Endangered and Threatened Wildlife and Plants; Designation of Revised Critical Habitat for the Northern Spotted Owl

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2011-0112; 4500030114]

RIN 1018-AX69

Endangered and Threatened Wildlife and Plants; Designation of Revised Critical Habitat for the Northern Spotted Owl

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service, designate revised critical habitat for the northern spotted owl (

Strix occidentalis caurina

) under the Endangered Species Act. In total, approximately 9,577,969 acres (ac) (3,876,064 hectares (ha)) in 11 units and 60 subunits in California, Oregon, and Washington fall within the boundaries of the critical habitat designation.

DATES:

The rule becomes effective on January 3, 2013.

ADDRESSES:

The final rule and the associated economic analysis and environmental assessment are available on the Internet at

http://www.regulations.gov

at Docket No. FWS-R1-ES-2011-0112. Comments and materials received, as well as supporting documentation used in preparing this final rule, are available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE. 98th Ave., Suite 100, Portland, OR 97266; telephone 503-231-6179; facsimile 503-231-6195.

The coordinates or plot points or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at

http://www.fws.gov/oregonfwo,

at

http://www.regulations.gov

at Docket No. FWS-R1-ES-2011-0112, and at the Oregon Fish and Wildlife Office (see

FOR FURTHER INFORMATION CONTACT

). The additional tools and supporting information that we developed for this critical habitat designation are available at the Fish and Wildlife Service Web site and Field Office set out above and at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Paul Henson, Field Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE. 98th Ave., Suite 100, Portland, OR 97266; telephone 503-231-6179; facsimile 503-231-6195. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Organization of the Final Rule

This final rule describes the revised critical habitat designation for the northern spotted owl under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531

et seq.

). The pages that follow summarize the comments and information received in response to the proposed designation published on March 8, 2012 (77 FR 14062), and in response to the notice of availability of the draft economic analysis and draft environmental assessment of the proposed revised designation published on June 1, 2012 (77 FR 32483), describe any changes from the proposed rule, and detail the final designation for the northern spotted owl. To assist the reader, the content of the document is organized as follows:

I. Executive Summary

II. Background

Introduction

An Ecosystem-Based Approach to the Conservation of the Northern Spotted Owl and Managing Its Critical Habitat

Critical Habitat and the Northwest Forest Plan

Forest Management Activities in Northern Spotted Owl Critical Habitat

Research and Adaptive Management

The Biology and Ecology of the Northern Spotted Owl

III. Previous Federal Actions

IV. Changes From the Proposed Rule

V. Changes From Previously Designated Critical Habitat

VI. Critical Habitat

Background

Physical or Biological Features

Physical Influences Related to Features Essential to the Northern Spotted Owl

Biological Influences Related to Features Essential to the Northern Spotted Owl

Physical or Biological Features by Life-History Function

Primary Constituent Elements for the Northern Spotted Owl

Special Management Considerations or Protection

VII. Criteria Used To Identify Critical Habitat

Occupied Areas

Summary of Determination of Areas That Are Essential

Unoccupied Areas

VIII. Final Critical Habitat Designation

IX. Effects of Critical Habitat Designation

Section 7 Consultation

Determinations of Adverse Effects and Application of the “Adverse Modification” Standard

Section 7 Process Under This Critical Habitat Rule

X. Exemptions

XI. Exclusions

XII. Summary of Comments and Responses

Comments From Peer Reviewers

Comments From Federal Agencies

Comments From State Agencies

Comments From Counties

Public Comments

Economic Analysis Comments

Environmental Assessment Comments

XIII. Required Determinations

Regulatory Planning and Review—Executive Order 12866/13563

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

Energy Supply, Distribution, or Use—Executive Order 13211

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

Takings—Executive Order 12630

Federalism—Executive Order 13132

Civil Justice Reform—Executive Order 12988

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

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

Government-to-Government Relationship With Tribes

XIV. References Cited

Regulation Promulgation

I. Executive Summary

Why we need to publish a rule.

This is a final rule to designate revised critical habitat for the northern spotted owl. Under the Endangered Species Act of 1973, as amended (Act), designations and revisions of critical habitat can only be completed through rulemaking.

We, the U.S. Fish and Wildlife Service (Service), listed the northern spotted owl as threatened on June 26, 1990 (55 FR 26114), because of widespread loss of habitat across its range and the inadequacy of existing regulatory mechanisms to conserve it. We previously designated critical habitat for the northern spotted owl in 1992 and 2008. The 2008 designation (73 FR 47326, August 13, 2008) was subsequently challenged in court. In July 2009, the Federal Government requested voluntary remand of the 2008 revised critical habitat designation. On March 8, 2012, we published in the

Federal Register

a revised proposed critical habitat designation for the northern spotted owl (77 FR 14062). This rule complies with the court-ordered deadline to submit a final revised critical habitat rule for the northern spotted owl to the

Federal Register

by November 21, 2012.

Section 4(b)(2) of the Act states that the Secretary shall designate critical habitat 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 critical habitat areas we are designating in this rule constitute our current best assessment of the areas that meet the

definition of critical habitat for the northern spotted owl.

The rule revises our designation of critical habitat in Washington, Oregon, and California.

Consistent with the best scientific data available, the standards of the Act and our regulations, we are designating 9,577,969 ac (3,876,064 ha) in 11 units and 60 subunits in California, Oregon, and Washington that meet the definition of critical habitat. The approximate totals by State and comparison to previous designations are outlined below, as follows (note some units and subunits overlap State boundaries; therefore, totals do not add up to 11 units and 60 subunits):

• Approximately 2,918,067 ac (1,180,898 ha) in 4 units and 26 subunits in Washington.

• Approximately 4,557,852 ac (1,844,496 ha) in 8 units and 58 subunits in Oregon.

• Approximately 2,102,050 ac (850,669 ha) in 5 units and 36 subunits in California.

• This designation increases previously designated critical habitat, including the addition of 272,026 ac (110,085 ha) ac of State lands. However, this final critical habitat designation is a decrease from the 13,962,449 ac (5,649,660 ha) identified as meeting the definition of critical habitat in the March 8, 2012 (77 FR 14062) proposed rule.

• We have also excluded areas of State and private land from this designation of critical habitat under section 4(b)(2) of the Act, as explained in the Exclusions section of this rule.

The Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011; hereafter “Revised Recovery Plan”) recommends that land managers: (1) conserve older forest, high-value habitat, and areas occupied by northern spotted owls; and (2) actively manage forests to restore ecosystem health in many parts of the species' range. In developing this critical habitat designation, we also recognize the importance of the Northwest Forest Plan (NWFP) and its land management strategy for conservation of native species associated with old-growth and late-successional forest, including the northern spotted owl. The designation of areas as critical habitat does not change land use allocations or Standards and Guidelines for management under the NWFP, nor does this rule establish any management plan or prescriptions for the management of critical habitat. However, we encourage land managers to consider implementation of forest management practices recommended in the Revised Recovery Plan to restore natural ecological processes where they have been disrupted or suppressed (

e.g.,

natural fire regimes), and application of “ecological forestry” management practices (e.g., Gustafsson

et al.

2012, entire; Franklin

et al.

2007, entire; Kuuluvian and Grenfell

et al.

2012 entire) within critical habitat to reduce the potential for adverse impacts associated with commercial timber harvest when such harvest is planned within or adjacent to critical habitat. In sum, the Service encourages land managers to consider the conservation of existing high-quality northern spotted owl habitat, the restoration of forest ecosystem health, and the ecological forestry management practices recommended in the Revised Recovery Plan that are compatible with both the goals of northern spotted owl recovery and Standards and Guidelines of the NWFP.

The basis for our action.

This final critical habitat designation is based on the current status and recent scientific research on northern spotted owl populations. We used the best scientific information available to identify those specific areas within the geographical area occupied by the species at the time it was listed on which are found those physical or biological features essential to the conservation of the species, and which may require special management considerations or protection. For the northern spotted owl, these features include particular forest types that are used or likely to be used by northern spotted owls for nesting, roosting, foraging, or dispersing habitat. In addition, we used the best available information to identify those areas that are otherwise determined to be essential to the conservation of the species.

We relied on the recovery criteria set forth in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) to determine what is essential to the conservation of the species; therefore we have identified a habitat network that meets the following criteria:

• Ensures sufficient habitat to support stable, healthy populations across the range, and also within each of the 11 recovery units;

• Ensures distribution of northern spotted owl populations across the range of habitat conditions used by the species;

• Incorporates uncertainty, including potential effects of barred owls, climate change, and wildfire disturbance risk; and

• Recognizes that these protections are meant to work in concert with other recovery actions, such as barred owl management.

To assist us in determining critical habitat, we integrated habitat and demographic information (relating to occupancy, survival, reproduction, and movement) to develop a modeling tool that assesses the distribution of habitat quality and population dynamics across the range, and provides a more accurate picture of where high-quality northern spotted owl habitat exists. This model synthesized more than 20 years of data from on-the-ground demographic surveys, and allowed for analysis of how northern spotted owl populations would fare under different habitat conservation scenarios. We determined what is essential to recovery of the northern spotted owl by evaluating the performance of each potential critical habitat scenario considered against the recovery needs of the owl.

Peer reviewers support our methods.

We solicited expert opinions from knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. These peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final rule.

Consistency with Presidential Directive.

On February 28, 2012, the President issued a memorandum to the Secretary of the Interior regarding the proposed revised critical habitat for the northern spotted owl, specifically on minimizing regulatory burdens. The Service has fully addressed each of the directives in this memo and has taken steps to comply with this directive, including:

• We conducted and completed, as is the Service's normal practice, an economic analysis on the probable impacts of the proposed revised critical habitat.

• We provided a description of ecological forestry management actions that may be compatible with both northern spotted owl recovery and timber harvest, as recommended in the Revised Recovery Plan for the Northern Spotted Owl. This discussion appears in the following sections of this rule:

○ An Ecosystem-based Approach to the Conservation of the Northern Spotted Owl and Managing Its Critical Habitat

○ Special Management Considerations or Protection

○ Determination of Adverse Effects and Application of the “Adverse

Modification” Standard.

We note, however, that this discussion of ecological forestry is provided to Federal, State, local and private land managers, as well as the public, for their consideration as they make decisions on the management of forest land under their jurisdictions and through their normal processes. This critical habitat rule itself does not take any action or adopt any policy, plan, or program in relation to active forest management.

• As per the Service's normal practice, we solicited public review and comment on this rulemaking action, using information thus gained to correct and refine our designation.

• We fully considered exclusion of private lands and State lands from the final revised critical habitat, consistent with the best available scientific and commercial information.

