Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Marbled Murrelet

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU91

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Marbled Murrelet

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Proposed rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), propose to revise currently designated critical habitat for the marbled murrelet (

Brachyramphus marmoratus marmoratus

) in Washington, Oregon, and California, under the Endangered Species Act of 1973, as amended (Act). We originally designated critical habitat for the marbled murrelet in Washington, Oregon, and California on May 24, 1996 (61 FR 26256). Since that time, we completed a 5-year status review of the marbled murrelet (USFWS 2004). This proposed rule is in response to a settlement agreement reached on January 13, 2003.

In our proposal to revise the current designation of critical habitat for the marbled murrelet, we are proposing 3,590,642 acres (ac) (1,453,000 hectares (ha)) as critical habitat. We are further considering excluding 3,368,950 ac (1,363,300 ha) of these lands under section 4(b)(2) of the Act from the final designation. This action, if adopted in its entirety, would result in a final revised designation of approximately 221,692 ac (89,700 ha) of land being designated as critical habitat for the marbled murrelet, a reduction of approximately 3,666,108 ac (1,483,640 ha) from currently designated critical habitat.

In this rule, we are further proposing to revise the entry in 50 CFR 17.11 concerning the scientific name of the marbled murrelet from

Brachyramphus marmoratus marmoratus

to

Brachyramphus marmoratus

to reflect recent taxonomic information.

DATES:

We will accept comments from all interested parties until November 13, 2006. We must receive requests for public hearings, in writing, at the address shown in the

ADDRESSES

section by October 27, 2006.

ADDRESSES:

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods:

1. You may submit written comments and information to Ken Berg, Field Supervisor, U.S. Fish and Wildlife Service, Western Washington Fish and Wildlife Office, 510 Desmond Drive SE., Suite 101, Lacey, WA 98503-1273.

2. You may hand-deliver written comments to our Western Washington Fish and Wildlife Office, at the above address.

3. You may send comments by electronic mail (e-mail) to

MurreletCH@fws.gov.

Please see the Public Comments Solicited section below for file format and other information about electronic filing.

4. You may fax your comments to 360/753-9405.

5. You may use the Federal Rulemaking Portal:

http://www.regulations.gov.

Follow the instructions for submitting comments.

Comments and materials received, as well as supporting documentation used in the preparation of this proposed rule, will be available for public inspection, by appointment, during normal business hours at the Western Washington Fish and Wildlife Office, at the address given above; the Oregon Fish and Wildlife Office, 2600 SE 98th Ave., Suite 100, Portland, OR 97266; or the Arcata Fish and Wildlife Office, 1655 Heindon Road, Arcata, CA 95521.

FOR FURTHER INFORMATION CONTACT:

Ken Berg, Field Supervisor, Western Washington Fish and Wildlife Office (see

ADDRESSES

) (telephone 360-753-9440); Kemper McMaster, Field Supervisor, Oregon Fish and Wildlife Office (see

ADDRESSES

) (telephone 503-231-6179); or Michael Long, Field Supervisor, Arcata Fish and Wildlife Office (see

ADDRESSES

) (telephone 707-822-7201). Persons who use a telecommunications device for the deaf (TTD) may call the Federal Information Relay Service (FIRS) at 800-877-8339, 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule are hereby solicited. Comments particularly are sought concerning:

(1) The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether it is prudent to revise currently designated critical habitat and whether the benefit of designation will outweigh any threats to the species due to designation;

(2) Specific information on the amount and distribution of marbled murrelet habitat, and what areas that were occupied at the time of listing that contain the features that are essential for the conservation of the species should be included in our revised designation, and why and what areas that were not occupied at the time of listing are essential to the conservation of the species;

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed revised critical habitat;

(4) Any foreseeable economic, national security, or other potential impacts resulting from the proposed revised designation, and in particular, any impacts on small entities;

(5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns;

(6) Specific information from the public on marbled murrelet and its habitat, and which habitat or habitat components (i.e., physical and biological features) are essential to the conservation of this species, and why; and

(7) Specific information from the public regarding whether specific exclusions from this proposal may be appropriate for consideration.

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see

ADDRESSES

section). Please submit e-mail comments to

MurreletCH@fws.gov

in ASCII file format. Please also include “Attn: Marbled Murrelet” in your e-mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our Western Washington Fish and Wildlife Office at phone number 360-753-9440. Please note that the e-mail address

MurreletCH@fws.gov

will be closed at the end of the public comment period.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. We will not consider anonymous comments, and we will make all comments available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the Western Washington Fish and Wildlife Office (see

ADDRESSES

).

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

Attention to and protection of habitat is paramount to successful conservation actions. The role that designation of critical habitat plays in protecting habitat of listed species, however, is often misunderstood. As discussed in more detail below in the discussion of exclusions under section 4(b)(2) of the Act, there are significant limitations on the regulatory effect of designation under section 7(a)(2) of the Act. In brief, (1) designation provides additional protection to habitat only where there is a Federal nexus; (2) the protection is relevant only when, in the absence of designation, destruction or adverse modification of the critical habitat would in fact take place (in other words, other statutory or regulatory protections, policies, or other factors relevant to agency decision-making would not prevent the destruction or adverse modification); and (3) designation of critical habitat triggers the prohibition of destruction or adverse modification of that habitat, but it does not require specific actions to restore or improve habitat.

Currently, 475 species, or 36 percent of the 1,310 listed species in the United States under the jurisdiction of the Service, have designated critical habitat. We address the habitat needs of all 1,310 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, the section 10 incidental take permit process, and cooperative, nonregulatory efforts with private landowners. We believe that it is these measures that may make the difference between extinction and survival for many species.

In considering exclusions of areas proposed as our revised designation of critical habitat, we evaluated the benefits of designation in light of

Gifford Pinchot

. In that case, the Ninth Circuit invalidated our regulation defining “destruction or adverse modification of critical habitat.” In response, on December 9, 2004, the Director issued guidance to be considered in making section 7 adverse modification determinations. This proposal does not use the invalidated regulation in our consideration of the benefits of including areas in a final revised designation. We will carefully manage future consultations that analyze impacts to designated critical habitat, particularly those that appear to be resulting in an adverse modification determination. Such consultations will be reviewed by the Regional Office prior to finalizing to ensure that an adequate analysis has been conducted that is informed by the Director's guidance.

On the other hand, to the extent that designation of critical habitat provides protection, that protection can come at significant social and economic cost. The administrative process of designation of critical habitat is expensive, time-consuming, and controversial. The current statutory framework of critical habitat, combined with past judicial interpretations of the statute, make critical habitat the subject of excessive litigation. As a result, critical habitat designations are driven by litigation and courts rather than biology, and made at a time and under a time frame that limits our ability to obtain and evaluate the scientific and other information required to make the designation most meaningful.

In light of these circumstances, we believe that additional agency discretion would allow our focus to return to actions that provide the greatest benefit to the species most in need of protection.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected us to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves us with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, our own proposals to list critically imperiled species, and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court-ordered designations have left us with limited ability to provide for public participation or to ensure a defect-free rulemaking process before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge the designations. The cycle of litigation appears endless, and is very expensive, thus diverting resources from conservation actions that may provide relatively more benefit to imperiled species.

The costs resulting from the designations result in legal expenses, and costs related to preparation and publication of the designation, analysis of the economic effects, requesting and responding to public comment, and in some cases compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). These costs, which are not required for many other conservation actions, reduce the funds available for direct and tangible conservation actions.

Background

It is our intent to discuss only topics directly relevant to the revised designation of critical habitat in this proposed rule. For more information on the marbled murrelet, refer to the final rule for the designation of critical habitat published in the

Federal Register

on May 24, 1996 (61 FR 26256).

Previous Federal Actions

For a description of Federal actions concerning marbled murrelet that occurred prior to our May 24, 1996, final rule for the designation of critical habitat for this species, please refer to that rule (61 FR 26256). In that rule we designated 3,887,800 acres (1,573,340 ha) of critical habitat in 32 units.

On January 22, 1997, we published a notice of availability of the Regulatory Flexibility Analysis examining the effects on small entities of the designation of critical habitat for the marbled murrelet (62 FR 3241).

On September 24, 1997, we completed the Recovery Plan for the marbled murrelet in Washington, Oregon, and California.

On April 21, 2003, we published a notice of review initiating a 5-year review of the marbled murrelet (68 FR 19569), and on July 25, 2003, we published a second information request for the 5-year review (68 FR 44093). The 5-year review was completed on August 31, 2004. The evaluation report that preceded it was completed in March 2004, by McShane et al.

On January 13, 2003, we reached a settlement agreement with the American Forest Resource Council and the Western Council of Industrial Workers to complete a rulemaking for critical

habitat for the marbled murrelet that considers any new information. The settlement agreement includes the date of August 30, 2007, for submission to the

Federal Register

of any final regulation revising marbled murrelet critical habitat.

Taxonomy

Two subspecies of the marbled murrelet were previously recognized—North American murrelet (

Brachyramphus marmoratus marmoratus

) and Asiatic murrelet (

B. marmoratus perdix

). New information suggests that the Asiatic murrelet is a distinct species (Friesen et al. 1994, 1995). The American Ornithologists' Union, in its “Forty-first Supplement to the Checklist of North American Birds,” officially recognized the long-billed murrelet (

B. perdix

) and the marbled murrelet (

B. marmoratus

) as distinct species (American Ornithologists' Union 1997). Therefore, in this rule we are proposing to revise 50 CFR 17.11 to adopt the taxonomic clarification for the marbled murrelet to reflect the change from

Brachyramphus marmoratus marmoratus

to

Brachyramphus marmoratus

.

Ecological Considerations

The marbled murrelet is a small seabird of the Alcidae family. The species' breeding range extends from Bristol Bay, Alaska, south to the Aleutian Archipelago, northeast to Cook Inlet, Kodiak Island, Kenai Peninsula and Prince William Sound, south along the coast through the Alexander Archipelago of Alaska, British Columbia, Washington, and Oregon to northern Monterey Bay in central California. Birds winter throughout the breeding range and also occur in small numbers off southern California.

In the following discussion, we consider two components of marbled murrelet habitat that are biologically essential: (1) Marine foraging habitat, including prey spawning and concentration areas, and (2) terrestrial nesting habitat and associated forest stands. Forested areas with conditions that are capable of supporting nesting marbled murrelets are referred to as “suitable nesting habitat.”

Marine Environment

Marbled murrelets spend most of their lives in the marine environment where they consume a diversity of prey species including small fish and invertebrates. Marbled murrelets forage by pursuit diving in waters generally up to 98 feet (ft) (30 meters (m)) deep and up to 1.25 miles (mi) (2 kilometers (km)) off-shore (Strachan et al. 1995, p. 247). Courtship behaviors have been observed at sea, although copulation occurs both at sea and at inland nest sites (Nelson 1997, p. 13). Marbled murrelets also aggregate, loaf, preen, and exhibit wing-stretching behaviors on the water. Marbled murrelets have been found occasionally on rivers and inland lakes (Carter and Sealy 1986, p. 473).

Areas that support populations of prey species are essential to maintaining successfully reproducing marbled murrelet populations (Burkett 1995, p. 244). However, there are no marine areas currently designated as critical habitat, and this proposal would not designate any critical habitat units in marine areas, because, while important to the life history of the birds, we are unable to define specific areas essential to the conservation of the species (see Areas Considered under Section 3(5)(A), Marine Areas for more detail).

Use of marine habitat is constrained during the breeding season by the quality and quantity of forage resources available. During the breeding season, the distribution of marbled murrelets at sea along the Washington, Oregon, and California coasts has been correlated with specific marine habitat characteristics that concentrate prey, such as cape eddies, river mouths, upwellings, estuarine conditions, sandy substrates, and water temperature (Ainley et al. 1995, p. 365-367; Becker and Beissinger 2003, p. 252; Burger 2002a, pp. 727-728; Lougheed 2000, p. 56-59, 75; Meyer et al. 2002, p. 95; Ostrand et al. 1998, p. 292-295). Nesting marbled murrelets that are returning to their nest at least once per day must balance the energetic costs of foraging trips with the benefits for themselves and their young. This may result in marbled murrelets preferring to forage in marine areas in close proximity to their nesting habitat. However, if adequate or appropriate foraging resources (i.e., “enough” prey, and/or prey with the optimum nutritional value for themselves or their young) are unavailable in close proximity to their nesting areas, marbled murrelets may be forced to forage at greater distances or to abandon their nests (Huff et al. 2006, p. 20).

Terrestrial Environment

Throughout the forested portion of their range, marbled murrelet habitat use is positively associated with the presence and abundance of mature and old-growth forests, large core areas of old-growth, low amounts of edge and fragmentation, proximity to the marine environment, and increasing forest age and height (McShane et al. 2004, p. 4-39; Binford et al. 1975, pp. 315-316; Hamer and Nelson 1995b, pp. 72-75; Ralph et al. 1995b, p. 4). In all cases, marbled murrelets focus on the presence of platforms used for nesting. Platform presence is more important than the size of the nest tree, and tree size alone is not a good indicator of the abundance of platforms (Evans Mack 2003, p. 3).

The presence of platforms is the most important characteristic of marbled murrelet nesting habitat (reviewed in Burger 2002b, pp. 40, 43; McShane et al. 2004, pp. 4-45—4-51, 4-53, 4-55, 4-56, 4-59; Nelson 1997, p. 6; and Huff et al. 2006, pp. 12-13, 18). Individual tree attributes that provide platforms suitable for nesting include large or forked branches, deformities caused by broken tops or mistletoe infection, or other structures large enough to provide a platform for a nesting adult murrelet (Hamer and Nelson 1995b, p. 79). Platforms are defined as limbs greater or equal to 4 inches (in) diameter (10 centimeters (cm)) and greater or equal to 33 ft (10 m) above ground (reviewed in Burger 2002b, pp. 41-42 and McShane et al. 2004, p. 4-31). Tree diameter and height have been positively correlated with platform size and the abundance of platforms, but the relationship may change depending on the variety of tree species and forest types marbled murrelets use for nesting (Huff et al. 2006, p. 12). Overall, nest trees in Washington, Oregon, and northern California have been greater than 19 in (48 cm) in diameter-at-breast-height and greater than 98 ft (30 m) tall (Hamer and Nelson 1995b, p. 81).

