federal landowners through

the Oregon Forest Industries Council,

Oregon Small Woodlands Association,

Northwest Forestry Association,

Douglas County, and others to develop

an alternative owl conservation strategy.

The Service is supportive of this

approach and is willing to review and

consider any State conservation

proposal which results from this

process.

Under the existing regulatory

structure implementing section 4(d) of

the Endangered Species Act, each

section 4(d) ‘‘special rule’’ for a

threatened species must contain all of

the applicable prohibitions and

exceptions for that species throughout

its range (50 CFR 17.31(c)). Thus, in the

past, Oregon would have been included

in this proposed 4(d) rule, even if only

to preserve the current regulatory status

quo protecting the spotted owl in

Oregon.

In reviewing the request for exclusion

from Oregon, the Service has assessed

whether it would be advantageous to

adopt a new approach for dealing with

special rule situations in the future by

authorizing the revision of a listing of a

threatened species through the

subsequent publication of a special rule

that covers only part of, but not all of,

the range of the species. Under this

approach, the general prohibitions and

exceptions applicable to threatened

species not covered by special rules

would continue to apply in that part of

the range of the species not included

under the provisions of a subsequent

special rule. After consideration of the
9490 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

relevant factors on this matter, the

Service has decided to adopt this new

approach for special rules and is

simultaneously proposing additional

technical amendments to 50 CFR 17.11

and 50 CFR 1731(c) to accomplish this

change.

In the specific case of the northern

spotted owl, the owl was originally

listed as threatened without a special

rule, and is subject to the same general

prohibitions and exceptions which are

applicable to endangered species

pursuant to the current provisions of 50

CFR 17.31(a). These general

prohibitions include a rangewide

prohibition against the incidental take

or harm of an owl. These prohibitions

apply throughout the owl’s range,

including the State of Oregon. The

Service now proposes a section 4(d)

special rule for the owl that applies only

to the States of Washington and

California. Because the proposal for a

special rule only encompasses

Washington and California, under its

current formulation owls in Oregon

would remain fully protected against

incidental take or harm under the

prohibitions established for the owl

when it was originally listed. As

previously noted, the Service is

presently proposing the requisite

technical changes to 50 CFR 17.11 and

50 CFR 17.31(c), as discussed above, to

allow for the issuance of a special rule

that applies to only part of the range of

a threatened species like the spotted

owl, while retaining the original

protective prohibitions for the

remainder of the species’ range in

Oregon.

If a new ‘‘Oregon Alternative’’

proposal for the owl is subsequently

developed which is found to be

consistent with the requirements of the

Act, the Service will initiate an analysis

of the new proposal under the National

Environmental Policy Act and initiate

appropriate regulatory proceedings at

that time.

Section 4(d) of the Endangered Species

Act

The scope and authority for this

proposed rule stems from section 4(d) of

the Act, which grants the Secretary of

the Interior broad administrative

discretion to promulgate regulations

that he deems to be necessary and

advisable to meet the conservation

objectives for a threatened species. The

section also confers authority to the

Secretary to apply to a threatened

species any or all of the prohibitions

against take that the Act makes

expressly applicable to endangered

species. The pertinent parts of section

4(d) provide:

* * *Whenever any species is listed

as a threatened species pursuant to

subsection (C) of this section, the

Secretary shall issue such regulations as

he deems necessary and advisable to

provide for the conservation of such

species. The Secretary may by

regulation prohibit with respect to any

threatened species any act prohibited

under section 9(a)(1) . . . with respect

to endangered species.* * *

As applied, this provision empowers

the Service to promulgate a special rule

which adopts species-specific protective

regulations upon listing a species as

threatened. Such a special rule may

include imposition of the section 9(a)

prohibition against ‘‘take,’’ in some or

all of its particular manifestations, and

in all or a portion of the species’ range,

as well as other protective measures.

While Congress expressly mandated

certain protections for endangered

species by statute (the section 9(a)(1)

prohibitions), it intended to provide the

Service with flexibility in determining

what protections are necessary and

advisable for threatened species. Section

4(d) is that grant of rulemaking

authority, and it provides the Secretary

with broad discretion to adopt

regulations for the conservation of

threatened species.

In many circumstances the Service

declines to issue a special rule for a

threatened species at the time it is

listed, often because the Service does

not have sufficiently specific knowledge

or the resources necessary to develop a

tailor-made rule. In this event, the

general threatened species regulations at

50 CFR 17.31 come into effect, which

provide for automatic application to

threatened species of the prohibitions

the Act itself makes applicable to

endangered species. These ‘‘blanket’’

prohibitions act as a ‘‘safety net’’ for

threatened species until such time as

the Service determines that it is

appropriate to issue a special rule for

the species.

This latter course has been followed

with respect to the northern spotted

owl. When the species was listed as

threatened in June of 1990, the Service

did not promulgate a species-specific

special take rule under Rule 4(d), and

thus the blanket prohibitions were

triggered into effect. The Service now

has determined that it is appropriate to

issue a special rule tailor-made for this

species, based on the Service’s more

particularized knowledge about the

respective conservation needs of the owl

across the various portions of its range,

and the change in LSOG-forest

management occasioned by adoption of

the Forest Plan. Because this proposed

rule does not involve regulated take,

e.g., authorization of private predator

control or sport seasons, the provisions

of section 3(3) regarding examination of

population pressures are not invoked.

The adoption of the Forest Plan—a

comprehensive, interagency strategy for

management of Federal-LSOG forests in

the owl’s range designating nearly 7.5

million acres as late-successional

reserves—is the major predicate for the

Service’s proposal of this special rule

for the owl. Upon issuing the Biological

Opinion on the Forest Plan, the Service

stated that the plan ‘‘will accomplish or

exceed the standards expected for the

Federal contribution to recovery of the

northern spotted owl and assurance of

adequate habitat for its reproduction

and dispersal.’’ Thus, the Forest Plan is

the primary foundation block for owl

recovery. This proposed rule would

complement the Forest Plan and

provide for the conservation of the owl

by retaining taking prohibitions on nonFederal lands in a manner designed to

build on the protections the Forest Plan

has provided. Further, the Service has

concluded that the owl take

prohibitions that would no longer apply

under this proposed rule are no longer

either necessary or advisable to provide

for the conservation of the owl,

especially in light of the Forest Plan’s

adoption.

In addition, as has been the case in

other section 4(d) regulations, the

proposed rule ultimately would

promote overall owl recovery efforts in

other ways. For example, with respect to

a 4(d) rule issued for the threatened

population of gray wolves (Canis lupus)

in Minnesota, the Service determined

that a government-implemented

depredation control program that

includes the possibility of lethal control

measures would alleviate a source of

public hostility to the wolf and would,

therefore, be protective of the species

(see 50 CFR 17.40(d)). For the Louisiana

black bear (Ursus americanus luteolus),

the Service promulgated a regulation

under section 4(d) that authorized the

unintentional take of bear incidental to

normal forest practices so long as

suitable habitat diversity for the bear

was maintained (see 50 CFR 17.40(i); 56

FR 588, 593). As another instance, the

Service has proposed to authorize the

take of the threatened coastal California

gnatcatcher (Polioptila californica

californica) incidental to land use

activities conducted in accordance with

a State of California-sponsored Natural

Community Conservation Plan (58 FR

16758). In the case of the northern

spotted owl, the Service is coordinating

applicability of the take prohibition

with the comprehensive management

strategy in the Forest Plan and the
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9491

initiation of a comprehensive campaign

to encourage Habitat Conservation

Planning in key portions of the owl’s

range.

Generally, incidental take could

involve either the harm or harassment of

a spotted owl. The harassment of the

northern spotted owl would occur

through disturbance of active nesting

pairs or territorial single owls within an

activity center; harm would result from

significant owl habitat removal around

and beyond spotted owl site centers.

Incidental Take of Spotted Owls:

‘‘Harassment’’

Timber harvest and related activities

that disturb the breeding and nesting

functions of spotted owls within activity

centers during the breeding season can

be considered incidental harassment of

individual spotted owls. Incidental

harassment may include activities that

could result in disturbance of nesting

spotted owls or the abandonment of

eggs, nestlings, or fledgling spotted

owls. More specifically, incidental

harassment of spotted owls generally

can include harvest activities that occur

within the closest 70 acres of suitable

habitat surrounding a site center during

the owl’s reproductive period. (The

reproductive period generally is

between March 1 and September 30 of

each year. These dates may be modified

where credible scientific information

establishes a different time period for a

given area.) Actions with the potential

to disturb nesting spotted owls include,

but are not limited to, harvest related

activities such as felling, bucking, and

yarding; road construction; and blasting.

A study by Miller (1989) examined

the area used by fledgling spotted owl

juveniles in Oregon. Radio-telemetry

data showed that the average amount of

nesting, roosting, and foraging habitat

used by fledgling spotted owls prior to

dispersal was approximately 70 acres in

size. Under existing conditions in many

areas, these activity centers are seldom

evenly distributed around a nest tree.

Mortality rates for juvenile spotted owls

are significantly higher than for adults

(Forsman et al. 1984, Gutierrez et al.

1985, Miller 1989). Studies of juvenile

dispersal in Oregon and California

indicated that few of the juvenile

spotted owls survived to reproduce

(Miller 1989, Gutierrez et al. 1985).

These research studies all reported very

high mortality during pre-dispersal.

Based on this and other information,

the Service believes that the

maintenance of the closest 70 acres of

existing suitable (nesting, roosting, and

foraging) habitat surrounding the nest

tree will contribute to a secure core area

and is crucial to maximize fledgling

success and to provide a partial buffer

against disturbance around the site

center. To avoid harassment, resident

spotted owls are considered to be

nesting unless surveys conducted

during the breeding season indicate that

not to be the case.

Incidental Take of Spotted Owls:

‘‘Harm’’

To successfully reproduce and

maintain populations, studies have

suggested spotted owls require

substantial quantities of suitable

(nesting, roosting, and foraging) habitat

arrayed around their site centers.

A number of radio-telemetry studies

have described the quantity and

characteristics of habitat used by

spotted owls. Studies by Hayes et al.

(1989) found a strong positive

relationship between the abundance of

spotted owls and the percentage of older

forests in the study area. A similar

analysis was performed on data

collected by Bart and Forsman (1992).

The results showed that the number of

spotted owls per square mile, pairs of

owls per square mile, young per square

mile, and young per pair increased with

increasing amounts of older forest

within the study area. Productivity

(number of young fledged per pair)

increased significantly with increasing

amounts of older forest. Productivity in

areas with greater than 60 percent older

forest was approximately three times

higher than productivity in areas with

less than 20 percent older forest.

Documentation in the 1990 Status

Review of the Northern Spotted Owl

(USDI 1990a) indicates that productivity

per pair is lowest in areas with small

amounts of older forest. This strongly

suggests that, even if some spotted owls

persist in such areas, there is reason to

believe they are not reproducing and

surviving at replacement levels.

The above research findings have

supported the determination in the past

that reduced quantities of suitable

habitat are likely to result in lower

spotted owl abundance and productivity

rates. It has also been suggested that a

significant reduction of nesting,

roosting, and foraging habitat within the

median annual home range of a spotted

owl pair or resident single creates a

much higher risk of adverse effects that

actually kill or injure owls by

significantly impairing essential

behavioral patterns, including breeding,

feeding, and/or sheltering. These are the

primary elements of effects that

ultimately can cause harm to, and the

incidental take of, spotted owls.

Recognizing the need to assist the

public in avoiding the incidental take of

listed species, the Fish and Wildlife

Service and the National Marine

Fisheries Service (NMFS) issued a joint

policy statement on July 1, 1994,

committing the agencies to provide as

much guidance and assistance to the

general public as possible so as to avoid

liability under the ESA for incidental

takings (59 FR 34272, 1994). The policy

statement also committed the agencies

to designate in future listing packages a

key contact person within either the

Service or NMFS, as appropriate, to

answer incidental take questions from

the general public.

In the particular case of the spotted

owl, the Service has encouraged the

public to conduct owl surveys of

property proposed for harvest or

development, as a primary means of

avoiding harassment or harm to an owl.

The Service has recommended that such

surveys be conducted according to a

March 17, 1992, Service-endorsed

survey protocol (USFWS 1992),

available upon request from the FWS

Ecological Services State Offices listed

below:

Sacramento Field Office, U.S. Fish and

Wildlife Service, 2800 Cottage Way,

Suite E–1803, Sacramento, California

95825, 916–978–4866, Attn: Field

Supervisor

Oregon State Office, U.S. Fish and

Wildlife Service, 2600 S.E. 98th

Avenue, Suite 100, Portland, Oregon

97266, 503–231–6179, Attn: Field

Supervisor

Washington State Office, U.S. Fish and

Wildlife Service, 3704 Griffin Lane

S.E., Suite 102, Olympia, Washington

98501–2192, 206–753–9440, Attn:

Field Supervisor

Biology of the Northern Spotted Owl

The spotted owl is a long-lived bird

that has a high degree of nest-site

fidelity within an established territory.

This proposed rule incorporates, by

reference, recent documents addressing

the biology and ecology of the spotted

owl, its habitat, and associated

management strategies in Washington,

Oregon, and California, including: the

final rules listing the spotted owl as

threatened and designating its critical

habitat; the Interagency Scientific

Committee (ISC) report (Thomas et al.

1990); the Scientific Analysis Team

report (Thomas et al. 1993); the final

draft Recovery Plan for the Northern

Spotted Owl (USDI 1992); the Forest

Ecosystem Management Assessment

Team (FEMAT) report (USDA et al.

1993); the supporting documents for the

Forest Plan (USDA/USDI 1994 a and b);

and the Contribution of Federal and

Non-Federal Habitat to Persistence of

the Northern Spotted Owl on the

Olympic Peninsula, Washington
9492 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

(Holthausen et al. 1994). The proposed

rule also considered the Washington

Spotted Owl Scientific Advisory Group

reports (Hanson et al. 1993 and

Buchanan et al. 1994).

The range of the spotted owl has been

divided into 12 physiographic provinces

(USDA/USDI 1994a): the Eastern and

Western Cascades, Western Lowlands,

and Olympic Peninsula Provinces in

Washington; the Eastern and Western

Cascades, Coast Range, Willamette

Valley, and Klamath Provinces in

Oregon; and the Klamath, Coast, and

Cascades Provinces in California. The

Klamath province was divided into two

subprovinces by State—the Oregon

Klamath Province and the California

Klamath Province—even though the two

provinces are part of the same

geographic area (Figure 4 to § 17.41(c)).

Habitat Characteristics

Northern spotted owls generally have

large home ranges and use large tracts

of land containing significant acreage of

older forest to meet their biological

needs. The median annual home range

size of a northern spotted owl, which

varies in size from province to province,

is approximated by a circle centered on

an owl site center. Estimated median

annual home range sizes represent the

area used by half of the spotted owl

pairs or resident singles studied to date

within each province to meet their

annual life history needs.

Home range sizes were estimated by

analyzing radio-telemetry home range

data from studies conducted on the

annual movements of spotted owl pairs,

referenced in the 1990 Status Review

(1990a) and the Interagency Scientific

Committee report (Thomas et al. 1990).

Based on studies of owl habitat

preferences, including habitat structure

and use and prey preference throughout

the range of the owl, spotted owl habitat

consists of four components: (1)

Nesting, (2) roosting, (3) foraging, and

(4) dispersal. Although this habitat is

variable over the range of the spotted

owl, some general attributes are

common to the owl’s life-history

requirements throughout its range. The

age of a forest is not as important for

determining habitat suitability for the

northern spotted owl as the structure

and composition of the forest. Northern

interior forests typically may require

150 to 200 years to attain the attributes

of nesting and roosting habitat;

however, characteristics of nesting and

roosting habitat are sometimes found in

younger forests, usually those with

significant remnant trees from earlier

late-successional stands.

The attributes of superior nesting and

roosting habitat typically include a

moderate to high canopy closure (60 to

80 percent closure); a multi-layered,

multi-species canopy with large

overstory trees; a high incidence of large

trees with various deformities (e.g., large

cavities, broken tops, mistletoe

infections, and debris accumulations);

large accumulations of fallen trees and

other debris; and sufficient open space

below the canopy for owls to fly

(Thomas, et al. 1990).

Spotted owls use a wider array of

forest types for foraging, including more

open and fragmented habitat. Habitat

that meets the spotted owl’s need for

nesting and roosting also provides

foraging habitat. However, some habitat

that supports foraging may be

inadequate for nesting and roosting. In

much of the species’ northern range,

large, dense forests are also chosen as

foraging habitat, probably because they

provide relatively high densities of

favored prey, the northern flying

squirrel (Glaucomys sabrinus), as well

as cover from predators. Because much

of the flying squirrel’s diet is fungal

material, old decadent forests provide

superior foraging habitat for owls. In

southern, lower-elevation portions of

the owl’s range, the species often forages

along the edges of dense forests and in

more open forests, preying on the

dusky-footed woodrat (Neotoma

fuscipes).

In general terms, suitable habitat

means those areas with the vegetative

structure and composition necessary to

provide for successful nesting, roosting

and foraging activities sufficient to

support a territorial single or breeding

pair of spotted owls. Suitable habitat is

sometime referred to as nesting, roosting

and foraging (NRF) habitat.

Although habitat that allows spotted

owls to disperse may be unsuitable for

nesting, roosting, or foraging, it provides

an important linkage among blocks of

nesting habitat both locally and over the

range of the northern spotted owl. This

linkage is essential to the conservation

of the spotted owl. Dispersal habitat, at

a minimum, consists of forest stands

with adequate tree size and canopy

closure to provide some degree of

protection to spotted owls from avian

predators and to allow the owls to

forage at least occasionally.

Suitable and dispersal habitat vary by

province and are described separately

under the discussion of each province

in the following section.

Discussion of Spotted Owl Provinces by

State

As previously noted, the range of the

northern spotted owl has been

subdivided into 12 separate provinces

(Figure 4 to § 17.41(c)). For purposes of

this rule, the Klamath province has been

divided into two provinces by State—

the California Klamath province and the

Oregon Klamath province—even though

the two provinces are part of the same

geographic area. In California, the three

provinces are the California Cascades,

California Klamath, and California

Coast. The Oregon Coast Ranges,

Willamette Valley, Oregon Klamath,

Western Oregon Cascades, and Eastern

Oregon Cascades constitute the five

provinces of Oregon. The four

Washington provinces are the Eastern

Washington Cascades, Western

Washington Cascades, Western

Washington Lowlands, and the Olympic

Peninsula. Only the seven provinces in

Washington and California are the

subject of incidental take prohibition

modifications under this proposed rule

and will therefore be discussed in more

detail below.

Washington

1. Washington Olympic Peninsula

Province

The Washington Olympic Peninsula

province is bordered by the Pacific

Ocean on the west, the Straits of Juan de

Fuca on the north, Hood Canal on the

east, and State Highway 12 to the south

(Figure 4 to § 17.41(c)). Of the three

million acres in the province,

approximately 51 percent are in Federal

ownership. The central portion of the

province is high, mountainous terrain,

surrounded by lower elevation forest

that provides habitat for the spotted

owl. Almost all Federal lands on the

Peninsula have either been designated

as a late successional or riparian

reserves under the Forest Plan or have

been Congressionally withdrawn from

timber harvest; only 8,400 acres of

Federal forest land on the Peninsula are

available for programmed timber

harvest. In general, the province is

demographically isolated from other

parts of the owl’s range. Natural

catastrophic events such as windstorms

and wildfires are threats that have the

capability of destroying thousands of

acres of habitat.

The recent report by Holthausen et al.

concluded that ‘‘* * * it is likely, but

not assured, that a stable population of

owls would be maintained * * *’’ on

Federal lands in the Olympic Peninsula

Province. However, the report also notes

it would be ‘‘unlikely’’ that owls would

persist on ‘‘* * * the western coastal

strip of the National Park, * * *’’ if

non-Federal habitat on the western side

of the Peninsula were excluded from

current Federal protection for owls. The

report went on to explain that ‘‘the

retention of non-Federal habitat in the
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9493

western portion of the peninsula was

particularly significant and provided for

a larger area of core habitat on Federal

land in model analyses. In addition, the

retention of this habitat would likely

increase the chances of maintaining a

population on the coastal strip of the

Olympic National Park.’’ When

comparing the relative value of an SEA

on the western side of the Peninsula

with a possible SEA on the northern

side of the Peninsula, the report noted

that the western SEA ‘‘made a much

greater contribution to owl numbers and

occupancy rates than did the northern

SEA * * *. Mean numbers of pairs over

the 100-year simulation was as large

with the western SEA alone as with

both SEAs.’’ Thus, non-Federal lands on

the northern portion of the Peninsula

were not viewed as having any

appreciable capability of making a

significant contribution to the long-term

conservation of the spotted owl on the

Olympic Peninsula.