The Service appreciates, and is sensitive to, the potential for regulatory burden that may result from our designation of critical habitat for the northern spotted owl under the Act. Our analysis indicated that the revision of critical habitat could have relatively little incremental effect above and beyond the conservation measures already required as a result of its threatened species status under the Act, and thus is not expected to impose substantial additional regulatory burdens. The Service appreciates, and relies on the many partners we have in conservation, including private landowners, Tribes, States, and local governments, and strongly desires to promote conservation partnerships to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people.

Costs and benefits.

In order to identify and analyze the potential economic impacts of the designation of critical habitat for the northern spotted owl, we worked with a contractor to draft an economic analysis report, which was released in May of 2012 and finalized following consideration and incorporation of public comment. The report looked at a variety of economic activities including timber harvest, wildlife management, road construction, and other forest management activities, but focused primarily on timber management. It concludes that only a relatively small portion of the overall proposed revised designation may result in more than minor incremental administrative costs. It found that potential incremental changes in timber harvests on Bureau of Land Management and U.S. Forest Service lands may occur on approximately 1,449,534 ac (585,612 ha) proposed for designation, or 10 percent of the total lands included in the proposed designation and that there is the potential for 307,308 ac (123,364 ha) of private land to experience incremental changes in harvests, or approximately 2 percent of total lands proposed. No incremental changes in harvests are expected on State lands.

II. Background

It is our intent to discuss only those topics directly relevant to the revised designation of critical habitat in this rule. For further details regarding northern spotted owl biology and habitat, population abundance and trend, distribution, demographic features, habitat use and conditions, threats, and conservation measures, please see the Northern Spotted Owl 5-year Review Summary and Evaluation, completed October 26, 2011, and the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011), completed July 1, 2011. Both of these documents are available on the U.S. Fish and Wildlife Service's Endangered Species Web site at

http://ecos.fws.gov/;

under “Species Search,” enter “northern spotted owl.” As detailed below, Appendix C of the Revised Recovery Plan is particularly informative, as we used the habitat modeling process it describes as a tool to help identify areas containing the essential physical and biological features or areas that were otherwise essential to the conservation of the northern spotted owl in this revised designation of critical habitat. Furthermore, the recovery criteria for the northern spotted owl, as described in the Revised Recovery Plan (USFWS 2011, pp. I-1 to I-2), helped to discriminate between the various scenarios considered in the modeling process in terms of assessing which of the habitat networks evaluated included what is essential to the conservation of the northern spotted owl in the most efficient configuration possible.

Introduction

The northern spotted owl inhabits structurally complex forests from southwestern British Columbia through Washington and Oregon to northern California. The northern spotted owl was listed under the Act as a threatened species in 1990 because of widespread loss of habitat across its range and the inadequacy of existing regulatory mechanisms to conserve it (55 FR 26114; June 26, 1990). Although the rate of loss of habitat due to timber harvest has been reduced on Federal lands over the past two decades, both past and current habitat loss remain a threat to the northern spotted owl. Despite implementation of habitat conservation measures in the early 1990s, Thomas

et al.

(1990, p. 5) and USDI (1992, Appendix C) foresaw that owl populations would continue to decline for several decades, even with habitat conservation, as the consequence of lag effects at both individual and population levels. However, many populations of northern spotted owls have declined at a faster rate than anticipated, especially in the northern parts of the subspecies' range (Anthony

et al.

2006, pp. 31-32; Forsman

et al.

2011, pp. 65, 76). We now know that the suite of threats (detailed below) facing the northern spotted owl differs from those at the time it was listed; in addition to the effects of historical and ongoing habitat loss, the northern spotted owl faces a new significant and complex threat in the form of competition from the congeneric (referring to a member of the same genus) barred owl (USFWS 2011, pp. I-7 to I-8).

During the second half of the 20th century, barred owls expanded their range from eastern to western North America, and the range of the barred owl now completely overlaps that of the northern spotted owl (Gutiérrez

et al.

1995, p. 3; Crozier

et al.

2006, p. 761). Barred owls compete with northern spotted owls for habitat and resources for breeding, feeding, and sheltering, and the presence of barred owls has significant negative effects on northern spotted owl reproduction, survivorship, and successful occupation of territories (see Population Status and Trends, below). The loss of habitat has the potential to intensify competition with barred owls by reducing the total amount of resources available to the northern spotted owl and by increasing the likelihood and frequency of competitive interactions. While there are important differences in the ecology between barred owls and northern spotted owls, barred owls select very similar habitat for breeding, feeding, and sheltering, and loss of habitat has the potential to intensify competition between species. While conserving habitat will not completely alleviate the barred owl threat, Dugger

et al.

(2011, pp. 2464-2465) found that northern spotted owl occupancy and colonization rates decreased as both barred owl presence increased and available habitat decreased. Similar to another case in which increased suitable habitat was required to support two potentially competing raptors, these authors concluded that increased habitat protection for northern spotted owls

may be necessary to provide for sustainable populations in the presence of barred owls in some areas (Dugger

et al.

2011, p. 2467). Maintaining high-quality habitat has been important since the northern spotted owl was initially listed as a threatened species in 1990, and this competitive pressure from barred owls has intensified the need to conserve and restore large areas of contiguous, high-quality habitat across the range of the northern spotted owl (Dugger

et al.

2011, p. 2464; Forsman

et al.

2011, p. 76; USFWS 2011, Recovery Action 32 [RA32], p. III-67).

It is becoming increasingly evident that solely securing habitat will not be effective in achieving the recovery of the northern spotted owl when barred owls are present (USFWS 2011, p. vi). While conservation of high-quality habitat is essential for the recovery and conservation of the owl, habitat conservation alone is not sufficient to achieve recovery objectives. As stated in the Revised Recovery Plan, “* * * addressing the threats associated with past and current habitat loss must be conducted simultaneously with addressing the threats from barred owls. Addressing the threat from habitat loss is relatively straightforward with predictable results. However, addressing a large-scale threat of one raptor on another, closely related raptor has many uncertainties” (USFWS 2011, p. I-8). A designation of critical habitat is intended to ameliorate habitat-based threats to an endangered or threatened species; critical habitat cannot reasonably be expected to fully address other, non-habitat-related threats to the species. In the case of the northern spotted owl, the recovery goal of supporting population viability and demographically stable populations of northern spotted owls will likely require habitat conservation in concert with the implementation of recovery actions that address other, non-habitat-based threats to the species, including the barred owl. In addition, recovery actions include scientific evaluation of potential management options to reduce the impact of barred owls on northern spotted owls (USFWS 2011, Recovery Action 29 [RA29], p. III-65), and implementation of management actions determined to be effective (USFWS 2011, Recovery Action 30 [RA30], p. III-65).

When developing a critical habitat rule, the Service must use the best scientific information available to identify critical habitat as defined in section (3)(5)(A) of the Act, which are (i) the specific areas within the geographical area occupied by the species at the time it was listed that provide the physical or biological features essential for the conservation of the species, and which may require special management considerations or protection, and (ii) specific areas outside the geographical area occupied by the species at the time it was listed that are otherwise determined to be essential to the conservation of the species. However, like most critical habitat designations, this rule addresses elements of risk management, because we must make recommendations and decisions in the face of incomplete information and uncertainty about factors influencing northern spotted owl populations. This uncertainty exists even though the northern spotted owl is among the most thoroughly studied of listed species. We understand a great deal about the habitats the subspecies prefers and the factors that influence its demographic trends. Nonetheless, considerable uncertainty remains, particularly about interactions among different factors that threaten the owl.

In the face of such uncertainty, the Revised Recovery Plan proposes strategies to address the primary threats to the northern spotted owl from habitat loss and barred owls (USFWS 2011, p. I-7). The effects of climate change and of past management practices are changing forest ecosystem processes and dynamics, including patterns of wildfires, insect outbreaks, and disease, to a degree greater than anticipated in the Northwest Forest Plan (NWFP) (Hessburg

et al.

2005, pp. 134-135; Carroll

et al.

2010, p. 899; Spies

et al.

2010, entire; USFWS 2011, p. I-8). At the same time, the expansion of barred owl populations is altering the capacity of intact habitat to support northern spotted owls. Projecting the effects of these factors and their interactions into the future leads to even higher levels of uncertainty, especially considering how the influences of different threats may vary across the owl's large geographical range. It is clear that ecosystem-level changes are occurring within the northern spotted owl's forest habitat.

The development of a critical habitat network for the northern spotted owl must take into account current uncertainties, such as those associated with barred owl impacts and climate change predictions (USFWS 2011, p. III-10). These uncertainties require that we make some assumptions about likely future conditions in developing, modeling, and evaluating potential critical habitat for the northern spotted owl; those assumptions are identified clearly in this rule (see Criteria Used to Identify Critical Habitat, below) and in our supporting documentation (Dunk

et al.

2012b, entire).

Given the continued decline of northern spotted owl populations, the apparent increase in severity of the threat from barred owls, and information indicating a recent loss of genetic diversity for the subspecies, retaining both occupied northern spotted owl sites and unoccupied, high-value northern spotted owl habitat across the subspecies' range are key components for recovery (USFWS 2011, p. I-9). High-value habitat is defined in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) as habitat that is important for maintaining northern spotted owls on landscapes, including areas with current and historic use by northern spotted owls. We refer readers to the glossary (Appendix G) of the Revised Recovery Plan for definitions of forest stand conditions and habitat types discussed in this rule.

Accordingly, in this rule, we have identified areas of habitat occupied at the time of listing that provide the physical or biological features essential to the conservation of the northern spotted owl, and that may require special management considerations or protection. When occupied areas were not adequate to achieve essential recovery goals, we also identified some unoccupied areas as critical habitat for the northern spotted owl only upon a determination that such areas are essential to the conservation of the species (see the second part of the definition of critical habitat in section (3)(5)(a)(ii), which states that critical habitat also includes “specific areas outside the geographical area occupied by the species at the time of listing in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.”) However, it is important to note that this revised designation of critical habitat does not include all sites where northern spotted owls are presently known to occur. The habitat modeling that we used, in part, to assist us in developing this revised designation was based primarily on present habitat suitability. While we did also consider the present known locations of northern spotted owls in refining the identified habitat network, not all such sites were included in the revised designation if those areas did not make a significant contribution to population viability (for example, if known sites were too small or isolated to play a meaningful role in the conservation of the species; see Criteria Used to Identify Critical Habitat). This is in accordance with section 3(5)(C) of

the Act, which specifies that “critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.”