Other important attributes of the platform are vertical and horizontal cover and substrate. Known nest sites have platforms that are generally protected by branches above (vertical cover) or to the side (horizontal cover) (Huff et al. 2006, p. 14). Marbled murrelets appear to select limbs and platforms that provide protection from predation (Luginbuhl et al 2001, p. 558; Marzluff et al. 2000, p. 1135; Raphael et al. 2002b, pp. 226, 228) and inclement weather (Huff et al. 2006, p. 14). Substrate, such as moss, duff, or needles, on the nest limb is important for protecting the egg and preventing it from falling (Huff et al. 2006, p. 13).

Marbled murrelets generally nest near the coast, but not usually directly adjacent to the ocean, where wind may affect nest availability and microclimate (Huff et al. 2006, pp. 17-18). It is likely that factors such as energetics, habitat availability, site fidelity, and predation influence where marbled murrelets choose to nest.

At the landscape scale, marbled murrelets show fidelity to marine foraging areas and may return to specific

watersheds for nesting (Nelson 1997, pp. 13, 16-17, 20; Cam et al. 2003, p. 1123). For example, marbled murrelets have been observed to return to the same specific nest branches or sites (Hebert and Golightly 2006, p. 270). Repeated surveys in occupied or nesting stands have revealed site tenacity similar to that of other birds in the alcid family (Huff et al. 2006, p. 12) in that marbled murrelets have been observed in the same suitable habitat during the last 20 years in California and 15 years in Washington.

Marbled murrelet dispersal mechanisms are not well understood, and social interactions may play an important role in determining nesting location. Because the presence of marbled murrelets in a forest stand may attract other pairs to currently unoccupied habitat within the vicinity. The potential use of these areas may depend on how close the new habitat is to occupied habitat, as well as distance to the marine environment, population size, and other factors (McShane et al. 2004, p. 4-78). Marbled murrelets in California and southern Oregon were less likely to occupy old-growth habitat if it was greater than 3 mi (5 km) from other nesting marbled murrelets (Meyer et al. 2002, p. 95).

Raphael et al. (1995, p. 177) found marbled murrelets occupied sites with greater percentages of old-growth forest and large saw-timber within 0.5 mi (0.8 km) of nest sites (501-acre (ac) (203-hectare (ha)) circles). Raphael et al. (1995, p. 189) suggested tentative guidelines based on this analysis that sites with 35 percent old-growth and large saw-timber in the landscape are more likely to be occupied.

Detections of marbled murrelets at inland sites and densities offshore were found to be higher in or adjacent to areas with large patches of significant old-growth, and in areas of low fragmentation and isolation of old-growth patches (Raphael et al. 1995, pp. 188-189; 2002a, p. 221; 2002b, p. 337; Burger 2002b, p. 54; Meyer and Miller 2002, pp. 763-764; Meyer et al. 2002, pp. 109-112; Miller et al. 2002, p. 100). Overall, occupied landscapes tended to have large core areas of old-growth and low amounts of overall edge (Meyer and Miller 2002, pp. 763-764; Raphael et al. 2002b, p. 331). Marzluff and Restani (1999, pp. 8-9, 11-13) and Raphael et al. (2002b, p. 331) suggested that reduced amount of nesting habitat and increased isolation of nesting habitat would have long-term impacts on the number of nests and short-term negative impacts on nest success, both of which affect population size.

The conversion of large tracts of native forest to small, isolated forest patches with large edge areas can create changes in microclimate, vegetation species, and predator-prey dynamics. Unfragmented, older-aged forests have lower temperatures and solar radiation and higher humidity compared to clearcuts and other open areas (e.g., Chen et al. 1993, p. 219; 1995, p. 74). Edge habitat is also exposed to increased temperatures and light, high evaporative heat loss, increased wind, and decreased moisture. Fundamental changes in the microclimate of a stand have been recorded at least as far as 787 ft (240 m) from the forest edge (Chen et al. 1995, p. 74). The changes in microclimate regimes with forest fragmentation can stress an old growth associate species, especially a seabird like the marbled murrelet (Meyer and Miller 2002, p. 764), and can affect the distribution of epiphytes that marbled murrelets use for nesting. Branch epiphytes or substrate have been identified as a key component of marbled murrelet nests (Nelson et al. 2003, p. 52; McShane et al. 2004, pp. 4-48, 4-89, 4-104). While there are no data on the specific effects of microclimate changes on the availability of marbled murrelet nesting habitat at the scale of branches and trees, as discussed in the references above, the penetration of solar radiation, wind, and warm temperatures into the forest could change the distribution of epiphytes or blow moss off nesting platforms.

Marbled murrelets have been known to locate their nests throughout forest stands and fragments, including along various types of natural and human-made edges (Hamer and Meekins 1999, p. 1; Manley 1999, p. 66; Bradley 2002, pp. 42, 44; Burger 2002b, p. 48; Nelson and Wilson 2002, p. 98). However, in California and southern Oregon, areas with abundant numbers of marbled murrelets were farther from roads, occurred more often in parks protected from logging, and were less likely to occupy old-growth habitat if it was isolated (greater than 3 mi (greater than 5 km)) from other nesting marbled murrelets (Meyer et al. 2002, p. 102-103). Marbled murrelets are no longer known to occur in areas without suitable forested habitat (sites with 35 percent old growth within 0.5 mi (0.8 km) of nest sites), and they appear to abandon highly fragmented areas over time (areas highly fragmented before the late 1980s generally did not support marbled murrelets by the early 1990s) (Meyer et al. 2002, p. 103).

Fragmentation of older forests has resulted in increased populations of nest predators, and increased visibility and vulnerability of flying or nesting adults to potential predators. Marbled murrelets are highly vulnerable to nest site predation because their survival depends on their ability to remain hidden. Loss of eggs and chicks to avian predators has been determined to be the most significant cause of nest failure (McShane et al. 2004, p. 2-16). Rates of predation on marbled murrelet nests appear to be high, based on field observations, compared to most other seabirds and are due most often to predators, such as corvids, whose abundance has increased in western North America as a result of land use and urbanization (McShane et al. 2004, pp. 6-11). Nest predation is associated with forest edges; however, the intensity of predation varies with distance to edge, type of edge, structure of the adjacent forest, and proximity to human activity (Huff et al. 2006, p. 18).

A large body of research implies that in fragmented landscapes, marbled murrelet nesting stands may be more productive if surrounded by simple-structured forests, and minimal human recreation and settlement. Marbled murrelet productivity is optimal in large, complex-structured forests far from human activity due to the reduced levels of predation present in such landscapes. Human activities can significantly compromise the effectiveness of the forested areas surrounding nests to protect the birds and/or eggs from predation (Marzluff et al. 1999, pp. 3-4; 2000, pp. 1136-1138; Raphael et al. 2002a, p. 221; Marzluff and Restani 1999, pp. 7-9, 11; Ripple et al. 2003, p. 80; Huhta et al. 1998, p. 464; DeSanto and Willson 2001, pp. 145-147).

Maintaining Habitat Distribution

Maintaining and improving the current distribution of the marbled murrelet is important for maintaining genetic heterogeneity, and increasing the likelihood of future dispersal as populations recover, particularly in areas with low population numbers.

In the geographic range in the United States where the species is listed, five areas exist in the at-sea distribution where marbled murrelet densities are low. The first occurs in the southern Straits of Georgia near and at the U.S. border. The second low density area occurs in southern Puget Sound in Washington. The third low density area occurs along the Washington coast beginning at Destruction Island and extending south past the Columbia River to Tillamook Head, Oregon. The fourth low density area is between Humboldt and San Mateo counties, California. The fifth low density area is

from southern Santa Cruz County through Monterey County (McShane et al. 2004, pp. 6-19—6-20). These low-density marine areas are likely correlated with terrestrial areas that once, but no longer, provided forested habitat. Where possible, it is important to protect and grow suitable marbled murrelet nesting habitat in these gap areas to reduce the impacts associated with fragmentation of the species' range.

Suitable, unoccupied nesting habitat that is in close proximity to currently occupied nesting habitat is more likely to be used by dispersing birds. The species' tendency towards nest site fidelity, combined with the likelihood that occupation of new nesting habitat is more likely in areas already containing marbled murrelets, underscores the importance of maintaining a rangewide distribution of both currently used nesting sites and unoccupied, but suitable, nesting habitat.

Marbled murrelets can be adversely affected by impacts to their nesting habitat, marine foraging habitat, and food supply, as well as by direct mortality from human activities such as oil spills and gillnet fisheries (refer to the October 1, 1992, final listing rule; 57 FR 45328).

We conclude that the maintenance of suitable nesting habitat in relatively large, contiguous blocks will be needed to recover the marbled murrelet. These blocks of nesting habitat should contain the structural features and spatial heterogeneity naturally found at the landscape level, the stand level, and the individual tree level in Pacific Northwest forest ecosystems in order to maintain species distribution and reduce primary threats of predation and fragmentation (see Special Management Considerations or Protections section) (Hansen and Urban 1992, p. 171-172; Raphael et al. 1995, p. 189; Meyer and Miller 2002, p. 763-764; Meyer et al. 2002, p. 95; Miller et al. 2002, p. 105-107).

Critical Habitat

Critical habitat is defined in section 3 of the Act as—(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Conservation, as defined under section 3 of the Act, means to use all methods and procedures necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands. Section 7 is a purely protective measure and does not require implementation of restoration, recovery, or enhancement measures.

To be included in a critical habitat designation, the habitat within the area occupied by the species must first have features that are essential to the conservation of the species. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas where the primary constituent elements are found, as defined at 50 CFR 424.12(b)).

Habitat occupied at the time of listing may be included in critical habitat only if its essential features may require special management or protection. We do not include areas where existing management is sufficient to conserve the species. As discussed below, such areas may also be excluded from critical habitat under section 4(b)(2) of the Act. Accordingly, when the best available scientific data do not demonstrate that the conservation needs of the species require additional areas, we will not designate critical habitat in areas outside the geographical area occupied by the species at the time of listing. An area currently occupied by the species but which was not known to be occupied at the time of listing will likely, but not always, be essential to the conservation of the species and, therefore, typically included in the critical habitat designation.

Our Policy on Information Standards Under the Endangered Species Act, published in the

Federal Register

on July 1, 1994 (59 FR 34271), and Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service, provide criteria, establish procedures, and provide guidance to ensure that decisions made by the Service represent the best scientific data available. They require Service biologists, to the extent consistent with the Act and the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas to designate as critical habitat, a primary source of information is generally the listing package for the species. Additional information sources include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials, and expert opinion or personal knowledge. All information is used in accordance with the provisions of Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) and the associated Information Quality Guidelines issued by the Service.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the recovery of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery.

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in

some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome.

Methods

As required by section 4(b)(2) of the Act, we use the best scientific data available in determining areas that contain the features that are essential to the conservation of the marbled murrelet. Such physical and biological features, as stated in 50 CFR 424.12, include, but are not limited to, the following: (1) Space for individual and population growth, and for normal behavior; (2) Food, water, air, light, minerals or other nutritional or physiological requirements; (3) Cover or shelter; (4) Sites for breeding, reproduction, rearing of offspring; and (5) Habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

We reviewed available information that pertains to the habitat requirements of the marbled murrelet and evaluated all known occurrence locations using data from numerous sources. This proposal was developed using various data layers. The data is mapped minimally at 1:100,000 scale, and more refined in some cases depending on data. Data used in mapping varied by State, but generally included: Marbled murrelet occurrence information (e.g., terrestrial and marine from State agencies); marbled murrelet habitat (e.g., specific paper maps, reports, and modeling layers from the Regional Ecosystem Office termed Expert Judgment Habitat); Government Ownership (e.g., ownership from California Spatial Information Library, Major Public Lands 2003 from Washington Department of Natural Resources, refuge boundary, and U.S. Forest Service Administrative Boundaries); township, range, and section; contours (developed from USGS 30-meter Digital Elevation Model); orthophotos (e.g., National Agriculture Imagery Program from USDA, USGS Ortho photos, Terraserver); Digital Raster Graphics (USGS); and general boundaries (e.g., coastlines, counties, county parcel data). Mapping was completed using Universal Transverse Mercator System North American Datum 1983—Zone 10.

We studied peer-reviewed and non-peer-reviewed articles and reports for this proposal, which included: The Service's Biological Report (Marshall 1988); the final listing rule published in the

Federal Register

on October 1, 1992 (57 FR 45328); the Status and Conservation of the Marbled Murrelet in North America (Carter and Morrison 1992); the Biology of the Marbled Murrelet: Inland and at Sea (Nelson and Sealy 1995); the Marbled Murrelet Recovery Plan (USDI 1997); the Ecology and Conservation of the Marbled Murrelet (Ralph et al. 1995a); Evaluation Report for the 5-Year Status Review of the Marbled Murrelet in Washington, Oregon, and California (McShane et al. 2004); and the Northwest Forest Plan—The first 10 years (1994-2003; Huff et al. 2006).

Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as revised critical habitat, we considered physical and biological features (also known as the primary constituent elements or PCEs) that are essential to the conservation of the species and within areas occupied by the species at the time of listing that may require special management considerations and protection. These include, but are not limited to space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, and rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The specific PCEs required for the marbled murrelet are derived from the biological needs of the species as described in the Background section of this proposal. We determined that the physical and biological habitat features essential to the conservation of the marbled murrelet are associated with the terrestrial environment that supports nesting, roosting, and other normal behaviors. Marine areas, while important to marble murrelet survival, are not identifiable as specific areas essential to conservation of the species. Further, we find that the terrestrial features identified as being essential require special management considerations and protections.

Primary Constituent Elements for the Marbled Murrelet

Under our regulations, we are required to identify the known physical and biological features essential to the conservation of the marbled murrelet. All areas proposed as revised critical habitat for marbled murrelet are within the geographic range occupied by the species at the time of listing, and contain sufficient PCEs to support at least one life history function. As indicated above, we have determined that habitat containing features essential to marbled murrelet only occurs in the terrestrial environment.