Finally, the report stated that attempts

to maintain a ‘‘habitat connection across

southwestern Washington * * * would

have little effect on the status of the owl

population on the Peninsula if that

population was stable or nearly stable.’’

In other words, recent analysis suggests

that the likelihood of addressing past

concerns about the need to connect the

Olympic Peninsula owl population to

southwestern Washington owls in order

to maintain a viable population is very

low, given current conditions,

especially when relying on the

application of incidental take

prohibitions. According to Holthausen,

et. al, ‘‘* * * the populations of owls

on the Peninsula is sufficiently large to

avoid any short to mid-term loss of

genetic variation, * * *’’ Except for the

western portion of the Peninsula where

non-Federal lands are still important,

the major problem for owls on the

Peninsula is the past loss of suitable

habitat on Federal lands.

a. NRF Habitat. NRF habitat on the

Olympic Peninsula consists, as a general

matter, of coniferous or mixed

coniferous/hardwood forest with

multiple canopy layers; multiple large

overstory conifers greater than 20 inches

in diameter at breast height (dbh); and

total canopy closure among dominant,

co-dominant and understory trees of

greater than 60 percent.

b. Dispersal Habitat. Dispersal habitat

on the Olympic Peninsula consists, as a

general matter, of coniferous or mixed

coniferous/hardwood forest with

smaller dominant trees or lower canopy

closure than NRF habitat; multiple

canopy layers of multiple large

overstory conifers greater than 10 inches

dbh; and a total canopy closure among

dominant, co-dominant and understory

trees of greater than 60 percent.

2. Western Washington Lowlands

Province

This province consists of the

lowlands outside of the Olympic

Province that extend east from the

Pacific Ocean to the western foothills of

the Washington Cascades (Figure 4 to

§ 17.41(c)). The Canadian border forms

the northern boundary and the

Columbia River the southern boundary

of the province. Forest lands in the

north and central portions of the

province along Puget Sound have been

converted to agricultural, industrial and

urban areas. The southwestern portion

is dominated by commercial tree

farming. Of the 6.5 million acres within

this province, only one percent is under

Federal management.

a. NRF Habitat. NRF habitat in the

Western Washington Lowlands consists,

as a general matter, of coniferous or

mixed coniferous/hardwood forest with

multiple canopy layers; multiple large

overstory conifers greater than 20 inches

dbh; and total canopy closure among

dominant, co-dominant and understory

trees of greater than 60 percent.

b. Dispersal Habitat. Dispersal habitat

in the Western Washington Lowlands

consists, as a general matter, of

coniferous or mixed coniferous/

hardwood forest with smaller dominant

trees or lower canopy closure than NRF

habitat; multiple canopy layers of

multiple large overstory conifers greater

than 10 inches dbh; and a total canopy

closure among dominant, co-dominant

and understory trees of greater than 60

percent.

Spotted owls in this province have

extremely low population levels due to

isolation of populations within the

province and limited nesting, roosting,

and foraging habitat. The limited

amount of habitat in this province also

contributes to the demographic isolation

of the Olympic Peninsula Province. As

noted previously in the discussion on

the Olympic Peninsula, however, the

recent study by Holthausen et al.

suggested that even substantial

conservation efforts in Southwest

Washington would be unlikely to make

any meaningful contribution to

maintaining a stable, long-term

population of owls on the Olympic

Peninsula. Thus, while Southwest

Washington is important as part of the

historic range of the owl, the continued

application of blanket incidental take

prohibitions to the exceptionally limited

suitable habitat that still exists there

makes any contribution to owls on the

Olympic Peninsula minimal at best.

Currently, the Service is attempting to

address these conservation opportunity

limitations through a creative new

approach which targets the

development of comprehensive multispecies Habitat Conservation Plans with

several of the large landowners in this

province. The Service has premised this

cooperative approach, as opposed to

designating this area as a Special

Emphasis Area, on the positive

commitments it has received from major

landowners in this region to negotiate

comprehensive HCPs. In addition, one

of the landowners has entered into a

‘‘take avoidance’’ agreement while

working on their HCP. The take

avoidance agreement insures that no

owls will be lost as the result of timber

harvest during the period in which the

HCP is being developed.

3. Western Washington Cascades

Province

The Western Washington Cascades

province occupies the land west of the

Cascades crest, from the Columbia River

north to the Canadian Border and west

to the Western Washington Lowland

province (Figure 4 to § 17.41(c)). This

province contains about 6.1 million

acres of land, of which approximately

61 percent is in Federal ownership.

Most of the non-federal lands occur

along the western edge of the province

and along the major mountain passes in

checkerboard ownership with Federal

lands.

a. NRF Habitat. NRF habitat in the

Western Washington Cascades Province

consists, as a general matter, of

coniferous or mixed coniferous/

hardwood forest with multiple canopy

layers; multiple large overstory conifers

greater than 20 inches dbh; and total

canopy closure among dominant, codominant and understory trees of

greater than 60 percent.

b. Dispersal Habitat. Dispersal habitat

in the Western Washington Cascades

Province consists, as a general matter, of

coniferous or mixed coniferous/

hardwood forest with smaller dominant

trees or lower canopy closure than NRF

habitat; multiple canopy layers of

multiple large overstory conifers greater

than 10 inches dbh; and a total canopy

closure among dominant, co-dominant

and understory trees of greater than 60

percent.

A Habitat Conservation Plan (HCP)

was recently approved by the Fish and

Wildlife Service to cover Murray Pacific

Corporation lands in Lewis County in

this Province. The permit for this 100-

year Habitat Conservation Plan for the

northern spotted owl was signed on

September 24, 1993, for the Murray

Pacific Corporation, a Tacoma,
9494 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

Washington, based timber company.

The plan provides for the development

and maintenance of dispersal habitat for

the spotted owl that is well distributed

over the 54,610 acres of the company’s

land, while allowing limited taking of

spotted owls that is incidental to the

company’s timber harvest activities.

The Murray Pacific planning area is

situated between the Mineral Block (an

isolated block of Forest Service land)

and the main portion of the Gifford

Pinchot National Forest, that is located

immediately south of Mt. Rainier

National Park. The Mineral Block has

been designated as a late-successional

Federal reserve under the Forest Plan.

The management of Murray Pacific

property will promote the opportunity

for the dispersal of spotted owls to and

from this isolated reserve, providing a

link with the Cascade Mountains

population. The Mineral Block also

hosts the most westerly extension of

spotted owls in the Cascade Mountains.

General threats to the spotted owl in

this province include low population

levels, limited habitat in the northern

portion of the province, declining

habitat, and dispersal problems in areas

of limited Federal ownership.

4. Eastern Washington Cascades

Province

This province lies east of the crest of

the Cascades Mountains from the

Columbia River north to the Canadian

Border (Figure 4 to § 17.41(c)). The

province extends east to where suitable

spotted owl habitat naturally diminishes

and drier pine forests become prevalent.

Approximately 62 percent of the

province’s 5.7 million acres is in

Federal ownership.

a. NRF Habitat. NRF habitat in the

Eastern Washington Cascades Province

consists, as a general matter, of

coniferous forest with stands that

contain greater than 20 percent fir

(Douglas fir, grand fir) and/or hemlock

trees; multiple canopy layers of multiple

large overstory conifers greater than 12

inches dbh; and a canopy closure among

dominant, co-dominant and understory

trees of greater than 50 percent.

b. Dispersal Habitat. Dispersal habitat

in the Eastern Washington Cascades

Province consists, as a general matter, of

coniferous forest with stands that

contain greater than 20 percent fir trees

with smaller dominant trees or lower

canopy closure than NRF habitat

multiple canopy layers of multiple large

overstory conifers of greater than 11

inches dbh; and total canopy closure

among dominant, co-dominant and

understory trees of greater than 50

percent.

Threats to the spotted owl in this

province include natural fragmentation

of spotted owl habitat by geological

features; loss of spotted owl habitat from

wildfires; loss of habitat from timber

harvest activities; and low spotted owl

populations in some areas of the

province.

California

1. California Coastal Province

Extending from the Oregon border

south to San Francisco Bay, this

province lies west of the Six Rivers and

Mendocino National Forests (Figure 4 to

§ 17.41(c)). It consists of approximately

5.6 million acres, of which about 87

percent is in non-Federal ownership.

Timber management is the primary land

use on about 2 million acres, and is

concentrated in the heavily-forested

redwood zone located within 20 miles

of the Pacific Ocean coastline. In the

more inland and southerly portions of

the province, owl habitat is largely

confined to the lower portions of

drainages and is naturally fragmented

by grasslands, hardwoods, and

chaparral, as well as by agricultural and

urban areas.

a. NRF Habitat. NRF habitat in the

California Coastal Province consists, as

a general matter, of coniferous or mixed

coniferous/hardwood forests with

multiple canopy layers; multiple

overstory conifers greater than 16 inches

dbh; and total canopy closure among

dominant, co-dominant, and understory

trees of greater than 60 percent. Some

nest sites may occur in stands of smaller

trees or with a lower canopy closure;

however, such sites are not typical.

b. Dispersal Habitat. Dispersal habitat

in the California Coastal Province

consists, as a general matter, of

coniferous or mixed coniferous/

hardwood forests, with smaller

dominant trees or lower canopy closure

than in NRF habitat; multiple canopy

layers, with multiple large overstory

conifers greater than 10 inches dbh; a

total canopy closure among dominant,

co-dominant; and understory trees of

greater than 40 percent.

This province is unique in that it

supports several hundred pairs of

spotted owls (over 1⁄3 of the State’s

population) within managed secondgrowth timber stands. Factors that

appear to contribute to the suitability of

these second-growth stands include the

rapid growth of trees in the coastal

environment, the prevalence of

hardwood understories, and the

widespread occurrence of a favored prey

species, the dusky-footed woodrat. The

primary threat to the spotted owl in this

region is habitat alteration, but, due to

the spotted owl’s widespread

distribution, the predominance of

selection harvest methods, the rapid

regrowth of habitat, and effective and

comprehensive State wildlife

conservation and forest practice

regulations, threats are considered low

to moderate in this portion of the

spotted owl’s range.

Because Federal lands in this

province are limited, they play a small

role in spotted owl conservation in this

province. Significant non-Federal

contributions to conservation are in

place or under development in this area.

In addition to efforts by the state,

described in more detail later, several

large timber companies in the coastal

province have made substantial

investments in information-gathering

and planning for spotted owl

conservation. The Simpson Timber

Company has completed a Habitat

Conservation Plan and received a

section 10(a) permit for the incidental

take of a limited number of spotted owls

on its 380,000-acre property. Pursuant

to this plan, Simpson Timber has set

aside 40,000 acres of suitable owl

habitat for at least ten years, is

conducting research on habitat

characteristics, and has banded over 600

spotted owls.

2. California Klamath Province

This province lies to the east of the

California Coastal province, and is

contiguous with the Oregon Klamath

province (Figure 4 to § 17.41(c)). The

California Klamath province consists of

approximately 6.2 million acres, of

which about 76 percent is in Federal

ownership. The U.S. Forest Service is

the primary land manager. About 25

percent of the Forest Service lands in

the province are believed to be currently

suitable for nesting, roosting, and

foraging by the spotted owl.

a. NRF Habitat. NRF habitat in the

California Klamath Province consists, as

a general matter, of coniferous or mixed

coniferous/hardwood forests with

multiple canopy layers; multiple

overstory conifers greater than 16 inches

dbh; and total canopy closure among

dominant, co-dominant, and understory

trees of greater than 60 percent. Some

nest sites may occur in stands of smaller

trees or with a lower canopy closure;

however, such sites are not typical.

b. Dispersal Habitat. Dispersal habitat

in the California Klamath Province

consists, as a general matter, of

coniferous or mixed coniferous/

hardwood forests, with smaller

dominant trees or lower canopy closure

than in NRF habitat; multiple canopy

layers, with multiple large overstory

conifers greater than 10 inches dbh; a
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9495

total canopy closure among dominant,

co-dominant; and understory trees of

greater than 40 percent.

In many areas of the province, spotted

owl habitat is naturally fragmented by

chaparral, stands of deciduous

hardwoods, and low-elevation

vegetation types. In portions of the area,

suppression of fire over the last century

may have encouraged development of

mixed-conifer habitat suitable for

spotted owls. However, during the same

period, timber harvest has removed

substantial amounts of suitable habitat.

Owl populations throughout the

province were believed to be declining

due to habitat loss at the time of listing,

and data suggest that populations may

well be continuing to decline in the

province’s only demographic study area

(Franklin et al. 1992). In the southern

portion of the province, especially on

the Mendocino National Forest, spotted

owls and nesting, roosting, and foraging

habitat are more scattered than in

northern areas due to both natural

conditions and recent harvest. However,

despite extensive habitat fragmentation

in some areas during the last two

decades, spotted owl populations

appear to remain distributed throughout

most parts of the province.

Until the listing of the spotted owl,

continued habitat alteration due to

clear-cutting was a primary threat to the

species in this province. The most

important threat to habitat at the present

time is wildfire. In the past six years,

large fires have destroyed or degraded

substantial quantities of owl habitat on

the Klamath, Shasta-Trinity, and

Mendocino National Forests.

The Hoopa Valley Indian Reservation

occupies about 88,000 acres along the

western margin of this province. The

Hoopa Tribe has conducted forestry

operations under section 7 consultation

conducted between the Bureau of Indian

Affairs and the Service, and is preparing

a comprehensive integrated resource

management plan for forestry and

wildlife on their lands. The Tribe is also

developing a Geographic Information

System (GIS) data base to integrate

spotted owl conservation into its timber

management program. The maintenance

of adequate dispersal condition in this

area would improve the intra-provincial

connectivity and dispersal between

Federal reserves.

3. California Cascades Province

This province lies east of the

California Klamath province. It consists

of approximately 2.5 million acres, of

which about 46 percent is in Federal

ownership (Figure 3 to § 17.41(c)).

Checkerboard Federal and non-Federal

ownership patterns predominate. Due to

the relatively dry climate and the

history of recurrent wildfires in this

province, spotted owl habitat is

naturally fragmented by chaparral and

stands of deciduous hardwoods. As is

the case in the California Klamath

Province, the suppression of wildfire

over the last century may have

encouraged development of mixedconifer habitat suitable for spotted owls.

However, timber harvest has removed

substantial amounts of suitable habitat.

Existing spotted owl sites are widely

scattered, and the potential for dispersal

across the province appears to be

limited. This province provides the

demographic and genetic linkage

between the northern spotted owl and

the California spotted owl of the Sierra

Nevada range.

a. NRF Habitat. NRF habitat in the

California Cascades Province consists,

as a general matter, of coniferous or

mixed coniferous/hardwood forests

with multiple canopy layers; multiple

overstory conifers greater than 16 inches

dbh; and total canopy closure among

dominant, co-dominant, and understory

trees of greater than 60 percent. Some

nest sites may occur in stands of smaller

trees or with a lower canopy closure;

however, such sites are not typical.

b. Dispersal Habitat. Dispersal habitat

in the California Cascades Province

consists, as a general matter, of

coniferous or mixed coniferous/

hardwood forests, with smaller

dominant trees or lower canopy closure

than in NRF habitat; multiple canopy

layers, with multiple large overstory

conifers greater than 10 inches dbh; a

total canopy closure among dominant,

co-dominant; and understory trees of

greater than 40 percent.

Currently, threats in this province

include low population numbers,

difficulty in providing for interacting

population clusters, and fragmented

dispersal habitat. Catastrophic wildfire

is also an important threat to habitat. In

1992, a 70,000-acre fire in Shasta

County substantially reduced the

likelihood of contact between the

northern spotted owl and the California

spotted owl for the next several decades.

Northern Spotted Owl Populations on

Non-Federal Lands

Due primarily to historic timber

harvest patterns, approximately 75

percent of the known rangewide

population of spotted owls is centered

on Federal lands. Owl site centers on

non-Federal lands are usually found in

remnant stands of older forest, or in

younger forests that have had time to

regenerate following harvest. In

addition, adjacent forested non-Federal

lands can provide foraging and dispersal

habitat for owls whose site centers are

on Federal lands.

As of July 1, 1994, there were 5,431

known locations, or site centers, of

northern spotted owl pairs or resident

single owls in Washington, Oregon, and

California (located between 1989 and

1993)—851 sites (16 percent) in

Washington, 2,893 (53 percent) in

Oregon, and 1,687 (31 percent) in

California. In Washington and Oregon,

owl site centers on non-Federal lands

are typically widely scattered.

Currently, 1,319 or 24 percent of known

owl site centers are located on nonFederal lands—140 in Washington, 342

in Oregon, and 837 in California. Of

those in California, 631 or 75 percent of

the site centers located on non-Federal

lands are located in the California Coast

Province, where owls are relatively

common in second-growth timber

stands. Site centers in the interior

provinces of California are typically

scattered. In addition to the site centers

located on non-Federal lands in

Washington, Oregon, and California,

preliminary analyses indicate that there

are 151 site centers in Washington, 810

centers in Oregon, and 204 centers in

California, located on Federal lands that

are dependent upon some percentage of

suitable owl habitat on adjacent nonFederal lands to support the owls.

Non-Federal lands in certain portions

of the owl’s range are still necessary to

support and supplement the Federal

lands-based owl conservation strategy.

While the type of support needed varies

depending on local conditions, the three

general types of conservation support

needed within specially designated

areas are:

(1) Habitat on non-Federal lands near

Federal reserves where existing owl

populations are low to provide

demographic support for owl

populations. Areas that are needed to

provide demographic support for

Federal reserves include, in

Washington: the western portion of the

Olympic Peninsula Province and

portions of the Eastern and Western

Cascade provinces; and in California:

the Cascades Province and the southern

portion of the Klamath Province;

(2) Dispersal habitat between Federal

reserves, where Federal lands may not

be distributed to prevent isolation of

populations, or between non-Federal

ownerships where the distance between

reserves is not great. Where distances

are large, scattered breeding sites may

be important to improve connection

between populations. Areas that can

provide valuable dispersal habitat on

non-Federal lands include, in

Washington—the western portion of the

Olympic Peninsula Province and
9496 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

portions of the Eastern and Western

Cascade Provinces; and in California—

the Coast and Cascades Provinces and

small portions of the Klamath Province;

and

(3) Suitable habitat for breeding

populations in areas where Federal

ownership is limited. In these areas,

functioning spotted owl populations are

desired to maintain a widely distributed

population of owls. Areas where nonFederal owl populations are believed to

play an important role in this regard

include, in Washington—the western

portion of the Olympic Peninsula

Province; and, in California—the Coast

and Cascades Provinces.

Recent Conservation Programs and

Strategies for the Northern Spotted Owl

Non-Federal Management Efforts

To varying degrees, the laws,

regulations, and policies of California,

Oregon, and Washington provide

protection and contribute to the

conservation of the spotted owl. Each of

the three states is a cooperator with the

Secretary of the Interior under section 6

of the Act and each State has

cooperative agreements with the Service

to carry out conservation activities for

listed and candidate species of plants

and animals. Under these agreements,

the States work cooperatively with the

Service on endangered and threatened

species conservation projects and are

eligible for cost-share grant money from

the Service to carry out State-directed

species research and conservation

activities. Since the spotted owl was

Federally listed, Washington, Oregon,

and California have recognized the

Federal status of the spotted owl and

have adopted forest management rules

offering various levels of protection for

the species. In addition, numerous

changes have been made to State forest

practices rules in the last few years in

response to the needs of declining

species like the spotted owl, the

marbled murrelet, and various runs of

salmon. Relevant authorities and

programs existing in the States of

Washington and California are also

briefly described below.

California

California has adopted the most

protective forest management

regulations for the spotted owl in the

Pacific Northwest. The State has also

been in the forefront of efforts to

approach forest management from an

ecosystem perspective.

Pursuant to the California Forest

Practice Act, the California Board of

Forestry establishes regulations under

Title 14 of the California Code of

Regulations governing timber harvest on

private and State lands (14 CFR § 895,

898, 919, 939). Registered Professional

Foresters licensed by the Board must

submit Timber Harvest Plans (THP) to

the California Department of Forestry

and Fire Protection for review and

approval. The California Department of

Fish and Game is also responsible for

reviewing THPs. THPs may be denied

on a number of grounds, including

potential take of Federally or State listed

threatened or endangered species.

Following the Federal listing of the

northern spotted owl, the Board of

Forestry implemented no-take rules

using standards based on biological

advice from the Service. These

standards include maintenance of over

1,300 acres of suitable owl habitat

within 1.3 miles of every spotted owl

site center and 500 acres within 0.7

miles. The rules instituted a special

review process for all proposed private

timber harvest to ensure that incidental

take would not occur. The process

encouraged surveys for spotted owls in

THP areas according to a Serviceendorsed protocol (USFWS 1992). The

Board’s no-take rules have maintained

options for future management by

providing protection for habitat around

every known spotted owl site center,

and have resulted in greatly increased

knowledge of the species’ numbers and

distribution. Other Forest Practice

Rules, including riparian buffers and

limitations on clear-cut size, may

provide additional contributions to the

maintenance of spotted owl habitat in

northern California. These include the

40-acre limitation on clear-cut size,

limits on adjacency of clear-cuts, and

protection of riparian buffers.