Because of the uncertainties associated with the effects of barred owl interactions with the northern spotted owl and habitat changes that may occur as a result of climate change, active adaptive forest management strategies will be needed to achieve results in certain landscapes. Active adaptive forest management is a systematic approach for improving resource management by learning from the results of explicit management policies and practices and applying that learning to future management decisions (USFWS 2011, p. G-1). This critical habitat rule identifies key sources of uncertainty, and the need to learn from our management of forests that provide habitat for northern spotted owls. We have designated a critical habitat network that was developed based on what we determined to be the areas containing the physical and biological features essential for the conservation of the northern spotted owl or are otherwise essential to owl conservation, after taking into consideration information on essential habitats, the current distribution of those habitats, and the best available scientific knowledge about northern spotted owl population dynamics, while acknowledging uncertainty about future conditions in Pacific Northwest forests.

An Ecosystem-Based Approach to the Conservation of the Northern Spotted Owl and Managing Its Critical Habitat

Section 2 of the Act states, “The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Although the conservation of the listed species is the specific objective of a critical habitat designation, the essential physical or biological features that serve as the basis of critical habitat are often essential components of the ecosystem upon which the species depends. In such cases, a fundamental goal of critical habitat management is not only to conserve the listed species, but also to conserve the ecosystem upon which that species depends. This is the case with the northern spotted owl.

An ecosystem is defined as a biological community of interacting organisms and their physical environment, or as the complex of a community of organisms and its environment functioning as an ecological unit (Krebs 1972, pp. 10-11; Ricklefs 1979, pp. 31-32, 869). These ecosystem interactions and functions are often referred to as ecological relationships or processes. Thus, to conserve the northern spotted owl as directed by the Act, one must also conserve the ecological processes that occur within the ecological landscape inhabited by the species. These processes—such as vegetation succession, forest fire regimes, and nutrient cycling—create and shape the physical or biological features that form the foundation of critical habitat. The northern spotted owl was initially listed as a threatened species largely due to the loss or degradation of the late-successional forest ecosystems upon which it depends. A complex interaction of physical or biological factors contribute to the development and maintenance of these ecosystems, which in turn provide the northern spotted owl with the environmental conditions required for its conservation and survival, such as large areas of suitable habitat, nest structures, and sufficient prey to sustain interconnected populations of owls across the landscape. A fundamental goal of critical habitat management should thus be to understand, describe, and conserve these processes, which in turn will maintain the physical or biological features essential to the conservation of the species. This “ecosystem approach” will ultimately have the highest likelihood of conserving listed species such as the northern spotted owl in the long term (Knight 1998, p. 43).

The U.S. Forest Service, which manages the great majority of areas being designated as revised northern spotted owl critical habitat, has prioritized restoring and maintaining natural ecological function and resiliency to its forest lands (Blate

et al.

2009, entire; USDA 2010, entire; Tidwell 2011, entire). Active adaptive forest management within critical habitat, as discussed herein for the consideration of land managers, may be fully compatible and consistent with these landscape-level ecosystems. Most importantly, this approach is compatible with the ecosystem-based approach of the Northwest Forest Plan.

Revised critical habitat for the northern spotted owl includes a diverse forest landscape that covers millions of acres and contains several different forest ecosystems and thousands of plant and animal species. It ranges from moist old-growth conifer forest in the western portion, to a mix of conifers and hardwood trees in the Klamath region, to dry, fire-prone forests in the eastern Cascades. Thousands of species occur in these forest ecosystems, including other listed and sensitive species with very specific biological needs. In areas where prescribed management is needed to maintain ecosystem function, such management is often expensive, logistically difficult, and contentious (Thompson

et al.

2009, p. 29). Many scientists believe a single-species approach to forest management is limited and that land managers need to focus on broader landscape goals that address ecosystem process and future habitat conditions (see, e.g., Thomas

et al.

2006, p. 286; Boyd

et al.

2008, p. 42; Hobbs

et al.

2010, p. 487; Mori 2011, pp. 289-290). The Revised Recovery Plan (USFWS 2011) encourages the application of ecosystem management principles to ensure the long-term conservation of the northern spotted owl and its habitat, as well as other species dependent on these shared ecosystems.

We reference here the recommendations for habitat management as made in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011). This discussion is provided primarily for consideration by Federal, State, local, and private land managers, as they make decisions on the management of forest land under their jurisdictions and through their normal processes. This critical habitat rule does not take any action or adopt any policy, plan or program in relation to active forest management.

Critical Habitat and the Northwest Forest Plan

It is important to understand the relationship between northern spotted owl critical habitat and the Northwest Forest Plan (NWFP). In brief, the designation of areas as critical habitat does not change land use allocations or Standards and Guidelines for management under the NWFP. Critical habitat for the northern spotted owl was first designated in 1992 (January 15, 1992; 57 FR 1796). Since 1994, the NWFP has also served as an important landscape-level plan that has contributed to the conservation of the northern spotted owl and late-successional forest habitat on Federal lands across the range of the species (Thomas

et al.

2006, pp. 278-284). The NWFP introduced a system of reserves where conservation of late-successional forest, riparian habitats, northern spotted owls, and other species dependent on older forest would be the priority, and matrix areas where timber harvest would be the goal. The Standards and Guidelines for the NWFP (USDA and USDI 1994) prescribe an ecosystem-based approach to management for the Federal action

agencies that manage these lands, and provide guidance for activities conducted on different land use allocations. All Bureau of Land Management and U.S. Forest Service lands identified as northern spotted owl critical habitat in this rule fall under the NWFP, and should be managed consistent with its standards. Here we briefly provide a summary of how our designation of critical habitat has been informed by and relates to forest management under the NWFP.

In developing this critical habitat designation, the Service recognizes the importance of the NWFP as the overarching land management strategy for conservation of the northern spotted owl and other native species associated with old-growth and late-successional forest. The system of reserves within the NWFP is essential for the conservation and development of large areas of late-successional forest across the landscape; however, because the NWFP was designed to benefit multiple species not every acre of the late-successional reserves (LSRs) provide high-quality habitat for northern spotted owls. In addition, barred owls have become increasingly abundant in the Pacific Northwest and likely have a large effect on the continued decline of northern spotted owl populations. With barred owls now sharing the range of the northern spotted owl, conservation of northern spotted owls outside NWFP reserved areas is increasingly important for species recovery.

In our designation of critical habitat on Federal lands, we identified lands that contain the features essential to the conservation of the species including lands both within NWFP reserves and matrix that function as highly valuable northern spotted owl habitat. As noted above, designation as critical habitat does not change these land use allocations or Standards and Guidelines for management under the NWFP, and we fully recognize the ecological functions and land management goals of the different land use allocations as outlined under the NWFP. While the NWFP has been successful in conserving large blocks of late-successional forest (Thomas

et al.

2006, p. 283, Davis

et al.

2011, p. 38), concerns have been expressed that it provides less than the anticipated level of commercial timber harvest on matrix lands, does not promote active restoration in areas that may contain uncharacteristically high risk of severe fire (Spies

et al.

2006, pg. 359; Thomas

et al.

2006, p. 277), and does not promote development of complex early-seral forest in areas where regeneration harvest has been conducted (Betts

et al.

2010, p. 2117; Hagar 2007, p. 109; Swanson

et al.

2011, p. 124) (“seral” refers to developmental or successional stages of the forest community that influences species composition, i.e., early, mid, late seral stages).

Thomas

et al.

(2006, pp. 284-287) provided three recommendations to improve the NWFP. These recommendations are highly relevant to northern spotted owl critical habitat conservation and management:

1. Conserve old-growth trees and forests on Federal lands

wherever they are found

(emphasis added), and undertake appropriate restoration treatment in the threatened forest types.

2. Manage NWFP forests as dynamic ecosystems that conserve all stages of forest development (e.g., encompassing the range of conditions between early-seral and old-growth), and where tradeoffs between short-term and long-term risks are better balanced.

3. Recognize the NWFP as an integrated conservation strategy that contributes to all components of sustainability across Federal lands.

It is our hope that management of critical habitat for the northern spotted owl will be compatible with these broader landscape management goals articulated by Thomas

et al.

(2006, pp. 284-287). Furthermore, the Standards and Guidelines for the NWFP encourage an ecosystem-based approach to land management (

e.g.,

USDA and USDI 1994, p. A-1, Standards and Guidelines, pp. C-12, C-13). As discussed in the Revised Recovery Plan, recovery of the northern spotted owl will likely require that an ecosystem management approach that includes both passive and active management, to meet a variety of conservation goals that support long-term northern spotted owl conservation, be implemented. We fully support the land use allocation goals and the Standards and Guidelines for management under the NWFP (USDA and USDI 1994) as informed by the recommendations of the Revised Recovery Plan. Some general considerations for managing the threats to the essential physical or biological features for the northern spotted owl are discussed in the

Special Management Considerations or Protections

and

Determinations of Adverse Effects and Application of the “Adverse Modification” Standard

sections of this document, below, as well as in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, pp. III-11 to III-39).

Forest Management Activities in Northern Spotted Owl Critical Habitat

As stated above, many areas of critical habitat do not require active management, and active forest management within such areas could negatively impact northern spotted owls. We are not encouraging land managers to consider active management in areas of high-quality owl habitat or occupied owl sites; rather, we encourage management actions that will maintain and restore ecological function where appropriate. In some areas, forest stands are not on a trajectory to develop into high-value habitat, ecological processes have been disrupted by human actions, or projected climate change is expected to further disrupt or degrade desired forest conditions. In these areas, land managers may choose to implement active management, as recommended in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011), to improve ecological health and development of forest conditions more favorable to northern spotted owls and other biodiversity. For example, LSRs are to be managed to protect and enhance old-growth forest conditions (defined in the Revised Recovery Plan as forests that have accumulated specific characteristics related to tree size, canopy structure, snags, and woody debris and plant associations). According to the NWFP Standards and Guidelines (USDA and USDI 1994), no programmed timber harvest is allowed inside the reserves. However, thinning or other silvicultural treatments inside these reserves may occur in younger stands if the treatments are beneficial to the creation and maintenance of late-successional forest conditions. On the east of the Cascades and in Oregon and California Klamath Provinces, additional management activities may be considered both within and outside reserves to reduce risks of large-scale disturbance (NWFP Standards and Guidelines, p. C-12—C-13).

We also recognize that ecological restoration is not the management goal on all NWFP land use allocations (

e.g.,

matrix) within designated critical habitat, and we provide a discussion of options land managers could consider to tailor traditional forest management activities on these lands to consistent with conservation of current and future northern spotted owl habitat (see,

e.g.,

Gustafsson

et al.

2012, entire; Franklin

et al.

2007, entire; Kuuluvainen and Grenfell 2012, entire; North and Keeton 2008; Long 2009, entire; Lindenmayer

et al.