Based on our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we have determined that the PCEs for the marbled murrelet are:

(1) Forested stands containing large-sized trees, generally more than 32 inches (81 centimeters) in diameter with potential nesting platforms at sufficient height, generally greater than or equal to 33 feet (10 meters) in height; and

(2) The surrounding forested areas within 0.5 mi (0.8 km) of these stands with a canopy height of at least one-half the site-potential tree height.

See previous discussion under Ecological Considerations, Terrestrial Environment for citations on these factors. These PCEs are more detailed than the PCEs established in the May 24, 1996, final critical habitat designation for marble murrelet (61 FR 26256). The following discussion provides the rationale and latest research on the PCEs, including the species' requirements for trees with large limbs, canopy cover, and surrounding forest.

The site-potential tree height is the average maximum height for trees given the local growing conditions, and is based on species-specific site index tables, such as those established by Franklin and Dyrness (1973). Canopy cover, which is important for nesting success, in the area of most marbled murrelet nests averages 84 percent (Hamer and Nelson 1995b, p. 72-79). Canopy cover generally increases with tree height, and we include tree height in the PCEs as a surrogate measurement for canopy cover.

Within these forested stands, nest trees provide and support suitable nesting habitat for successful reproduction of the marbled murrelet. Individual tree attributes that provide these conditions include large size (generally more than 32 in (81 cm) diameter at breast height), large branches (greater than 4 in (10 cm)) or forked branches, deformities (e.g., broken tops), dwarf mistletoe infections, witches brooms, or other structures large enough to provide a platform for a nesting adult marbled murrelet. Because marbled murrelets do not build

nests, substrate on the tree limb (moss, needles, or duff) provides a nest cup and protects the egg from rolling off (Huff et al. 2006, p. 12). Foliage cover above and around the nest provides protection from weather and visually screens the nest from detection by predators (Huff et al. 2006, p. 12). The platform needs to be at a sufficient height to allow jumpoff departures and stall landings, generally greater than or equal to 33 ft (10 m) in height (McShane et al. 2004, pp. 4-50 through 4-58; Huff et al. 2006, p. 13).

Marbled murrelets in southern Oregon and northern California were found to be most abundant in unfragmented old-growth forests located in a matrix of second-growth forest (Meyer et al. 2002, p. 95). Marbled murrelets in western Oregon nested in older-aged forests surrounded by younger forest; older forests surrounded by clearcuts were generally not used (Ripple et al. 2003, p. 84-87). In California, marbled murrelets have also been found in very small residual stands, and younger stands with residual trees (Hunter and Bond 2001, p. 996; Baker et al. in press, p. 3). The younger forests adjacent to older-aged forests may reduce the differences in microclimates associated with forested and unforested areas (Chen et al. 1992, pp. 391-392; Chen et al. 1993, p. 219; Chen et al. 1995, p. 84), reduce potential for windthrow during storms by buffering effects of wind on older forests (Chen et al. 1992, p. 394), and provide a landscape that has a higher probability of occupancy by marbled murrelets (Raphael et al. 1995, pp. 188-189).

The most important factors in the risk of predation on marbled murrelet nests appear to be the landscape context or composition and its effect on the type and abundance of predators (McShane et al. 2004, p. 4-96). While the relationship between forest fragmentation, edge effects, and marbled murrelet nest success is not completely clear, it is apparent that the abundance of some predators is affected by human-caused factors (McShane et al 2004, p. 6-11; U.S. Fish and Wildlife Service 2004, p. 10-11), and the risk of predation, particularly by corvids, may be higher in proximity to human activities (Raphael et al. 2002a, p. 221). Lowering the risk of predation requires maintaining complex-structured forest in areas that are isolated from human development (McShane et al. 2004, p. 4-96). Simple-structured stands adjacent to nesting areas may provide some ability to decrease predation at marbled murrelet nests by helping to maintain interior conditions and reduce edge effects (Raphael et al. 2002a, pp. 231-232; Ripple et al. 2003, p. 80).

Therefore, on a landscape basis, forests with a canopy height of at least one-half the site-potential tree height around potential nest trees are essential to the conservation of the marbled murrelet because they reduce the effects of microclimate, windthrow, and predation. Nest trees may be scattered or clumped throughout the area. Potential nesting areas may contain less than one suitable nesting tree per acre (0.5 hectare).

Criteria Used To Identify Critical Habitat

As required by section 4(b)(1)(A) of the Act, we used the best scientific data available to determine whether areas contain the features that are essential to the conservation of the marbled murrelet.

Several qualitative criteria were considered in the selection of specific areas for inclusion in revised critical habitat. These criteria are similar to criteria used in the development of Federal management proposals, such as the Scientific Panel information originally used in development of the Northwest Forest Plan (USDA and USDI 1994b) and the Recovery Plan for the Marbled Murrelet (USDI 1997). The following is a description of the five criteria considered.

(1) The presence of primary constituent elements (PCEs).

As listed above, we determined that the PCEs for marbled murrelet are:

Forested stands containing large-sized trees, generally more than 32 inches (81 centimeters) in diameter with potential nesting platforms at sufficient height, generally greater than or equal to 33 feet (10 meters) in height.

Research has shown that the most important component of marbled murrelet nesting habitat is the presence of appropriate platforms (Huff et al. 2006, p. 12). The abundance of nest substrate (e.g., moss, detritus, etc.), foliage cover above and around the nest, tree size, limb height, and location of the nest tree with respect to gaps within a stand of trees also are factors in determining the suitability of nesting habitat (Huff et al. 2006, p. 12). All but the last of these are characteristics of individual nest trees. Tree diameter and height have been directly correlated with platform size and the abundance of platforms (bigger trees provide more and larger platforms), but the relationship is not exact given the variety of tree species and forest types marbled murrelets use for nesting (Huff et al. 2006, p. 12).

Forested areas within 0.5 mi (0.8 km) of forested stands containing trees with potential nesting platforms.

In addition to the presence of nest platforms, the condition of the surrounding forest plays an important role in suitable habitat and successful nesting (Huff et al. 2006, p. 15). Suitable habitat includes forest structure of sufficient height and depth to provide vertical and horizontal cover to the nest and nest tree. These forests contribute to nesting success by protecting the nest from weather, supporting adequate microclimate conditions, and minimizing predation (Luginbuhl et al. 2001, p. 570; Marzluff et al. 2000, p. 1137; Raphael et al. 2002b, p. 339; Meyer et al. 2004, p. 207; Huff et al. 2006, p. 14).

Individual tree characteristics cannot be mapped through general stand data or remote sensing, and require on-the-ground examination of individual trees. In some cases, the average tree diameter in a stand can be used as a surrogate measure, but this measure alone will not enable identification of each tree capable of supporting nesting. Even individual low-elevation aerial photos may not allow identification of scattered nest trees containing potential nest structure, such as mistletoe infection or the presence of moss and detritus. Because marbled murrelets can make use of individual trees, available maps often miss this type of suitable nesting habitat, even when a mapped surrogate such as tree diameter is used. Suitable habitat maps generally do not include the intermediate age forests (surrounding forest PCE) that provide cover for residual nest trees. Existing mapping and remote sensing may include information on the size of major stand components. Areas mapped or identified in databases as containing large trees generally provide suitable nesting habitat. However, areas missing these mapped components may also provide habitat where residual nest trees remain.

We used all available information to map areas that were likely to contain the primary constituent elements. These included site-specific knowledge, GIS data, remote sensing data, habitat maps from many sources (e.g., suitable habitat data layers generated by the Northwest Forest Plan (NWFP) Effectiveness Monitoring team, site specific data from land managers and landowners), aerial photos, the current marbled murrelet critical habitat designation based on forest stand maps, and history leading to specific stand conditions.

(2) Within the inland range of the marbled murrelet.

Marbled murrelet nesting habitat is defined by forest stands that are within the distance marbled murrelets are

known to travel inland from marine foraging areas and contain the appropriate forest structure to produce and buffer potential nest trees. Birds must make this flight at least once a day during the nesting period. Inland distances traveled during the breeding season differ with habitat availability, energetics, predation pressure, and a variety of other factors (McShane et al. 2004, p. 2-5; Huff et al. 2006, p. 10). While some birds have been detected up to 70 mi (112 km) inland, most birds nest within 55 mi (88 km) of marine habitat in Washington, within 35 mi (56 km) in Oregon and northern California, and within 10 to 15 mi (16 to 24 km) in central California. To address this range of use, we propose to revise designated critical habitat to within 55 mi (88 km) of the marine environment in Washington, within 35 mi (56 km) in northern and central Oregon (consistent with Forest Ecosystem Management Assessment Team Zone 1 within the NWFP), within the modified survey zone in southern Oregon and northern California, and within the inland extent of redwood forests in the remainder of the range in California.

(3) Large, contiguous blocks of nesting habitat.

The maintenance and development of large blocks of nesting habitat and contiguous forest cover is important to the stability and long-term recovery of marbled murrelets (USDI 1997, pp. 139-140). Several studies and reviews have emphasized the positive association of marbled murrelets with large core areas of late-seral forest, low amount of edge, and lower fragmentation levels (McShane et al. 2005, pp. 4-39, 4-42-43). Detections of marbled murrelets at inland sites and densities offshore were found to be higher in or adjacent to areas with large patches of significant old-growth, and in areas of low fragmentation and isolation of old-growth patches (all citations from McShane et al. 2004, pp. 6-11).

Large blocks of forest help maintain interior conditions that may support moss or other nest substrate development and reduce the potential for predation. Fragmentation of the remaining older forests has resulted in increased populations of nest predators, and increased visibility and vulnerability of flying or nesting adults to potential predators. Increased predator populations, in turn, may lead to increased rates of predation on young in nests and possibly on adults. Rates of predation on marbled murrelet nests appear to be high, based on field observations, compared to most other seabirds and are due most often to predators, such as corvids, whose abundance has increased in western North America as a result of forest fragmentation, increased agriculture, and urbanization (McShane et al. 2004, p. 6-11).

There is no established minimum or optimal size defining large blocks for marbled murrelet nesting habitat. Based on the 0.5 mi (0.80 km) data from Raphael et al. 1995 (see Ecological Considerations) in areas where the suitable habitat remains in larger blocks, we generally sought areas of at least 500 ac (200 ha) where possible. In areas where habitat is already limited and fragmented to the point where 500 ac (200 ha) blocks are not available, we selected smaller, more isolated patches of habitat to maintain the distribution of the species. Under these circumstances, small habitat patches are extremely important for the conservation of the species because they represent the only option for maintaining the nest trees and forest buffers that are essential in supporting existing marbled murrelet populations and slowing population declines in these areas. Given the extended time required to develop habitat (decades to centuries depending on the starting condition and tree species involved), maintaining current populations is an important element in the recovery of marbled murrelets (USDI 1997, pp. 138-140). Marzluff and Restani (1999, pp. 8-9, 11-13) and Raphael et al. (2002b, pp. 337-339) suggested that a reduced amount of nesting habitat and increased isolation of nesting habitat would have long-term impacts on the number of nests and short-term impacts on nest success, both of which affect population size. In these situations, we are proposing to designate small areas of critical habitat to maintain the distribution of current populations and PCEs.

(4) Sites occupied by marbled murrelets.

For the purposes of this revised designation, occupied sites are defined as locations where marbled murrelet presence has been documented via a variety of survey techniques or processes. Suitable marbled murrelet habitat, in Late-Successional Reserves (LSRs) in National Forests in Oregon and Washington and in areas covered by Bureau of Land Management (BLM) Western Oregon Land Use Plans, is managed by the Forest Service and the BLM as occupied and therefore we have included the LSRs as occupied habitat.

Surveys not conducted in adherence to the strict protocol may miss occupied sites due to the cryptic nature of marbled murrelets and their nests. For example, a single visit to a location where marbled murrelets are present has only a 55 percent chance of detecting marbled murrelets (Evans Mack et al. 2003, p. 39). Surveys prior to the listing of the marbled murrelet were few and not conducted to a standardized survey protocol. Marbled murrelet nesting habitat is generally in older, more complex stands including older trees for nesting platforms, and this habitat is slow to recover or to develop. It is highly unlikely that any new significant marbled murrelet nesting habitat has developed since this seabird was listed in 1992. In addition, based on the site tenacity of marbled murrelets (see Ecological Considerations), sites that have been found to be occupied since listing are considered likely to have been occupied at the time of listing.

Marbled murrelets tend to use large watercourses to access inland habitat (Nelson 1997, p. 11; Manley 1999, p. 54; Burger 2002b, p. 27). They cross ridges to enter neighboring watersheds. The likelihood of use would apply to the entire watershed in which marbled murrelets are known to occur, and probably to neighboring watersheds as well.

(5) Maintenance of rangewide distribution.

The current distribution of the species is important for maintaining genetic heterogeneity. Increasing the likelihood of future colonization is equally important as populations recover, particularly in areas with low population numbers. Appropriately distributed nesting habitat reduces the probability that a natural or human-caused catastrophe would threaten the survival or recovery of the species in the three States. Catastrophes that could significantly impact a large portion of the nesting population include wildfires and windstorms. Oil spills could have a significant impact on marbled murrelet foraging. Accordingly, essential habitat was identified throughout the range of the species in Washington, Oregon, and California.

Special Management Considerations or Protections

When designating critical habitat, we assess whether areas that contain the primary constituent elements may require special management considerations or protections.

Marbled murrelets can be adversely affected by impacts to their nesting habitat, marine foraging habitat, and food supply, as well as by direct mortality from human activities such as oil spills and gillnet fisheries. These impacts, and the resulting decline from historic population levels, formed the

basis for the listing of the species as threatened in 1992 (57 FR 45328).

In evaluating marine areas for potential critical habitat designation, we reviewed whether these areas important to the conservation of marbled murrelets require special management consideration or protection at this time beyond that provided by the existing Federal laws and regulations. While the marine habitat is important to the survival of marbled murrelets, the primary concern with respect to marbled murrelet populations is loss of nesting habitat.