The Board of Forestry (Board) also

recently adopted rules establishing

regulatory incentives for large-acreage

landowners who develop sustained

yield plans (SYPs). The SYP rules may

provide considerable benefit to spotted

owls, because ownerships operating

under these rules must maintain

specified portions of each watershed in

timber stands of large size classes for

several decades, thus providing spotted

owl habitat components throughout the

landscape.

The Department of Fish and Game

and Department of Forestry and Fire

Protection jointly maintain an

interagency data base of Federal and

non-Federal spotted owl locations. The

Forest Practice Rules require that all

information on spotted owl sites that is

generated during timber harvest

planning be submitted to this data base,

and relevant data are made available to

all parties planning timber harvest or

other activities. Thus, the data base is a

functional tool in protection of the

species.

Following the listing of the northern

spotted owl, the California Board of

Forestry directed the Department of

Forestry and Fire Protection to prepare

a Habitat Conservation Plan (HCP) and

section 10(a)(1)(B) incidental take

permit application to address all private

timber harvest regulated by the Board.

Following a three-year planning effort

by that Department and a number of

cooperators from agencies, industry, and

environmental groups, the Board tabled

consideration of the draft Habitat

Conservation Plan because significant

issues remained unresolved, most

notably the funding mechanism. The

draft plan nevertheless represented a

significant cooperative commitment to

resolve conservation issues by the State

and other concerned parties and many

of the biological elements of the draft

HCP may have future application.

Washington

The spotted owl is listed under

Washington law as an endangered

species. The Washington Department of

Natural Resources has the responsibility

for regulating timber harvest activities

on non-Federal lands under the

authority of the Washington State Forest

Practices Act (76.09 RCW) and its

implementing regulations (WAC

222.08–222.50). These regulations are

promulgated by the Forest Practices

Board.

Recent regulations (WAC

222.16.080(1)(h) have required forest

practices on the 500 acres of suitable

habitat surrounding the site center of

known spotted owls to be reviewed

under the State Environmental Policy

Act, WAC 222.16.080(1)(h). In practice,

this rule has led landowners to avoid

applying for permits for forest practices

within the 500-acre area. This regulation

expired on February 9, 1994, and has

been extended pending approval of a

final rule. The Forest Practices Board

has established a Scientific Advisory

Group to recommend the scientific basis

for a new rule to replace the current

rule. No other forest practices regulation

expressly addresses the protection of

spotted owl habitat from timber harvest

activities. However, the Department

notifies individual landowners when a

proposed forest practice occurs within

the median annual home range of a

known spotted owl pair or resident

single, and advises the landowner to

contact the Service. In addition, several

other regulations contribute habitat

benefitting spotted owls, including

regulations requiring riparian zone

protection, wetlands protection, and

retention of wildlife reserve trees.
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9497

Riparian management zone

regulations require the minimum

retention of 25-foot wide buffers along

the sides of fish-bearing streams with a

varying ratio of trees to be retained per

1,000 feet of stream within the buffers,

based on stream location, width and

bottom composition.

Wetland management regulations

require the establishment of a zone

surrounding non-forested wetlands

which varies in width from a minimum

of 25 to 50 feet depending on the size

and category of the wetland. The

regulations also require the retention of

a minimum number of trees (75) per

acre and that a percentage of those trees

meet minimum size classifications (six

inches dbh) depending on the type of

wetland. Of this total, 25 trees are to be

more than 12 inches dbh, and five of

them are to be more than 20 inches dbh,

where they exist.

Clear-cut size and green-up

regulations limit the maximum size of

clear-cut harvest units to 120 acres,

unless a State environmental Policy Act

review is undertaken that could boost

the potential size of the harvest to 240

acres. The perimeter of harvest units

must meet minimum stand

qualifications to maintain age class

diversity adjacent to the harvest unit

before harvest may proceed.

Wildlife reserve tree regulations

require the retention of three snags

(minimum of 12 inches dbh), two green

recruitment trees (minimum 10 inches

dbh), and two down logs (minimum 12

inches diameter at the small end).

Besides regulating forest practices in

Washington, the Department of Natural

Resources (WDNR) administers

approximately five million acres of State

lands, 2.1 million acres of which are

forested and managed in trust for

various beneficiaries. The WDNR has

avoided the take of spotted owls on its

lands and has begun preparation of an

HCP under section 10(a)(1)(B) of the Act

for all State lands in the range of the

owl. The WDNR is also developing a

conservation strategy for the spotted owl

that would be applied to the

Congressionally mandated 264,000-acre

State Experimental Forest on the

Olympic Peninsula.

Apart from these efforts by State

government, various private efforts are

underway to conserve spotted owls,

including the development of, or

commitment to, HCPs and ‘‘no take’’

agreements by several major landowners

in the State. In addition, the Yakima

Indian Nation is developing a

conservation strategy for the spotted owl

while continuing to follow its previous

interim spotted owl strategy and

selective timber harvest regime.

Past Federal Management Strategies

Prior to its listing as a threatened

species, many different approaches to

northern spotted owl management and

research were undertaken by Federal

and State resource agencies, for

example, designation of ‘‘spotted owl

habitat areas’’ or ‘‘SOHAs.’’ Each of

these approaches fulfilled different

conservation objectives for the northern

spotted owl. The conservation objective

of the earliest attempts at spotted owl

management, which began in the mid1970s, was to temporarily protect sites

that supported individual pairs of

spotted owls. In the 1980s, management

strategies were based on conservation

objectives that tried to avoid land use

conflicts while managing spotted owls

and late-successional forest habitat;

these management strategies were

generally inadequate. A complete

discussion of the history and

chronology of past spotted owl

management attempts can be found in

Thomas et al. (1990).

Recent (post-listing) Federal northern

spotted owl management strategies have

been based on the establishment of a

system of large, dispersed Federal land

reserves, with conservation objectives

somewhat different from earlier

strategies. These management strategies

were designed to meet the following

conservation objectives—(1) provide

habitat to sustain approximately 20 or

more breeding pairs of spotted owls on

each Federal reserve; (2) decrease the

chance of catastrophic loss of

populations in reserves; (3) lower the

risk of losing spotted owls from a

reserve due to a single catastrophic

event; and (4) ensure that adequate

habitat existed between the reserves for

dispersal of owls throughout its range.

To fulfill these objectives, these

management strategies proposed

establishing a reserve network of

Federal lands based on blocks of latesuccessional habitat of sufficient size

and proximity to each other to maintain

viable populations of the spotted owl

throughout its range. Assessments of

these strategies have generally

recognized that, in certain areas of the

northern spotted owl’s range, Federal

lands are not, by themselves, adequate

to support the full recovery of the owl

although they could provide a major

contribution toward the owl’s

conservation in other parts of its range

(USDI 1992).

To meet their conservation objectives,

these management strategies generally

established Federal reserves designed to

sustain at least 20 pairs of spotted owls

where conditions allowed. These

strategies assumed that any smaller latesuccessional Federal reserves should be

placed closer together to increase the

probability of successful spotted owl

dispersal between the reserves. In

addition, plans provided dispersal

habitat sufficient to support movements

between blocks. For this reserve design,

successful dispersal would accomplish

two objectives—it would help prevent

genetic isolation in individual owl

populations and it would allow spotted

owls to naturally recolonize important

areas that have few or no spotted owls

present. By allowing spotted owls to

disperse between a series of discrete

reserves, this reserve design could

maintain a spotted owl population over

a large area even if a single reserve was

lost to catastrophe.

By way of example, the Interagency

Scientific Committee (ISC) developed a

conservation strategy based on

managing large, well-distributed Federal

blocks of suitable spotted owl habitat

that were sufficiently connected to

maintain a stable and well-distributed

population of spotted owls throughout

their range (Thomas et al. 1990). The

ISC did not integrate non-Federal lands

into its conservation strategy. To

provide dispersal habitat between these

reserves, the ISC recommended a ‘‘50–

11–40 rule’’ where 50 percent of Federal

forest habitat (based on quartertownships) would be managed to retain

dominant or co-dominant trees with an

average of 11 inches dbh and provide a

minimum 40 percent canopy closure.

Canopy closure refers to the degree to

which the crowns (tops) of trees obscure

the sky when viewed from below. The

‘‘50–11–40’’ rule was set forth as one

method of providing for dispersal

habitat on Federal forest lands; other

prescriptions have been and can be

developed which provide comparable

dispersal conditions, e.g., Murray

Pacific HCP dispersal prescription.

The Federal Forest Plan

The range of the spotted owl includes

approximately 24,518,000 acres of

Federal lands of which 20,577,000 acres

are forested. The Forest Plan represents

a management strategy for Federal

LSOG-forests in the coastal western

states of California, Oregon, and

Washington that provides habitat to

support the persistence of well

distributed populations of species that

are associated with late-successional

forests, including the northern spotted

owl.

The Forest Plan established a network

of reserves totalling over 11.5 million

acres of Federal land in northern

California, Oregon, and Washington.

That total includes 7.43 million acres of

late-successional reserves, 2.63 million
9498 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

acres of riparian reserves, and 1.48

million acres of administratively

withdrawn areas. This acreage is in

addition to 7.32 million acres of

Congressionally reserved lands.

The late-successional reserves

currently provide 3.2 million acres of

suitable habitat for the spotted owl. The

interim riparian reserve provide an

additional 0.74 million acres of suitable

habitat and the administratively

withdrawn areas provide an additional

0.31 million acres of this habitat.

Late-successional reserves are

expected to provide the primary

contribution to the recovery of the

spotted owl by maintaining large

clusters of spotted owls and spotted owl

habitat throughout a significant portion

of the range of the species. The reserves

are expected to increase in value for

spotted owl recovery as young forested

stands grow into suitable habitat and

increase their capacity to support

additional numbers of stable spotted

owl pairs.

Programmed timber harvest

operations are not allowed in latesuccessional reserves under the Forest

Plan. However, carefully controlled

thinning activities are allowed in any

stand of one of these reserves less than

80 years of age. Salvage operations also

would be allowed on these reserves in

areas where catastrophic loss exceeded

ten acres. In both cases, harvest

proposals must be reviewed by an

interagency oversight group to ensure

sound ecosystem management.

No programmed timber harvest is

allowed in riparian reserves under the

Forest Plan and Federal agencies are

required to minimize the effects of

roads, cattle grazing, and mining

activities in these areas. These riparian

reserves are eventually expected to

provide a considerable amount of latesuccessional forest, because they

currently represent approximately 31

percent of the lands that would

otherwise be designated as Matrix.

Based on current information (USDA et

al. 1993), approximately .74 million

acres (28 percent) of the 2.63 million

acres in riparian reserves currently

provide suitable nesting, roosting, and

foraging habitat for spotted owls and

1.42 million (54 percent) of the riparian

reserves provide suitable dispersal

habitat for spotted owls.

The Forest Plan places 1.5 million

acres of Federal land in 10 special

‘‘Adaptive Management Areas (AMAs).’’

Management activities in these AMAs

would emphasize innovative forestry

techniques with the goal of speeding

attainment of late-successional

characteristics and on restoring

watersheds. These activities are

expected to benefit northern spotted owl

management in the long-term, but

would not be expected to contribute

substantially to owl conservation needs

in the short-term. Suitable habitat for

the northern spotted owl represents

approximately 0.37 million acres of the

lands that have been designated as

AMAs.

Programmed timber harvests also are

allowed on approximately four million

acres of Federal forests designated as the

Matrix under the Forest Plan. The Plan

differs from previously proposed

strategies in that the 50–11–40 rule does

not apply to Matrix areas between latesuccessional and other Federal forest

reserves. The Plan concluded that the

need for spotted owl dispersal habitat

could be met with the combination of

reserves as proposed, plus additional

Matrix prescriptions.

In Washington and Oregon, the Plan

requires leaving 15 percent of the trees

(‘‘green tree retention’’) in all harvest

units on AMAs and matrix areas outside

of the Coast Ranges and Bureau of Land

Management lands in southern Oregon.

The Plan encourages these trees to be

left in small clumps with the

expectation that they, along with the

riparian reserves, would contribute to

the creation of dispersal habitat. The

Forest Plan adopted this prescription to

improve the future condition of these

forests. These prescriptions could

ultimately be adjusted as a result of

watershed analysis and other planning

activities related to the implementation

of the Forest Plan.

In California, the Forest Plan

incorporates the Matrix prescriptions

contained in the draft National Forest

land management plans. These

prescriptions are designed to maintain

dispersal habitat in a variety of timber

types.

The FEMAT report (p. IV–43 and p.

IV–153) stated that implementation of

Option 9 (which served as the basis for

the Forest Plan) would result in a

projected future likelihood of 83 percent

that spotted owl ‘‘habitat is of sufficient

quality, distribution, and abundance to

allow the species population to stabilize

in well distributed areas of Federal

lands,’’ and a projected future

likelihood of only 18 percent that

‘‘habitat is of sufficient quality,

distribution, and abundance to allow

the species population to stabilize, but

with some significant gaps in the

historic species distribution on Federal

land. These gaps cause some limitation

in interactions among local

populations.’’ Moreover,

implementation of Option 9 was rated

by FEMAT as resulting in a zero

likelihood that ‘‘habitat only allows

continued species existence in refugia,

with strong limitations on interactions

among local populations’’, and a similar

zero likelihood that implementation of

the option would result in ‘‘species

extirpation from Federal lands’’.

These probability judgments reflect

the contributions to conservation

expected to be provided by the

implementation of the Forest Plan on

Federal lands. They indicate a high

likelihood that, over the long-term, the

Forest Plan will provide conditions on

Federal lands that would contribute

significantly to the conservation and

recovery needs of the spotted owl. This

assessment is consistent with the

Federal policy to provide the

predominant protection for spotted owls

on Federal lands and it is within this

context that the Service proposes to

modify the incidental take prohibitions

for certain non-Federal lands.

General Approach Used to Develop

This Special Rule

The goal of this proposed rule was to

identify non-Federal lands that are no

longer either necessary or advisable to

the conservation of the spotted owl

given the contributions of the Forest

Plan the likely possibility of numerous

large scale, multi-species Habitat

Conservation Plans, and other measures

and practices in effect. In reviewing the

alternatives identified in the NOI, the

Service evaluated the contributions to

the conservation of the owl provided by

the Forest Plan, past Federal owl

conservation strategies, existing State

forest practices regulations, tribal

conservation and private timber

management plans, as well as public

comments provided in response to the

NOI.

The Service considered various

factors in identifying areas of nonFederal land where relief could be

provided and other areas where

incidental take restrictions should be

maintained at this time. The Service

first considered the conservation

benefits that the Federal Forest Plan

provided the owl for a given area. These

benefits were then compared and

contrasted with the conservation goals

for the area originally established under

the Final Draft Recovery Plan for the

northern spotted owl. The Service

focused particularly on Forest Plan

impacts affecting the conservation of

owl habitat and owl numbers, as well as

the size and location of Federal reserves.

It then identified certain areas of nonFederal land which were still important

for owl conservation and what the

conservation goals should be for such

areas. The Service gave particular care

and attention to the non-Federal lands
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9499

which were noted as important in the

Report of the Forest Ecosystem

Management Assessment Team

(FEMAT), IV 150–151. In identifying

boundaries for such areas, the Service

considered, among other things, current

owl population status on non-Federal

lands, the need for owl population

support within adjacent Federal

reserves, and the need for connectivity

between such reserves. The Service also

attempted to exclude wherever possible

large areas of non-Federal land with

little or no owl habitat.

The Forest Plan is a habitat based

conservation strategy that would anchor

and secure millions of acres of Federal

land across the range of the spotted owl,

an unprecedented commitment of

Federal resources towards the

conservation of the owl. Given that

commitment to a habitat based strategy

and the scope of the Forest Plan, the

Service no longer believes that it is

essential to the conservation of the

spotted owl to continue to prohibit the

incidental take of the owl on all nonFederal land located within the range of

the owl. The Service also believes that

the combination of Federal and nonFederal habitat based strategies for the

spotted owl contained in this proposed

rule, the Forest Plan and multi-species

Habitat Conservation Plans will, over

time, further the conservation of the

species and its recovery.

When developing objectives for

regulatory relief for non-Federal lands

which were consistent with the Forest

Plan, the Service evaluated past

biological information and has

concluded that it is still important to

retain the closest 70 acres of suitable

owl habitat surrounding site center

regardless of whether the center is in an

area of proposed relief or not. The

Service also believes that the substantial

loss of suitable habitat within the

estimated median annual home range of

an owl is likely to result in inadequate

nesting, juvenile development, and

adult dispersal and survival, and will

significantly increase the likelihood of

actual harm to, and incidental take of,

an owl.

As the riparian reserve, matrix,

adaptive management areas, and latesuccessional reserve management

criteria of the Forest Plan are

implemented, along with the

requirements of underlying State law

and other provisions proposed in this

rule for owl protection, dispersal and

connectivity conditions for the species’

survival should improve over time

throughout its range. For this reason, the

Service has chosen not to include in this

proposed rule mandatory dispersal

prescriptions such as the 50–11–40 rule

which was designed originally to

generate dispersal habitat conditions for

Federal lands only.

For those areas where satisfactory

dispersal conditions likely are not

present, the Service believes that such

conditions can be achieved over time

through other means such as full

protection against incidental take, large

scale Habitat Conservation Planning

(HCPs), Local Option Conservation

Plans, or voluntary conservation

contributions by non-Federal

landowners. Recognizing the limitations

on Federal authority to mandate the

development of dispersal habitat in

these areas, this proposed rule would

encourage non-Federal landowners to

manage their lands in ways that are

more consistent with the conservation

of the spotted owl. In some areas it

would remove the disincentives

associated with maintaining suitable

spotted owl habitat, and, would bring

more certainty to future planning for

timber management as well as for owl

conservation activities.

Upon consideration of all of the above

factors, the following summarizes the

provisions of this 4(d) rule:

Regulatory Provisions Common to Both

Washington and California

Some protective measures for the owl

would be identical for both the State of

Washington and California. The

prohibition on killing or injuring of

spotted owls would not be relieved in

any part of the owl’s range by this

proposed rule. Similarly, timber

harvesting of the closest 70 acres of

suitable owl habitat surrounding a site

center would remain prohibited

throughout Washington and California,

unless the site has been determined to

be abandoned.

In addition, the Service would retain

for an additional two years, the

prohibition against incidental take as

applied to owls which are dependent

upon non-Federal lands and whose site

centers are located within Federal

Forest Plan Reserves or Congressionally

reserved or Administratively withdrawn

areas which are outside of Special

Emphasis Areas or are on the western

portion of the Olympic Peninsula in

Washington, or are located on Federal

Forest Plan reserves or Congressionally

reserved or Administratively withdrawn

areas within the Klamath Province in

California. At the end of this period, the

Service will review any new

information or data involving the status

of such owls and their habitats in the

affected areas, including the results of

any completed watershed analysis and

other planning efforts under the Federal

Forest Plan. In particular, the Service

would assess on a local area-by-area

basis whether the continuation of the

incidental take prohibition on affected,

adjacent non-Federal lands was still

necessary and advisable for achieving

the conservation goals of the Forest Plan

for that area. The Service would then lift

the incidental take restrictions where

warranted and require the protection of

only the closest 70 acres of suitable

habitat surrounding an affected site

center.

Relief From Current Incidental Take

Provisions in Washington

A total of approximately 10.6 million

acres of non-Federal land in the range

of the spotted owl in Washington (the

Washington Lowlands Province,

portions of the Western and Eastern

Cascades Provinces and portions of the

Olympic Peninsula Province) would be

excluded from the boundaries of

proposed Special Emphasis Areas

(SEAs) and be exempted from the future

application of current incidental take

restrictions for the northern spotted owl.

Of this land base outside SEAs, 8.3

million acres have some sort of forest

cover of which 5.24 million acres are in

conifer cover. Actually, only a small

percentage of these lands are currently

affected by present incidental take

prohibitions for owls. Absent this

proposed rule, however, much of this

remaining land could potentially be

affected should a spotted owl relocate to

any adjacent suitable owl habitat at

some point in the future. Approximately

1.7 million acres of non-Federal lands

would be left inside of SEAs. Of this

acreage figure, 1.3 million acres of nonFederal land is in conifer forest and

would remain subject to the incidental

take prohibitions for any owl found

present in this area. In fact, only a

portion of this acreage inside SEAs is

currently affected by the presence of

owls. Of the approximately 510,000

acres of non-Federal forestland which

are today under incidental take

restrictions for known owl sites, no less

than 325,000 acres or almost 60 percent

would be relieved from such restrictions

as a result of this rule.