2012; entire). Our discussion of potential management considerations

for the northern spotted owl are intended to be fully compatible with the objectives and Standards and Guidelines of the NWFP as informed by the conservation guidelines presented in the 2011 Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011) to provide a means whereby the ecosystems on which northern spotted owls depend will be conserved.

Mimicking natural disturbance regimes, such as fire, is an important strategy in North American forest management (Seymour and Hunter 1999, p. 56; Long 2009, p. 1868; Gustafsson

et al.

2012, p. 635; Kuuluvainen and Grenfell 2012, entire). This change is occurring in response to: (1) The simplification of forests in terms of structure, age-class diversity, and species composition as a result of management for timber production, and (2) a recognition of fundamental changes in ecosystem function and processes due to land management practices, especially fire and successional patterns (Franklin

et al.

2002, pp. 402-408; Hessburg

et al.

2005, pp. 134-135; Drever

et al.

2006, p. 2291). Although human disturbance is unlikely to precisely mimic natural forest disturbance, it can be used to better maintain the resilience of landscapes and wildlife populations to respond to natural disturbance and climate change (Lindenmayer

et al.

2008, p. 87). In general, prescriptions (e.g., vegetation management, prescribed fire, etc.) that apply ecological forestry principles to address the restoration and conservation of broader ecological processes in areas where this is needed, while minimizing impacts to structurally diverse or mature and old forest that does not require such management can be compatible with maintaining the critical habitat's essential features in the long term at the landscape scale (USFWS 2011, p. III-14). The Service has recently consulted on these types of management actions in occupied northern spotted owl habitat on Bureau of Land Management (BLM) and U.S. Forest Service (USFS) lands.

Specifically prescribing such management is beyond the scope or purpose of this document, and should instead be developed by the appropriate land management agency at the appropriate land management scale (e.g., National Forest or Bureau of Land Management District) (USDA 2010, entire; Fontaine and Kennedy 2012, p. 1559; Gustafsson

et al.

2012, pp. 639-641, Davis

et al.

2012, entire) through the land managing agencies' planning processes and with technical assistance from the Service, as appropriate. Furthermore, we encourage an active adaptive forest management approach, should agencies choose to implement ecological forestry practices, as we continue to learn from continuing research on these methods (see

Research and Adaptive Management,

below).

Some general considerations for managing for the conservation of essential physical or biological features within northern spotted owl critical habitat are discussed in more detail in the

Special Management Considerations or Protections

and

Determinations of Adverse Effects and Application of the “Adverse Modification” Standard

sections of this document, below. In sum, vegetation and fuels management in dry and mixed-dry forests may be appropriate both within and outside designated critical habitat where the goal of such treatment is to conserve natural ecological processes or restore them (including fire) where they have been modified or suppressed (Allen

et al.

2002, pp. 1429-1430; Spies

et al.

2006, pp. 358-361; Fielder

et al.

2007, entire; Prather

et al.

2008, entire; Lindenmayer

et al.

2009, p. 274; Tidwell 2011, entire; Stephens

et al.

2009, pp. 316-318; Stephens

et al.

2012a, p. 13; Stephens

et al.

2012b, pp. 557-558; Franklin

et al.

2008, p. 46; Miller

et al.

2009, pp. 28-30; Fule

et al.

2012, pp. 75-76). These types of management are encouraged in the NWFP (USDA and USDI 1994, p. C-13). Likewise, in some moist and mixed forests, management of northern spotted owl critical habitat should be compatible with broader ecological goals, such as the retention of high-quality older forest, the continued treatment of young or homogenous forest plantations to enhance structural diversity, heterogeneity and late-successional forest conditions, and the conservation or restoration of complex early-seral forest habitat, where appropriate (Spies

et al.

2007b, pp. 57-63; Betts

et al.

2010, pp. 2117, 2126-2127; Swanson

et al.

2011, entire).

In general, actions that promote ecological restoration and those that apply ecological forestry principles at appropriate scales as described above and in the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, pp. III-11 to III-41) may be, in the right circumstances, consistent with the conservation of the northern spotted owl and the management of its critical habitat. However, we emphasize that this rule does not take any action or adopt any policy, plan or program in relation to active forest management. The discussion is provided only for consideration by Federal, State, local and private land managers, as well as the public, as they make decisions on the management of forest land under their jurisdictions and through their normal processes.

Research and Adaptive Management

The Service supports the goals of maintaining and restoring ecological function and development of future northern spotted owl habitat. We encourage land managers to consider a stronger focus on ecological forestry in areas where commercial harvest and restoration are planned. We recognize the need to balance both the conservation of current owl sites and the development of future owl habitat. However, a better understanding of how ecological forestry approaches affect owls and their prey is needed. Studies have shown negative effects of commercial thinning and other conventional forestry practices on both northern spotted owls (Forsman

et al.

1984, pp. 16-17; Meiman

et al.

2003, p. 1261) and their prey (Waters

et al.

1994, p. 1516; Luoma

et al.

2003, pp. 343-373; Wilson 2010, entire).This need was recognized in Recovery Action 11 of the Revised Recovery Plan, which states “When vegetation management treatments are proposed to restore or enhance habitat for northern spotted owls (e.g., thinnings, restoration projects, prescribed fire, etc.), consider designing and conducting experiments to better understand how these different actions influence the development of northern spotted owl habitat, northern spotted owl prey abundance and distribution, and northern spotted owl demographic performance at local and regional scales.” Furthermore, the recovery strategy outlined in the Revised Recovery Plan (USFWS 2011) identifies monitoring and research, as well as active adaptive forest management, as important steps in achieving recovery goals.

Given these concerns, and recognizing that appropriate management actions will vary depending upon site-specific conditions, we provide the following suggestions regarding active forest management for consideration by land managers within critical habitat as consistent with the recommendations of the Revised Recovery Plan for the Northern Spotted Owl:

1. Focus active management in younger forest, lower quality owl habitat, or where ecological conditions are most departed from the natural or desired range of variability.

2. In moist forests on Federal lands, follow NWFP guidelines as informed by the Revised Recovery Plan and focus on areas outside of LSRs (i.e., matrix). In dry forests, follow NWFP guidelines and focus on lands in or outside of reserves

that are most “at-risk” of experiencing uncharacteristic disturbance and where the landscape management goal is to restore more natural or resilient forest ecosystems (see,

e.g.,

Davis

et al.

2012, entire; Franklin

et al.

2008, p. 46).

3. Avoid or minimize activities in active northern spotted owl territories (or the high-quality habitat within these territories).

4. Ensure transparency of process so the public can see what is being done, where it is done, what the goal of the action is, and how well the action leads to the desired goal.

5. Practice active adaptive forest management by incorporating new information and learning into future actions to make them more effective, focusing on how these actions affect northern spotted owls and their prey.

Towards this objective of learning critical new scientific insights from research and adaptive management, we especially encourage research and active adaptive forest management on the seven Forest Service Experimental Forests (H.J. Andrews Experimental Forest, Pringle Falls Experimental Forest, South Umpqua Experimental Forest, and Cascades Head Experimental Forest in Oregon; Wind River Experimental Forest and Entiat Experimental Forest in Washington; and Yurok Redwood Experimental Forest in California) within designated northern spotted owl critical habitat. We acknowledge the specific value and contributions of research done within experimental forests in furtherance of the research and active adaptive forest management objectives in the Revised Recovery Plan. These Experimental Forests have four principal scientific advantages that support the specific kinds of research needed to better understand how management affects and potentially enhances northern spotted owl habitat:

(1) These sites are intended for and enabled to conduct manipulative research to test forest management strategies in a rigorous scientific manner;

(2) They have long-term baseline datasets that enable detailed climate/environmental change assessments;

(3) The sites represent a diversity of forest types within the range of northern spotted owl; and

(4) Experimental forests have been the subject of intensive, long-term study that can serve as a backdrop for new research.

Essential research and active adaptive forest management questions, detailed in the Revised Recovery Plan, that could be conducted on Experimental Forests include (but are not limited to):

(a) What vegetation management treatments best accelerate the development of forest structure associated with northern spotted owl habitat functions while maintaining or restoring natural disturbance and provide greater ecosystem resiliency?

(b) What are the effects of wildland and prescribed fire on the structural elements of northern spotted owl habitat?

(c) Can strategically-placed restoration treatments be used to reduce the risk of northern spotted owl habitat being burned by high severity fire within dry forest ecosystems?

(d) What are the effects of epidemic forest insect outbreaks on northern spotted owl occupancy and habitat use immediately following the event and at specified time periods after treatment?

Sound scientific information represents a vital component of our path to recovery for the northern spotted owl (and almost all threatened or endangered species). We believe it would be counterproductive to inhibit or curtail research that is designed to benefit the northern spotted owl and the ecosystem in which it is found, and therefore support research activities within experimental forests.

The Biology and Ecology of the Northern Spotted Owl

Physical Description and Taxonomy

The northern spotted owl is a medium-sized owl and the largest of the three subspecies of northern spotted owls currently recognized by the American Ornithologists' Union (Gutiérrez

et al.

1995, p. 2). It is dark brown with a barred tail and white spots on the head and breast, and has dark brown eyes that are surrounded by prominent facial disks. The taxonomic separation of these three subspecies is supported by numerous factors (reviewed in Courtney

et al.

2004, pp. 3-3 to 3-31), including genetic (Barrowclough and Gutiérrez 1990, p. 739; Barrowclough

et al.

1999, p. 922; Haig

et al.

2004, p. 1353; Barrowclough

et al.

2005, p. 1113), morphological (Gutiérrez

et al.

1995, pp. 2 to 3), behavioral (Van Gelder 2003, p. 30), and biogeographical characteristics (Barrowclough

et al.

1999, p. 928).

Distribution and Habitat

The current range of the northern spotted owl extends from southwest British Columbia through the Cascade Mountains, coastal ranges, and intervening forested lands in Washington, Oregon, and California, as far south as Marin County, California. The subspecies is listed as a threatened species under the Act throughout its range (55 FR 26114; June 26, 1990). Within the United States, the northern spotted owl ranges across 12 ecological regions, based on recognized landscape subdivisions exhibiting different physical and environmental features, often referred to as “physiographic provinces” (Franklin and Dyrness 1988, pp. 5-26; Thomas

et al.

1990, p. 61; USDA and USDI 1994, p. A-3). These include the Olympic Peninsula, Western Washington Lowlands, Western Washington Cascades, Eastern Washington Cascades, Oregon Coast Ranges, Western Oregon Cascades, Willamette Valley, Eastern Oregon Cascades, Oregon Klamath, California Klamath, California Coast Ranges, and California Cascades Provinces (based on USDA and USDI 1994, p. A-3). Very few northern spotted owls are found in British Columbia, in the Western Washington Lowlands or Willamette Valley; therefore, the subspecies is restricted primarily to 10 of the 12 provinces within its range.