In 1996, when we designated critical habitat (61 FR 26256), we concluded that activities or events that adversely affect marbled murrelets in the marine environment seem to be more associated with the mortality of individual birds than the long-term destruction or adverse modification of habitat. We concluded that gillnet fisheries, for example, result in incidental capture of marbled murrelets, but do not significantly adversely affect the prey base. Marbled murrelets appear to forage opportunistically on available fish, and are likely able to respond to minor changes in fish abundance and location.

We also concluded that the principal adverse impacts of oil and other pollutant spills are to individual birds, not their prey base. Our assessment of these events typically relies on bird mortality rather than habitat issues that include prey availability. We indicated we would continue to monitor marine threats and may propose marine critical habitat in the future if warranted.

In this critical habitat revision, we reassessed the importance of marine habitats to marbled murrelets and reaffirm their importance to marbled murrelet conservation. Our consultation experience since 1996 reinforces our previous finding that existing Federal laws and regulations adequately protect marine habitats. For example, section 7 consultations over the last several years on projects authorized, funded, or carried out by Federal agencies in Puget Sound most often conclude as informal consultations because elements of the marine habitat that are important to marbled murrelet prey species production, such as eelgrass beds and forage fish spawning beaches, are adequately protected by the Clean Water Act section 404 permit requirements or State of Washington Hydraulic Permit Application requirements and restrictions. Our Marbled Murrelet 5-Year Review (U.S. Fish and Wildlife Service 2004, p. 11) documented that gill-netting regulations have reduced this threat to marbled murrelets in the marine environment in northern California and Washington.

Current and historic loss of marbled murrelet nesting habitat is generally attributed to timber harvest and land conversion practices, although, in some areas, catastrophic disturbances such as forest fires have caused losses (Ripple 1994, p. 45). Reduction of the remaining older forest has not been evenly distributed in western Washington, Oregon, and California. Timber harvest has been concentrated at lower elevations and in the Coast Ranges (Thomas et al. 1990, p. 13), generally overlapping the range of the marbled murrelet.

Some of the forests that were affected by past natural disturbances, such as forest fires and windthrow, currently provide suitable nesting habitat for marbled murrelets because they retain scattered individual or clumps of large trees that provide structure for nesting. This is particularly true in coastal Oregon where extensive fires occurred historically. Marbled murrelet nests have been found in remnant old-growth trees in mature forests in Oregon. Forests providing suitable nesting habitat and nest trees generally require 200 to 250 years to develop characteristics that supply adequate nest platforms for marbled murrelets.

In the marbled murrelet 5-year review (U.S. Fish and Wildlife Service 2004, p. 11), we identified key threats to the species, and noted that the rate of habitat loss has declined due to implementation of State and Federal regulations.

The key threats to the marbled murrelet are predation and habitat fragmentation. These two threats merit special management considerations.

Predation

Marbled murrelets are believed to be highly vulnerable to predation en route to and when on the nesting grounds, and the species has evolved a variety of morphological and behavioral characteristics indicative of selection pressures from predation (Ralph et al. 1995b, p. 4). For example, plumage and eggshells exhibit cryptic coloration, and adults fly to and from nests by indirect routes and often under low-light conditions (Nelson and Hamer 1995a, p. 65). From 1974 through 1993, where marbled murrelet nest success or failure in Washington, Oregon, and California was documented, approximately 57 percent failed due to predation (Nelson and Hamer 1995b). The risk of predation by avian predators appears to be highest in complex-structured landscapes in proximity to edges and human activity, where many of the corvid species are abundant. Predation rates are influenced mainly by habitat stand size, habitat quality, nest placement (on the edge of a stand versus the interior of a stand), and proximity of the stand to human activity centers. Nelson and Hamer (1995b, p. 89), in the only direct measure of marbled murrelet reproductive success published, found that successful marbled murrelet nests were farther from an edge than unsuccessful nests. Forest stands within 0.6 mi (1 km) of human activity centers can experience increased nest predation because humans often provide food that attracts corvids (Marzluff et al. 2000, p. 1137).

Fragmentation

Forest management practices can fragment marbled murrelet habitat, which can reduce the amount and heterogeneous nature of the habitat, forest patch size, and amount of interior or core habitat, and can increase the amount of edge, isolate remaining habitat patches, and create “sink” habitats (McShane et al. 2004, p. 4-83). There are no estimates available for the amount of suitable habitat that has been fragmented or degraded since 1992. However, the ecological consequences of these habitat changes to marbled murrelets can include effects on population viability and size, local or regional extinctions, displacement, fewer nesting attempts, failure to breed, reduced fecundity, reduced nest abundance, lower nest success, increased predation and parasitism rates, and reduced adult survival (Raphael et al. 2002, pp. 222-223).

Summary of Changes From Previously Designated Critical Habitat

The areas identified in this proposed rule constitute a proposed revision from the areas we designated as critical habitat for the murrelet in 1996 (61 FR 26256). The main reasons for the differences include:

1. We incorporated new information in determining what areas are essential to the conservation of the species. Areas that are now known to not provide PCEs or are not considered to be essential to the conservation of the murrelet based on new information including maps, photos, and ground surveys are not included in this proposal.

2. The PCEs were revised based on new information to make them more specific. The first PCE was changed to include forested stands that contain trees with potential nesting platforms, rather than just individual trees with potential nesting platforms. The second PCE includes surrounding forested areas within 0.5 mi (0.8 km) of the stands,

rather than individual trees. We included more recent research to support these PCEs.

3. Areas were added because they are now known to contain PCEs and are occupied by the species. These areas were not included in the 1996 rule because they had not been determined to be essential to the conservation of the murrelet at that time. Small areas were added in all three States. Please refer to

http://www.fws.gov/westwafwo/

, or contact the Western Washington Fish and Wildlife Office directly (see

ADDRESSES

section) for a further clarification of the differences between lands designated as critical habitat in 1996 and those being proposed in this revision.

4. We refined marbled murrelet boundaries based on studies that showed, specifically in southern Oregon and northern California, the distribution of likely nesting birds was not as far inland as delineated in 1996.

5. Areas determined to be essential but that we have determined do not meet the definition of critical habitat for the murrelet because they do not require special management considerations and protection pursuant to section 3(5)(A) of the Act, are similar to those from the 1996 final critical habitat rule, including marine areas, Federal wilderness areas and national parks, and Quinault Indian Reservation areas. One addition is the Headwaters Forest Reserve (7,494 ac (2,998 ha)), which was acquired by the Bureau of Land Management in 1999, for the purpose of preserving old-growth redwood forest.

6. We now believe that the late successional reserves (LSRs) designated through the Northwest Forest Plan are appropriate for evaluating for exclusion from the final designation under section 4(b)(2) of the Act. The basis of our determination is that the LSRs have been in place since 1994, and we have now assessed 12 years of documented management, and believe that the areas are sufficiently managed and protected for the murrelet under the provisions of the Northwest Forest Plan. This management will be in place unless and until either agency proposes to change under revised land management plans and resource management plans. Further, Bureau of Land Management and the U.S. Forest Service have indicated that with any revisions to management plans, murrelet habitat will continue to be managed into the future in a manner compatible with murrelet conservation. We did not exclude LSRs in the 1996 designation because, at that time, our policy was to exclude land with management status secured through statute or other definitive process. Our current policy is to exclude areas with current documented management that provides—(a) the plan is complete and provides a conservation benefit to the species (i.e., the plan must maintain or provide for an increase in the species’ population, or the enhancement or restoration of its habitat within the area covered by the plan); (b) the plan provides assurances that the conservation management strategies and actions will be implemented (i.e., those responsible for implementing the plan are capable of accomplishing the objectives, and have an implementation schedule or adequate funding for implementing the management plan); and (c) the plan provides assurances that the conservation strategies and measures will be effective (i.e., it identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan and achieve the plan's goals and objectives). Therefore, we have determined that the areas covered by LSRs are appropriate for consideration for exclusion under section 4(b)(2) of the Act.

7. Mapping refinements have been made since the 1996 designation.

8. This proposed rule includes 14 critical habitat units. These units cover the same general area as the 1996 designation, which included 32 units. The reduction in number of critical habitat units is a reflection of our decision to combine designated areas into larger habitat units for efficiency of reference. For example, Washington State had 11 units in the 1996 designation, and only 3 in this final designation, but the overall area of the State is comparable. We also are using a more efficient method of providing legal descriptions; instead of using the Public Land Survey System (township and range), we are providing UTM (Universal Transverse Mercator) data points generated through GIS (Geographic Information System) mapping.

Proposed Revised Critical Habitat Designation

We are proposing 14 units as critical habitat for the marbled murrelet throughout Washington, Oregon, and California. These units, which do not directly correspond to particular units in the 1996 designation, if finalized, would entirely replace the current critical habitat designation for marbled murrelet in 50 CFR 17.95(b). The proposed critical habitat areas described below constitute our best assessment of areas determined to be occupied, that contain the primary constituent elements, that may require special management considerations or protection, and that were found to be essential to the conservation of the marbled murrelet. The 14 areas proposed as revised critical habitat are: Northwest Washington, Southwest Washington, Washington Cascades, Northwest Oregon, Central Oregon, Southwest Oregon, Hebo, Coquille, Yaquina, Elliott, Del Norte/Northern Humboldt, Southern Humboldt, Mendocino, and Santa Cruz Mountains. Based on information available to us, we are proposing to include 3,590,642 ac (1,453,000 ha) in our revised critical habitat for the marbled murrelet. We are further proposing to exclude 3,368,950 ac (1,363,300 ha) under section 4(b)(2) of the Act from the final revised designation, which, if adopted in its entirety, would result in a total of 221,692 ac (89,700 ha) of designated critical habitat for the murrelet. This would mean that our final revised designation would reduce the currently designated critical habitat for marbled murrelet by approximately 3,666,108 ac (1,483,640 ha). We considered an additional 1,574,201 ac (637,328 ha), but did not include them in this proposal because the areas do not meet the definition of critical habitat as defined in section 3(5)(A) of the Act (i.e., they contain the PCEs but do not require special management) or are exempt from designation under section 4(a)(3) of the Act. After the exclusions, if adopted in their entirety, less than 1 percent of this proposed designation is Federal land; 80 percent is city, county, or State land; and 19 percent is private land. We are not proposing critical habitat units in marine areas, because we were not able to define specific areas essential to the conservation of the species. Tables 1 and 2 below provide approximate area, by State and land ownership, determined to meet the definition of critical habitat for the marbled murrelet and the area proposed for exclusion from the final critical habitat designation.

Table 1

[Areas determined to meet the definition of critical habitat under section 3(5)(A) of the Act for the marbled murrelet (Definitional Area) and the area proposed for exclusion from the final critical habitat designation under section 4(b)(2) of the Act (Proposed Exclusion Area). Extent of area is defined as acres (ac) (hectares (ha)]

State

Definitional area

Proposed exclusion area 4(b)2)

Washington

1,677,444 ac (678,800 ha)

1,650,536 ac (667,900 ha).

Oregon

1,499,729 ac (606,900 ha)

1,416,982 ac (573,400 ha).

California

413,469 ac (167,300 ha)

301,432 ac (122,000 ha).

Total

3,590,642 ac (1,453,000 ha)

3,368,950 ac (1,363,300 ha).

Table 2.—Proposed Marbled Murrelet Critical Habitat, Minus Exclusions, in Acres (Hectares), by State and Ownership

State

Total

Federal

City, county, or state

Private

CA

112,037 (45,300)

0

92,834 (37,500)

19,203 (7,800)

OR

82,747 (33,500)

0

82,373 (33,400)

374 (100)

WA

26,908 (10,900)

1,151 (500)

2,469 (1,000)

23,288 (9,400)

Total

221,692 (89,700)

1,151 (500)

177,676 (71,900)

42,865 (17,300)

The following are brief descriptions of all proposed units. These units are assumed to be occupied given the criteria identified previously, and contain features essential to the conservation of the marbled murrelet (PCEs), and have been determined to be necessary for recovery of the species. These areas have no management specified that would provide for maintaining marbled murrelet habitat. For further discussion of proposed exclusions, see the “Exclusions Under Section 4(b)(2) of the Act” section below.

Washington

Northwest Washington

The parcels in this unit are located in Clallam, Jefferson, Grays Harbor, and Mason Counties and are comprised of lands owned or administered by the Olympic National Forest (414,895 ac; 165,958 ha), Washington Department of Natural Resources (226,395 ac; 90,558 ha), private individuals or companies (1,775 ac; 710 ha), and the Makah Indian Nation (1,507 ac; 603 ha). Federal and State lands make up the majority of the unit. We are proposing to exclude approximately 99 percent of the unit (642,797 ac; 257,119 ha) from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below). The lands proposed for exclusion are owned or managed by the Olympic National Forest, WDNR, or the Makah Indian Nation.

Southwest Washington

The parcels in this is unit are located in southern Grays Harbor, Pacific, and Wahkiakum Counties, and are comprised of lands owned or administered by Grays Harbor County (1,565 ac; 626 ha), Washington State Parks (359 ac; 144 ha), Washington Department of Natural Resources (WDNR) (86,626 ac; 34,650 ha), Bureau of Land Management (1,151 ac; 460 ha), Willapa National Wildlife Refuge (NWR) (5,688 ac; 2,275 ha), the Nature Conservancy (6,122 ac; 24,488 ha), and private individuals or companies (18,822 ac; 7,529 ha). With the exception of the BLM and the Willapa NWR, all lands within this unit are non-Federal. We are proposing to exclude approximately 81 percent of the unit (98,436 ac) from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below). The lands proposed for exclusion are owned or managed by the Willapa NWR, The Nature Conservancy, or WDNR.

Washington Cascades

The parcels in this unit are located in Whatcom, Skagit, Snohomish, King, Pierce, and Lewis Counties and are comprised of lands owned or administered by the Mount Baker-Snoqualmie National Forest (1,094,117 ac; 437,646 ha), Washington Department of Natural Resources (100,843 ac; 4,337 ha), private individuals or companies (2,168 ac; 867 ha), The Nature Conservancy (502 ac; 200 ha), and the Lummi Indian Nation (545 ac; 218 ha). Federal and State lands make up the majority of the unit. We are proposing to exclude approximately 99 percent of the unit from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below). The lands proposed for exclusion are owned or managed by the Mount Baker-Snoqualmie National Forest and WDNR.

