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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R1-ES-2009-N129; 10120-1112-0000-F2]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Receipt of application for enhancement of survival permit; notice of availability of programmatic safe harbor agreement.

# SUMMARY:

                        The Oregon Department of Forestry (ODF) has applied to the U.S. Fish and Wildlife Service (Service) for an enhancement of survival permit (permit) pursuant to the Endangered Species Act of 1973, as amended. The permit application includes a proposed programmatic safe harbor agreement (Agreement) between ODF, the U.S. Department of Agriculture—Natural Resources Conservation Service (NRCS), and the Service. The proposed term of the permit and Agreement is 50 years. The requested permit would authorize ODF to extend incidental take coverage with assurances through issuance of Certificates of Inclusion to eligible landowners who are willing to carry out habitat management measures that would benefit the northern spotted owl (                        *Strix occidentalis caurina*), which is federally listed as threatened. The covered area or geographic scope of this Agreement includes non-Federal forest lands within the range of the spotted owl in Oregon. We request comments from the public on the permit application, proposed Agreement, and related documents, which are available for review (see                         **ADDRESSES**                         below).                    

# DATES:

Comments must be received from interested parties on or before August 20, 2009.

# ADDRESSES:

                        You may submit your written comments to State Supervisor (see                         **SUPPLEMENTARY INFORMATION**                         below). Include your name and address in your comments and refer to the “Spotted Owl Programmatic Safe Harbor Agreement.”                    

# FOR FURTHER INFORMATION CONTACT:

                        Richard Szlemp (see                         **SUPPLEMENTARY INFORMATION**                         below), telephone (503) 231-6179. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800/877-8339, 24 hours a day, 7 days a week.                    

# SUPPLEMENTARY INFORMATION:

## Document Availability

                    You may obtain copies of the draft documents by contacting the State Supervisor, Oregon Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2600 SE., 98th Ave., Suite 100, Portland, OR 97266; telephone (503) 231-6179; facsimile (503) 231-6195; or by making an appointment to view the documents at the above address during normal business hours. You may also view the documents on the Internet at                     *http://www.fws.gov/​oregonfwo/​species/​.*                     The                           ( print page 35884)                        Service is furnishing this notice to provide the public, other State and Federal agencies, and interested Tribes an opportunity to review and comment of the draft documents.                

## Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

## Background

                    Under a Safe Harbor Agreement, participating landowners voluntarily undertake management activities on their property to enhance, restore, or maintain habitat benefiting species listed under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531*et seq.*). Safe Harbor Agreements, and the subsequent enhancement of survival permits that are issued pursuant to section 10(a)(1)(A) of the Act, encourage private and other non-Federal property owners to implement conservation efforts for listed species by assuring the landowners that they will not be subjected to increased property use restrictions as a result of their efforts to either attract listed species to their property, or to increase the numbers or distribution of listed species already on their property. Application requirements and issuance criteria for enhancement of survival permits for federally listed threatened species through Safe Harbor Agreements are found in 50 CFR 17.32(c). These permits allow future incidental take of any covered species above the mutually agreed upon baseline conditions for those species in accordance with the terms of the permit and accompanying agreement.                

We jointly developed the proposed Agreement with ODF and NRCS for the conservation of the northern spotted owl. State of Oregon statutes give ODF the authority to enter into Stewardship Agreements with landowners who wish to voluntarily improve fish and wildlife habitat and water quality. Stewardship Agreements provide regulatory certainty to landowners in complying with State forest practice requirements. The proposed Safe Harbor Agreement is intended to compliment ODF's Stewardship Agreement program.

On March 30, 2009, NRCS announced a sign-up for the Healthy Forest Reserve Program (HFRP) in Oregon to landowners interested in promoting the recovery of threatened and endangered species, improving biodiversity, and enhancing carbon sequestration. The sign-up period closed on April 30, 2009. The HFRP is a voluntary program established for the purpose of restoring and enhancing forest ecosystems. There are two enrollment options with the HFRP in Oregon for fiscal year 2009: A 10-year restoration agreement and a permanent easement. Under a restoration agreement, participants can receive 50 percent of the cost of selected conservation practices. With a permanent easement, the HFRP pays 100 percent of the easement value and 100 percent of the cost of selected activities. Landowners continue to manage the land for timber production while maintaining habitat for spotted owls under the permanent easement. The HFRP is incorporated into the Agreement to provide an additional financial incentive for landowners to become a party to the Agreement. The future availability of funding for the HFRP will depend upon Congressional appropriations.