For the purposes of developing this rule, and based on Appendix C of the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, pp. C-7 to C-13), we have divided the range of the northern spotted owl into 11 different regions. We used these 11 regions in the habitat modeling that informed this revised designation of critical habitat. The regions used here are more “owl specific” than the physiographic provinces used in the past. In addition to regional patterns of climate, topography, and forest communities, which the physiographic provinces also considered, the 11 regions are based on specific patterns of northern spotted owl habitat relationships and prey base relationships across the range of the species. The 11 regions include the North Coast Olympics; West Cascades North; West Cascades Central; West Cascades South; East Cascades North; East Cascades South; Oregon Coast; Klamath West; Klamath East; Redwood Coast; and Inner California Coast Ranges. We additionally grouped these 11 regions into 4 broad ecological zones (West Cascades/Coast Ranges of Oregon and Washington; East Cascades; Redwood; and Klamath and Northern California Interior Coast Ranges). A map of the 11 regions used for the purposes of habitat modeling, as well as the 4 ecological zones, is provided in Figure 1 of this document. We used these 11 regions as the organizing units for our designation of critical habitat, and the 4 ecological zones for the identification of region-specific primary constituent

elements (PCEs) for the northern spotted owl.

Northern spotted owls generally rely on older forested habitats because such forests contain the structures and characteristics required for nesting, roosting, and foraging, and dispersal. Forest characteristics associated with northern spotted owls usually develop with increasing forest age, but their occurrence may vary by location, past forest practices, and stand type, history, and condition. Although northern spotted owl habitat is variable over its range, some general attributes are common to the owl's life-history requirements throughout its range. To support northern spotted owl reproduction, a home range requires appropriate amounts of nesting, roosting, and foraging habitat arrayed so that nesting pairs can survive, obtain resources, and breed successfully. In northern parts of the range where nesting, roosting, and foraging habitat have similar attributes, nesting is generally associated with late-seral or old-growth forest in the core area (Swindle

et al.

1999, p. 1216). In some southern portions of the range, northern spotted owl survival is positively associated with the area of old forest habitat in the core, but reproductive output is positively associated with amount of edge between older forest and other habitat types in the home range (Franklin

et al.

2000, pp. 573, 579). This pattern suggests that where dusky-footed woodrats (

Neotoma fuscipes

) are the primary prey species, core areas that have nesting habitat stands interspersed with varied types of foraging habitat may be optimal for northern spotted owl survival and reproduction. Both the amount and spatial distribution of nesting, roosting, foraging, and dispersal habitat influence reproductive success and long-term population viability of northern spotted owls.

Population growth can occur only if there is adequate habitat in an appropriate configuration to allow for the dispersal of owls across the landscape. This includes support of dispersing juveniles, as well as nonresident subadults and adults that have not yet recruited into the breeding population. The survivorship of northern spotted owls is likely greatest when dispersal habitat most closely resembles nesting, roosting, and foraging habitat, but owls may use other types of habitat for dispersal on a short-term basis. Dispersal habitat, at a minimum, consists of stands with adequate tree size and canopy cover to provide protection from avian predators and at least minimal foraging opportunities (57 FR 1805, January 15, 1992). In this rule, we consider canopy cover as a vertical measurement of the amount of canopy that would cover the ground.

The three essential functions served by habitat within the home range of a northern spotted owl are:

(1)

Nesting.

Nesting habitat is essential to provide structural features for nesting, protection from adverse weather conditions, and cover to reduce predation risks. Habitat requirements for nesting and roosting are nearly identical. However, nesting habitat is specifically associated with a high incidence of large trees with various deformities (large cavities, broken tops, mistletoe (

Arceuthobium

spp.) infections, and other evidence of decadence) or large snags suitable for nest placement. Additional features that support nesting and roosting typically include a moderate to high canopy cover; a multilayered, multispecies canopy with large overstory trees; large accumulations of fallen trees and other woody debris on the ground; and sufficient open space below the canopy for northern spotted owls to fly (Thomas

et al.

1990, p. 164). Forested stands with high canopy cover also provide thermal cover (Weathers

et al.

2001, p. 686) and protection from predators. Patches of nesting habitat, in combination with roosting habitat, must be sufficiently large and contiguous to maintain northern spotted owl core areas and home ranges, and must be proximate to foraging habitat. Ideally, nesting habitat also functions as roosting, foraging, and dispersal habitat.

(2)

Roosting.

Roosting habitat is essential to provide for thermoregulation, shelter, and cover to reduce predation risk while resting or foraging. As noted above, the same habitat generally serves for both nesting and roosting functions; technically “roosting habitat” differs from nesting habitat only in that it need not contain those specific structural features used for nesting (cavities, broken tops, and mistletoe platforms), but does contain moderate to high canopy cover; a multilayered, multispecies canopy; large accumulations of fallen trees and other woody debris on the ground; and open space below the canopy for northern spotted owls to fly. In practice, however, roosting habitat is not segregated from nesting habitat. Nesting and roosting habitat will also function as foraging and dispersal habitat.

(3)

Foraging.

Foraging habitat is essential to provide a food supply for survival and reproduction. Foraging habitat is the most variable of all habitats used by territorial northern spotted owls, and is closely tied to the prey base, as described below. Nesting and roosting habitat always provides for foraging, but in some cases owls also use more open and fragmented forests, especially in the southern portion of the range where some younger stands may have high prey abundance and structural attributes similar to those of older forests, such as moderate tree density, subcanopy perches at multiple levels, multilayered vegetation, or residual older trees. Foraging habitat generally has attributes similar to those of nesting and roosting habitat, but foraging habitat may not always support successfully nesting pairs (USDI 1992, pp. 22-25). Foraging habitat can also function as dispersal habitat. The primary function of foraging habitat is to provide a food supply for survival and reproduction.

Because northern spotted owls show a clear geographical pattern in diet, and different prey species prefer different habitat types, prey distribution contributes to differences in northern spotted owl foraging habitat selection across the range. In the northern portion of their range, northern spotted owls forage heavily in older forests or forests with similar complex structure that support northern flying squirrels (

Glaucomys sabrinus

) (Carey

et al.

1992, p. 233; Rosenberg and Anthony 1992, p. 165). In the southern portion of their range, where woodrats are a major component of their diet, northern spotted owls are more likely to use a variety of stands, including younger stands, brushy openings in older stands, and edges between forest types in response to higher prey density in some of these areas (Solis 1983, pp. 89-90; Sakai and Noon 1993, pp. 376-378; Sakai and Noon 1997, p. 347; Carey

et al.

1999, p. 73; Franklin

et al.

2000, p. 579). Both the amount and distribution of foraging habitat within the home range influence the survival and reproduction of northern spotted owls.

Dispersal Habitat and Habitat for Nonresident Owls

Successful dispersal of northern spotted owls is essential to maintaining genetic and demographic connections among populations across the range of the species. Habitats that support movements between larger habitat patches that provide nesting, roosting, and foraging habitats for northern spotted owls act to limit the adverse genetic effects of inbreeding and genetic drift and provide demographic support to declining populations (Thomas

et al.

1990, pp. 271-272). Dispersing juvenile northern spotted owls experience high mortality rates (more than 70 percent in some studies (Miller 1989, pp. 32-41;

Franklin

et al.

1999, pp. 25, 28; 55 FR 26115; June 26, 1990)) from starvation, predation, and accidents (Miller 1989, pp. 41-44; Forsman

et al.

2002, pp. 18-19). Juvenile dispersal is thus a highly vulnerable life stage for northern spotted owls, and enhancing the survivorship of juveniles during this period could play an important role in maintaining stable populations of northern spotted owls.

Successful juvenile dispersal may depend on locating unoccupied suitable habitat in close proximity to other occupied sites (LaHaye

et al.

2001, pp. 697-698). Dispersing juveniles are likely attracted to conspecific calls, and may look for suitable sites preferentially in the vicinity of occupied territories. When all suitable territories are occupied, dispersers may temporarily pursue a nonresident (nonbreeding) strategy; such individuals are sometimes referred to as “floaters” (Forsman

et al.

2002, pp. 15, 26). Floaters prospect for territorial vacancies created when residents die or leave their territories. Floaters contribute to stable or increasing populations of northern spotted owls by quickly filling territorial vacancies. Where large blocks of habitat with multiple breeding pairs occur, the opportunities for successful recruitment of dispersers and floaters are enhanced due to the within-block production of potential replacement birds (Thomas

et al.

1990, pp. 295, 307).

Juvenile dispersal occurs in steps (Forsman

et al.

2002, pp. 13-14), between which dispersing juveniles settle into temporary home ranges for up to several months (Forsman

et al.

2002, p. 13). Natal dispersal distances, measured from natal areas to eventual home range, tend to be larger for females (about 15 mi (24 km)) than males (about 8.5 mi (13.7 km)) (Courtney

et al.

2004, p. 8-5). Forsman

et al.

(2002, pp. 15-16) reported dispersal distances of 1,475 northern spotted owls in Oregon and Washington for the period from 1985 to 1996. Median maximum dispersal distance (the straight-line distance between the natal site and the farthest location) for radio-marked juvenile male northern spotted owls was 12.7 mi (20.3 km), and that of female northern spotted owls was 17.2 mi (27.5 km) (Forsman

et al.

2002, Table 2).

Northern spotted owls can utilize forests with the characteristics needed for nesting, roosting, foraging, and dispersal, and likely experience greater survivorship under such conditions. However, dispersing or nonresident individuals may also make use of other forested areas that do not meet the requirements of nesting or roosting habitat on a short-term basis. Such short-term dispersal habitats must, at minimum, consist of stands with adequate tree size and canopy cover to provide protection from avian predators and at least minimal foraging opportunities.

Population Status and Trends

Demographic data from studies initiated as early as 1985 have been analyzed every 5 years to estimate northern spotted owl demographic rates and population trends (Anderson and Burnham 1992, entire; Burnham

et al.

1994, entire; Franklin

et al.

1999, entire; Anthony

et al.

2006, entire; Forsman

et al.

2011, entire). The most current evaluation of population status and trends is based on data through 2008 (Forsman

et al.

2011, p. 1). Based on this analysis, populations on 7 of 11 study areas (Cle Elum, Rainier, Olympic Peninsula, Oregon Coast Ranges, H.J. Andrews, Northwest California, and Green Diamond) were declining (Forsman

et al.

2011, p. 64, Table 22).

Estimates of realized population change (cumulative population change across all study years) indicated that, in the more rapidly declining populations (Cle Elum, Rainier, and Olympic Peninsula), the 2006 populations were 40 to 60 percent of the population sizes observed in 1994 or 1995 (Forsman

et al.