Oregon

Northwest Oregon

The parcels in this unit are in Tillamook and Clatsop Counties, and are comprised of State lands administered by the Oregon Department of Forestry (ODF) and Oregon State Parks (69,603 ac; 27,841 ha), Federal lands administered by the U.S. Forest Service and Bureau of Land Management (BLM) (8,761 ac; 3,504 ha), and private lands (374 ac; 150 ha). Federal lands are very limited within this area. The BLM lands are surrounded by State forests in the southern portion. We propose to exclude approximately 8,761 ac (3,504 ha) (13 percent) of the unit from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below). The lands proposed for exclusion are owned or managed by the U.S. Forest Service and Bureau of Land Management under the standards of the Northwest Forest Plan.

Hebo

The parcels in this unit are located in Lincoln, Tillamook, Polk, and Yamhill Counties, and are comprised of State land (1,063 ac; 425 ha) administered by

Oregon Parks and Recreation Department and Federal lands administered by the U.S. Forest Service and Bureau of Land Management (187,788 ac; 75,115 ha). We propose to exclude 187,788 ac (75,115 ha) (99 percent) of the unit from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below). The lands proposed for exclusion are owned or managed by the U.S. Forest Service and Bureau of Land Management under the standards of the Northwest Forest Plan.

Yaquina

The parcels in this unit are located in Lincoln, Benton, and Polk Counties, and are comprised of State lands (12,079 ac; 4,832 ha)) administered by the Oregon Department of Forestry and Federal lands administered by the U.S. Forest Service and Bureau of Land Management (2,774 ac; 310 ha). We propose to exclude approximately 2,774 ac (310 ha) (19 percent) of the unit from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below). The lands proposed for exclusion are owned or managed by the U.S. Forest Service and Bureau of Land Management under the standards of the Northwest Forest Plan.

Central Oregon

The parcels in this unit are located in Lincoln, Benton, Lane, and Douglas Counties and are comprised primarily of Federal lands (663,179 ac; 265,272 ha) administered by the U.S. Forest Service and the Bureau of Land Management. The State land (124 ac; 50 ha) (one parcel) is administered by Oregon Department of Forestry, and is located on the eastern border of Elliot State Forest. We propose to exclude the entire unit from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below). The lands proposed for exclusion are owned or managed by the U.S. Forest Service and Bureau of Land Management under the standards of the Northwest Forest Plan or the Wilderness Act, or will be covered under the Elliott State Forest HCP.

Elliott

This unit is composed of Elliott State Forest lands located in the south central Oregon Coast Range near Coos Bay, Oregon, in Coos and Douglas Counties. Federal lands administered by the U.S. Forest Service and BLM exist immediately to the north and south of this Forest. The Oregon Department of Forestry manages this forest (93,564 ac; 37,426 ha), a contiguous block of habitat within 6 to 24 mi (10 to 39 km) of the ocean. We propose to exclude the entire unit from the final designation of critical habitat under section 4(b)(2) of the Act because it will be included in an HCP (refer to the Exclusions Under Section 4(b)(2) of the Act section below).

Coquille

This unit is located in Coos and Douglas Counties and is comprised entirely of Federal lands (83,662 ac; 33,464 ha) administered by the Bureau of Land Management under the standards of the Northwest Forest Plan. It is located in the Klamath Mountains Physiographic Province. Due to the location of Federal lands, proposed critical habitat begins approximately 12 to 35 mi (19 to 56 km) from the coast, with the majority of proposed designation over 20 mi (32 km) from the coast. We propose to exclude the entire unit from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below).

Southwest Oregon

This unit is located in the Klamath Mountains and the Coast Range of southwestern Oregon in Coos, Curry, and Josephine Counties and is comprised entirely of Federal lands (377,131 ac; 150,852 ha) administered by the U.S. Forest Service and the Bureau of Land Management under the standards of the Northwest Forest Plan. We propose to exclude the entire unit from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below).

California

Del Norte/Northern Humboldt

This unit (258,232 ac; 23,292 ha) contains multiple subunits located in Del Norte and northern Humboldt Counties in northern California. The subunits are comprised of lands owned or administered by the Six Rivers National Forest and Bureau of Land Management (257,582 ac; 103,032 ha) and a private timber company (650 ac; 260 ha). We propose to exclude all federally managed lands (approximately 99 percent of the unit) from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below).

The identified non-Federal subunit, known as the Miracle Mile Habitat Complex, may be managed in the future under a conservation easement developed to ensure protection of marbled murrelet nesting habitat.

Southern Humboldt

This unit (47,686 ac; 19,074 ha) contains multiple subunits and is located in southern Humboldt County in northern California. The subunits are comprised of lands owned or administered by the California Department of Fish and Game (925 ac; 370 ha); California Department of Parks and Recreation including Humboldt Redwoods State Park and Grizzly Creek State Park (39,958 ac; 15,983 ha); Van Duzen County Park (167 ac; 67 ha); and Pacific Lumber Company (private land) (6,636 ac; 2654 ha). We propose to exclude the privately owned land (approximately 14 percent of the unit) from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below).

The California Department of Fish and Game subunit, known as the Owl Creek Ecological Reserve, was purchased by the State of California in 2000 for $67 million. To date, a management plan has not been developed for this property. If a management plan is completed prior to the final rule for marbled murrelet critical habitat, these lands may be considered for exclusion under section 4(b)(2) of the Act.

Mendocino

This unit (46,354 ac; 18,541 ha) contains multiple subunits and is located in Mendocino County, California. The subunits are comprised of lands owned or administered by the Bureau of Land Management (37,214 ac; 14,886 ha); California Department of Parks and Recreation including Admiral William Standley State Recreation Area, Montgomery Woods State Reserve, and Russian Gulch State Park (2,621 ac; 1,048 ha); a portion of California Department of Forestry and Fire Protection's Jackson Demonstration State Forest (5,467 ac; 2,187 ha); and private timber company lands along the Ten Mile River and Alder Creek (1,043 ac; 417 ha). We propose to exclude all federally managed lands (approximately 80 percent of the unit) from the final designation of critical habitat under section 4(b)(2) of the Act (refer to the Exclusions Under Section 4(b)(2) of the Act section below).

Santa Cruz Mountains

The unit (61,196 ac; 24,478 ha) contains multiple subunits and is located in San Mateo and Santa Cruz

Counties, California. The subunits are comprised of lands owned or administered by the California Department of Parks and Recreation, including Butano, Portola, Big Basin Redwoods, Wilder Ranch, and Henry Cowell State Parks, Ano Nuevo State Reserve, and University of California Regents (34,718 ac; 13,887 ha); California County Parks, including Huddart, Pescadero Creek, and Sam McDonald (7,990 ac; 3,196 ha); San Francisco City lands (978 ac; 391 ha); and private lands (17,510 ac; 7,004 ha). Federal lands are completely lacking in this unit. We would include all of this unit in the final designation of critical habitat.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. In our regulations at 50 CFR 402.02, we define destruction or adverse modification as “a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” However, recent decisions by the 5th and 9th Circuit Court of Appeals have invalidated this definition (see

Gifford Pinchot Task Force

v.

U.S. Fish and Wildlife Service

, 378 F.3d 1059 (9th Cir 2004) and

Sierra Club

v.

U.S. Fish and Wildlife Service

et al.

, 245 F.3d 434, 442F (5th Cir 2001)). Pursuant to current national policy and the statutory provisions of the Act, destruction or adverse modification is determined on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species.

Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402.

Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. This is a procedural requirement only. However, once proposed species becomes listed, or proposed critical habitat is designated as final, the full prohibitions of section 7(a)(2) apply to any Federal action. The primary utility of the conference procedures is to maximize the opportunity for a Federal agency to adequately consider proposed species and critical habitat and avoid potential delays in implementing their proposed action as a result of the section 7(a)(2) compliance process, should those species be listed or the critical habitat designated.

Under conference procedures, the Service may provide advisory conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The Service may conduct either informal or formal conferences. Informal conferences are typically used if the proposed action may affect, but is not likely to adversely affect the proposed species or proposed critical habitat. Formal conferences are typically used when the Federal agency or the Service believes the proposed action is likely to cause adverse effects to proposed species or proposed critical habitat, inclusive of those that may cause jeopardy or adverse modification.

The results of an informal conference are typically transmitted in a conference report; while the results of a formal conference are typically transmitted in a conference opinion. Conference opinions on proposed critical habitat are typically prepared according to 50 CFR 402.14, as if the proposed critical habitat were designated. We may adopt the conference opinion as the biological opinion when the critical habitat is finalized if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)). As noted above, any conservation recommendations in a conference report or opinion are strictly advisory.

If a species is listed or critical habitat is designated, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. As a result of this consultation, compliance with the requirements of section 7(a)(2) will be documented through the Service's issuance of—(1) a concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) a biological opinion for Federal actions that may affect, but are likely to adversely affect, listed species or critical habitat.

When we issue a biological opinion concluding that a project is likely to result in jeopardy to a listed species or the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. “Reasonable and prudent alternatives” are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid jeopardy to the listed species or destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where a new species is listed or critical habitat is subsequently designated that may be affected and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions may affect subsequently listed species or designated critical habitat or adversely modify or destroy proposed critical habitat.

Federal activities that may affect the marbled murrelet or its designated critical habitat will require section 7 consultation under the Act. Activities on State, Tribal, local or private lands requiring a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act or a permit under section 10(a)(1)(B) of the Act from the Service) or involving some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency) will also be subject to the section 7 consultation process. Federal actions

not affecting listed species or critical habitat, and actions on State, Tribal, local or private lands that are not federally funded, authorized, or under permit, do not require section 7 consultations. In addition, currently designated marbled murrelet critical habitat (see 50 CFR 17.95(b)) will remain designated critical habitat, and therefore be subject to section 7, until this proposal is finalized.

Application of the Jeopardy and Adverse Modification Standards for Actions involving Effects to the Marbled Murrelet and its Critical Habitat

Jeopardy Standard

Prior to and following designation of critical habitat, the Service has applied an analytical framework for marbled murrelet jeopardy analyses that relies heavily on the importance of core area populations to the survival and recovery of the marbled murrelet. The section 7(a)(2) analysis is focused not only on these populations but also on the habitat conditions necessary to support them.

The jeopardy analysis usually expresses the survival and recovery needs of the marbled murrelet in a qualitative fashion without making distinctions between what is necessary for survival and what is necessary for recovery. Generally, if a proposed Federal action is incompatible with the viability of the affected core area population(s), inclusive of associated habitat conditions, a jeopardy finding is considered to be warranted, because of the relationship of each core area population to the survival and recovery of the species as a whole.

Adverse Modification Standard

The analytical framework described in the Director's December 9, 2004, memorandum is used to complete section 7(a)(2) analyses for Federal actions affecting marbled murrelet critical habitat. The key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species. Generally, the conservation role of marbled murrelet critical habitat units is to support viable core area populations.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat may also jeopardize the continued existence of the species.

Activities that may destroy or adversely modify critical habitat are those that alter the PCEs to an extent that the conservation value of critical habitat for the marbled murrelet is appreciably reduced. Activities that, when carried out, funded, or authorized by a Federal agency, may affect critical habitat and therefore result in consultation for the marbled murrelet include:

(1) Removal, modification, or fragmentation of forested areas can directly impact nesting structures, nesting substrate, and the vertical and horizontal cover provided by the surrounding forest. Fragmentation of forested areas can result in habitat isolation and increased edge, which negatively impacts the quality of the remaining nesting habitat primarily through increased predation. Federal actions primarily impacting the marbled murrelet include timber harvest, salvage logging, hazard tree removal, and windthrow caused by harvest.

(2) New and existing human activity, including recreation, agriculture, and urbanization, adjacent to and within forested areas can result in loss or modification of the PCEs. Human activity occurring in or near forested nesting areas can negatively impact the quality of nesting habitat, because they can significantly compromise the effectiveness of the forested areas in protecting adult incubating birds, eggs, or nestlings from predation.

We consider all of the units proposed as revised critical habitat, as well as those that have been proposed for exclusion, exempted, or not included because of special management considerations or protections, to contain features essential to the conservation of the marbled murrelet. All units are within the geographic range of the species, all units were occupied or likely to be occupied by the species at the time of listing, and all units are likely to be used by the marbled murrelet. Federal agencies already consult with us on activities in areas currently occupied by the marbled murrelet, or if the species may be affected by the action, to ensure that their actions do not jeopardize the continued existence of the marbled murrelet.

Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act

Areas Considered Under Section 3(5)(A) of the Act

Section 3(5)(A) of the Act defines critical habitat as the specific areas within the geographic area occupied by the species on which are found physical and biological features (i) essential to the conservation of the species, and (ii) which may require special management considerations or protection. Therefore, areas within the geographic area occupied by the species that do not contain the features essential to the conservation of the species are not, by definition, critical habitat.

To determine whether an area requires special management considerations or protection, we first determine if the essential features located there generally require special management to address applicable threats. If those features do not require special management considerations or protection, or if they do in general, but not for the particular area in question because of the existence of an adequate management or protection, then that specific area, and the features contained therein, does not require special management considerations or protection.

We consider a current plan to provide adequate management or protection if it meets three criteria: (1) The plan is complete and provides a conservation benefit to the species (the plan must maintain or provide for an increase in the species' population, or the enhancement or restoration of its habitat within the area covered by the plan); (2) the plan provides assurances that the conservation management strategies and actions will be implemented (those responsible for implementing the plan are capable of accomplishing the objectives, and have an implementation schedule or adequate funding for implementing the management plan); and, (3) the plan provides assurances that the conservation strategies and measures will be effective (it identifies biological goals, has provisions for reporting progress, and is of a duration sufficient to implement the plan and achieve the plan's goals and objectives).