Of the 140 spotted owl site centers on

non-Federal lands in Washington, 84 are

in the six proposed SEAs and would

retain current incidental take protection.

Fifty-six spotted owl site centers are

outside SEAs on non-Federal lands and

would be released from current

incidental take prohibitions. There are

an additional 121 site centers on Federal

lands within the proposed SEA’s, of

which 68 may be dependent on nonFederal lands. There are also 83 site

centers on Federal lands outside the

SEAs that may be dependent on non-
9500 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

Federal lands. Of the 83 site centers

outside of SEAs, 71 site centers are

located within either a Federal Forest

Plan Reserve or a Congressionally

reserved or Administratively withdrawn

area. The Olympic Peninsula contains

41 of these sites with the remaining 30

sites located outside of SEAs in the rest

of the State.

Activities Outside of Designated SEAs

The Service proposes to reduce the

current prohibition against the

incidental taking of owls for those nonFederal lands which are located outside

of SEAs proposed in Washington. In

areas outside of SEAs, a non-Federal

landowner would only be required to

retain the closest 70 acres of suitable

owl habitat surrounding an owl site

center. Legal and administrative

boundaries were used wherever possible

to assist in refining identified SEA

boundaries. As noted above, the Service

estimates that approximately 10.6

million acres of non-Federal land in

Washington lie outside of SEAs, of

which 5.24 million acres are forested

with conifers. These would be the

primary areas receiving relief under this

rule for Washington. In these areas, the

incidental take of owls would not be

prohibited as long as timber harvest

activities did not take place within the

closest 70 acres of suitable owl habitat

immediately surrounding an owl site

center.

As noted previously, the above

reduction to 70-acres would not be

applicable for non-Federal lands

affected by any owl site center which is

located within a Forest Plan reserve or

Congressionally reserved or

Administratively withdrawn area which

is outside of an SEA. The Service

intends to reassess the importance of

these sites within the next two years as

additional data and planning

information is developed under the

Forest Plan. The one region in

Washington where this two-year

retention of prohibitions would not be

applied outside of an SEA would be on

portions of the Olympic Peninsula. On

the northern, eastern, and southern

parts of the Peninsula, non-Federal

landowners would only be required to

preserve the closest 70 acres of suitable

habitat surrounding a site center

regardless of whether the site center is

located within a Federal reserve or

withdrawn area. The Service believes

that the recent Reanalysis Team Report

for the Olympic Peninsula (Holthausen,

et al., 1994) addresses the issue of the

contribution that such non-Federal areas

provide toward achieving the goal of

recovery of the owls on the Peninsula.

Under these circumstances, the Service

does not believe that it is essential that

existing incidental take restrictions be

retained for an additional two years for

these three areas on the Peninsula.

Designation of Special Emphasis Areas

The six areas discussed below (Figure

5 to § 17.41(c)) would be designated as

SEAs within Washington:

(a) Columbia River Gorge/White

Salmon (Figure 6 to § 17.41(c)).

The Columbia River Gorge portion of

this SEA is in the southern portion of

the Washington Cascades province,

north of the Columbia River and west of

the Cascade crest. Non-Federal lands

link owls and owl habitat between

Federal reserves in the Washington

Cascades and Oregon Cascades along

the Columbia River Gorge, thereby

contributing to the objectives of the

Forest Plan.

The White Salmon portion of this

SEA is bordered by the Yakima Indian

Reservation to the northeast, Federal

lands and the Cascade crest to the west

and the Columbia River to the south.

The White Salmon area was not

included within the ‘‘Proposed Action’’

for the December 29, 1993, NOI (58 FR

69132), but was included within

‘‘Alternative C’’ of that NOI. As a result

of public comments received in

response to the NOI, however, and

recent analysis of spotted owl habitat in

Washington (Hanson, et al. 1993), the

Service has concluded that the

inclusion of the White Salmon area as

part of this SEA is warranted. These

non-Federal lands are an important link

to the owl population found on the

Yakima Indian Reservation to owl

populations in Federal reserves to the

southwest. This portion of the SEA

would provide a route around highelevation terrain on Federal lands,

through lower-elevation forests on nonFederal lands to provide that needed

link. It also widens the zone of

protection for the Cascades along the

Columbia River.

This combined SEA contains 37,000

acres of Federal land and 262,000 acres

of non-Federal lands. Sixteen owl site

centers are on non-Federal lands and 3

site centers are on Federal land within

this SEA, with one site activity center

on Federal lands which relies to some

degree upon adjacent non-Federal lands.

The conservation goals for this

combined SEA are to maintain

connections between provinces and the

owl population on the Yakima Indian

Reservation, and to provide

demographic support to the owl

population in the Federal reserves.

(b) Siouxon Creek (Figure 7 to

§ 17.41(c)).

This SEA is located along Swift Creek

Reservoir and the Upper Lewis River,

south of the Mt. St. Helens National

Monument. As with the White Salmon

SEA, this area was not included within

the ‘‘Proposed Action’’ for the December

29, 1993, NOI (58 FR 69132), but was

included within ‘‘Alternative C’’ of the

NOI. Because of the public comments

received in response to the NOI and

further analysis of spotted owl habitat in

Washington (Hanson, et al. 1993), the

Service has determined that the

inclusion of the Siouxon Creek SEA in

the 4(d) Rule is warranted. This SEA

contains seven owl site centers, five on

non-Federal land and two on Federal

land, and includes approximately

44,000 acres of non-Federal land and

1,000 acres of Federal land. Owls on

these non-Federal lands are needed to

supply demographic support to owl

populations on adjacent Federal

reserves and dispersal habitat is needed

to provide connectivity through the

Lewis River Valley between the

reserves.

(c) Mineral Block (Figure 8 to

§ 17.41(c)).

This SEA surrounds a block of

Federal land (Mineral Block) that has

been designated as a Federal reserve

under the Forest Plan. The Mineral

Block is about 12 miles west of the main

part of the Gifford Pinchot National

Forest. It is too small to support a

population of 20 owl pairs. Owl site

centers on adjacent non-Federal lands

would support this population and to

provide a link to the Gifford Pinchot

National Forest.

This SEA contains 39,000 acres of

Federal land and 259,000 acres of nonFederal lands. Twelve owl site centers

are on non-Federal lands in the SEA; 17

centers are located on Federal lands of

which five rely to some degree upon

adjacent non-Federal lands. The

conservation goals for this SEA are to

provide demographic support for the

owl population in the Federal reserve.

(d) I–90 Corridor (Figure 9 to

§ 17.41(c)).

This SEA is north and south of

Interstate-90 (I–90) between North Bend

and Ellensburg, Washington. This area

is in checkerboard, intermingled Federal

and non-Federal ownership, a portion of

which is included in the Snoqualmie

Pass AMA under the Forest Plan. This

general area has been repeatedly

identified as being important to the

conservation of the owl to maintain a

connectivity link between the northern

and southern portions of the

Washington Cascades (Thomas et al.,

1990 and Hanson et al. 1993). Existing

habitat for spotted owls is locally sparse

and highly fragmented.
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9501

Non-Federal lands in this SEA would

support the efforts of the Forest Plan by

providing dispersal habitat (and some

nesting, roosting and foraging habitat)

for owl populations that are on the

north and south sides of I–90, and

between Federal reserves and the AMA.

Owls that are on non-Federal land

would provide valuable demographic

support of owl populations in adjacent

Federal reserves that are low in

numbers. Federal reserves that are in

checkerboard ownership are also in

need of demographic support for owls

because of their fragmented ownership

pattern and degraded habitat conditions.

This SEA contains 383,000 acres of

Federal land and 400,000 acres of nonFederal lands. Twenty-nine owl site

centers are on non-Federal lands in this

SEA; 78 site centers are located on

Federal lands of which 53 rely to some

degree upon adjacent non-Federal lands.

Conservation goals for this SEA include

demographic support for adjacent latesuccessional reserves and connectivity

between reserves. Changes to the eastern

boundaries of this SEA from the NOI in

this proposal were made to better

promote dispersal success of owls

located within the eastern portion of

this SEA.

(e) Finney Block (Figure 10 to

§ 17.41(c)).

This SEA includes the non-Federal

lands that surround the Finney Block

AMA on the Mt. Baker-Snoqualmie

National Forest. This SEA would link

owl populations in Federal reserves

with the owl population in the AMA.

Owls located on non-Federal lands in

this SEA also would bolster the owl

populations in the Federal reserves and

the AMA. These actions would

supplement the Federal efforts under

the Forest Plan by contributing to the

stabilization of owl populations within

this portion of the species range.

This SEA contains 196,000 acres of

Federal land and 266,000 acres of nonFederal lands. Two owl site centers are

on non-Federal land in this SEA; 21

centers are located on Federal lands of

which seven rely to some degree upon

adjacent non-Federal lands.

Conservation goals for this SEA include

demographic support for the AMA and

Federal reserves and connectivity

between Federal reserves.

(f) Hoh/Clearwater (Olympic

Peninsula) (Figure 11 to § 17.41(c)).

Upon consideration of a recent

reanalysis of owl persistence on the

Olympic Peninsula (Holthausen et al.

1994) and other data and information,

the Service has decided to alter its

approach to the Olympic Peninsula

from that set out in the NOI in

December of 1993. The Service now

proposes to significantly scale back the

size of the SEA for the Peninsula and to

relieve incidental take restrictions for

spotted owls for the remainder of the

Peninsula. Of the Federal lands on the

Olympic Peninsula, only 8,400 acres of

suitable owl habitat are available for

timber harvest under the Federal Forest

Plan.

There has been long standing concern

about the viability and persistence of

spotted owls on the Olympic Peninsula.

A recent reanalysis of the contribution

of Federal and non-Federal habitat to

persistence of the northern spotted owl

on the Olympic Peninsula (Holthausen

et al. 1994) concluded that there were

155 known owl pairs on the Olympic

Peninsula and estimated a total

population of between 282 and 321

pairs. These estimates are substantially

higher than earlier reported estimates.

The Hoh/Clearwater SEA

encompassing the western portion of the

Peninsula contains about 1,000 acres of

Federal lands and 471,000 acres of nonFederal lands. Twenty owl site centers

are located on non-Federal lands in this

SEA. Conservation goals for this SEA

are to maintain demographic support for

Federal reserves, maintain a welldistributed population, and provide

connectivity within the province and

between late-successional reserves.

Changes in this SEA from the NOI were

made to support the Federal effort in

this province by drawing upon the

resources of the remaining non-Federal

concentration of owls and owl habitat

on the western side of the Peninsula.

The reanalysis report assessed the

relative value of the Hoh/Clearwater

SEA boundaries as proposed by the

Service and did not compare or contrast

alternative SEA boundary

configurations for the western side of

the Peninsula.

Although recommendations were

included in recent reports (USDI 1992,

Hanson et al. 1993, Buchanan et al.

1994) to retain incidental take

restrictions on non-Federal lands in

southwestern Washington, the Service

believes that current non-Federal

conservation planning activities (e.g.,

multi-species HCPs and no-take plans),

new analyses (Holthausen et al. 1994),

and other relevant factors support the

decision not to propose southwestern

Washington as an SEA. The Service

reached this conclusion on Southwest

Washington for a variety of reasons.

First, while Southwest Washington

constitutes an important part of the

historic range of the spotted owl, there

presently are only a small number of

isolated owl pairs or resident singles

across a vast expanse of marginal owl

habitat. The inclusion of this area in an

SEA would briefly protect home range

areas for the few owls in the area, but

once those owls die or move away, the

protection for their home range areas

would fade away as well, resulting in

the eventual harvest of the areas.

Moreover, while Southwest Washington

previously had been assigned an

important conservation function for

providing connectivity with the isolated

population of owls on the Olympic

Peninsula in the Final Draft Spotted

Owl Recovery Plan, recent reanalysis by

Holthausen et al. indicates that the

feasibility of the area ever serving this

connectivity function, especially

through application of incidental take

prohibitions, is very low.

Apart from considerations involving

the Olympic Peninsula, the limited

number of owls in southwest

Washington and lack of present suitable

habitat provide further support to the

Service’s decision to take an innovative

approach to owl conservation in this

area. While the Service might be able to

prevent someone from destroying

certain areas of existing suitable owl

habitat where an owl is present, the Act

cannot be used to force people to restore

or enhance owl habitat that has already

been destroyed or degraded. Thus, most

landowners in Southwest Washington

have little to no incentive at present to

develop habitat that is attractive to owls.

The acquisition of sufficient nonFederal land in Southwest Washington

to establish a network of owl

conservation reserves is not a feasible

alternative either. The Final Draft

Recovery Plan for the Spotted Owl

estimated that the cost of such a reserve

network could range from $200 million

to $2 billion. Thus, neither land

acquisition nor traditional enforcement

policies are feasible catalysts for owl

conservation in an area such as this

which has limited suitable owl habitat.

Recognizing the historic role that

Southwest Washington played within

the range of the owl, the Service is

attempting to address these problems by

aggressively moving forward with the

development of multi-species Habitat

Conservation Plans with several of the

large landowners in this province. In

addition, one of the landowners has

entered into a ‘‘take avoidance’’

agreement covering 100,000 acres while

working on their HCP. The agreement

ensures that no owls will be taken as the

result of timber harvest during the

period in which the HCP is being

developed. Thus, innovative approaches

towards conservation provide the only

realistic hope for facilitating long-term

owl use and dispersal within

Southwestern Washington.
9502 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

Retention of Incidental Take

Restrictions for Activities Inside of SEAs

Subject to certain specified

exceptions, the Service generally would

retain existing incidental take protection

for owls located within SEAs. The

Service also would retain full incidental

take protection for any owl whose site

center is located within and along the

boundary of an SEA and is dependent

upon adjacent non-Federal lands

located outside of the SEA to avoid

harm. Thus, there are two categories of

non-Federal lands which could remain

subject to existing incidental take

restrictions for an owl whose site center

is located within the boundary of an

SEA—those adjacent non-Federal lands

located inside an SEA and those

adjacent lands located outside of an

SEA boundary but which are still

necessary to provide sufficient suitable

owl habitat so as to avoid the incidental

take of an owl.

One modification that the Service

proposes to make to existing incidental

take restrictions within SEAs would

involve non-Federal lands surrounded

by or located in matrix and AMA areas

designated under the Federal Forest

Plan. The Service proposes to authorize

such affected non-Federal landowners

involved in harvest activities to apply

either the final management

prescriptions delineated for the

surrounding Federal Matrix/AMA land,

as determined through the watershed

analysis or AMA planning processes, as

appropriate, or such management

practices which comply with the

current incidental take restrictions.

Application of either management

strategy would absolve the affected nonFederal landowner from any liability for

incidental take of an owl under the Act.

This would result in the application of

more uniform owl conservation

standards within a matrix or AMA area

regardless of land ownership.

The one exception to this policy

would be where the adoption of matrix

or AMA prescriptions could result in

the incidental take of an owl whose site

center is located within a Forest Plan

reserve or Congressionally reserved or

Administratively withdrawn area. As

would be the case for similar site

centers outside of SEAs, the incidental

take restrictions would continue to

apply for at least two more years for site

centers within reserve or withdrawn

areas. At the end of this period, the

Service will review any new data or

information involving the status of such

owls and their habitats in the affected

areas, including the results of any

completed watershed analysis and other

planning efforts under the Forest Plan.

As noted previously in a discussion of

this review process, the Service would

assess on an area-by-area basis whether

the continuation of the incidental take

prohibition on affected non-Federal

lands was still necessary and advisable

for achieving the conservation goals of

the Forest Plan. The Service would lift

the incidental take restrictions where

warranted and authorize the adoption of

the final matrix or AMA prescriptions,

at the discretion of the affected nonFederal landowner, as a means of

avoiding an unauthorized incidental

take of an owl.

One limited exception that the

Service proposes to make to current

incidental take restrictions within SEAs

would involve small landowners.

Except for the closest 70 acres of

suitable habitat around owl site centers

themselves, the Service proposes to

relieve incidental take restrictions for

small landowners who own, as of the

date of this proposed rulemaking, no

more than 80 acres of forestlands in a

given SEA in Washington. The Service

would also extend this proposal to small

landowners who are outside of, but

adjacent to, an SEA and whose lands are

affected by the incidental take

restrictions for an owl whose site center

is located within the SEA. For these

landowners, the maximum ownership

figure of 80 acres would be calculated

based upon the amount of land they

owned inside an SEA and the amount

of land outside the boundary of an SEA

which was affected by current

incidental take restrictions for an owl

inside an SEA.

The 80-acre figure for small

landowners was selected after an

analysis of land ownership patterns and

an accounting for the size and location

of lands covered by the Forest Plan,

State forestlands, industrial forestlands,

and known large ownerships of nonindustrial forestlands. The Service also

considered the fact that past Forest

Service studies have shown that only a

very small fraction of small landowners

own forested lands for the exclusive

purpose of economic return from

commercial harvest. In addition, most

small landowners utilize selective

harvest techniques or small clear cuts

which would generate only very minor

and incremental effects on any

particular owl. Despite their normal

practices, however, the small

landowners of the Northwest have

resorted to ‘‘panic cutting’’ over their

fear of Federal restrictions to protect

owls. It is this category of landowner, in

particular, who needs to be provided

sufficient assurances of relief so they

revert back to their past practices of low

impact forestry.

Based on this analysis, the Service

concluded that relief from the incidental

take prohibition for owls for landowners

with less than 80 acres of forestland

within, or adjacent to, SEAs would have

a deminimis impact upon owl

conservation across the State. Moreover,

given various technology limitations

and the potential causation and burden

of proof problems associated with

proving incidental take to an owl from

small scale land use activities of any

one particular small landowner, the

Service believes that there is a better

allocation of its limited law enforcement

resources than to attempt to enforce

incidental take restrictions on someone

owning 80 acres or less of forest land.

The Service also proposes a ‘‘Local

Option Conservation Plan’’ or Local

Option approach to provide small and

mid-sized landowners with additional

flexibility in dealing with incidental

take restrictions.

The prohibition against incidental

take in SEAs indirectly assists in

maintaining pockets of suitable and

dispersal habitat through the continued

protection of suitable owl habitat

around site centers. This prohibition

also helps provide future stocks of

juvenile spotted owls who would be

more likely to migrate between key

reserves. Since a primary need in many

of these connectors is the development

and maintenance of spotted owl

dispersal habitat, the Service

acknowledges that alternative means

may be developed for achieving that

objective. The use of the general

incidental take prohibition in SEAs in

Washington is valuable when dealing

with a wide-ranging species like the

northern spotted owl. Nevertheless, the

Service recognizes the value in

providing flexibility in a section 4(d)

rule to allow for the modification of

such prohibitions to better reflect local

ecological conditions for a given area.

Furthermore, in focusing on a single

species objective in Special Emphasis

Areas, broader landscape, watershed, or

ecosystem conservation possibilities

may be foreclosed. One of the key

lessons the Service has learned in

dealing with northern spotted owl

issues over the years is that the

variability of habitats and silvicultural

practices is such that there might be

more than one approach for providing

conservation benefits to the owl. For

that reason, this rule proposes to

establish a Local Conservation Planning

Option.

The ‘‘Local Option’’ process would be

limited to non-Federal landowners who

own, as of the date of this proposed

rulemaking, between 80 and 5,000 acres

of forestlands in an SEA in Washington.
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9503

This process could result in the

authorization for the incidental take of

an owl in exchange for an agreement to

grow or maintain dispersal habitat. The

local option conservation planning

process would not apply, however, to

those particular areas within a given

SEA where the continued maintenance

of suitable owl habitat on non-Federal

lands is determined to be necessary and

advisable in order to provide

demographic support for adjacent

Federal owl reserves.

There is no official acreage

designation defining a large acreage

landowner that is common to the three

States of Washington, Oregon and

California. Definitions of small, medium

and large land ownerships vary and

more often differentiate between nonindustrial or non-commercial private

landowners. For purposes of various

State regulatory analyses, taxation or

economic policies, and Association

memberships, e.g. Washington Farm

Forestry Association, acreages ranging

from 2,000 to 10,000 acres have been

used to differentiate between industrial

and non-industrial landowners. For

example, 5,000 acres is generally the for

adjacent Federal owl reserves.

There is no official acreage

designation defining a large acreage

landowner that is common to the three

States of Washington, Oregon and

California. Definitions of small, medium

and large land ownerships vary and

more often differentiate between nonindustrial or non-commercial private

landowners. For purposes of various

State regulatory analyses, taxation or

economic policies, and Association

memberships, e.g. Washington Farm

Forestry Association, acreages ranging

from 2,000 to 10,000 acres have been

used to differentiate between industrial

and non-industrial landowners. For

example, 5,000 acres is generally the

maximum acreage break-off point in

Oregon to distinguish a non-industrial

forestland owner from an industrial one.