2011, pp. 47-49). Populations at the remaining areas (Tyee, Klamath, Southern Oregon Cascades, and Hoopa) showed declining population growth rates as well, although the estimated rates were not significantly different from stable populations (Forsman

et al.

2011, p 64). A meta-analysis combining data from all 11 study areas indicates that rangewide the population declined at a rate of about 2.9 percent per year for the period from 1985 to 2006. Northern spotted owl populations on Federal lands had better demographic rates than elsewhere, but still declined at a mean annual rate of about 2.8 percent per year for 1985-2006 (Forsman

et al.

2011, p. 67).

In addition to declines in population growth rates, declines in annual survival were reported for 10 of the 11 study areas (Forsman

et al.

2011, p. 64, Table 22). Number of young produced each year showed declines at 5 areas (Cle Elum, Klamath, Southern Oregon Cascades, Northwest California, and Green Diamond), was relatively stable at 3 areas (Olympic Peninsula, Tyee, Hoopa), and was increasing at 2 areas (Oregon Coast Ranges, H. J. Andrews) (Forsman

et al.

2011, p. 64 Table 22).

As noted above, the barred owl has emerged as a greater threat to the northern spotted owl than was previously recognized. The range of the barred owl has expanded in recent years and now completely overlaps that of the northern spotted owl (Crozier

et al.

2006, p. 761). The presence of barred owls has significant negative effects on northern spotted owl reproduction (Olson

et al.

2004, p. 1048), survival (Anthony

et al.

2006, p. 32), and number of territories occupied (Kelly

et al.

2003, p. 51; Olson

et al.

2005, p. 928). The determination of population trends for the northern spotted owl has become complicated by the finding that northern spotted owls are less likely to call when barred owls are also present; therefore, they are more likely to be undetected by standard survey methods (Olson

et al.

2005, pp. 919-929; Crozier

et al.

2006, pp. 766-767). As a result, it is difficult to determine whether northern spotted owls no longer occupy a site, or whether they may still be present but are not detected. The 2011 Revised Recovery Plan for the Northern Spotted Owl concludes that “barred owls are contributing to the population decline of northern spotted owls, especially in Washington, portions of Oregon, and the northern coast of California.” (USFWS 2011, p. B-12).

British Columbia has a small population of northern spotted owls. This population has declined at least 49 percent since 1992 (Courtney

et al.

2004, p. 8-14), and by as much as 90 percent since European settlement (Chutter

et al.

2004, p. 6) to a 2004 breeding population estimated at about 23 birds (Sierra Legal Defence [sic] Fund and Western Canada Wilderness Committee 2005, p. 16) on 15 sites (Chutter

et al.

2004, p. 26). Chutter

et al.

(2004, p. 30) suggested immediate action was required to improve the likelihood of recovering the northern spotted owl population in British Columbia. In 2007, the Northern Spotted Owl Population Enhancement Team recommended to remove northern spotted owls from the wild in British Columbia. Personnel in British Columbia captured and brought into captivity the remaining 16 known wild northern spotted owls. Prior to initiating the captive-breeding program, the population of northern spotted owls in Canada was declining by as much as 35 percent per year (Chutter

et al.

2004, p. 6). The amount of previous interaction between northern spotted owls in Canada and the United States is unknown (Chutter

et al.

2004, p. 24). Although the status of the northern spotted owl in Canada is informative in terms of the overall declining trend of the northern spotted owl throughout its range, and consequently the increased need for conservation in those areas

where it persists, the Service does not designate critical habitat in foreign countries (50 CFR 424.12(h)).

Life History

Northern spotted owls are a long-lived species with relatively stable and high rates of adult survival, lower rates of juvenile survival, and highly variable reproduction. Franklin

et al.

(2000, p. 576) suggested that northern spotted owls follow a “bet-hedging” life-history strategy, where natural selection favors individuals that reproduce only during favorable conditions. For such species, population growth rate is more susceptible to changes in adult survival than to recruitment of new individuals into the population. For northern spotted owls, recent demographic analyses have indicated declining trends in both adult survival and recruitment across much of the species range (Forsman

et al.

2011, p. 64, Table 22).

Northern spotted owls are highly territorial (Courtney

et al.

2004, p. 2-7). They maintain large home ranges; however, they actively defend a smaller area, and overlap between the outer portions of the home ranges of adjacent pairs is common (Forsman

et al.

1984, pp. 5, 17, 22-24; Solis and Gutiérrez 1990, p. 742; Forsman

et al.

2005, p. 374). Pairs are nonmigratory and remain on their home range throughout the year, although they often increase the area used for foraging during fall and winter (Forsman

et al.

1984, p. 21; Sisco 1990, p. 9), likely in response to potential depletion of prey in the core of their home range (Carey

et al.

1992, p. 245; Carey 1995, p. 649; but see Rosenberg

et al.

1994, entire). The northern spotted owl shows strong year-round fidelity to its territory, even when not nesting (Solis 1983, pp. 23-28; Forsman

et al.

1984, pp. 52-53) or after natural disturbance alters habitat characteristics within the home range (Bond

et al.

2002, pp. 1024-1026). A discussion of northern spotted owl home range size and use is included in the Primary Constituent Elements section of this rule.

Prey

Northern spotted owl diets vary across owl territories, years, seasons, and geographical regions (Forsman

et al.

2001, pp. 146-148; 2004, pp. 217-220). However, four to six species of nocturnal mammals typically dominate their diets (Forsman

et al.

2004, p. 218), with northern flying squirrels being a primary prey species in all areas. In Washington, diets are dominated by northern flying squirrels, snowshoe hare (

Lepus americanus

), bushy-tailed woodrats (

Neotoma cinerea

), and boreal red-backed voles (

Clethrionomys gapperi

) (Forsman

et al.

2001, p. 144). In Oregon and northern California, northern flying squirrels in combination with dusky-footed woodrats, bushy-tailed woodrats, red tree voles (

Arborimus longicaudus

), and deer mice (

Peromyscus maniculatus

) comprise the majority of diets (Courtney

et al.

2004, pp. 41-31 to 4-32; Forsman

et al.

2004, p. 221). Northern spotted owls are also known to prey on insects, other terrestrial mammals, birds, and juveniles of larger mammals (e.g., mountain beaver (

Aplodontia rufa

) (Forsman

et al.

2001, p. 146; 2004, p. 223).

Northern flying squirrels are positively associated with late-successional forests with high densities of large trees and snags (Holloway and Smith 2011, p. 671). Northern flying squirrels typically use cavities in large snags as den and natal sites, but may also use cavities in live trees, hollow branches of fallen trees, crevices in large stumps, stick nests of other species, and lichen and twig nests they construct (Carey 1995, p. 658), as well as mistletoe brooms when snags are not abundant (Lehmkuhl

et al.

2006, p. 593). Fungi (mychorrhizal and epigeous types) are prominent in their diet; however, seeds, fruits, nuts, vegetation matter, insects, and lichens may also represent a significant proportion of their diet (summarized in Courtney

et al.

2004, App. 4 p. 3-12). Northern flying squirrel densities tend to be higher in older forest stands with ericaceous shrubs (e.g., Pacific rhododendron (

Rhododendron macrophyllum

)) and an abundance of large snags (Carey 1995, p. 654), and higher tree canopy cover (Lehmkuhl

et al.

2006, p. 591) likely because these forests produce a higher forage biomass. Wilson (2012, pp. i-ii) reported that dense mid-story canopy conditions can also be a limiting factor for flying squirrel abundance. Flying squirrel density tends to increase with stand age (Carey 1995, pp. 653-654; Carey 2000, p. 252), although managed and second-growth stands sometimes also show high densities of squirrels, especially when canopy cover is high (e.g., Rosenberg and Anthony 1992, p. 163; Lehmkuhl

et al.

2006, pp. 589-591). The main factors that may limit northern flying squirrel densities are the availability of den structures and food, especially hypogeous (below ground) fungi or truffles (Gomez

et al.

2005, pp. 1677-1678), as well as protective cover from predators (Wilson 2010, p. 115).

For northern spotted owls in Oregon, both dusky-footed and bushy-tailed woodrats are important prey items (Forsman

et al.

2004, pp. 226-227), whereas in Washington owls rely primarily on the bushy-tailed woodrat (Forsman

et al.

2001, p. 144). Habitats that support bushy-tailed woodrats usually include early-seral mixed-conifer/mixed-evergreen forests close to water (Carey

et al.

1999, p. 77). Bushy-tailed woodrats reach high densities in both old forests with openings and closed-canopy young forests (Sakai and Noon 1993, pp. 376-378; Carey

et al.

1999, p. 73), and use hardwood stands in mixed-evergreen forests (Carey

et al.

1999, p. 73). Bushy-tailed woodrats are important prey species south of the Columbia River and may be more limited by abiotic features, such as the availability of suitable rocky areas for den sites (Smith 1997, p. 4) or the presence of streams (Carey

et al.

1992, p. 234; 1999, p. 72). Dense woodrat populations in shrubby areas are likely a source of colonists to surrounding forested areas (Sakai and Noon 1997, p. 347); therefore, forested areas with nearby open, shrubby vegetation generally support high numbers of woodrats. The main factors that may limit woodrats are access to stable, brushy environments that provide food, cover from predation, materials for nest construction, dispersal ability, and appropriate climatic conditions (Carey

et al.

1999, p. 78), and arboreal and terrestrial cover in the form of large snags, mistletoe, and soft logs (Lehmkuhl

et al.

2006, p. 376).

Home Range and Habitat Use

Territorial northern spotted owls remain resident on their home range throughout the year; therefore, these homes ranges must provide all the habitat components needed for the survival and successful reproduction of a pair of owls. Northern spotted owls exhibit central-place foraging behavior (Rosenberg and McKelvey 1999, p. 1036), with much activity centered within a core area surrounding the nest tree during the breeding season. During fall and winter as well as in nonbreeding years, owls often roost and forage in areas of their home range more distant from the core. In nearly all studies of northern spotted owl habitat use, the amount of mature and old-growth forest was greater in core areas and home ranges than at random sites on the landscape (Courtney

et al.

2004, pp. 5-6, 5-13; also see USFWS 2011, Appendix G for definitions of mature and old-growth forest), and forests were less fragmented within northern spotted owl home ranges (Hunter

et al.

1995, p. 688). The amount of habitat at the core area scale shows the strongest relationships with home range

occupancy (Meyer

et al.

1998, p. 34; Zabel

et al.

2003, p. 1036), survival (Franklin

et al.

2000, p. 567; Dugger

et al.