Marine Areas

Marine areas are important to marbled murrelets; however, we were unable to identify specific areas essential to the conservation of the species. As a result, no critical habitat is proposed for marine areas. In 1996, when we designated critical habitat, we concluded that activities or events that

adversely affect marbled murrelets in the marine environment are more associated with the mortality of individual birds than the long-term destruction or adverse modification of habitat. We also concluded that the principal adverse impacts of oil and other pollutant spills are to individual birds, not their prey base.

In this critical habitat revision, we reviewed the available data on marbled murrelet use of nearshore marine areas from Washington to California from at-sea surveys. These marine areas are very important to the conservation of marbled murrelets and helped guide our identification of associated forests that provide nesting habitat with features essential to the conservation of marbled murrelets. While clean water and accessible foraging opportunities are important life history requirements of the species, we maintain that existing Federal laws and regulations provide adequate benefits to marbled murrelets, directly or indirectly, such that special management of the marine environment is not needed.

Mortality of individual birds is our greatest concern for marbled murrelets in the marine environment. The major threats to marbled murrelets in marine waters are oil spills, commercial net fisheries, and noise from underwater construction (see the Ecological Considerations section).

In the mid-1990s, a series of fisheries restrictions and changes were implemented to address mortality of all species of seabirds, resulting in lower mortality rate of marbled murrelets (McShane

et al.

2004, p. 3-67). In most areas, the threat from gillnet fishing has been reduced since 1992, but threats to adult and juvenile marbled murrelets are still present in Washington nearshore zones due to gillnet mortality (McShane et al 2004, p. 3-67).

Oil spills are the primary threat to marbled murrelets in the marine environment. Since passage of the U.S. Oil Pollution Act in 1990 (33 U.S.C. 2701

et seq.

), the number of oil spills has generally declined. Vessel inspections and penalties for accidents and violations have improved considerably the effectiveness of oil transport by tankers.

The Service has worked extensively with the U.S. Coast Guard, industry representatives, local response communities, and other State, Federal, and Tribal natural resource trustees to develop area contingency plans and geographic oil spill response plans for Pacific coastal areas. These planning efforts, the associated spill responses, and restoration efforts help prevent or minimize the impact of spills on marbled murrelets. Natural resources damage assessment restoration efforts for oil spills that injure or kill marbled murrelets in the marine environment (

e.g.

, Apex/Houston in California (Consent Decree and Settlement Agreement,

United States

v.

Apex Oil Co.

, 1994, p.14); New Carissa in Oregon (M/V New Carissa Oil Spill Natural Resource Trustees. 2006, p. 49); and Tenyo Maru in Washington (Tenyo Maru Oil Spill Natural Resource Trustees 2000, pp. 4-22)) have compensated exclusively for marbled murrelet impacts by protecting forests that provide nesting habitat.

Our section 7 consultations on Federal actions or projects since 1996 reinforce our previous finding that existing Federal laws and regulations provide special management for marbled murrelet habitat in the marine environment. Our section 7 consultations on projects or action that had insignificant adverse effects to marbled murrelets in the marine environment have primarily been related to impacts to individual birds, not to their marine habitat. For example, section 7 consultations over the last several years on projects affecting marbled murrelets in the marine waters of Puget Sound have identified adverse effects to individual birds from disturbance generated from pile driving and other in-water construction activities, and from by-catch associated with net fisheries.

In contrast, our assessment through the section 7 consultation process of effects on marine habitat for marbled murrelets most often conclude that the effects are insignificant. This is largely a result of requirements of the Clean Water Act Section 404 permit or State of Washington Hydraulic Permit Application requirements and restrictions, which protect marine habitat, such as eelgrass beds and forage fish spawning beaches, important to the production of marbled murrelet prey species.

Federal Wilderness Areas in Washington, Oregon, and California Designated Under the Wilderness Act of 1964

The Wilderness Act of 1964 (16 U.S.C. 1131-1136) established the National Wilderness Preservation System, now encompassing more than 105 million ac (42 million ha) nationwide (Wilderness Society, p. 1). A wilderness area is defined as “an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least 5,000 ac (2,023 ha) of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value (Wilderness Society, p. 7). Furthermore, the Wilderness Act's Section 2(b) identifies that “these shall be administered * * * so as to provide for the protection of these areas * * * [and] the preservation of their wilderness character.” Within the areas having essential habitat features for the marbled murrelet, there are three congressionally designated wilderness areas in the State of Washington, seven in Oregon, and three in California.

In general, these wilderness areas are managed to meet the habitat needs of the marbled murrelet, directly or indirectly, by providing for large blocks of old-growth and mature forest that may contain the PCEs. These wilderness areas are generally greater than 5,000 ac (2,023 ha), providing for large blocks of protected nesting and suitable habitat, as well as preventing further habitat loss of unoccupied but suitable habitat (USDI 1997, p. 119).

In addition, the wilderness areas are distributed throughout the range of the species and also help meet the recovery objective of maintaining a well-dispersed population, which is essential for the long-term survival and recovery of the marbled murrelet (USDI 1997 p.115). Their distribution on the landscape and protected status help contribute towards this goal by reducing the adverse effects of random catastrophic events that can affect populations with relatively widespread distributions (USDI 1997, p. 116).

The general wilderness management prohibitions limit many of the activities that could adversely affect the marbled murrelet PCEs. While there may be instances where trees may be removed (

e.g.

, hazard trees in dispersed campgrounds or along the wilderness boundary), these activities are not likely to take place at a scale that would adversely affect a significant number of individual nest trees or large forested areas within 0.5 mi (0.8 km) of a suitable nest tree.

Motorized equipment and equipment used for mechanical transport is generally prohibited on all Federal lands designated as wilderness, with

some administrative exceptions. This includes the use of motor vehicles, motorboats, motorized equipment, bicycles, hang gliders, wagons, cart, portage wheels, and the landing of aircraft including helicopters, unless provided for in specific legislation. These restrictions reduce the likelihood of any adverse effects to the PCEs due to motorized or mechanized activities.

Timber harvest is not allowed in wilderness. Some limited tree removal may take place under emergency conditions, such as fire, insect, and disease control, and in the construction and maintenance of authorized improvements (such as trail bridges) when the necessary material cannot be reasonably obtained elsewhere.

Consequently, we find that wilderness areas are generally managed in such as way as to protect PCEs and contribute to the needs of the marbled murrelet by providing for large blocks of old-growth and mature forest. Restrictions on habitat removal through (1) continuing protection and conservation of large tracts of old and mature growth forest containing the PCEs; (2) limiting activities, such as timber operations, that may adversely affect the PCEs; and (3) requiring any activities administered within a wilderness area to “preserve its wilderness character” (Wilderness Act, section 4(b)) provides significant benefits to marbled murrelets.

We conclude that the features essential to the marbled murrelet contained within congressionally designated wilderness areas do not require special management considerations or protection because existing laws and regulations are adequate. Therefore, these areas do not meet the definition of critical habitat. Consequently, no congressionally designated wilderness areas are included in this proposal.

Redwood National and State Parks, California

Redwood National and State Parks (RNSP) is comprised of four park units, all located within the congressionally authorized boundary of the National Park: Redwood National Park, Prairie Creek Redwoods State Park, Del Norte Coast Redwoods State Park, and Jedediah Smith Redwoods State Park. The reasons for which these parks were established are described in various statutes and declarations of purpose by the Federal government and the State of California.

These parks are managed under a cooperative management agreement between the National Park Service and the California Department of Parks and Recreation. Moreover, a joint (Federal and State) general management plan was developed through cooperative efforts between the Federal and State agencies in an effort to manage this complex of parks as a whole. The strategy of the general management plan, finalized in 1998, is to ensure that all resource management efforts are consistent with and supportive of the perpetuation of the redwood forest ecosystem. A management goal for the park complex is to provide, enhance, and protect marbled murrelet nesting habitat. The parks are committed to preventing the loss of occupied marbled murrelet nesting habitat and managing vegetation to increase the amount of marbled murrelet nesting habitat throughout the park complex.

In 2003, the RNSP superintendents signed a conservation strategy entitled “A Conservation Strategy for Managing Threatened and Endangered Species in Redwood National and State Parks” (Conservation Strategy). The recovery goals identified in this strategy include implementing short-term actions to maintain suitable habitat in large contiguous blocks, restoring watersheds, and decreasing the risk of catastrophic fire in old-growth forests. Also identified is a long-term action to treat approximately 50,000 ac (20,000 ha) of second-growth forests within the parks to accelerate the development of marbled murrelet nesting habitat.

We conclude that the features essential to the marbled murrelet contained within the RNSP do not require special management considerations or protection because existing laws and regulations are adequate. Therefore, these areas do not meet the definition of critical habitat. Consequently, no areas within RNSP are included in this proposal.

Quinault Indian Reservation North Boundary Area, Washington

We have determined that the features essential to the marbled murrelet contained within the Quinault Indian Reservation North Boundary Area (NBA) do not require special management or protection. Therefore the NBA is not included in this proposal. In September 2004, the Secretary of the Interior and the President of the Quinault Indian Nation signed an agreement to preserve 4,207 ac (1,683 ha) of sensitive forest habitat on the Quinault Indian Reservation in Washington State. This agreement settled a lawsuit brought by the Tribe after the Service issued a 1998 jeopardy biological opinion for the marbled murrelet on the Quinault's 1995 comprehensive timber management plan. Through implementation of the agreement, the Department is purchasing perpetual conservation easements on the late-successional forests identified in the reasonable and prudent alternative of the biological opinion.

In 2006, we completed conservation easements with the Bureau of Indian Affairs and the Quinault Indian Nation for 2,925 ac (1,170 ha) of forested land in the North Boundary Area (NBA). The NBA has been surveyed and is known to be occupied by marbled murrelets (as determined by surveys under the Pacific Seabird Group protocol). When the conservation easements are implemented, they will apply to 4,262 ac (1,705 ha) (2,980 ac (1,192 ha) of old-growth and 1,282 ac (513 ha) of second growth). The conservation easements convey all future development rights to us in perpetuity, except for harvesting of minor forest products (such as brush and mushrooms), hunting, fishing, trapping, camping, and use of trees as guidelines or tailholds for harvest in adjacent areas.

The purpose of the conservation easements is to preserve, protect, restore, enhance, maintain, and promote the functional value of existing and potential future late-successional forest and its use as habitat for the marbled murrelet and other species dependent on late-successional forest habitat. Generally, the following are prohibited unless determined by us to be consistent with the purposes of the easement: Thinning or timber harvest; salvage of dead or down trees; construction of new roads; modification of existing roads; storing, dumping, or other disposal of toxic or hazardous materials; conversion of native vegetation to exotic species; introduction of nonnative animal species; grazing of livestock; construction or placement of buildings or other structures; application of biocides, herbicides, or other chemicals; changing the topography; human-caused fires; granting of additional easements or rights-of-way; subdivision; or transference of appurtenant water rights.

The Service administers the easements and provides the reasonable assurances that the agreement will be implemented. The old-growth forests will be retained and the second-growth forests will be managed to enhance and promote late-successional forest characteristics. Barring unforeseen circumstances, such as wildfire, the conservation effort of the easements should be effective in providing and conserving marbled murrelet habitat and PCEs.

We have determined that: (1) The plan provides a conservation benefit to the marbled murrelet; (2) sufficient

assurances are in place such that the conservation measures will be implemented; and (3) sufficient assurances are in place that the conservation effort will be effective and provide a conservation benefit to the PCEs and the marbled murrelet. Consequently, we believe that the features essential to the marbled murrelet in the Quinault Indian Reservation North Boundary Area do not require special management or protection and, therefore, do not meet the definition of critical habitat.

Headwaters Forest Reserve (Bureau of Land Management), California

We have determined that the features essential to the marbled murrelet contained within the Headwaters Forest Reserve (Reserve) (7,494 ac (2,998 ha)) managed by the Bureau of Land Management do not require special management or protection. Therefore, the Reserve is not included in this proposal. The Headwaters Forest was acquired by the Secretary of the Interior and the State of California on March 1, 1999, to preserve the old-growth redwood forest. In 2003, a joint (Federal and State) management plan (plan) was developed to assure that human activities are compatible with the ecological integrity and preservation of the Reserve's lands, fish, wildlife, and forest. The Bureau of Land Management has provided $1.2 to $1.3 million per year for management of the Reserve since its inception.

The plan includes species' specific goals and management direction for the marbled murrelet. The plan's desired outcome for management of the marbled murrelet is to preserve existing nesting habitat and expand nesting habitat to the entire Reserve. Both short-term and long-term goals for management of the Reserve are established to achieve this outcome. Conservation efforts identified for the Reserve include: Maintaining and protecting all suitable nesting habitat; increasing marbled murrelet reproduction and survivorship; increasing stand size of late-successional and old-growth forest; regrowing late-successional and old-growth forest over the largest amount of the reserve practicable; implementing road closures and decommissioning actions on the maximum acreage to decrease forest fragmentation; minimizing actions that may cause auditory or visual disturbances to marbled murrelets; and minimizing the availability of human food waste, which may serve as a source of food for marbled murrelet nest predators. The plan identifies monitoring requirements to guide plan implementation. Achieving the plan's long-term goals will nearly double the amount of marbled murrelet nesting habitat in the Reserve.

We have determined that: (1) The plan provides a conservation benefit to the marbled murrelet; (2) sufficient assurances are in place such that the conservation measures will be implemented; and (3) sufficient assurances are in place that the conservation effort will be effective and provide a conservation benefit to the PCEs and the marbled murrelet. Consequently, we believe that the features essential to the marbled murrelet in the Reserve do not require special management or protection and, therefore, do not meet the definition of critical habitat.

Relationship of Critical Habitat to Section 4(a)(3) of the Act—Approved Integrated Natural Resource Management Plans

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) required each military installation that includes land and water suitable for the conservation and management of natural resources to complete, by November 17, 2001, an Integrated Natural Resource Management Plan (INRMP). An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found on the base. Each INRMP includes an assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; a statement of goals and priorities; a detailed description of management actions to be implemented to provide for these ecological needs; and a monitoring and adaptive management plan. Among other things, each INRMP must, to the extent appropriate and applicable, provide for fish and wildlife management; fish and wildlife habitat enhancement or modification; wetland protection, enhancement, and restoration where necessary to support fish and wildlife; and enforcement of applicable natural resource laws.