Contracts with a mill will also qualify

landowners as industrial. Given the

range of acreage figures that has been

utilized among the three States, the

Service believes that a 5,000 acre break

point is reasonable for purposes of this

4(d) rule. Accordingly, landowners with

less than 80 acres of forestland within

an SEA have been treated as small

landowners within this rule and have

been provided specific relief up front.

Landowners with overall forestland

holdings greater than 80 acres and not

more than 5,000 acres within an SEA

are considered to be medium sized

landowners and may pursue the ‘‘Local

Option’’ process to seek greater

flexibility in addressing prohibitions an

incidental take. Finally, non-Federal

landowners who have 5,000 or more

acres of forestlands within an SEA in

Washington would only receive relief

from incidental take prohibitions for the

spotted owl by completing an HCP and

obtaining a permit under Section

10(a)(1)(B) of the Act.

The landowner-initiated Local Option

process must still provide for the

primary spotted owl conservation

objective specified for the Special

Emphasis Area where the property is

located. The Service encourages

individual and adjacent multiple

landowners to take advantage of this

option cooperatively to achieve broader

ecosystem conservation objectives

which could have these benefits:

—multiple landowners could

collaborate to provide greater

management flexibility, more effective

conservation benefits, and to

minimize administrative costs;

—multiple species and habitats could be

considered, potentially reducing the

need to list declining species or

anticipating requirements of future

listings;

—land management treatments could

become more consistent from Federal

to non-Federal lands, particularly in

checkerboard areas; and

—landowners could exercise additional

flexibility to plan their forestry

operations so as to best reflect

localized environmental conditions

within a Special Emphasis Area.

This proposed rule would provide

non-Federal landowners in Washington,

in cooperation with the appropriate

State agencies, the option of developing

cooperative local conservation plans for

timber harvests in areas of up to 5,000

acres within SEAs where the incidental

take prohibition for the northern spotted

owl would not be relieved by this

proposed rule. These cooperative plans

could provide non-Federal landowners

with the opportunity to develop

alternative management strategies or

prescriptions for addressing the

conservation needs of the owl.

The Local Option Conservation

Planning process is designed to

encourage creative approaches to the

conservation of the spotted owl by

building flexibility into the regulatory

process. Such efforts encourage

coordinated management of listed

species, like the northern spotted owl

and the marbled murrelet. If a Local

Option Plan is approved by the Service

in consultation with the appropriate

State wildlife agency, the prohibition

against take of northern spotted owls

incidental to timber harvests may be

modified, to some degree, as specified

in the Plan. The Service will review

each proposed Local Option Plan

cooperatively with the affected State

wildlife agency to ensure that the

conservation objectives for the owl in

the affected area will not be precluded

and that the proposal is complementary

to the Federal Forest Plan.

Under the local option process of this

proposed rule, the primary focus would

be on the spotted owl, although there

might be opportunities for conserving

other associated plant and animal

species. Approval of a local option

conservation plan would be an

expedited process (compared to the HCP

permit mechanism) through

incorporation of specific conservation

criteria and guidance provided by this

proposed rule.

A non-Federal landowner or local or

State government may submit an

application to the Service for approval

of a proposed local option plan. If

requested, the Service would provide

further guidance for the development of

a local option plan for a particular area.

However, the applicant is responsible

ultimately for the preparation of a local

option plan proposal. The Service will

be responsible for ensuring the plan’s

compliance with the National

Environmental Policy Act. Appropriate

State of Washington agencies may elect

to participate with the Service in the

review of local option plan proposals for

areas within the State. In addition, if the

State’s regulations are consistent with

this rule, a local option plan proposal

could be certified through a State review

process.

In determining the criteria for

approval of a local option plan, the

Service has considered the information

and approval requirements set forth at

50 CFR 17.32(b) for a section 10 HCP

permit. Those requirements have been

further streamlined for local option

planning and have been tailored to meet

the specific conservation needs of the

spotted owl.

Service approval of a local option

conservation plan will be based on

consideration of the information

required to be submitted with an

application for approval of a plan.

Applications for approval of a local

option conservation plan must be

submitted to the Field Supervisor of the

Fish and Wildlife Service office in

Olympia, Washington.

One additional proposed provision

affecting timber harvest activities within

an SEA involves the recognition and

establishment of a ‘‘safe harbor’’ from

owl incidental take liability where more

than 40 percent suitable habitat

remains, post-harvest, within an owl’s

median annual home range. Although
9504 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

some studies have suggested that rates

of owl reproduction and survival may

be affected to some degree at a percent

of suitable habitat above 40 percent, the

benefits of timber management certainty

and the problem of enforcement

difficulties tied to issues of causation

nevertheless warrant a ‘‘safe harbor’’

approach. Thus, in those instances

where more than 40 percent suitable

owl habitat remains within an owl’s

median annual home range after

harvest, a landowner would not be

liable for prosecution should the

incidental take of an owl nevertheless

occur despite their best efforts to avoid

take.

Relief From Current Incidental Take

Provisions in California

This proposed rule contains a shift in

approach for California which has

evolved since the publication of the NOI

in December of 1993. The December 29,

1993, NOI did not specify any particular

area in California where incidental take

prohibitions would be relaxed, but

instead stated the Service’s intent to

defer to California law to provide for the

conservation of the spotted owl. In

anticipation of that possibility, the

California Board of Forestry considered

a May 1994 proposal from the California

Resources Agency that would have

required maintenance of suitable owl

habitat as a portion of every watershed.

The timber industry regarded the

proposal as too restrictive, and

regulatory agencies believed it would be

too expensive to administer, so, the

Board of Forestry tabled the proposal.

To provide a possible resolution of

this impasse, the Service proposes a

new structure in this proposed rule as

it applies to California which is

consistent with the Service’s original

underlying biological assumptions for

the owl in that State, as set forth in the

December 29, 1993, NOI. The Service

proposes to provide some immediate

relief from incidental take in most of the

California Klamath Province and for

small landowners in the remainder of

northern California within the range of

the northern spotted owl. To encourage

additional comprehensive conservation

planning for the spotted owl and other

species which is available under the

California Natural Communities

Conservation Planning program (NCCP),

additional relief for four other areas of

northern California (the California

Cascades, Coastal, Hardwood, and Wells

Mountain-Bully Choop Regions) (Figure

1 to § 17.41(c)) would be available

contingent upon the successful

completion of a NCCP initiative for

spotted owls which is complementary

to, or not consistent with the owl

conservation goals of the Federal Forest

Plan as applied in that State. The actual

scope and extent of relief for these four

areas would be one of the primary

issues to be addressed through the

NCCP process. These four areas are

called potential ‘‘California

Conservation Planning Areas’’ (CCPAs)

for purposes of this proposed rule.

Relief From Current Incidental Take

Restrictions Inside The Klamath

Province Relief Area

The proposed rule would result in a

reduction of the prohibition against

incidental taking of owls for nonFederal lands within most of the

Klamath Province in a zone called the

Klamath Province Relief Area (Figure 1

to § 17.41(c)). There are 105 spotted owl

site centers located on non-Federal land

within the Klamath Province Relief

Center. An additional 117 site centers

are on Federal land within the Relief

Area which are dependent to some

degree upon adjacent non-Federal lands.

Within the area of relief, a landowner

would only be required to retain the

closest 70 acres of suitable owl habitat

surrounding a site center. Thus, the

incidental take of the spotted owl would

not be prohibited for timber harvest

activities outside those 70 acres. Such

relief would not be provided throughout

the entire Klamath Province however. In

particular, it would not be provided in

those areas that overlap with the

boundaries of potential CCPAs,

including the Wells Mountain-Bully

Choop and the Hardwood Region Areas

of the Klamath Province (Figure 1 to

§ 17.41(c)). Relief would also not be

provided for those owls in the Klamath

Province Relief Area whose site centers

are located on Federal Forest Plan

reserves or Congressionally reserved or

Administratively withdrawn areas and

are dependent upon adjacent nonFederal lands. As noted previously in a

discussion of similar site centers in the

State of Washington, the Service will

reassess the need for such continued

protection over the next two years and

will provide additional relief where

warranted at the end of this assessment.

The California Cascades, Coastal,

Hardwood Region and Wells MountainBully Choop CCPAs

California’s NCCP program (California

Fish and Game Code 2800 et seq.) was

initiated in 1991 to develop plans that

would preserve biological diversity and

reconcile development and wildlife

needs on a local and regional level. It is

designed to encourage public/private

sector cooperation, maintain local

control over land use decisions, and

meet the objectives of State and Federal

laws by preserving species and

ecosystems before they are on the verge

of extinction. Planning criteria and

conservation strategies for certain

species and communities are developed

by scientific review panels.

The California Resources Agency has

indicated a willingness to consider

initiating an NCCP process for portions

of the range of the spotted owl. The

Service would encourage the California

Resources Agency to convene key

stakeholders and regulatory agencies in

an NCCP process for the California

Cascades, Coastal, Hardwood and Wells

Mountain-Bully Choop areas of the State

(Figures 2 and 3 to § 17.41(c)). The

Service recognizes that the actual

designation of any CCPA is a

discretionary administrative matter

controlled by the California Resources

Agency. Accordingly, this proposed rule

would recognize these four regions as

potential CCPA areas, serving as a

‘‘place holder’’ in the 4(d) rule until

such time as an NCCP planning process

is undertaken and completed. One goal

of such a planning effort would be to

facilitate and encourage the

development of ownership-wide or

Region-wide management plans and

criteria which adequately provide for

the conservation needs of the owl and

which complement the owl

conservation goals of the Federal Forest

Plan. The actual content and scope of

such plans would be developed through

the NCCP process itself. Ultimately, the

planning process must address, to the

satisfaction of the State regulatory

agencies and the Service, an appropriate

balance between providing some

measure of regulatory relief while

achieving or maintaining the

conservation goals for the spotted owl

for a particular region.

Under the NCCP approach, the

incidental take of the spotted owl would

not be prohibited under the Act if take

were the result of activities conducted

according to an approved CCPA plan.

This would require the Service to first

determine, in consultation with the

California Departments of Fish and

Game and Forestry and Fire Protection,

that the plan meets the overall

requirements of the Act and the

conservation goals for the owl in that

area and is complementary to the

Federal Forest Plan. The process should

also consider the extent to which new

Board of Forestry Sustained Yield Plans

(SYPs) could be used as a basis for

incidental take authorization, provided

that such SYPs had been reviewed and

approved by the Service after

consultation with appropriate State

agencies. A joint State and Federal

National Environmental Policy Act/
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9505

California Environmental Quality Act

(NEPA)/(CEQA) document could be

prepared to review the environmental

effects of each CCPA plan, including

any incidental take of owls.

Potential CCPA boundaries described

below were derived from earlier

planning efforts by the State (CDF 1992)

and knowledge of current Federal

conservation efforts. To the extent that

the boundaries of these potential CCPAs

are somewhat different from traditional

past descriptions of spotted owl

provinces in California, they merely

represent sub-units of owl provinces.

The areas discussed below could be

designated as CCPAs under the

California NCCP Act for purposes of

northern spotted owl or possible multispecies conservation planning. Of the

837 spotted owl site centers on nonFederal lands in California, 732 are in

the combined, proposed CCPAs. There

are an additional 228 site centers on

Federal lands within the proposed

CCPAs, of which 87 rely to some degree

upon adjacent non-Federal lands.

(a) Coastal Area (Figure 2 to

§ 17.41(c)).

Extending from the Oregon border

south to San Francisco Bay, this area is

west of the Six Rivers and Mendocino

National Forests. It consists of

approximately 293,000 acres of Federal

land, and 3.6 million acres of nonFederal land. Timber management is the

primary land use on about 2 million

acres and is concentrated in the heavily

forested redwood zone within 20 miles

of the Pacific Ocean coastline. In the

more inland and southerly portions of

the area, spotted owl habitat is largely

confined to the lower portions of

drainages and is naturally fragmented

by grasslands, hardwoods, and

chaparral.

The coastal area of northern California

plays an important role in the

conservation of the species. It represents

more than 10 percent of the range of the

spotted owl and has substantial owl

populations in managed forests.

Approximately 642 owl site centers

located on non-Federal lands are known

in this area, virtually all of them are in

managed second-growth timber stands;

66 site centers are located on Federal

lands of which 30 rely to some degree

upon adjacent non-Federal lands.

Due to the owl’s widespread

distribution, the predominance of

selective harvest methods, and the rapid

regrowth of habitat, the degree of threat

to the species in much of this area

appears to be relatively low. According

to analyses conducted by the California

Resources Agency (Berbach et al. 1993),

more than 75 percent of the quartertownships in the three northern coastal

counties (Del Norte, Humboldt, and

Mendocino) meet or exceed the

standard for spotted owl dispersal

habitat described by the ISC (Thomas et

al. 1990). Some degree of incidental take

could be accommodated while

maintaining a well-distributed spotted

owl population. The magnitude of such

incidental take, however, would be one

of the items to be addressed through the

NCCP process.

Because Federal lands are limited,

they play a small role in the

conservation of the species in the

California Coastal area. The Forest Plan

has placed most of the existing latesuccessional forests in the BLM’s

scattered parcels (a few thousand acres)

into reserves, and Redwood National

Park also provides late-successional

habitat in the northern portion of this

area. However, these limited Federal

reserves cannot support enough spotted

owls to provide for the conservation of

the species in the coastal province.

Therefore, non-Federal lands are

generally very important to the

conservation of the spotted owl.

Significant non-Federal conservation

efforts are already in place or under

development in the California Coastal

area. Several timber companies have

made substantial investments in

information-gathering and planning for

owl conservation. The Simpson Timber

Company has completed an HCP

(Simpson 1992) and received a permit

for incidental take of a limited number

of spotted owls on its 380,000-acre

property. Pursuant to the HCP, Simpson

Timber has set aside 40,000 acres for at

least 10 years, is conducting research on

habitat characteristics, and has banded

more than 600 owls. The Pacific Lumber

Company is conducting banding and

radio-telemetry studies, and has

completed a management plan for its

200,000-acre property that maintains

owl habitat in every watershed and

protects all spotted owl nest sites from

take. The Georgia-Pacific and LouisianaPacific Corporations have conducted

banding and radio-telemetry studies in

cooperation with the CDFG; analyses of

these data are under way. Numerous

smaller-acreage landowners have

conducted surveys and provided data to

the State’s spotted owl database.

Planning a conservation strategy for

spotted owls in the California Coastal

area is a complex task due to the large

number of landowners (conservatively

estimated at 30,000 to 50,000 (CDF

1992). Therefore, except for a small

landowner exemption for people

owning less than 80 acres of forestland

within a given CCPA and an additional

adjustment for non-Federal lands within

matrix and AMA areas, the Service is

not proposing to remove the prohibition

of incidental take for this area at this

time, but will cooperate in anticipated

efforts by the California Resources

Agency to utilize the NCCP process to

further refine an acceptable owl

conservation program for this area that

addresses the question of additional

relief.

(b) Hardwood Region (Figure 2 to

§ 17.41(c)).

In the southern portion of the

California Coast Province and the

California Klamath Province, suitable

habitat is scattered due to effects of

climate, soils, and human development.

This area, which includes much of Lake,

Sonoma, Napa, and Marin Counties is

dominated by hardwoods and was

designated as the Hardwoods

Subprovince during the California HCP

planning effort (CDF 1992). It consists of

approximately 755,000 acres of Federal

land and 2.0 million acres of nonFederal land. Approximately 57 owl site

centers located on non-Federal lands are

known in this area; 70 site centers are

located on Federal land of which 9 rely

to some degree upon non-Federal lands.

In this area, spotted owls are widely

scattered and often isolated in small

patches of habitat. Because the area

contains minimal Federal land,

maintenance of the species’ current

range would depend almost entirely on

providing for owls on non-Federal

lands.

(c) Wells Mountains—Bully Choop

(Figure 3 to § 17.41(c)).

This area is in eastern Trinity County

south of the Salmon-Trinity Alps

Wilderness, and, as identified in the

draft Recovery Plan, provides an

important link between the California

Klamath Province and the California

Cascades Province. This area consists of

approximately 116,000 acres of Federal

land and 176,000 acres of non-Federal

lands, and is managed under SierraPacific Industries’ no-take owl

management plan. Approximately 13

owl site centers located on non-Federal

lands are known in this area; 7 site

centers are located on Federal lands of

which all 7 rely to some degree upon

adjacent non-Federal lands.

Conservation goals include maintenance

of owl populations and dispersal

habitat.

(d) California Cascades (Figure 3 to

§ 17.41(c)).

The California Cascades Province is

east of the California Klamath Province.

It consists of approximately 1.3 million

acres of Federal land and 1.6 million

acres of non-Federal land. Checkerboard

Federal/non-Federal ownership patterns

predominate. Due to the relatively dry

climate and the history of recurrent
9506 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

wildfires in this province, spotted owl

habitat is naturally fragmented by

chaparral and stands of deciduous

hardwoods. In portions of the province,

exclusion of fire during the last century

may have encouraged development of

mixed-conifer habitat suitable for

spotted owls. However, during the same

period, timber harvest has removed

substantial amounts of suitable habitat.

Approximately 105 widely scattered site

centers are known. Of these sites, 20 are

centered on non-Federal lands and 85

are centered on Federal lands, of which

46 rely to some degree upon adjacent

non-Federal lands. The potential for

dispersal throughout the province

appears to be limited. This province

provides the demographic and genetic

link between the northern spotted owl

and the California spotted owl (Strix

occidentalis occidentalis) of the Sierra

Nevada range.

Currently, threats in this province

include low population numbers, the

difficulty in providing for interacting

population clusters, and fragmented

dispersal habitat. Catastrophic wildfire

is a significant threat to habitat. In 1992,

a 70,000-acre fire in Shasta County

substantially reduced the likelihood of

contact between the northern spotted

owl and the California spotted owl for

the next several decades.

Due to the existing habitat condition

and the importance of the province in

linking the two subspecies, the entire

province has been designated as an area

of concern by every spotted owl

management plan to date. The Forest

Plan provides protection of habitat in

the home range of each northern spotted

owl found in the province. The province

contains the 172,000-acre Goosenest

AMA on the Klamath National Forest.

Sierra-Pacific Industries’ owl

management plan covers the majority of

the extensive non-Federal checkerboard

ownership in the province. The primary

conservation needs for both Federal and

non-Federal lands are research on

habitat use by nesting and dispersing

spotted owls, and providing habitat for

a well-distributed population and

dispersal throughout the province.

Because of the poor biological status of

the owl in this province, the

opportunity for large scale relief in this

area is very limited at present. Should

additional data or information suggest

that the status of the owl has stabilized

or is improving, options for this

Province would be reconsidered.

Other Related Provisions

As is the case in the State of

Washington, the proposed rule would

also include a ‘‘safe harbor’’ for any

timber harvest activity where more than

40 percent suitable habitat remained,

post harvest, within an owl’s median

annual home range. This provision

would be relevant for harvest activities

within the four potential CCPAs.

The Service proposes to provide

immediate relief upon the effective date

of the final rule from owl incidental take

restrictions for small landowners in

California. Such relief would be

independent of, and in advance of any

Natural Community Conservation

Planning (NCCP) process. Except within

the 70-acre owl activity centers

themselves, the Service proposes to

relieve small landowners who own no

more than 80 acres of forestland in a

given CCPA as of the date of publishing

this proposed rule in the Federal

Register, from the prohibition against

the incidental take of owls. The 80

acres/small landowner relief provision

would remain in effect regardless of

whether an NCCP process was

ultimately successful in a given CCPA.

The relief provision would be

applicable in all four potential CCPAs.

It would be unnecessary in the Klamath

Province Relief Area, which is the

subject of a broader proposal to relax

incidental take restrictions.

The Service also proposes to modify

existing incidental take restrictions

within potential CCPAs that would

involve non-Federal lands located amid

matrix or Adoptive Management Areas

(AMA) designated under the Federal

Forest Plan. Where such non-Federal

lands are subject to incidental take

prohibitions for a given owl, the Service

proposes to authorize the affected nonFederal landowners to apply either the

final management prescriptions for the

surrounding Federal Matrix/AMA land,

as determined through the watershed

analysis or AMA planning processes, as

appropriate, or such management

practices which comply with the

current incidental take restrictions.

Application of either management

strategy would absolve the affected nonFederal landowner from any liability for

incidental take of an owl under the Act,

resulting in the application of more

uniform owl conservation standards

within a matrix/AMA area regardless of

land ownership.

The one exception to this policy

would be where the adoption of matrix

or AMA prescriptions could result in

the incidental take of an owl whose site

center is located within a Forest Plan

reserve or Congressionally reserved or

Administratively withdrawn area. In

such a case, the incidental take

restrictions would continue to apply for

at least two more years. At the end of

this period, the Service will review any

new data or information involving the

status of such owls and their habitats in

the affected areas, including the results

of any completed watershed analysis

and other planning efforts under the

Forest Plan. As noted previously in a

discussion of this review process, the

Service would assess on an area-by-area

basis whether the continuation of the

incidental take prohibition on affected

non-Federal lands was still necessary

and advisable for achieving the owl

conservation goals of the Forest Plan.