2005, p. 873), and reproductive success (Ripple

et al.

1997, pp. 155-156; Dugger

et al.

2005, p. 871). A more complete description of the home range is presented in Population Spatial Requirements, below.

The size, configuration, and characteristics of vegetation patches within home ranges affect northern spotted owl survival and reproduction, a concept referred to as habitat fitness potential (Franklin

et al.

2000, p. 542). Among studies that have estimated habitat fitness potential, the effects of forest fragmentation and heterogeneity vary geographically. In the California Klamath Province, locations for nesting and roosting tend to be centered in larger patches of old forest, but edges between forest types may provide increased prey abundance and availability (Franklin

et al.

2000, p. 579). In the central Oregon Coast Range, northern spotted owls appear to benefit from a mixture of older forests with younger forest and nonforested areas in their home range (Olson

et al.

2004, pp. 1049-1050), a pattern similar to that found in the California Klamath Province. Courtney

et al.

(2004, p. 5-23) suggest that although in general large patches of older forest appear to be necessary to maintain stable populations of northern spotted owls, home ranges composed predominantly of old forest may not be optimal for northern spotted owls in the California Klamath Province and Oregon Coast Ranges Province.

The northern spotted owl inhabits most of the major types of coniferous forests across its geographical range, including Sitka spruce (

Picea sitchensis

), western hemlock (

Tsuga heterophylla

), mixed conifer and mixed evergreen, grand fir (

Abies grandis

), Pacific silver fir (

A. amabilis

), Douglas-fir (

Pseudotsuga menziesii

), redwood (

Sequoia sempervirens

)/Douglas-fir (in coastal California and southwestern Oregon), white fir (

A. concolor

), Shasta red fir (

A. magnifica

var.

shastensis

), and the moist end of the ponderosa pine (

Pinus ponderosa

) zone (Forsman

et al.

1984, pp. 15-16; Thomas

et al.

1990, p. 145). Habitat for northern spotted owls has traditionally been described as consisting of four functional types: Nesting, roosting, foraging, and dispersal habitats. Recent studies continue to support the practical value of discussing northern spotted owl habitat usage by classifying it into these functional habitat types (Irwin

et al.

2000, p. 183; Zabel

et al.

2003, p. 1028; Buchanan 2004, p. 1334; Davis and Lint 2005, p. 21; Forsman

et al.

2005, p. 372), and data from studies are available to describe areas used for these types of activities, so we retain it here to structure our discussion of the physical or biological features of habitat essential to the conservation of the northern spotted owl.

Recent habitat modeling efforts have also accounted for differences in habitat associations across regions, which have often been attributed to regional differences in forest environments and factors including available prey species (USFWS 2011, p. C-7). These recent advances allowed for modeling of northern spotted owl habitat by regions to account for: (1) The degree of similarity between nesting/roosting and foraging habitats based on prey availability; (2) latitudinal patterns of topology and climate; (3) regional patterns of topography, climate, and forest communities; and (4) geographical distribution of habitat elements that influence the range of conditions occupied by northern spotted owls (USFWS 2011, p. C-8). Detailed characterizations of each of these functional habitat types and their relative distribution are described in Physical or Biological Features, below.

Climate Change

There is growing evidence that recent climate change has impacted a wide range of ecological systems (Stenseth

et al.

2002, entire; Walther

et al.

2002, entire; Adahl

et al.

2006, entire; Karl

et al.

2009, entire; Moritz

et al.

2012, entire; Westerling

et al.

2011, p. S459; Marlon

et al.

2012, p. E541). Climate change, combined with effects from past management practices, is exacerbating changes in forest ecosystem processes and dynamics to a greater degree than originally anticipated under the NWFP. Environmental variation affects all wildlife populations; however, climate change presents new challenges as systems may change beyond historical ranges of variability. In some areas, changes in weather and climate may result in major shifts in vegetation communities that can persist in particular regions.

Climate change will present unique challenges to the future of northern spotted owl populations and their habitats. Northern spotted owl distributions (Carroll 2010, entire) and population dynamics (Franklin

et al.

2000, entire; Glenn

et al.

2010, entire;

et al.

2011a, entire; Glenn

et al.

2011b, entire) may be directly influenced by changes in temperature and precipitation. In addition, changes in forest composition and structure as well as prey species distributions and abundance resulting from climate change may impact availability of habitat across the historical range of the subspecies. The Revised Recovery Plan for the Northern Spotted Owl provides a detailed discussion of the possible environmental impacts to the habitat of the northern spotted owl from the projected effects of climate change (USFWS 2011, pp. III-5 to III-11).

Because both northern spotted owl population dynamics and forest conditions are likely to be influenced by large-scale changes in climate in the future, we have attempted to account for these influences in our designation of critical habitat by recognizing that forest composition may change beyond the range of historical variation, and that climate changes may have unpredictable consequences for both Pacific Northwest forests and northern spotted owls. This critical habitat designation recognizes that forest management practices that promote ecosystem health under changing climate conditions will be important for northern spotted owl conservation.

III. Previous Federal Actions

The northern spotted owl was listed as a threatened species on June 26, 1990 (55 FR 26114); a description of the relevant previous Federal actions up to the time of listing can be found in that final rule. On January 15, 1992, we published a final rule designating 6,887,000 ac (2,787,000 ha) of Federal lands in Washington, Oregon, and California as critical habitat for the northern spotted owl (57 FR 1796). On January 13, 2003, we entered into a settlement agreement with the American Forest Resources Council, Western Council of Industrial Workers, Swanson Group Inc., and Rough & Ready Lumber Company, to conduct a 5-year status review of the northern spotted owl and consider potential revisions to its critical habitat (

Western Council of Industrial Workers (WCIW) v. Secretary of the Interior, Civ. No. 02-6100-AA (D. Or

). On April 21, 2003, we published a notice initiating the 5-year review of the northern spotted owl (68 FR 19569), and published a second information request for the 5-year review on July 25, 2003 (68 FR 44093). We completed the 5-year review on November 15, 2004, concluding that the northern spotted owl should remain listed as a threatened species under the Act (USFWS 2004, entire). On November 24, 2010, we published in the

Federal Register

a notice initiating a new 5-year review for the northern spotted owl (75 FR 71726); the information solicitation period for this review was reopened from April 20, 2011, through May 20, 2011 (76 FR

22139), and the completed review was signed on September 29, 2011, concluding that the northern spotted owl was appropriately listed as a threatened species.

In compliance with the settlement agreement in the

WCIW

case, as amended, we published a proposed revised critical habitat rule in the

Federal Register

on June 12, 2007 (72 FR 32450). On May 21, 2008, we published a notice announcing the availability of a Recovery Plan for the Northern Spotted Owl (73 FR 29471; May 21, 2008). We also announced the availability of a draft economic analysis on the proposed critical habitat designation and the reopening of the public comment period on the proposed revised critical habitat designation. The 2008 recovery plan formed the basis for the current designation of northern spotted owl critical habitat. We published a final rule revising the critical habitat designation in the

Federal Register

on August 13, 2008 (73 FR 47325).

Both the 2008 critical habitat designation and the 2008 recovery plan were challenged in court in

Carpenters' Industrial Council v. Salazar,

Case No. 1:08-cv-01409-EGS (D.DC). In addition, on December 15, 2008, the Inspector General of the Department of the Interior issued a report entitled “Investigative Report of The Endangered Species Act and the Conflict between Science and Policy,” which concluded that the integrity of the agency decision-making process for the northern spotted owl recovery plan was potentially jeopardized by improper political influence. As a result, the Federal Government filed a motion in the lawsuit for remand of the 2008 recovery plan and the critical habitat designation which was based on it. On September 1, 2010, the Court issued an opinion remanding the 2008 recovery plan to us for issuance of a revised plan within 9 months.

On September 15, 2010, we published a

Federal Register

notice (75 FR 56131) announcing the availability of the Draft Revised Recovery Plan for the Northern Spotted Owl, and opened a 60-day comment period through November 15, 2010. On November 12, 2010, we announced by way of press release an extension of the comment period until December 15, 2010. On November 30, 2010, we announced in the

Federal Register

the reopening of the public comment period until December 15, 2010 (75 FR 74073). At that time we also announced the availability of a synopsis of the population response modeling results for public review and comment. The supporting information regarding the modeling process was posted on our Web site (

http://www.fws.gov/oregonfwo/

). Of the approximately 11,700 comments received on the Draft Revised Recovery Plan, many requested the opportunity to review and comment on more detailed information on the habitat modeling process in Appendix C. On April 22, 2011, we reopened the comment period on Appendix C of the Draft Revised Recovery Plan (76 FR 22720); this comment period closed on May 23, 2011. On May 6, 2011, the Court granted our request for an extension of the due date for issuance of the final revised recovery plan until July 1, 2011. We published the notice of availability of the final Revised Recovery Plan for the Northern Spotted Owl in the

Federal Register

on July 1, 2011 (76 FR 38575).

On October 12, 2010, the Court remanded the 2008 critical habitat designation, which had been based on the 2008 Recovery Plan for the Northern Spotted Owl, and adopted the Service's proposed schedule to issue a new proposed revised critical habitat rule for public comment by November 15, 2011, and a final rule by November 15, 2012. The Court subsequently extended the date for delivery of the proposed rule to the

Federal Register

to February 28, 2012. A proposed revision to the designated critical habitat for the northern spotted owl was signed on February 28, 2012 and published in the

Federal Register

on March 8, 2012 (77 FR 14062), with a 3-month public comment period. On May 8, 2012, we announced an extension of the comment period through July 6, 2012 (77 FR 27010). A June 1, 2012

Federal Register

notice announced the availability of the associated draft economic analysis and draft environmental assessment (conducted under NEPA), and invited the public to comment on these documents through July 6, 2012 (77 FR 32483). We held seven public information meetings and one public hearing. Two public information meetings were held each night in Redding, California, on June 4, 2012; in Tacoma, Washington, on June 12, 2012; and in Roseburg, Oregon, on June 27, 2012. One public information meeting was held in Portland, Oregon on June 20, 2012 and the public hearing was held in Portland, Oregon, on June 20, 2012. On July 20, 2012, the Service sent letters to all potentially affected Counties and State fish and wildlife agencies in Washington, Oregon and California advising them of the additional opportunity to comment until August 20, 2012, to ensure that they were able to thoroughly review and comment on the proposed rule as provided by Section 4(b)(5)(A)(ii) of the Act. In order to allow sufficient time for interagency review, the Court extended the time for delivery of the final rule to the

Federal Register

to November 21, 2012.