The area covered by this Agreement includes all non-Federal, forest-capable lands within the historic range of the spotted owl in Oregon. Sites not currently occupied by spotted owls or not containing potentially suitable habitat will have a baseline condition of zero unless a landowner is willing to accept a baseline greater than zero to support an enhanced level of conservation after the Agreement expires. Sites known to be occupied by spotted owls or that contain suitable habitat will have their baseline conditions determined on a case-by-case basis by ODF and the Service, with landowner consent. Baseline conditions will be expressed in terms of the amount (acres) and quality of habitat. Forest characteristics such as stand age, tree species composition, average diameters, number of canopy layers, average canopy closure, and number of snags will be used to reference habitat quality.

                    The purpose of this Agreement is to encourage private landowners to create, maintain, and enhance spotted owl habitat through forest management. The northern spotted owl was listed as a threatened species by the Service in 1990 (55 FR 26114) via a final rule published in the                     **Federal Register**                     June 26, 1990, with an effective date of July 30, 1990. One of the primary threats affecting the spotted owl is the widespread loss of suitable habitat. Spotted owls are most often found in older forests with: High canopy closure; a multi-layered/multi-species canopy; larger trees (greater than 30 inches diameter at chest height); a high incidence of those large trees with various deformities (broken tops, large cavities, e.g.); large dead trees; accumulations of woody debris on the ground, including large fallen trees; and sufficient open space below the tree canopy for spotted owls to fly. Much of the private, commercial forest land in Oregon has been previously harvested at least once and has been replanted. The even-aged forest stands that typically develop after replanting are dense, with little variation in tree spacing, tree heights, and species composition. Trees are often harvested on 40-60 year rotations, or less. This type of management does not provide the time for development of good quality spotted owl habitat, or the conditions to establish a diversity of habitat structure. This Agreement is intended to encourage landowners to voluntarily manage their forests on longer rotations and to create more structural diversity through active management that would more closely mimic natural conditions.                

Under this Agreement, private lands may be enrolled through individual Stewardship Agreements between the ODF and cooperating landowners. Landowners who also participate in the HFRP will have to meet additional NRCS requirements. The duration of the Stewardship Agreements would vary depending on circumstances, but would not be less than 10 years. Cooperators will be issued a Certificate of Inclusion which will allow activities on the enrolled properties to be included within ODF's section 10(a)(1)(A) enhancement of survival permit. Cooperators may renew their Stewardship Agreements to remain in effect for the 50-year duration of the permit. Cooperators will avoid conducting activities that could adversely impact the spotted owl's habitat during the term of their Stewardship Agreement.

Without the regulatory assurances provided through the Agreement and permit, landowners may otherwise be unwilling or reluctant to manage their lands in a way that would attract federally listed species such as the spotted owl onto their properties. The proposed Agreement is expected to provide a net conservation benefit to the spotted owl by enhancing the quality, quantity, or connectivity of forest habitat, thereby increasing the distribution, abundance, and genetic diversity of the species.

                    The Service has made a preliminary determination that the proposed Agreement and permit application are                           ( print page 35885)                        eligible for a categorical exclusion under the National Environmental Policy Act of 1969 (NEPA). We explain the basis for this determination in an Environmental Action Statement that is also available for public review (see                     **ADDRESSES**                    ).                

The Service will evaluate the permit application, associated documents, and comments submitted thereon to determine whether the permit application meets the requirements of section 10(a)(1)(A) of the Act and that other applicable requirements have been satisfied. If we determine that all requirements are met, we will sign the Agreement and issue an enhancement of survival permit under section 10(a)(1)(A) of the Act to ODF for the take of northern spotted owls, incidental to otherwise lawful activities in accordance with the terms of the Agreement. This notice is provided pursuant to section 10(c) of the Act and NEPA regulations (40 CFR 1506.6).

Dated: July 14, 2009.

Miel Corbett,

Acting State Supervisor, Fish and Wildlife Service, Oregon Fish and Wildlife Office, Portland, Oregon.

[FR Doc. E9-17281 Filed 7-20-09; 8:45 am]

BILLING CODE 4310-55-P