The Service would lift the incidental

take restrictions where warranted and

authorize the adoption of the final

matrix or AMA prescriptions, at the

discretion of the affected non-Federal

landowner, as a means of avoiding an

unauthorized incidental take of an owl.

Table 1 provides a summary of the

various areas where incidental take

relief could be provided or prohibitions

retained in the two States affected by

this proposed rule.
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9507

TABLE 1

Landowner type Washington owl sites outside

SEAs

Washington owl sites inside

SEAs

California owl sites inside

Klamath relief area

California owl sites inside

CCPAs

Less than 80

acres.

Relief for all landowners except for 70-acre core.Relief except for 70-acre core Relief for all landowners except for 70-acre core.Relief except for 70-acre

core.

80–5,000 Acres Relief for all landowners except for 70-acre core or

where current restrictions

are necessary to protect

owls on a Federal reserve

or withdrawn area (except

for Olympic Peninsula).

Matrix/AMA prescription option. Additional relief contingent upon acceptable

Local Option Plan.

Relief for all landowners except for 70-acre core or

where current restrictions

are necessary to protect

owls on a Federal reserve

or withdrawn area.

Matrix/AMA prescription option. Additional relief contingent upon successful

completion of NCCP process.

More than 5,000

Acres.

Relief for all landowners except for 70-acre core or

where current restrictions

are necessary to protect

owls on a Federal reserve

or withdrawn area (except

for the Olympic Peninsula).

Matrix/AMA prescription option. Additional relief contingent upon acceptable

Local Option Plan.

Relief for all landowners except for 70-acre core or

where current restrictions

are necessary to protect

owls on a Federal reserve

or withdrawn area.

Matrix/AMA prescription option. Additional relief contingent upon successful

completion of NCCP process.

Incidental Take on Tribal Lands

For Indian forest lands, as that term

is defined at 25 CFR 163.1, in California

and Washington, the proposed rule

would result in the reduction of the

current Federal prohibition against the

incidental take of the spotted owl.

Under this proposal, Tribes would be

required to maintain only the closest 70

acres of suitable owl habitat around an

owl site center. Any additional

restrictions or prohibitions under Tribal

law would continue to apply. The

Service is proposing this approach in

recognition of the conservation benefits

provided the northern spotted owl

under harvest methods practiced by

many Indian Nations, such as the

Yakima Indian Nation in Washington.

Many tribal lands are already managed

under conservation strategies for the

owl or are of little habitat value for the

bird. Moreover, the Service notes that

the Secretary’s trust responsibility for

Native Americans provides him with

additional fiduciary factors to weigh in

exercising his broad discretionary

authority under Section 4(d) of the Act.

Sunset Provision

The Service proposes a process that

could result in the modification of the

prohibitions of incidental take that are

retained under this proposed rule

should future biological information so

warrant in either California or

Washington.

Under this sunset provision, the

Service would periodically evaluate the

conservation goals for non-Federal lands

within SEAs or possible CCPAs and

would decide whether the conservation

goals for owls in those areas have been

accomplished as a result of future HCPs,

no-take agreements, or other affirmative

conservation activities. Should the

Service conclude that success has been

achieved in reaching the conservation

needs of the species within a given area,

restrictions due to incidental take

prohibitions could be further modified

or lifted, as information warrants.

Other Federal Mechanisms for

Promoting the Conservation of the

Spotted Owl

The listing of the spotted owl, the

designation of its critical habitat, and

the application of Act regulations at 50

CFR Part 17 have extended the

protection of the Act to this species.

Under section 7 of the Act and the

implementing consultation regulations

at 50 CFR 402, individual project review

occurs through the consultation process

for those actions authorized, funded, or

carried out by Federal agencies that may

affect a listed species like the spotted

owl or its designated critical habitat.

The Section 7 consultation process is

designed to ensure that a proposed

action is not likely to jeopardize the

continued existence of the species or

adversely modify its critical habitat. The

consultation process also requires the

Service to determine what level of

incidental take is likely to occur as a

result of that action. After completing

this determination, the Service issues an

incidental take statement that is

designed to minimize both the level and

the impact of take on listed species.

In 1982, Congress amended section

10(a)(1)(B) of the Act to provide an

additional mechanism for encouraging

non-Federal support for the

conservation of listed species. More

commonly known as Habitat

Conservation Planning or HCPs, this

mechanism authorizes the incidental

take of a listed species in exchange for

a commitment from a private developer

or landowner for a long-term

conservation program for the affected

species.

Section 10(a)(1)(B) of the Act, requires

non-Federal applicants to develop

Habitat Conservation Plans for listed

species which would be incidentally

taken in the course of otherwise lawful

activities, and to submit such plans

along with an application for an

incidental take permit. Such plans can

direct significant private sector

resources in support of the overall

conservation of the affected species on

non-Federal lands. Three section

10(a)(1)(B) incidental take permits for

the northern spotted owl have already

been issued by the Service. A number of

other non-Federal entities are in the

process of developing HCPs for the

spotted owl. The section 10 HCP

process will remain available to nonFederal landowners under the proposed

rule and will provide an additional

alternative for adjusting the incidental

take prohibitions set forth in this

proposed rule. The initiation of a major

and aggressive Habitat Conservation

Planning Program for non-Federal

forestlands in the Pacific Northwest is

an integral and crucial component of the

Administration’s overall owl

conservation program. When combined

with the conservation goals of the

Federal Forest Plan and this proposed

section 4(d) rule, the Service’s Habitat

Conservation Planning initiative

provides the third element for a

comprehensive strategy for the owl.

Incentives for Restoring or Enhancing

Owl Habitat

Prohibitions against the incidental

take of the spotted owl have existed

since the species was Federally listed in

June of 1990. The Service believes that

many landowners have felt threatened

by the current regulations which could
9508 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

be viewed as a disincentive to enhance,

restore, or maintain habitat in a

condition that is suitable for owl

nesting, roosting, foraging, or dispersal.

The disincentive stems from

landowners’ fears that owls might

establish residence on, or move through,

their property and impede their ability

to manage their timber resources. This

disincentive has had the effect of

increasing timber harvest of currently

suitable owl habitat and younger forests

on non-Federal lands which are not

presently affected by the presence of an

owl. With regard to younger forests in

particular, this concern or fear has

accelerated harvest rotations in an effort

to avoid the regrowth of habitat that is

useable by owls.

For those non-Federal lands which

are not currently affected by incidental

take restrictions for spotted owls, the

Service proposes to provide a new

incentive to landowners to voluntarily

manage their lands in a manner which

aids in owl conservation without

increased regulatory liability for the

landowner. In particular, the Service

desires to encourage landowners to

restore or enhance former owl habitat

which has been previously altered and

is of little current value to the owl. The

Service is also interested in encouraging

owners of current suitable owl habitat to

maintain that habitat and to forego

premature cutting as the only perceived

means of avoiding future incidental take

restrictions for the owl.

The Service would offer to work

directly with a non-Federal landowner

through a written conservation or

cooperative agreement for the purpose

of managing, restoring or enhancing

forest habitat so as to contribute to the

survival and recovery of the owl.

Working with the affected landowner,

the Service would first establish an

environmental baseline for the property

to confirm that no Endangered Species

Act-based spotted owl restrictions

currently apply to the land. The Service

might provide such other conservation

advice or assistance as is feasible and

available. The agreement would be of

sufficient duration so as to enhance the

conservation of the owl or to provide

some benefit to the owl while still

allowing economic use of the property

during the term of the agreement.

At the end of the agreement, or at any

time thereafter, the landowner would be

free to use his or her property as desired

without restrictions under the Act for

the spotted owl. This would be the case

even if an owl established residence or

dependency upon the property at some

point during or after the terms of the

agreement. During the life of the

agreement, the landowner also would be

authorized to incidentally take any

spotted owl which was otherwise in

accordance with the use of the property

under the agreement.

The Service believes that an

incentives program of this sort will

encourage primarily the development of

dispersal habitat under restoration and

enhancement agreements and will slow

down the harvest of suitable owl habitat

under habitat maintenance agreements.

Under any of these approaches, there is

a potential benefit for the spotted owl.

Most owls using dispersal habitat are

not likely to remain dependent upon

that habitat as part of a resident pair or

as a single. Instead, they are likely to

use the area as a corridor for moving

from one block of suitable habitat to

another. Under these circumstances, any

incidental take that might otherwise

occur through land use activities on the

property is likely to be inconsequential

or very limited in impact or duration.

In addition, the opportunity for

subsequent immunity from incidental

take restrictions should provide an

incentive to owners of suitable owl

habitat to forego panic cutting and to

enter into habitat maintenance

agreements. By discouraging legal but

potentially unsustainable harvests now,

and stretching the retention of suitable

owl habitat for the life of a maintenance

agreement, the Service and the

landowner would keep such habitat

available for owl use during the

pendency of the agreement.

Incidental Take of Other Listed Species

Several other Federally-listed species

occur in the late-successional and oldgrowth forests that provide habitat for

the spotted owl. The bald eagle

(Haliaeetus leucocephalus), peregrine

falcon (Falco peregrinus), gray wolf,

grizzly bear (Ursus arctos), and marbled

murrelet are known to occur on nonFederal lands in the range of the owl;

the prohibition of take of these species

incidental to timber harvest would

remain in place.

The Service is concerned about the

effects of harvest activities on the

marbled murrelet, particularly since the

range of the spotted owl significantly

overlaps the range of the murrelet. Some

areas of relief under this proposed rule

for the spotted owl might also provide

habitat that is occupied by the marbled

murrelet. Since the date of the original

listing of the murrelet, the Service has

been acquiring as much additional data

and information as possible to identify

the constituent elements of suitable

murrelet habitat, as well as to expand a

landowner’s ability to determine

whether or not such habitat is occupied.

Significant progress also has been made

in the development of a draft recovery

plan for the murrelet. The draft recovery

plan should be available for public

comments in two to three months. In

order to aid a landowner in determining

whether a property is occupied by

murrelets, the Service encourages

landowners to contact one of the Fish

and Wildlife Service’s three Ecological

Services State Offices noted previously

in this document, and request guidance

or information on delineating suitable

murrelet habitat and conducting

murrelet surveys to determine presence

of murrelets on a given piece of

property. This will ensure that

landowners who might receive relief

from owl restrictions under this

proposed rule are aware of the latest

data on occupied habitat for murrelets.

The Service recognizes that additional

incidental take of spotted owls may

occur in SEAs in Washington and

CCPAs in California, as HCPs or other

long-term conservation agreements, e.g.

local option conservation plans, are

implemented and further take is

authorized. However, the Service

believes that the overall level of

incidental take is acceptable in light of

the habitat-based conservation strategy

in the Forest Plan and the fact that such

plans or agreements must satisfy the

conservation requirements of the Act.

The Service will review the effects of

the proposed rule under a section 7

consultation as part of the process to

complete this proposed rule.

In Washington and California, the

Service believes that the relief from

prohibitions for non-Federal

landowners outside of SEAs or CCPAs

and for non-Federal landowners with

holdings of less than 80 acres of

forestland in a given SEA or CCPA

would not preclude the recovery of the

spotted owl and will facilitate the

maintenance of habitat conditions in

some areas by removing disincentives

that currently account for the premature

cutting of habitat.

In general, the contributions of

Federal, State, Tribal and private land

management and conservation efforts

for protection of the spotted owl and

other species allow for reduction of the

prohibitions on incidental take of the

owl in many areas on non-Federal

lands. As a result of this proposed rule,

landowners would have more certainty

about the conditions under which

incidental take is likely to occur.

Finally, the Service points to the longterm benefit to the owl of enhanced

public support for the Act.

Public Comments Solicited

The Service intends that any final

action resulting from this proposed rule
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9509

would be as accurate and as effective as

possible. Therefore, comments or

suggestions from the public, other

government agencies, the scientific

community, industry, or any other

interested party concerning this

proposed rule are solicited. In

particular, the Service seeks comments

on:

(1) The distribution, abundance, and

population trends of spotted owls on

non-Federal lands in Washington and

California as they would relate to the

approaches described in this proposed

rule;

(2) The boundaries of the proposed

SEAs or CCPAs identified for

Washington and California and

suggestions for modification of these

boundaries. In order to better assess

available data on the region, the Service

particularly would like to encourage

public comment on the question of

whether it is necessary and advisable for

the conservation of the spotted owl to

designate a Special Emphasis Area on

the western side of the Olympic

Peninsula, and if so, whether the

present proposed boundaries of the

Hoh/Clearwater Special Emphasis Area

are warranted or whether they should be

reduced in size or significantly

reconfigured.

(3) The distribution and abundance of

spotted owl populations that are outside

of SEAs or CCPAs;

(4) The biological and economic

implications of applying the proposed

rule in Washington and California;

(5) The applicability of the definitions

of suitable habitat and dispersal habitat

for the spotted owl, specific to

provinces if possible;

(6) The implications of the proposed

rule on small-acreage (less than 80

acres), medium-acreage (80 to 5,000

acres), and large-acreage (more than

5,000 acres) non-Federal landowners

and comments on how these different

ownerships are addressed in the

proposed rule;

(7) The scope and effect of the ‘‘local

option’’ process for landowners who

own 80 to 5,000 acres in SEAs in the

State of Washington;

(8) The biological or economic

implication of proposing a different

SEA/CCPA approach where non-Federal

buffers would be retained around any

owl site centers located on Federal

reserves in designated areas, and

whether SEA/CCPA boundaries would

change as a result of applying this type

of approach; and

(9) Recommendations or comments on

how to implement the proposed Habitat

Enhancement Agreement conservation

program for the owl, particularly with

regards to possible provisions of such

agreements, scope of duration of such

agreements and land use assurances to

private landowners which would be

necessary to encourage voluntary

participation.

Final promulgation of the proposed

rule will take into consideration the

comments and any information received

by the Service. Any information the

Service receives during the comment

period may lead to a final rule that

differs from this proposed rule.

The Act provides for a public hearing

on the proposed rule, if requested.

Requests must be received within 45

days of the date of publication of this

proposed rule. Such requests must be

written and addressed to: Regional

Director, Region 1, U.S. Fish & Wildlife

Service, 911 N.E. 11th Avenue,

Portland, Oregon 97232–4181.

Section 7 Consultation

Review, pursuant to section 7 of the

Act, will be conducted prior to issuance

of a final rule to ensure that the

proposed action will not jeopardize the

continued existence of the spotted owl

or any other listed species.

National Environmental Policy Act

The Fish and Wildlife Service is

complying with NEPA in implementing

the provisions of this proposed rule.

The Service prepared an environmental

assessment on this proposal and has

decided to engage in a more intensive

assessment of impacts through the

preparation of an environmental impact

statement (EIS). The Service is

preparing a draft EIS at this time. The

draft EIS will be published and

available for public review and

comment approximately 60 days after

publication of this proposed rule. The

end of the public comment period for

the proposed rule will ultimately be

extended to coincide with the end of the

public comment period for the draft EIS.

Required Determinations

This proposed rule was reviewed

under Executive Order 12866. The

Service has not yet made a

determination of the economic effects of

the proposed rule on small entities as

required under the Regulatory

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

Specific economic effects of the

proposed action will be discussed in the

economic analysis that is included in

the Environmental Impact Statement

(EIS) for the proposed action. The EIS

will be published and available for

public comment at a later date. This rule

does not require a Federalism

assessment under Executive Order

12612 because it would not have any

significant federalism effects as

described in the order. The collection of

information contained in this proposed

rule have been approved by the Office

of Management and Budget under

U.S.C. 3501 et seq. and assigned

clearance number 1018–0022. The

Service has determined that this

proposed action qualifies for categorical

exclusion under the requirements of

Executive Order 12630, ‘‘Government

Actions and Interference with

Constitutionally Protected Property

Rights’’, and preparation of a Takings

Implications Assessment is not

required. Regulations that authorize take

of listed species, as is proposed in this

special rule, are designated as

categorical exclusions.

References Cited

Bart, J. and E.D. Forsman. 1992. Dependence

of northern spotted owls (Strix

occidentalis caurina) on old-growth

forests in the western USA. Biological

Conservation 62:95–100.

Berbach, M., G.I. Gould, Jr., J. Stenback, H.

Eng, and R. Marose. 1993. GIS analysis

of northern spotted owl dispersal habitat

on private lands in Del Norte, Humboldt,

and Mendocino Counties, California.

Trans. West. Sec. Wildl. Soc. Vol. 29.

Sacramento, California.

Buchanan, J., Hanson, E., Hays, D., and L.

Young, L. 1994. An evaluation of the

Washington Forest Practices Board

Wildlife Committee preferred alternative

for a spotted owl protection rule: a report

to the Washington Forest Practices

Board. Washington Forest Practices

Board Spotted Owl Advisory Group.

Olympia, Washington.

Hanson, E., Hays, D., Hicks, L., Young, L.,

and J. Buchanan. 1993. Spotted owl

habitat in Washington: a report to the

Washington Forest Practices Board.

Washington Forest Practices Board

Spotted Owl Advisory Group. Olympia,

Washington.

Holthausen, R.S.; Raphael, M.G.; McKelvey,

K.S.; Forsman, E.D.; Starkey, E.E.;

Seaman, D.D. 1994. The Contribution of

Federal and Nonfederal Habitat to

Persistence of the Northern Spotted Owl

on the Olympic Peninsula, Washington.

Report of the Reanalysis Team.

Murray Pacific Corp. 1993. Habitat

conservation plan for the northern

spotted owl on forestlands owned by the

Murray Pacific Corporation, Lewis Co.,

Washington.

Ralph, C.J., Nelson, S.K., Shaughnessy, M.M.,

Miller, S.L.; Hamer, T.E. 1994. Methods

for surveying marbled murrelets in

forests; a protocol for land management

and research. Pacific Seabird Group,

Technical paper #1, revised. USDA

Forest Service, Pacific Southwest

Research Station, Arcata, California. 50p.

Simpson Timber Co. 1992. Habitat

conservation plan for the northern

spotted owl on the California

Timberlands of Simpson Timber

Company.
9510 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

Thomas, J.W., E.D. Forsman, J.B. Lint, E.C.

Meslow, B.R. Noon, and J. Verner. 1990.

A conservation strategy for the northern

spotted owl. Interagency Scientific

Committee to Address the Conservation

of the Northern Spotted Owl, U.S.

Department of Agriculture, Forest

Service, and U.S. Department of Interior,

Bureau of Land Management, Fish and

Wildlife Service, National Park Service,

Portland, Oregon.

Thomas, J.W., M.G. Raphael, R.G. Anthony,

E.D. Forsman, A.G. Gunderson, R.S.

Holthausen, B.G. Marcot, G.H. Reeves,

J.R. Sedell, D.M. Solis. 1993. Viability

assessments and management

considerations for species associated

with late-successional and old-growth

forests of the Pacific Northwest.

Portland, Oregon. U.S. Department of

Agriculture, Forest Service.

Tuazon, R., DePree, J., Gaffin, J., Harris, R.,

Johnson, R., Murray, G., Roush, L.,

Whitlock, W., and R. Zwanziger. 1992.

Northern spotted owl habitat

conservation plan for private forestlands

in California. Draft prepared for

California Board of Forestry.

USDA/USDI/NOAA/EPA. 1993. Forest

Ecosystem Management: An Ecological,

Economic, and Social Assessment. A

Report of the forest Ecosystem

Management Assessment Team. July,

1993. Portland, Oregon.

USDA/USDI. 1994a. Final supplemental

environmental impact statement on

management of habitat for latesuccessional and old-growth forest

related species within the range of the

northern spotted owl. Portland, OR. 2

vol.

USDA/USDI. 1994b. Record of decision for

amendments to Forest Service and

Bureau of Land Management planning

documents within the range of the

northern spotted owl. Portland, OR:

Forest Service, Bureau of Land

Management.

USDI. 1990. 1990 status review of the

northern spotted owl. Fish and Wildlife

Service, Portland, Oregon.

USDI. 1992. Recovery plan for the northern

spotted owl; final draft. Portland,

Oregon: U.S. Department of Interior, 2

vol.; December 1992.

USFWS. 1992. Protocol for surveying

proposed management activities that

may impact northern spotted owls.

March 17, 1992. Portland, Oregon.

Warm Springs Indian Reservation. 1993.

Forest management implementation plan

1992 through 2001. Warm Springs,

Oregon.

Authors

The principal authors of this

proposed rule are Gerry Jackson, U.S.