The National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136) amended the Act to limit areas eligible for designation as critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) now provides: “The Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.”

We consult with the military on the development and implementation of INRMPs for installations with listed species. INRMPs developed by military installations located within the range of the proposed critical habitat designation for the marbled murrelet were analyzed for exemption under the authority of 4(a)(3) of the Act.

Naval Radio Station Jim Creek, Washington

An INRMP was developed for the Naval Radio Station Jim Creek, Washington, that provides guidance for natural resource management specific to marbled murrelet designated critical habitat (1996 designation) for the period 2002-2007. This INRMP provides a conservation benefit to the marbled murrelet and its PCEs because the broad guiding principles are to preserve the old growth forest, to protect and preserve occupied and unoccupied habitat, to enhance old growth, and to enhance adjacent second growth to encourage late-successional stage forest structure. The INRMP also avoids siting recreational facilities within the old growth forest and limits recreation and military usage in marbled murrelet habitat. This INRMP has been in place since 1993, and has consistently achieved protection of marbled murrelet habitat; therefore, the INRMP provides assurances that the plan will be implemented. The quantifiable parameters and monitoring included in the INRMP provide assurances that the conservation effort for marbled murrelets will be effective. Every 5 years, the INRMP is reviewed and revised as appropriate to maintain resource protection and assure application of best management practices. The Navy fully anticipates that any and all renewals and reviews of the INRMP will include preservation of the old growth forest and continuation of forest practices that will enhance the adjacent old growth.

Based on the above considerations, and consistent with the direction provided in section 4(a)(3)(B)(i) of the Act, we have determined that conservation efforts identified in the Naval Radio Station Jim Creek INRMP will provide benefits to the marbled murrelet and the features essential to its conservation. Therefore, Naval Radio Station Jim Creek is exempt from inclusion in this revised designation of critical habitat for the marbled murrelet under section 4(a)(3) of the Act.

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

There are multiple ways to provide management for species' habitat. Statutory and regulatory frameworks that exist at a local level can provide protection and management, as can lack of pressure for change, such as areas too remote for anthropogenic disturbance. State, local, or private management plans and management under Federal agency jurisdictions can provide protection and management to avoid the need for designation of critical habitat. When we consider a plan to determine its adequacy in protecting habitat, we consider whether the plan as a whole will provide the same level of protection that designation of critical habitat would provide. The plan need not lead to exactly the same result as a designation in every individual application, as long as the protection it provides is equivalent overall. In making this determination, we examine whether the plan provides management, protection, or enhancement of the PCEs that is at least equivalent to that provided by a critical habitat designation, and whether there is a reasonable expectation that the management, protection, or enhancement actions will continue into the foreseeable future. Each review is particular to the species and the plan, and some plans may be adequate for some species and inadequate for others.

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the Congressional record is clear that the Secretary is afforded broad discretion regarding which factors to use and how much weight to give to any factor.

Under section 4(b)(2) of the Act, in considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If an exclusion is contemplated, we must determine whether excluding the area would result in the extinction of the species. In the following sections, we address a number of general issues that are relevant to the exclusions we are considering. In addition, the Service is conducting an economic analysis of the impacts of the proposed critical habitat designation and related factors that will be available for public review and comment. Based on public comment on that document, the proposed revised designation itself, and the information in the final economic analysis, additional areas beyond those identified in this assessment may be excluded from critical habitat by the Secretary under the provisions of section 4(b)(2) of the Act. This is provided for in the Act, and in our implementing regulations at 50 CFR 424.19. Under 50 CFR 424.19, we must propose an area as critical habitat prior to making an exclusion of that area under section 4(b)(2) of the Act from the final critical habitat designation to receive public comment. We have therefore included these units, or portions thereof, in the regulation portion of this proposed critical habitat rule.

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

The most direct, and potentially largest, regulatory benefit of critical habitat is that federally authorized, funded, or carried out activities require consultation under section 7 of the Act to ensure that they are not likely to destroy or adversely modify critical habitat. There are two limitations to this regulatory effect. First, it only applies where there is a Federal nexus—if there is no Federal nexus, designation itself does not restrict actions that destroy or adversely modify critical habitat. Second, it only limits destruction or adverse modification. By its nature, the prohibition on adverse modification is designed to ensure that areas containing physical and biological features essential to the conservation of the species, or unoccupied areas essential to the conservation of the species, are not eroded. Critical habitat designation alone, however, does not require specific steps toward recovery.

Once consultation under section 7 of the Act is triggered, the process may conclude informally when the Service concurs in writing that the proposed Federal action is not likely to adversely affect the listed species or its critical habitat. However, if the Service determines through informal consultation that adverse impacts are likely to occur, then formal consultation would be initiated. Formal consultation concludes with a biological opinion issued by the Service on whether the proposed Federal action is likely to jeopardize the continued existence of a listed species or result in destruction or adverse modification of critical habitat, with separate analyses being made under both the jeopardy and the adverse modification standards. For critical habitat, a biological opinion that concludes in a determination of no destruction or adverse modification may contain discretionary conservation recommendations to minimize adverse effects to primary constituent elements, but it would not contain any mandatory reasonable and prudent measures or terms and conditions. Mandatory reasonable and prudent alternatives to the proposed Federal action would only be issued when the biological opinion results in a jeopardy or adverse modification conclusion.

We also note that for 30 years prior to the Ninth Circuit Court's decision in

Gifford Pinchot Task Force

v.

U.S. Fish and Wildlife Service,

378 F.3d 1059 (9th Cir 2004) (hereinafter

Gifford Pinchot

), the Service equated the jeopardy standard with the standard for destruction or adverse modification of critical habitat. In that decision, the Court ruled that the Service could no longer equate the two standards and that adverse modification evaluations require consideration of impacts on the recovery of species. Thus, under the

Gifford Pinchot

decision, critical habitat designations may provide greater benefits to the recovery of a species. However, we believe the conservation achieved through implementing habitat conservation plans (HCPs) or other habitat management plans is typically greater than would be achieved through multiple site-by-site, project-by-project, section 7 consultations involving consideration of critical habitat. Management plans commit resources to implement long-term management and protection to particular habitat for at least one and possibly other listed or sensitive species. Section 7 consultations only commit Federal agencies to prevent adverse modification to critical habitat caused by the particular project, and they are not committed to provide conservation or long-term benefits to areas not affected by the proposed project. Thus, any HCP or management plan which considers enhancement or recovery as the management standard will always provide as much or more benefit than a consultation for critical habitat designation conducted under the

standards required by the Ninth Circuit in the

Gifford Pinchot

decision.

Educational Benefits of Critical Habitat

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

However, we believe that there would be little additional informational benefit gained from the designation of critical habitat for the exclusions we are proposing for this final designation of critical habitat. We believe that the informational benefits are already provided even though these areas would not be designated as critical habitat. Informing State agencies and local governments about areas that would benefit from protection and enhancement of habitat for the marbled murrelet is already well established among State and local governments and Federal agencies, as a result of the 1996 critical habitat final rule (61 FR 26256).

Conservation Partnerships on Non-Federal Lands

Most federally listed species in the United States will not recover without the cooperation of non-Federal landowners. More than 60 percent of the United States is privately owned, and at least 80 percent of endangered and threatened species occur either partially or solely on private lands (Crouse et al. 2002, p. 720). Stein et al. (1995, p.3 ) found that only about 12 percent of listed species were found almost exclusively on Federal lands (i.e., 90 to 100 percent of their known occurrences restricted to Federal lands) and that 50 percent of federally listed species are not known to occur on Federal lands at all.

Conservation of listed species in many parts of the United States is dependent upon working partnerships with a wide variety of entities and the voluntary cooperation of many non-Federal landowners (Wilcove and Chen 1998. p. 1, 407; Crouse et al. 2002, p. 720; James 2002, p. 270). Building partnerships and promoting voluntary cooperation of landowners is essential to understanding the status of species on non-Federal lands and is necessary to implement recovery actions such as reintroducing listed species, habitat restoration, and habitat protection.

Many non-Federal landowners derive satisfaction in contributing to endangered species recovery. The Service promotes these private-sector efforts through the Four Cs philosophy—conservation through communication, consultation, and cooperation. This philosophy is evident in Service programs such as HCPs, Safe Harbors, Candidate Conservation Agreements, Candidate Conservation Agreements with Assurances, and conservation challenge cost-shares. Many private landowners, however, are wary of the possible consequences of encouraging endangered species to their property, and there is some evidence that some regulatory actions by the Federal government, while well-intentioned and required by law, can under certain circumstances have unintended negative consequences for the conservation of species on private lands (Wilcove et al. 1996, pp. 2, 5; Bean 2002, p. 409, 412, 414-415, 419-420; Conner and Mathews 2002, p. 2; James 2002, p. 270; Koch 2002, p. 508-510). Many landowners fear a decline in their property value due to real or perceived restrictions on land-use options where threatened or endangered species are found. Consequently, harboring endangered species is viewed by many landowners as a liability, resulting in anti-conservation incentives because maintaining habitats that harbor endangered species represents a risk to future economic opportunities (Main et al. 1999, pp. 1263-1265).

The purpose of designating critical habitat is to contribute to the conservation of threatened and endangered species and the ecosystems upon which they depend. The outcome of the designation, triggering regulatory requirements for actions funded, authorized, or carried out by Federal agencies under section 7 of the Act, can sometimes be counterproductive to its intended purpose on non-Federal lands. According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main et al. 1999, p. 1263-1265; Bean 2002, p. 409, 412, 414-415, 419-420). The magnitude of this negative outcome is greatly amplified in situations where active management measures (e.g., reintroduction, fire management, control of invasive species) are necessary for species conservation (Bean 2002, p. 414, 419-420).

We believe that the judicious use of excluding specific areas of non-federally owned lands from critical habitat designations can contribute to species recovery and provide a superior level of conservation than critical habitat alone. For example, less than 17 percent of Hawaii is federally owned, but the State is home to more than 24 percent of all federally listed species, most of which will not recover without State and private landowner cooperation. On the island of Lanai, Castle and Cooke Resorts, LLC, which owns 99 percent of the island, entered into a conservation agreement with the Service. The conservation agreement provides conservation benefits to target species through management actions that remove threats (e.g., axis deer, mouflon sheep, rats, invasive nonnative plants) from the Lanaihale and East Lanai Regions. Specific management actions include fire control measures, nursery propagation of native flora (including the target species), and planting of such flora. These actions will significantly improve the habitat for all currently occurring species. Due to the low likelihood of a Federal nexus on the island, we believe that the benefits of excluding the lands covered by the Memorandum of Agreement exceeded the benefits of including them. As stated in the final critical habitat rule for endangered plants on the Island of Lanai:

On Lanai, simply preventing “harmful activities” will not slow the extinction of listed plant species. Where consistent with the discretion provided by the Act, the Service believes it is necessary to implement policies that provide positive incentives to private landowners to voluntarily conserve natural resources and that remove or reduce disincentives to conservation. While the impact of providing these incentives may be modest in economic terms, they can be significant in terms of conservation benefits that can stem from the cooperation of the landowner. The continued participation of Castle and Cooke Resorts, LLC, in the existing Lanai Forest and Watershed Partnership and other voluntary conservation agreements will greatly enhance the Service's ability to further the recovery of these endangered plants.

Conservation agreements with non-Federal landowners (e.g., HCPs, contractual conservation agreements, easements, and stakeholder-negotiated State regulations) enhance species conservation by extending species protections beyond those available

through section 7 consultations. In the past decade, we have encouraged non-Federal landowners to enter into conservation agreements, based on a view that we can achieve greater species conservation on non-Federal land through such partnerships than we can through coercive methods (61 FR 63854).

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

The benefits of excluding lands with HCPs or other approved management plans from critical habitat designation include relieving landowners, communities, and counties of any additional regulatory burden that might be imposed by a critical habitat designation. Most HCPs and other conservation plans take many years to develop and, upon completion, are consistent with the recovery objectives for listed species that are covered within the plan area. In fact, designating critical habitat in areas covered by a pending HCP or conservation plan could result in the loss of some species' benefits if participants abandon the planning process, in part because of the strength of the perceived additional regulatory compliance that such designation would entail. The time and cost of regulatory compliance for a critical habitat designation do not have to be quantified for them to be perceived as additional Federal regulatory burden sufficient to discourage continued participation in plans targeting listed species' conservation.

Many conservation plans provide conservation benefits to unlisted sensitive species. Imposing an additional regulatory review as a result of the designation of critical habitat may undermine conservation efforts and partnerships in many areas. Designation of critical habitat within the boundaries of management plans that provide conservation measures for a species could be viewed as a disincentive to those entities currently developing these plans or contemplating them in the future, because one of the incentives for undertaking conservation is greater ease of permitting where listed species are affected. Addition of a new regulatory requirement would remove a significant incentive for undertaking the time and expense of management planning.

A related benefit of excluding lands within management plans from critical habitat designation is the unhindered, continued ability to seek new partnerships with future plan participants including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. If lands within approved management plan areas are designated as critical habitat, it may have a negative effect on our ability to establish new partnerships to develop these plans, particularly plans that address landscape-level conservation of species and habitats. By preemptively excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future.

Furthermore, an HCP application itself is subject to consultation. Such a consultation would review the effects of all activities covered by the HCP which might adversely impact the species under a jeopardy standard, including possibly significant habitat modification (see definition of “harm” at 50 CFR 17.3), even without the critical habitat designation. In addition, Federal actions not covered by the HCP in areas occupied by listed species would still require consultation under section 7 of the Act and would be reviewed for possibly significant habitat modification in accordance with the definition of harm referenced above.

We specifically solicit comment on the inclusion or exclusion of the areas discussed below. We recognize that other conservation efforts are underway that may allow us to exclude some additional areas. If information becomes available during the public comment period on management plans or strategies that would provide benefit to the species, we will analyze the information and make a determination on the appropriateness of an exclusion in our final designation.