Fish and Wildlife Service, Deputy

Assistant Regional Director, North

Pacific Coast Ecosystem, 911 N.E. 11th

Avenue, Portland, Oregon 97232; Curt

Smitch, U.S. Fish and Wildlife Service,

Assistant Regional Director, North

Pacific Coast Ecosystem, 3704 Griffin

Lane SE, Suite 102, Olympia,

Washington 98501; and Don Barry,

Counselor to Assistant Secretary for

Fish, Wildlife and Parks, 1849 C Street

NW, Washington, DC 20240.

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements, and

Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby

proposes to amend part 17, subchapter

B of chapter I, title 50 of the Code of

Federal Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

§ 17.11 [Amended]

2. Section 17.11(h), is amended by

revising the ‘‘special rules’’ column in

the table entry for ‘‘Owl, northern

spotted’’ under BIRDS to read

‘‘17.41(c)’’ instead of ‘‘NA’’.

3. Section 17.41 is amended by

adding paragraph (c) to read as follows:

§ 17.41 Special rules—birds.

* * * * *

(c) Northern spotted owl (Strix

occidentalis caurina).

(1) Prohibitions. Except as provided in

this paragraph (c)(1) or by a permit

issued under paragraph (c)(2) of this

section, the following prohibitions

apply to the northern spotted owl.

(i) Taking. Except as provided in this

paragraph (c)(1)(i), no person shall take

a northern spotted owl in Washington or

California.

(A) Taking pursuant to cooperative

agreements. Any employee or agent of

the Fish and Wildlife Service (Service),

or of a conservation agency of the State

of Washington or State of California that

is carrying out a conservation program

pursuant to the terms of a cooperative

agreement with the Service in

accordance with section 6(c) of the

Endangered Species Act, who is

designated by his/her agency for such

purposes, may, when acting in the

course of his/her official duties, take a

northern spotted owl covered by an

approved cooperative agreement to

carry out a conservation program under

the agreement in Washington or

California.

(B) Taking by designated officials.

Any employee or agent of the Service,

National Park Service, Bureau of Land

Management, U.S. Forest Service,

Washington Department of Wildlife, or

California Department of Fish and

Game, who is designated by his/her

agency for such purposes, may, when

acting in the course of his/her official

duties, take a northern spotted owl in

Washington or California if such action

is necessary to:

(1) Aid a sick, injured or orphaned

owl;

(2) Dispose of a dead owl; or

(3) Salvage a dead owl which may be

useful for scientific study: Provided,

that any taking pursuant to paragraph

(c)(1)(i)(B) of this section must be

reported in writing to the U.S. Fish and

Wildlife Service, Division of Law

Enforcement, P.O. Box 19183,

Washington, DC 20036, within 5 days.

The specimen may only be retained,

disposed of or salvaged in accordance

with directions from the Service.

(C) Incidental Take on Tribal Lands.

On Indian forest lands in Washington

and California, as defined in 25 CFR

163.1, any person may, when acting in

accordance with tribal forestry rules and

regulations, take a northern spotted owl

incidental to timber harvest activity if

the harvest does not destroy or degrade

the 70 acres of nesting, roosting and

foraging habitat closest to an owl site

center.

(D) Spotted Owl Habitat Enhancement

Agreement. Any person who has

voluntarily entered into a Cooperative

Habitat Enhancement Agreement

(Agreement) with the Service for the

purpose of restoring, enhancing or

maintaining forestland habitat to aid in

the conservation of the spotted owl may,

pursuant to the terms of that Agreement,

incidentally take spotted owls on the

subject lands either during or after the

period when the Agreement is in effect:

Provided, that such Agreements shall

only apply to parcels of land that are

free of all incidental take restrictions for

the spotted owl as of the date that such

Agreements enter into force and effect,

and that such Agreements must be of

sufficient duration to aid in the

conservation of the spotted owl.

(E) Incidental Take in State of

Washington. The provisions of this

paragraph (c)(1)(i)(E) shall apply to the

incidental take of northern spotted owls

from timber harvest activity in the State

of Washington.

(1) Outside Special Emphasis Areas

(SEA). Any person may take a northern

spotted owl incidental to timber harvest

activity outside an SEA if the harvest

does not destroy or degrade the 70 acres

of nesting, roosting and foraging habitat

closest to an owl site center: Provided,

that such incidental take is not

authorized with regard to an owl whose

site center is located within and along
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9511

the boundary of an SEA; or a Federal

reserve or Congressionally reserved or

Administratively withdrawn area which

is otherwise located off the Olympic

Peninsula.

(2) Inside SEAs—Matrix and Adaptive

Management Area authorization. Any

person may take a northern spotted owl

incidental to timber harvest activity

within an SEA if the harvest is on nonFederal land surrounded by or located

within Federal Matrix or Adaptive

Management Area lands and complies

with the final Federal harvest

prescriptions or restrictions adopted for

such lands: Provided, that this

authorization shall not apply to any

northern spotted owl whose site center

is located within a Federal Reserve or a

Congressionally reserved area or

Administratively withdrawn area.

(3) Inside SEAs—Small landowners.

Any person who owns, on February 17,

1995, no more than 80 acres of

forestland within a given SEA, may take

a northern spotted owl incidental to

timber harvest activity within such 80

acres if the harvest does not destroy or

degrade the 70 acres of nesting, roosting

and foraging habitat closest to an owl

site center.

(4) Inside SEAs—Local option

conservation plans. (i) Authorization.

Any person who owns on February 17,

1995 more than 80 acres, but not more

than 5000 acres, of forestland in a given

SEA may take a northern spotted owl

incidental to timber harvest activity

conducted on such land in accordance

with a Local Option Conservation Plan

approved by the Service.

(ii) Application. Each application for

a Local Option Conservation Plan shall

be submitted to the Service’s State

Supervisor, U.S. Fish and Wildlife

Service, 3704 Griffin Lane SE, Suite 102,

Olympia, Washington 98501, on an

official application (Form 3–200)

provided by the Service. Each

application must include, as an

attachment, a plan that contains a

description of the area to be covered by

the proposed plan; the size of the

affected land ownership(s) and the

intended duration of the plan; the

number of affected spotted owls and the

habitat condition in the area to be

covered by the proposed plan, if known;

the extent to which the plan will

contribute to or be consistent with the

owl conservation needs identified for

the SEA affected by the plan; the extent

to which the incidental take of spotted

owls resulting from timber activities

under the plan will be complementary

with the goals of the Federal Forest Plan

for the affected area; the extent to which

the land is adjacent to, or interspersed

within, Federal Matrix or Adaptive

Management Area lands and a

description of the final management

prescriptions delineated for any such

lands, if known; the measures to be

taken to minimize and mitigate the

impacts of incidental take of spotted

owls; the impact of the plan on affected

watershed(s); what commitments the

landowner(s) will provide to ensure

implementation or adequate funding for

the plan; what procedures will be used

to deal with any unforeseen

circumstances which could result in

significant adverse effects to spotted

owls in the affected area; any additional

measures the Service requires as being

necessary or appropriate for the goals of

the plan to be met, e.g., reporting and

review requirements; and, where the

State has implemented regulations for a

local option conservation plan review

process that complements or is

consistent with this proposed rule,

whether the State has certified the plan.

(iii) Approval. After consideration of

the information submitted with an

application and received during a

public comment period, the Service

shall approve a Local Option

Conservation Plan if it finds that any

anticipated taking will be incidental; the

applicant will minimize and mitigate

the impact of such takings; the local

option conservation plan contributes to

or is consistent with the conservation

needs of the northern spotted owl in the

affected SEA and will not result in the

incidental take of a spotted owl deemed

essential for providing demographic

support for a Federal reserve established

under the Federal Forest Plan as

necessary to achieve conservation

objectives; the applicant will provide

adequate assurances or funding for the

implementation of the local option plan;

and the taking will not appreciably

reduce the likelihood of survival and

recovery of any listed species in the

wild.

(5) Safe Harbor Authorization. Any

person may take a northern spotted owl

incidental to timber harvest activity

within an SEA if the harvest does not

destroy or degrade the 70 acres of

nesting, roosting and foraging habitat

closest to an owl site center, and does

not reduce, to less than 40 percent, the

amount of nesting, roosting and foraging

habitat within the median annual home

range of the affected owl.

(6) Sunset provision. The Service

shall periodically review and evaluate

the effectiveness of the conservation

measures and program for the spotted

owl for each SEA. If the review

indicates that the conservation goals for

an SEA have been effectively achieved,

the Service shall propose regulations to

modify or withdraw the incidental take

prohibitions in this paragraph as

appropriate with respect to such SEA.

(F) Incidental Take in State of

California. The provisions of this

paragraph (c)(1)(i)(F) shall apply to the

incidental take of northern spotted owls

from timber harvest activity in the State

of California.

(1) Klamath Province Relief Area. Any

person may take a northern spotted owl

incidental to timber harvest activity in

the Klamath Province Relief Area

(Figure 1 to § 17.41(c)) if the harvest

does not destroy or degrade the 70 acres

of nesting, roosting and foraging habitat

closest to an owl site center: Provided,

that such incidental take is not

authorized with regard to an owl whose

site center is located within and along

the boundary of a Federal reserve or a

Congressionally reserved or

Administratively withdrawn area.

(2) Potential California Conservation

Planning Areas. (i) Matrix and Adaptive

Management Area authorization. Any

person may take a northern spotted owl

incidental to timber harvest activity

within a potential California

Conservation Planning Area (CCPA) if

the harvest is on non-Federal land

surrounded by or located within Federal

Matrix or Adaptive Management Area

lands and complies with the final

Federal harvest prescriptions or

restrictions adopted for such lands:

Provided, that this authorization shall

not apply to any northern spotted owl

whose site center is located within a

Federal reserve or a Congressionally

reserved or Administratively withdrawn

area.

(ii) Small landowners. Any person

who owns, on February 17, 1995, no

more than 80 acres of forestland within

a given potential CCPA may take a

northern spotted owl incidental to

timber harvest activity within such 80

acres if the harvest does not destroy or

degrade the 70 acres of nesting, roosting

and foraging habitat closest to an owl

site center.

(iii) Natural Communities

Conservation Plans. Any person may

take a northern spotted owl incidental

to timber harvest activity within a

potential CCPA if the harvest is

conducted in accordance with a Natural

Communities Conservation Plan (Plan)

for spotted owls prepared by the State

of California and approved by the

Service. The Service shall approve any

such Plan if it finds that the Plan is

consistent with achieving the

conservation goals for the spotted owl in

the affected CCPA, is complementary to

the Federal Forest Plan and is consistent

with the criteria of section 10(a)(2) of

the Endangered Species Act (16 USC

1539(a)(2)).
9512 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

(iv) Safe Harbor Authorization. Any

person may take northern spotted owls

incidental to timber harvest activity

within a potential CCPA if the harvest

does not destroy or degrade the 70 acres

of nesting, roosting and foraging habitat

closest to an owl site center, and does

not reduce, to less than 40 percent, the

amount of nesting, roosting and foraging

habitat within the median annual home

range of the affected owl.

(v) Sunset provision. The Service shall

periodically review and evaluate the

effectiveness of the conservation

measures and program for the spotted

owl established for each CCPA. If the

review indicates that the conservation

goals for a CCPA have been effectively

achieved, the Service shall propose

regulations to modify or withdraw the

incidental take prohibitions of this

paragraph, as appropriate, with respect

to such CCPA.

(ii) Unlawfully taken owls. No person

shall possess, sell, deliver, carry,

transport, or ship, any northern spotted

owl taken in violation of paragraph

(c)(1)(i) of this section: Provided, that

Federal and State law enforcement

officers may possess, deliver, carry,

transport or ship any endangered

wildlife taken in violation of the Act as

necessary in performing their official

duties.

(iii) Commercial transportation. No

person shall deliver, receive, carry,

transport, or ship in interstate or foreign

commerce in the course of a commercial

activity any northern spotted owl.

(iv) Sales. No person shall sell or offer

for sale in interstate or foreign

commerce any northern spotted owl.

(v) Importation or exportation. No

person shall import into the United

States, or export from the United States,

any northern spotted owl.

(2) Permits. In accordance with the

provisions of § 17.32 of this Part,

permits are available to authorize

otherwise prohibited activities

involving the northern spotted owl in

Washington and California.

(3) Definitions. As used in this

paragraph (c):

(i) Administratively withdrawn area

means lands that are excluded from

planned or programmed timber harvest

under agency planning documents or

the preferred alternative for draft agency

planning documents.

(ii) Adaptive management area means

the 10 landscape units that were

adopted in the April 13, 1994 Record of

Decision for Amendments to U.S. Forest

Service and Bureau of Land

Management Planning Documents

within the Range of the Northern

Spotted Owl (USDA/USDI 1994) for

development and testing of technical

and social approaches to achieving

specific ecological, economic, and other

social objectives.

(iii) Congressionally reserved area

means lands with Congressional

designations that preclude timber

harvest, as well as other Federal lands

not administered by the Forest Service

or Bureau of Land Management,

including National Parks and

Monuments, Wild and Scenic Rivers,

National Wildlife Refuges, and military

reservations.

(iv) Federal Forest Plan means the

Federal forest management strategies,

standards and guidelines adopted in the

April 13, 1994, Record of Decision for

the Final Supplemental Environmental

Impact Statement for 19 National

Forests and 7 Bureau of Land

Management Districts located within the

range of the northern spotted owl.

(v) Federal Matrix Land means those

Federal lands generally available for

programmed timber harvest which are

outside of the Congressionally reserved

and Administratively withdrawn areas,

Federal reserves and Adaptive

Management Areas as delineated in the

Standards and Guidelines adopted in

the April 13, 1994, Record of Decision.

(vi) Federal Reserve means those

Federal lands delineated in the April 13,

1994, Record of Decision on which

programmed timber harvest is not

allowed and is otherwise severely

limited. There are two types of reserves:

late-successional reserves, which are

designed to produce contiguous blocks

of older forest stands; and riparian

reserves, which consist of protected

strips along the banks of rivers, streams,

lakes, and wetlands that act as a buffer

between these water bodies and areas

where timber harvesting is allowed.

(vii) Home range means the area a

spotted owl traverses in the course of

normal activities in fulfilling its

biological needs during the course of its

life span.

(viii) Nesting, roosting and foraging

habitat or suitable habitat means those

areas with the following vegetative

structure and composition necessary to

assure successful nesting, roosting, and

foraging activities for a territorial single

or breeding pair of spotted owls:

(A) In the California provinces,

suitable habitat consists, as a general

matter, of coniferous or mixed

coniferous/hardwood forests with

multiple canopy layers; multiple

overstory conifers greater than 16 inches

in diameter at breast height (dbh); and

total canopy closure among dominant,

co-dominant, and understory trees of

greater than 60 percent;

(B) In the Western Washington

Lowlands province, the Western

Washington Cascades province, and the

Washington Olympic Peninsula

province, suitable habitat consists, as a

general matter, of coniferous or mixed

coniferous/hardwood forests with

multiple canopy layers; multiple large

overstory conifers greater than 20 inches

dbh, and total canopy closure among

dominant, co-dominant and understory

species of greater than 60 percent;

(C) In the Eastern Washington

Cascades province, suitable habitat

consists, as a general matter, of

coniferous forests with stands that

contain greater than 20 percent fir

(Douglas fir, Grand fir) and/or hemlock

trees; multiple canopy layers of multiple

large overstory conifers greater than 12

inches dbh; and total canopy closure

among dominant, co-dominant and

understory species of greater than 50

percent.

(ix) Northern spotted owl, spotted

owl, or owl means any northern spotted

owl (Strix occidentalis caurina), alive or

dead, and any part, egg, nest, or product

thereof.

(x) Person has the meaning provided

in 16 USC 1532(13).

(xi) Potential California Conservation

Planning Area (CCPA) means any of the

following four areas in the State of

California (Figure 1 to § 17.41(c)):

(A) California Coastal Area

(Humboldt Meridian and Baseline)

(Figure 2 to § 17.41(c)) Beginning at the

intersection of the California-Oregon

State Line and the shoreline of the

Pacific Ocean, then east along the

California-Oregon State Line, then south

along the east border of S33 T19NR01E,

S04 T18NR01E, S09 T18NR01E, S16

T18NR01E, S21 T18NR01E, S28

T18NR01E, S33 T18NR01E, then west

along the south border of S33

T18NR01E, then south along the east

border of S05 T17NR01E, S06

T17NR01E, then east along the north

border of S16 T17NR01E, then south

along the east border of S16 T17NR01E,

S21 T17NR01E, S28 T17NR01E, S33

T17NR01E, and S04 T16NR01E, then

east along the north border of S10

T16NR01E, then south along the east

border of S10 T16NR01E, S15

T16NR01E, then east along the north

border of S23 T16NR01E, then south

along the east border of S23 T16NR01E

and S26 T16NR01E, then east along the

north border of S36 T16NR01E, then

south along the east border of S36

T16NR01E, then east along the north

border of S06 T15NR02E, then south

along the east border of S06 T15NR02E,

S07 T15NR02E, S18 T15NR02E, then

east along the north border of S20

T15NR02E, S21 T15NR02E, S22

T15NR02E, S23 T15NR02E, then north

along the west border of S13 T15NR02E,
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9513

S12 T15NR02E, then east along the

north border of S12 T15NR02E, S07

T15NR03E, S08 T15NR03E, then south

along the east border of S08 T15NR03E,

S17 T15NR03E, then west along the

south border of S17 T15NR03E, then

south along the east border of S19

T15NR03E, S30 T15NR03E, S31

T15NR03E, then west along the south

border of S31 T15NR03E, then south

along the east border of T14NR02E,

T13NR02, and T12NR02E, then east

along the north border of T12NR03E,

then south along the east border of

T12NR03E and T11NR03E, then east

along the north border of S06

T10NR04E, then south along the east

border of S06 T10NR04E, S07

T10NR04E, S18 T10NR04E, S19

T10NR04E, S30 T10NR04E, S31

T10NR04E, S06 T09NR04E, S07

T09NR04E, S18 T09NR04E, then

southwest along the north border of the

Hoopa Valley Indian Reservation, then

southeast along the west border of the

Hoopa Valley Indian Reservation, then

south along the east border of S17

T07NR04E, S20 T07NR04E, S29

T07NR04E, S32 T07NR04E, S05

T06NR04E, S08 T06NR04E, S17

T06NR04E, S20 T06NR04E, S29

T06NR04E, S32 T06NR04E, then east

along the north border of S04

T05NR04E, then south along the east

border of S04 T05NR04E, then east

along the north border of S10

T05NR04E, then south along the east

border of S10 T05NR04E, S15

T05NR04E, S22 T05NR04E, then east

along the north border of S26

T05NR04E, S25 T05NR04E, then south

along the east border of T05NR04E and

T04NR04E, then east along the north

border of S31 T04NR05E, then south

along the east border of S31 T04NR05E,

S06 T3NR05E, S07 T3NR05E, S18

T3NR05E, then east along the north

border of S20 T03NR05E, S21

T03NR05E, then south along the east

border of S21 T3NR05E, S28 T3NR05E,

S33 T3NR05E, S04 T02NR05E, S09

T02NR05E, S16 T02NR05E, then east

along the north border of S22

T02NR05E, then south along the east

border of S22 T02NR05E, then east

along the north border of S26

T02NR05E, S25 T02NR05E, then south

along the east border of T02NR05E, then

east along the north border of

T01NR06E, then south along the east

border of S03 T01NR06E, S10

T01NR06E, S15 T01NR06E, S22

T01NR06E, then east along the north

border of S26 T01NR06E, then south

along the east border of S26 T01NR06E,

then east along the north border of S36

T01NR06e, S31 T01NR07E, then north

along the east border of S29 T01NR07E,

then east along the north border of S29

T01NR07E, then south along the east

border of S29 T01NR07E, S32

T01NR07E, then west along the south

border of T01NR07E, then south along

the east border of T01SR06E, then west

along the south border of S24

T01SR06E, S23 T01SR06E, S22

T01SR06E, S21 T01SR06E, S20

T01SR06E, S19 T01SR06E, S24

T01SR05E, S23 T01SR05E, then south

along the east border of S27 T01SR05E,

S34 T01SR05E, then east along the

north border of S02 T02SR05E, then

south along the east border of S02

T02SR05E, S11 T02SR05E, S14

T02SR05E, then east along the north

border of S24 T02SR05E, then south

along the east border of T02SR05E, then

east along the north border of S31

T02SR06E, then south along the east

border of S31 T02SR06E, then east along

the north border of S06 T03SR06E, S05

T03SR06E, S04 T03SR06E, S03

T03SR06E, S02 T03SR06E, S01

T03SR06E, then south along the east

border of T03SR06E, then west along

Ruth Zenia Road, Alderpoint Bluff

Road, Zenia Bluff Road, Alder Point

Road, then south along Harris Road, Bell

Springs Road, and U.S. Highway 101,

then west along Sebatopol Road, Bodega

Highway, and California Highway 1,

then north along California Highway 1,

then west along Salmon Creek, then

north along the shoreline of the Pacific

Ocean to the point of beginning.

(B) Hardwood Region (Mt Diablo

Meridian and Baseline Except Where

Township Designation Is Followed by *

Which Indicates Humboldt Meridian

and Baseline) (Figure 2 to § 17.41(c))

Beginning at the Intersection of Ruth

Zenia Road and the east border of

T03SR06E*, then south along the east

border of T03SR06E*, then east along

the north border of T04SR07E* and

T04SR08E*, then south along the east

border of T04SR08E* and T05SR08E*,/

****Meridian Change/ then east along

the north border of T05SR08E* and

T25NR12W, then south along the east

border of T25NR12W, then east along

the north border of S18 T25NR11W, S17

T25NR11W, S16 T25NR11W, then south

along the east border of S16 T25NR11W,

S21 T25NR11W, then west along the

south border of S21 T25NR11W, S20

T25NR11W, then south along the east

border of S30 T25NR11W, then west

along the south border of S30

T25NR11W, then south along the east

border of T25NR12W, S01 T24NR12W,

and S12 T24NR12W, then east and

south along the border of the Trinity

National Forest, then east along the

north border of S32 T24NR11W, then

south along the east border of S32

T24NR11W, then east along the north

border of S04 T23NR11W, then south

along the east border of S04 T23NR11W,

S09 T23NR11W, S16 T23NR11W, then

east along the north border of S22

T23NR11W, S23 T23NR11W, S24

T23NR11W, S19 T23NR10W, then south

along the east border of S19 T23NR10W,

S30 T23NR10W, S31 T23NR10W, then

east along California State Highway 162,

then south along the eastern border of

the East Cascades Province, then north

along the shoreline of the Pacific Ocean,

then east along Salmon Creek, then

south along California Highway 1, then

east along Bodega Highway and

Sebastopol Road, then north along U.S.

Highway 101, Bell Springs Road, and

Harris Road, then east along Alder Point

Road, Zenia Bluff Road, Alderpoint

Bluff Road and Ruth Zenia Road to the

point of beginning.

(C) Wells Mountain-Bully Choop Area

(Mt. Diablo Meridian and Baseline)

(Figure 3 to § 17.41(c))

Beginning at the northwest corner of

S04 T34NR11W, then east along the

north border of T34NR11W, then south

along the east border of S03 T34NR11W

and S10 T34NR11W, then east along the

north border of S14 T34NR11W, S13

T34NR11W, S18 T34NR10W, then north

along the east border of S08 T34NR10W,

then east along the north border of S08

T34NR10W, then south along the east

border of S08 T34NR10W, S17

T34NR10W, S20 T34NR10W, S29

T34NR10W, then east along the north

border of S33 T34NR10W, then south

along the east border of S33 T34NR10W,

then east along the north border of S03

T34NR10W, then north along the west

border of S35 T34NR10W, S26

T34NR10W, S23 T34NR10W, then east

along the north border of S23

T34NR10W, then north along the west

border of S13 T34NR10W, then east

along the north border of S13

T34NR10W, S18 T34NR09W, S17

T34NR09W, and S16 T34NR09W, then

north along California Highway 3, then

east along the border of the

Whiskeytown-Shasta-Trinity National

Recreation Area, then south along the

east border of S03 T34NR09W, then east

along the north border of S11

T34NR09W, S12 T34NR09W, then south

along the east border of T34NR09W,

then east along the north border of S19

T34NR08W, S20 T34NR08W, then south

along the east border of S20 T34NR08W,

S29 T34NR08W, S32 T34NR08W, then

west along the south border of S32

T34NR08W, then south along the east

border of S06 T33NR08W, then east

along the north border of S08

T33NR08W and S09 T33NR08W, then

north along the west border of S03

T33NR08W, then east along the north
9514 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

border of T33NR08W and T33NR07W,

then south along Trinity Mountain

Road, then east along California

Highway 299, then south along the east

border of S26 T32NR06W, S35

T32NR06W, S02 T31NR06W, then west

along the south border of the southeast

of S02 T31NR06W, then south along the

east border of the northwest of S11

T31NR06W, then west along the south

border of the northwest of S11

T31NR06W and northeast S10 of

T31NR06W, then south along Mule

Town Road, then west along the

boundary of the Klamath Province, then

north along the west border of the

northeast of S20 T30NR09W, then west

along the Shasta-Trinity County Line,

then north along the west border of

T30NR09W, then east along the south

border of T31NR09W and T31NR10W,

then south along the east border of S05

T30NR10W, then east along the south

border of S05 T30NR10W, then north

along the west border of S05

T30NR10W, then west along the south

border of T31NR10W, then north along

the west border of T31NR10W and

T32NR10W, then east along California

Highway 3, then west along California

Highway 299, then north along the west

border of S28 T34NR11W, S21

T34NR11W, S16 T34NR11W, S09

T34NR11W, S04 T34NR11W to the

point of beginning.

(D) California Cascades, (Mt Diablo

Meridian and Baseline) (Figure 3 to

§ 17.41(c))

Beginning at the Intersection of

Interstate Highway 5 and the CaliforniaOregon State Line, then east along the

California-Oregon State Line, then south

along the Eastern Boundary of the

California Cascades Province, then

north along Mule Town Road, then east

along the north border of the southeast

of S10 T31NR06W and southwest of S11

T31NR06W, then north along the west

border of the northeast of S11

T31NR06W, then east along the north

border of the northeast of S11

T31NR06W, then north along the west

border of S01 T31NR06W, S36

T32NR06W, and S25 T32NR06W, then

west along California Highway 299, then

north along Trinity Mountain Road,

then east along the south border of

T34NR07W and T34NR08W, then south

along the east border of S04 T33NR08W,

then west along the south border of S04

T33NR08W and S05 T33NR08W, then

north along the west border of S05

T33NR08W, then east along the north

border of S05 T33NR08W, then north

along the west border of S33

T34NR08W, S28 T34NR08W, S21

T34NR08W, then west along the south

border of S17 T34NR08W, S18

T34NR08W, then north along the west

border of S18 T34NR08W and S07

T34NR08W, then east along the south

border of S01 T34NR09W, S02

T34NR09W, then north along the west

border of the S02 T34NR09W, then west

along the border of the WhiskeytownShasta-Trinity National Recreation Area

then south along California Highway 3,

then west along the south border of S09

T34NR09W, S08 T34NR09W, and S07

T34NR09W, then north along the west

border of S07 T34NR09W, then east

along the north border of S07

T34NR09W, then north along the west

border of S05 T34NR09W, S32

T35NR09W, then west along the south

border of S30 T35NR09W, then north

along the west border of T35NR09W,

then east along the north border of S19

T35NR09W, then north along the west

border of S17 T35NR09W, then east

along the north border of S17

T35NR09W, S16 T35NR09W, S15

T35NR09W, then north along the west

border of S11 T35NR09W, then east

along the north border of S11

T35NR09W, then north along the west

border of S01 T35NR09W, then east

along the north border of T35NR09W

and T35NR08W, then north along the

west border of S32 T36NR08W and S29

T36NR08W, then east along the north

border of S29 T36NR08W, then north

along the west border of S21

T36NR08W, S16 T36NR08W, S09

T36NR08W, S04 T36NR08W, then east

along the north border of T36NR08W,

then north along the west border of S34

T37NR08W, S27 T37NR08W, and S22

T37NR08W, then west along the south

border of S16 T37NR08W, S17

T37NR08W, then north along the west

border of S17 T37NR08W and S08

T37NR08W, then east along the north

border of S08 T37NR08W, then north

along the west border of S04

T37NR08W, then east along the north

border of T37NR08W, then north along

the west border of S36 T38NR08W, then

east along the north border of S36

T38NR08W, then north along the west

border of S30 T38NR07W, then west

along the south border of S24

T38NR08W, then north along the west

border of S24 T38NR08W and S13

T38NR08W, then east along the north

border of S13 T38NR08W, then north

along the west border of S07

T38NR07W, then east along the north

border of S07 T38NR07W, S08

T38NR07W, S09 T38NR07W, then north

along the west border of S03

T38NR07W, S34 T39NR07W, S27

T39NR07W, S22 T39NR07W, and S15

T39NR07W, then west and north along

California Highway 3 and Interstate

Highway 5 to the point of beginning.

(xii) Province or physiographic

province means a geographic area

having a similar set of biological and

physical characteristics and processes

due to effects of climate and geology

which result in patterns of soils and

broad-scale plant communities. Habitat

patterns, wildlife distributions, and

historical land use patterns may differ

significantly from those of adjacent

provinces. The seven northern spotted

owl provinces in the States of

Washington and California are the

Olympic Peninsula Province, the

Western Washington Lowlands

Province, the Western and Eastern

Washington Cascades Provinces, and

the California Coastal, Klamath and

Cascades Provinces (Figure 4 to

§ 17.41(c)).

(xiii) Record of Decision (ROD) means

the April 13, 1994, Record of Decision

for Amendments to Forest Service and

Bureau of Land Management Planning

Documents within the Range of the

Northern Spotted Owl (USDA/USDI

1994).

(xiv) Special Emphasis Area (SEA)

means any of the following six areas

(Figure 5 to § 17.41(c)) in the State of

Washington (references are in relation to

the Willamette Meridian and baseline):

(A) Columbia River Gorge/White

Salmon (Figure 6 to § 17.41(c))

(1) Columbia River Gorge Segment

(Figure 6 to § 17.41(c)) Beginning at the

northwest corner of T03NR05E, then

east along the north border of

T03NR05E, T03NR06E, T03NR07E,

T03NR07.5E, and T03NR08E, then

south along the east border of

T03NR08E, then west along the north

Shore of the Columbia River, then north

along the west border of T01NR05E,

T02NR05E, and T03NR05E to the Point

of Beginning.

(2) White Salmon Segment (Figure 6

to § 17.41(c)) Beginning at the northwest

corner of T06NR10E, then east Along

the north border of T06NR10E, then

north along the west border of

T07NR11E, then east along the north

border of S19 T07NR11E, S20

T07NR11E, S21 T07NR11E, then south

along the east border of S21 T07NR11E,

S28 T07NR11E, then south along the

west border of the Yakama Indian

Reservation, then south along the east

border of T05NR11E, T04NR11E, then

southwest along Rattle Snake Creek,

then south along the east border of

T04NR10E and T03NR10E, then west

along the north Shore of the Columbia

River, then north along the west border

of T03NR09E, then east along the north

border of T03NR09E, then north along

the west border of T04NR10E,

T05NR10E, and T06NR10E to the point

of beginning.
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9515

(B) Siouxon Creek (Figure 7 to

§ 17.41(c)) Beginning at the intersection

of the south border of S16 T06NR04E

and the Cowlitz-Clark County line, then

north and east along the Cowlitz-Clark

County line, then south along the west

border of S31 T07NR05E, then east

along the north border of the SW of NW,

SE of NW, and SW of NE S31

T07NR05E, then north along the west

border of the NE of NE S31 T07NR05E,

then east along the Lewis River, then

south along the east border of S30

T07NR05E, then east along the north

border of S32 T07NR05E, then north

along the west border of the SE of SW

S29 T07NR05E, then east along the

Lewis River, then south along the east

border of the SW of SE S29 T07NR05E,

then east along the north border of S32

T07NR05E, then north along the west

border of S28 T07NR05E, then east

along the north border of S28

T07NR05E, then south along the east

border of the NE of NE S28 T07NR05E,

then west along the south border of the

NE of NE S28 T07NR05E, then south

along the east border of the SW of NE

S28 T07NR05E, then east along the

north border of the NE of SE S28

T07NR05E, then south along the east

border S28 T07NR05E, then east along

the channel of Swift Reservoir and the

Lewis River, then south and west along

the Gifford Pinchot National Forest

boundary, then south along the ClarkSkamania County line, then west along

Canyon Creek, then north along the west

border of S03 T05NR04E and S34

T06NR04E, then west along the south

border of NE of SE, NW of SE, and NE

of SW S33 to 6NR04E, then north along

the west border of the NE of SW S33

T06NR04E, then east along the north

border of the NE of SW S33 T06NR04E,

then north along the west border of the

NE S33 T06NR04E and SE S28

T06NR04E, then east along the north

border of the SE of S28 T06NR04E, then

north along the west border of the SE of

NE and NE of NE S28 T06NR04E, then

east along the north border of S28

T06NR04E, then north along the west

border S22 T06NR04E, then west along

the south border of S16 T06NR04E to

the point of beginning.

(C) Mineral Block (Figure 8 to

§ 17.41(c)) Beginning at the northwest

corner of T15NR03E, then east along the

north border of T15NR03E, T15NR04E,

T15NR05E and T15NR06E, then south

along the east border of T15NR06E and

T14NR06E, then west along the south

border of T14NR06E, then south along

the east border of T13NR06E and

T12NR06E, then west along the south

border of S24, S23, S23, S21, S20, and

S19 T12NR06E, then south along the

east border of S24 T12NR05E, then west

along the south border of S24, S23, S22,

S21, S20, and S19 T12NR05E, then

north along the west border of

T12NR05E, then northwest along U.S.

Highway 12, then west along the Tilton

River, then north along the west border

of T13NR03E, T14NR03E, and

T15NR03E, to the point of beginning.

(D) I–90 Corridor (Figure 9 to

§ 17.41(c)) Beginning at the northwest

corner of T22NR09E, then east along the

north border of T22NR09E and

T22NR10E, then north along the west

border of T22NR11E, then east along the

north border of T22NR11E, then north

along the west border of T22NR12E,

then east along the north border of

T22NR12E, T22NR13E, T22NR14E,

T22NR15E, T22NR16E, and T22NR17E,

then north along the west border of S34

T23NR17E, S27 T23NR17E, S22

T23NR17E, S15 T23NR17E, S10

T23NR17E, S03 T23NR17E, then east

along the north border of S03

T23NR17E, then north along the west

border of S34 T24NR17E, S27

T24NR17E, and S22 TNR17E, then east

along the north border of S22

T24NR17E, S23 T24NR17E, S24

T24NR17E, S19 T24NR18E, S20

T24NR18E, S21 T24NR18E, then south

along the east border of S21 T24NR18E,

S28 T24NR18E, S33 T24NR18E, then

west along the south border of S33

T24NR18E, then south along the east

border of S04 T23NR18E, S09

T23NR18E, S16 T23NR18E, S21

T23NR18E, S8 T23NR18E, S33

T23NR18E, then east along the north

border of S04 T22NR18E, then south

along the east border of S04 T22NR18E,

S09 T22NR18E, S16 T22NR18E, S21

T22NR18E, S28 T22NR18E, S33

T22NR18E, then west along the south

border of T22NR18E, T2NR17E, then

south along the east border of

T21NR16E, then west along the south

border of T21NR16E, then south along

the east border of T20NR16E, then west

along the south border of S13

T20NR16E, S14 T20NR16E, S15

T20NR16E, S16 T20NR16E, S17

T20NR16E, S18 T20NR16E, then south

along the east border of T20NR15E,

T19NR15E, then east along the north

border of T18NR15E, then south along

the east border of T18NR15E,

T17NR15E, then west along the south

border of T17NR15E, then north along

the west border of T17NR15E,

T18NR15E, then west along the south

border of T19NR15E, T19NR14E,

T19NR13E, T19NR12E, T19NR11E,

T19NR10E, T19NR09E, T19NR08E, then

north along the west border of

T19NR08E, then east along the north

border of T19NR08E, then north along

the west border of T20NR09E,

T21NR09E, and T22NR09E to the point

of beginning.

(E) Finney Block (Figure 10 to

§ 17.41(c)) Beginning at the northwest

corner of T36NR07E, then east along the

north border of T36NR07E, T36NR08E

and T36NR09E, then south along the

east border of T36NR09E, then east

along the north border of T35NR10E and

T35NR11E, then south along the east

border of T35NR11E, then west along

the south border of T35NR11E, then

south along the east border of

T34NR10E, T33NR10E, T32NR10E, then

west along the south border of

T32NR10E, T32NR09E, T32NR08E, and

T32NR07E, then north along the west

border of S34 T32NR07E, then west

along the south border of the southeast

of the northeast quarter of S34

T32NR07E, then north along the west

border of the southeast of the northeast

quarter of S34 T32NR07E, then west

along the south border of the northwest

of the northeast quarter of S34

T32NR07E, northeast quarter of the

northwest quarter of S34 T32NR07E,

northwest quarter of the northwest

quarter of S34 T32NR07E, and northeast

quarter of the northeast quarter of S32

T32NR07E, then north along the west

border of the northwest quarter of the

northwest quarter of S32 T32NR07E,

then west along south border of S29

T32NR07E, S30 T32NR07E, then south

along the east border of the northwest of

the northeast quarter, the southwest of

the northeast quarter, the northwest of

the southeast quarter, and the southwest

of the southeast quarter of S31 of

T32NR07E, then west along the south

border of T32NR07E, then north along

the west border of T32NR07E,

T33NR07E, T34NR07E, T35NR07E, and

T36NR07E to the point of beginning.

(F) Hoh/Clearwater (Olympic

Peninsula) (Figure 11 to § 17.41(c)) (1)

Hoh/Clearwater—North.

Beginning at the Intersection of the

Olympic National Park Boundary, and

the north border of T30NR15W, then

east along the north border of

T30NR15W, T30NR14W, T30NR13W,

then south along the Olympic National

Forest Boundary, then east along the

north border of the southwest quarter of

the southwest quarter of S23

T29NR13W, then south along the east

border of the southwest quarter of the

southwest quarter of S23 T29NR13W,

then west along the south border of the

southwest quarter of the southwest

quarter of S23 T29NR13W, then south

along the east border S27 T29NR13W,

then east along the north border of the

southwest quarter of the southwest

quarter of S26 T29NR13W, the southeast

quarter of the southwest quarter of S26
9516 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

T29NR13W, and the southwest quarter

of the southeast quarter of S26

T29NR13W, then south along the east

border of the southwest quarter of the

southeast quarter of S26 T29NR13W,

then east along the north border of S35

T29NR13W, then south along the east

border of S35 T29NR13W, then east

along the north border of the southwest

quarter of the northwest quarter of S36

T29NR13W, the southeast quarter of the

northwest quarter of S36 T29NR13W,

the southwest quarter of the northeast

quarter of S36 T29NR13W, and the

southeast quarter of the northeast

quarter of S36 T29NR13W, then south

along the east border of T29NR13W and

T28NR13W, then east along the north

border of T27NR12W, then south along

the Olympic National Park Boundary,

then west along the south border of S20

T25NR10W and S19 T25NR10W, then

south along the east border of S25

T25NR11W and S36 T25NR11W, then

east along the north border of

T24NR11W, then south and west along

the Olympic National Park Boundary,

then west along the north border of the

Quinalt Indian Reservation, then north

along the Olympic National Park

Boundary to the point of beginning.

(2) Hoh/Clearwater—South.

Beginning at the Intersection of U.S.

Highway 101 and the Queets River Road

in S34 T24N R12W, then north along

the Queets River Road, then south along

the east border of S34 T24NR12W, then

east along the Olympic National Forest

boundary, then south along the east

border of T24NR11W and S01

T23NR11W, then east and south along

the border of the Quinalt Indian

Reservation, then west along U.S.

Highway 101 to the point of beginning.

(xv) Site center means the actual nest

tree of a pair of spotted owls or the

primary roost for a non-nesting pair or

territorial single.

(xvi) Timber harvest activity or

harvest means any activity which

results in the harvest or felling of trees

comprising the suitable habitat of a

northern spotted owl.

(4) Information Collection. The

collection of information requirements

contained in § 17.41(c) have been

approved by the Office of Management

and Budget under 44 U.S.C. 3501 et seq.

and assigned clearance number 1018–

0022. This information is being

collected to provide information

necessary to evaluate permit

applications and make decisions,

according to criteria established in

various Federal wildlife and plant

conservation statutes and regulations,

on the issuance or denial of permits.

Response is required to obtain or retain

a permit. Public burden for this

collection of information is estimated to

vary from 15 minutes to 4 hours per

response, with an average of 1.028 hours

per response, including the time for

reviewing instructions, searching

existing data sources, gathering and

maintaining the data needed, and

completing and reviewing the collection

of information. Send comments

regarding this burden or any other

aspect of this collection of information,

including suggestions for reducing the

burden, to the Service Information

Collection Clearance Office, MS–224

ARLSQ, Fish and Wildlife Service,

Washington, DC 20240 and the Office of

Management and Budget, Paperwork

Reduction Project (1018–0022),

Washington, DC 20503.

BILLING CODE 4310–55–P
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9517
9518 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9519
9520 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9521
9522 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9523
9524 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9525
9526 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules
Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules 9527

Dated: February 13, 1995.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 95–3922 Filed 2–16–95; 8:45 am]

BILLING CODE 4310–55–C