Makah Indian Reservation, Washington

The longstanding and distinctive relationship between Federal and Tribal governments is defined by treaties, statutes, executive orders, judicial decisions, and agreements, which differentiate Tribal governments from the other entities that deal with, or are affected by, the Federal government. This relationship has given rise to a special Federal trust responsibility involving the legal responsibilities and obligations of the United States toward Indian Tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights.

We identified Tribal lands within proposed revised critical habitat where there was a Tribal management or conservation plan, or the commitment to establish such a plan, that provided benefits to marbled murrelets and considered whether or not to exclude these lands from critical habitat.

The Makah Indian Nation and the Bureau of Indian Affairs (BIA) developed a forest management plan (FMP) for the entire 30,104-ac Makah Indian Reservation. The FMP covers all forestland under Tribal and BIA timber management, including individual Indian-owned trust land (about 2,000 ac; 800 ha) and tribally owned land (about 25,587 ac; 10,343 ha).

The FMP is a 10-year plan covering the period from August 1999 to July 2009. The FMP is implemented by the Makah Department of Natural Resources and the BIA. Although some adverse affects to marbled murrelets and marbled murrelet habitat are expected, the FMP largely defers timber harvest in known occupied marbled murrelet breeding sites near Cape Flattery, Anderson Point, and the Waatch River Valley.

The Makah Indian Nation has further demonstrated commitment to the protection of known occupied marbled murrelet nesting habitat and the future restoration of marbled murrelet breeding habitat through collaborative efforts to establish 200-year Tribal land use agreements (in 2002 and 2006) to protect the functional values of occupied marbled murrelet breeding habitat, to regenerate breeding habitat, and to promote the conservation and restoration of marbled murrelet populations affected by the July 22, 1991, Tenyo Maru Oil Spill off the Washington coast. These land use agreements collectively cover about 566 ac (226 ha) in the Anderson Point and Waatch River Valley.

The Makah Indian Nation has cooperated with us to implement proactive conservation measures. They have cooperated with Federal and State agencies and private organizations to implement voluntary conservation activities on their lands that have resulted in tangible conservation benefits.

We believe that excluding these Tribal lands from critical habitat will help maintain and improve our partnership relationship by recognizing their positive contribution to marbled murrelet conservation. This exclusion would also reduce the cost and logistical burden of regulatory oversight. We believe this recognition would provide other landowners with a positive incentive to undertake voluntary conservation activities on their lands, especially where there is no regulatory requirement to implement such actions.

We will continue to consult with Tribes during the proposal period to

evaluate whether other Tribal lands should be considered for exclusion in the final designation.

Washington Department of Natural Resources Habitat Conservation Plan

In September 1997, the Washington Department of Natural Resources (WDNR) completed a multi-species, long-term HCP. The HCP covered approximately 1.6 million ac (0.6 million ha) of State trust forest lands managed by WDNR within the range of the northern spotted owl (

Strix occidentalis

), and excludes urban, commercial, industrial, agricultural, or residential lands. These lands range from isolated parcels less than 40 ac (16 ha) in size to large, contiguous blocks of land greater than 100,000 ac (40,000 ha) in size. The plan addressed the conservation of nine listed species, including the marbled murrelet.

The WDNR's HCP provides mitigation for the incidental take of the marbled murrelet (and other listed and unlisted species). Although a Final Conservation Strategy for marbled murrelets is incomplete, an Interim Conservation Strategy was developed to protect marbled murrelets on WDNR-managed trust lands until the final long-term strategy is developed. The Final Conservation Strategy is planned to cover WDNR-managed lands in all six of the planning units known to be inhabited by marbled murrelets (Columbia, South Coast, Straits, Olympic Experimental State Forest (OESF), North Puget, and South Puget).

The 1997 Interim Conservation Strategy involved several steps. First, the WDNR identified and deferred harvest to any part of a block of suitable marbled murrelet habitat until surveys could be completed in these areas. Second, within each west-side planning unit and the Olympic Experimental State Forest (OESF) planning unit, WDNR conducted 2-year habitat relationship studies to determine the relative marbled murrelet occupancy of various forest types within each planning unit. Third, after the habitat relationship studies were completed in each planning unit, WDNR identified the marginal habitat types that would be expected to contain a maximum of 5 percent of marbled murrelet occupied sites on WDNR-managed lands, and 50 percent of this area was made available for harvest, except in the Columbia and South Coast Planning Units where all suitable marbled murrelet habitat was protected. Therefore, not fully 50 percent of these marginal habitat types were released. However, all known occupied sites in each of the six planning units were protected, and any additional occupied sites that were found during the Interim Conservation Strategy were also protected. Fourth, all the remaining acreage (95 percent) of higher-quality habitat was included in an inventory survey using survey protocols approved by the Service to locate sites occupied by marbled murrelets.

While these Interim Conservation Strategy steps were being implemented, WDNR participated in cooperative regional research efforts. These research projects included: (1) Participation in studies describing the nest site characteristics and habitat preferences of the marbled murrelet; (2) marine surveys to document distribution and population size; (3) examination of factors affecting nest success; and (4) development of demographic models that incorporated effects on the population from differences in the amount of habitat quality (structural complexity) provided, degree of landscape contiguity and edge, and total amount of habitat present over time.

The information collected during these studies and other research efforts is being used to develop the Final Conservation Strategy for marbled murrelet habitat on WDNR-managed HCP lands within each of the six planning units. Four of these watershed plans (Columbia, South Coast, OESF, and Straits) are currently in draft form and due to be completed within the next 2 years. The WDNR will operate under the Interim Conservation Strategy in the remaining two planning units (North Puget and South Puget) until the long-term strategy for them is complete as well.

The WDNR, National Marine Fisheries Service, and Service signed an Implementation Agreement (IA) for the 1997 WDNR HCP (WDNR et al. 1996, App. 4). The WDNR has a 70-year incidental take permit with options to extend to year 100. Marbled murrelet conservation is part of the commitment. The Service has assurances that the WDNR will implement the HCP as described in its 1997 document, based on the IA. If the WDNR does not implement the HCP as specified, the Service can suspend or revoke the permit (WDNR et al. 1996, p. A4-14).

Annual reports and monitoring are a requirement of the HCP (WDNR 1997, p. V. 9). Those reports, combined with continual contact between the Service's HCP Implementation personnel and the WDNR HCP Implementation personnel, and the WDNR's substantial monetary commitment to HCP implementation to date, provide a large degree of certainty that the WDNR is working toward and dedicated to realizing the goals of the HCP.

According to the HCP, Natural Resource Conservation Areas (NRCAs) and Natural Area Preserves (NAPs) managed by WDNR are not subject to the HCP but WDNR is given credit for the habitat contributions provided by these lands in terms of meeting the conservation objectives of the HCP. Whether these lands continue to provide such contributions to the conservation objectives, and the remedy if they do not, will be discussed at each of the scheduled HCP comprehensive reviews. WDNR's management of the Natural Area Preserves and Natural Resource Conservation Areas is not expected to increase the level of take for any species covered by the incidental take permit. WDNR's management of these lands will maintain the conservation objectives described in the HCP. Consequently, we are proposing to exclude from the final designation of critical habitat the NRCAs and NAPs as well as lands subject to the HCP under 4(b)(2) of the Act.

We believe that a critical habitat designation for the marbled murrelet on HCP lands would provide a relatively low level of additional regulatory conservation benefit to the species and its PCEs beyond what is already provided by the HCP. Any minimal conservation benefits that would be afforded from consulting on critical habitat is outweighed by the benefits of avoiding the additional costs (staff time and money) of designating and consulting on critical habitat. These costs, while not significant, are avoidable, create very little additional benefits to the species, and could be better used to effectuate conservation measures on the ground. We thereby propose to exclude these HCP lands from the final critical habitat designation under section 4(b)(2) of the Act.

Willapa National Wildlife Refuge and The Nature Conservancy Ellsworth Creek Reserve, Washington

Approximately 354 ac (142 ha) of marbled murrelet habitat on the Willapa National Wildlife Refuge are designated Research Natural Area (Cedar Grove RNA 274 ac and Diamond Point RNA; 80 ac (32 ha)). Another 73 ac (29 ha) of late-successional forest is located in the Teal Slough portion of the Refuge.

Activities on Research Natural Areas (RNAs) are limited to research, study, observation, monitoring, and educational activities that are non-destructive, non-manipulative, and maintain unmodified conditions (USFWS Refuge Manual 10.2). RNAs

must be reasonably protected from any influence that could alter or disrupt the characteristic phenomena for which the area was established (USFWS Refuge Manual 10.8). Generally, no permanent physical improvements such as roads, fences, or buildings are permitted within a RNA (USFWS Refuge Manual 10.8D).

The adjacent Ellsworth Creek Reserve of The Nature Conservancy is managed to protect and restore old-growth forest. The Nature Conservancy (TNC) is partnering with the Willapa National Wildlife Refuge (NWR) to develop a joint Forest Restoration and Management Plan for the Ellsworth Creek Reserve and all the forests on the NWR. TNC was awarded a Cooperative Conservation Challenge cost share grant in 2004 to develop the joint management plan. A draft is expected in September 2006. TNC has expressed interest in having its land covered by the joint management plan excluded from critical habitat designation based on the benefits of the management plan. We expect to conduct a section 7 consultation on the completed management plan.

We believe that a critical habitat designation for the marbled murrelet in areas within the Willapa National Wildlife Refuge and the adjacent Ellsworth Creek Reserve of The Nature Conservancy would provide a relatively low level of additional regulatory conservation benefit to the species and its PCEs beyond what is already provided by existing section 7 consultation requirements due to the physical presence of the species. Any minimal conservation benefits that would be gained from consulting on critical habitat are outweighed by the benefits of avoiding the additional costs (staff time and money) of designating and consulting on critical habitat. These costs, while not significant, are avoidable, create very little additional benefits to the species, and could be better used to effectuate conservation measures on the ground. We therefore propose to exclude Willapa National Wildlife Refuge and the adjacent Ellsworth Creek Reserve of The Nature Conservancy covered by the joint forest management plan from the final critical habitat designation under section 4(b)(2) of the Act.

Late-successional forests in the nearby Teal Slough NRCA and the Ellsworth Creek NRCA are managed by the Washington Department of Natural Resources (WDNR). We are proposing to exclude these forests and other NRCAs and NAPs under WDNR management from the final designation of critical habitat for the marbled murrelet under section 4(b)(2) of the Act as part of the WDNR HCP exclusion.

Elliott State Forest Habitat Conservation Plan

Public scoping for the Elliott State Forest HCP began in February 2005, and the Oregon Department of Forestry released a draft version of the HCP in August 2005. A second draft of the HCP was released in June 2006. The HCP covers 93,282 ac (37,313 ha) of State land in Coos and Douglas Counties, Oregon. We continue to work with the State on development of the HCP. The Oregon State Land Board and Board of Forestry have committed to developing a multi-species HCP for the Elliott State Forest that would include the marbled murrelet.

The Elliott State Forest HCP would provide mitigation for the incidental take of the marbled murrelet. We received a letter, dated August 4, 2006, from the Oregon Department of State Lands and the Oregon Department of Forestry. This letter documented motions passed directing appropriate State agencies to move forward with the development of this HCP, which is based on the draft Elliott State Forest Management Plan. The June 2006 draft HCP describes the maintenance of 22,225 ac (8,890 ha) in conservation areas with little or no active management, including 34 areas (9,236 ac; 3,694 ha) established for marbled murrelets. These areas contain 3,269 ac (1,307 ha) of mapped murrelet habitat and range in size from 54 to 2,016 ac (22 to 806 ha) with a median of 149 ac (60 ha). They encompass 66 of the 78 murrelet occupied sites known as of 2004. Habitat may be removed from the remaining 12 sites and any sites located after 2004. An additional 2,543 ac (1,017 ha) of habitat are protected in other conservation areas. Requirements to provide advanced structure in each management basin may also provide additional support for core areas. The State will periodically survey core areas for occupancy, as well as the development of murrelet habitat.

The draft HCP proposes that, in the long term (50 years of the permit), a maximum of 5,000 ac (200 ha) outside of conservation areas would be subject to clearcut harvest activities. A maximum of 1,000 ac (400 ha) would be harvested per decade with no more than 250 ac (100 ha) in any 1 year.

We believe that a critical habitat designation for the marbled murrelet on HCP lands would provide a relatively low level of additional regulatory conservation benefit to the species and its PCEs. Any minimal conservation benefits that would be gained from consulting on critical habitat would be outweighed by the benefits of avoiding the additional costs (staff time and money) of designating and consulting on critical habitat. These additional costs, while not significant, are avoidable, create few additional benefits to the species, and could be better used to implement conservation measures on the ground. We therefore propose to exclude these HCP lands from the final designation of critical habitat for the marbled murrelet under section 4(b)(2) of the Act.

We are also working in partnership with the State Land Board and the Board of Forestry to explore developing a conservation agreement or management plan that will provide for conservation of marbled murrelets on the Tillamook State Forest. If these efforts are successful, we will analyze that information and make a determination of the appropriateness of excluding the Tillamook State Forest from our final designation.

Pacific Lumber Company Habitat Conservation Plan, California

The Sustained Yield Plan and Habitat Conservation Plan for the Properties of the Pacific Lumber Company (Palco), Scotia Pacific Company, LLC, and Salmon Creek Corporation (Palco SYP/HCP) dated February 1999, encompasses approximately 211,700 ac (84,680 ha) of privately owned Palco lands and up to 25,000 ac (10,000 ha) of additional lands adjacent to the main contiguous portion of Palco's ownership that may be acquired by Palco over the 50-year term of the incidental take permit. The biological opinion for the Palco SYP/HCP was completed on February 24, 1999, and analyzes effects to 17 species: 6 listed species (including the marbled murrelet), 1 proposed species, and 10 unlisted species.

Palco lands are located in southern Humboldt County, California, primarily in watersheds of the Elk, Van Duzen, Eel, Bear, Salt, and Mattole Rivers. Palco lands are located in the southern portion of Marbled Murrelet Conservation Zone 4 as described in the Marbled Murrelet Final Recovery Plan (USDI 1997, pp. 127-128).

Under the HCP, conservation programs were developed for aquatic species,

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