IV. Changes From the Proposed Rule

In preparing this final revised critical habitat designation for the northern spotted owl, we reviewed and considered comments from the public, peer reviewers, and other interested parties on the proposed revised designation of critical habitat published on March 8, 2012 (77 FR 14062). We also reviewed and considered comments on the draft environmental assessment and draft economic analysis. As a result of these comments and a reevaluation of the revised proposed critical habitat boundaries, we have made changes in this final designation, as follows:

(1) We responded to peer-review, public, stakeholder, and internal comments on a wide variety of topics to clarify and strengthen the supporting rationale of this final designation, clarify our meanings and descriptions, and to refine specific aspects of the rule to include emerging research or provide additional explanation. Included in these types of changes from the proposed to final rule are the following:

• Clarifications to the language to specify that northern spotted owl occupancy data are not needed or appropriate for an analysis of the effects of an action on northern spotted owl critical habitat.

• Clarifications to the language to more clearly describe the potential management of hazard trees in critical habitat along roadways.

• In the Special Management Considerations section, we reference Recovery Action 10 from the Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011), which focuses on retaining existing northern spotted owls on the landscape. We have edited those references to clarify that management of critical habitat and the section 7 evaluation under the Act that management should focus on the habitat's ability to support nesting northern spotted owls instead of focusing on individual northern spotted owls.

• To determine how to conduct those evaluations under section 7 of the Act, the proposed revised critical habitat recommended assessing the impacts of a timber management project in the context of 500 ac (200 ha) around where the impacts would occur. After numerous discussions with section 7 practitioners in different parts of the

range of the species, we are recommending that the effects determination for a section 7 consultation be conducted at a scale consistent with “the localized biology of the life-history needs of the northern spotted owl (such as the stand scale, a 500-acre (200-ha) circle, or other appropriate, localized scale).” Please see detailed discussion of the distinction between effects determination and the adverse modification standard in the section

Determinations of Adverse Effects and Application of the “Adverse Modification” Standard.

• We have clarified that our discussion of ecological forestry and active management is intended for land managers to consider when developing management plans or planning projects, as in many areas this approach may be consistent with critical habitat for the northern spotted owl, but that such management is not mandated by the Service and is not required as the result of this rulemaking. We have also clarified this issue in the final rule language by stating that we have made the 16 U.S.C. 1532(5)(A)(i) determination that essential biological and physical features in occupied areas may require special management considerations or protection, but that the rule does not require land managers to implement, or preclude land managers from implementing, such measures.

• We have provided land managers with a discussion of relevant emerging science and greater detail regarding the appropriate application of active management and ecological forestry to benefit forest ecosystem restoration, as recommended in the Revised Recovery Plan for the Northern Spotted Owl. In addition, we received extensive comments regarding the appropriateness of developing diverse early-seral forest at the expense of older forest stands. We have clarified language regarding development of diverse, early-seral forest to indicate that: (1) We do not recommend these actions in older forest stands or areas that currently function as owl habitat; and (2) this type of management is most appropriate where more traditional forestry methods have typically been conducted on matrix lands. As stated in both the proposed rule and in this final rule, our first recommendation for northern spotted owl critical habitat is the conservation of old growth trees and forests on Federal lands wherever they are found, and to undertake appropriate restoration treatment in the threatened forest types.

• We have clarified the relationship between this revised designation of critical habitat for the northern spotted owl and the Northwest Forest Plan. Numerous commenters were concerned that this critical habitat would undermine the Standards and Guidelines of the Northwest Forest Plan, or enable timber harvest activities in Late-Successional Reserves that would not otherwise be permissible. We have added language to the preamble to clarify that the revised designation of critical habitat does not supersede the Standards and Guidelines of the Northwest Forest Plan. Our discussion of potential active management within critical habitat is intended to encourage land managers to consider the range of management flexibility already contained in the Northwest Forest Plan.

(2) In the proposed rule we requested specific information regarding the amount and distribution of northern spotted owl habitat that should be included in the designation. We refined the designation based on input from peer-review, public comment, and comments from Federal land management agencies, combined with further evaluation of modeled population response to the potential revisions of the critical habitat network, and including the following.

(A) Formal comments from the Forest Service requested that we consider large numbers of specific areas to be removed from, or added to, critical habitat, submitted to us in the form of GIS data. This proposal would have greatly reduced matrix lands in moist forest areas (Western Cascades, Oregon Coast Range, and North Coast Olympics) and eliminated Adaptive Management Areas and Experimental Forests from critical habitat. In addition, BLM requested removal of approximately 300,000 acres of selected BLM lands in western Oregon. We evaluated a new map of relative habitat suitability (Composite 8, as described in our Modeling Supplement, Dunk

et al.

2012b) that incorporated all of these requested changes. Population modeling results for Composite 8 indicated that many of the lands proposed for removal were essential to conservation of the northern spotted owl because the rangewide population declined by 39 percent and population risk increased by 44 percent. To bring the spotted owl population results back up to levels comparable to proposed critical habitat, the final critical habitat designation includes areas recommended by those agencies for elimination (and that had been removed in our test of Composite 8) because we determined they are essential to the conservation of the species. To increase efficiency and ensure that the designation included only occupied habitat containing the features essential to conservation or habitat that is otherwise essential to the species' conservation, we further refined the boundaries of some subunits by moving the boundaries to include more high-value habitat while simultaneously and less lower-value habitat in the network. To the greatest degree possible, wherever possible we removed matrix lands and incorporated habitat in LSRs in this process.

(B) In response to peer review comments about connectivity and population issues we identified specific areas providing high-suitability habitat that were required to better achieve population objectives in specific lower-performing modeling regions. The additional areas consisted solely of Federal lands, primarily USFS LSR lands, that were essential to provide connectivity between populations in the Oregon Coast Ranges and adjacent regions with larger spotted owl populations, as pointed out in peer review and public comments, and supported by results of population modeling. In many cases, areas added were specifically identified by the USFS or BLM as lands that should be added to compensate for removal of other, lower value lands. To the degree possible, we attempted to situate additions within LSRs and balanced additions by removing lower-quality areas in matrix land allocations. In some cases, additions were made to balance areas removed in (A) above. No additional State or private lands were designated in this process, and all areas are within the critical habitat units as described in the proposed rule.

The changes described in (A) and (B) above had the desired effect of bringing population results back up to levels similar to proposed critical habitat, while simultaneously reducing the area of matrix and lower-quality habitat in the designation thus ensuring that only essential habitat is designated. Overall, about 318,296 acres of BLM and USFS lands were removed from critical habitat, 74 percent (236,887 acres) of which were matrix lands of relatively lower value to northern spotted owls.

(C) We identified and removed lands based on information we received during the public comment period indicating that they did not meet the definition of critical habitat. In general, lands removed had recently lost their ability to function as northern spotted owl habitat either through stand-replacing wildfire or through timber harvest conducted after 2006 (the date of our most recent comprehensive vegetation layer). When such lands were identified, we removed them from critical habitat because they were unlikely to support northern spotted owls, and did not contain the PCEs or could not be otherwise considered essential.

(D) We further refined the critical habitat boundaries to better conform to identifiable landscape features or administrative boundaries, and to improve consistency with our goal of prioritizing high value Federal lands to include in critical habitat while removing relatively lower value lands in all ownerships. The USFS provided a number of specific suggestions in their public comment for this type of refinement. Overall, these refinements resulted in a small net reduction of critical habitat area.

(E) Correcting ownership boundary errors identified in peer-review and public comment. When the underlying land ownership was corrected, we determined that some lands originally labeled as private lands were in fact Federal or State lands.

In the State of Washington, in response to public comment and upon

further review using the underlying aerial photo imagery from the 2011 National Agricultural Imagery Program (NAIP) and Ruraltech's 2007 forestland parcel data, we determined that the vast majority of Small Forest Landowner parcels we examined had either highly fragmented, little, or no northern spotted owl habitat currently present. Based on the combination of parcel size, current habitat conditions, and spatial distribution, we concluded that private lands identified as Small Forest Landowner parcels in the State of Washington do not provide the PCEs for northern spotted owls, nor are they essential to the conservation of the species; thus, these areas do not meet the definition of critical habitat, and we have removed them from the final designation of critical habitat.

Also in the State of Washington, we corrected ownership of Washington Department of Fish and Wildlife (WDFW) lands. In the proposed rule, we identified 1,752 ac (709 ha) as under the ownership of WDFW. In this rule, we have corrected this acreage to 8,328 ac (3,370 ha). This correction reflects a land transfer between WDFW and the Washington Department of Natural Resources, as well as a mistaken usage of a mineral rights GIS layer instead of a landownership layer.

Additional changes that were made were minor and included corrections of mapping errors, removing lower value areas that were inadvertently included, or correctly identifying administrative boundaries. Changes in total area are detailed in Table 1, below, and are shown by land ownership.

Table 1—Lands in the Proposed Revised Critical Habitat Determined Not To Contain the Physical and Biological Features Essential to Conservation of the Northern Spotted Owl or Not Otherwise Essential to its Conservation and Therefore Not Included in Final Critical Habitat

State

Ownership

Acres

Hectares

Washington

USFS

11,864

4,793

Oregon

USFS

BLM

STATE

55,788

62,862

14,114

22,538

25,396

5,702

California

USFS

BLM

64,114

17,152

25,902

6,929

Total

225,894

91,261

(3) We have exempted 14,313 ac (5,782 ha) of Department of Defense lands at Joint Base Lewis-McChord in Washington from critical habitat for the northern spotted owl, in accordance with section 4(a)(3) of the Act (see Exemptions). These lands comprised subunit NCO-3 in the proposed revision of critical habitat, and represented the only entirely unoccupied unit of critical habitat proposed for the northern spotted owl.

(4) In the proposed revised rule (77 FR 14062; March 8, 2012), we identified numerous areas under consideration for exclusion from the final designation, and solicited public comment on whether the benefits of exclusion of these lands would outweigh the benefits of inclusion, for example, based on active conservation agreements or conservation plans. We did a thorough evaluation of all the areas identified in the proposed rule, as well as others identified through our review and through information received from the public, and found that the benefits of exclusion for many of these areas outweighed the benefits of inclusion in critical habitat and that excluding these areas will not lead to the extinction of the species. Therefore, the Secretary is exercising his discretion to exclude specific areas covered under conservation agreements, programs, and partnerships under section 4(b)(2) of the Act (see Exclusions section of this document). The total area excluded from the final critical habitat designation under section 4(b)(2) of the Act are given in Table 2, below, again shown by land ownership.

Table 2—Areas Excluded From Final Critical Habitat Under Section 4(

b

)(2) or Exempted Under Section 4(

a

)(3) of the Act

State (Ownership)

Proposed area

Proposed area

Final area

Final area

Excluded or exempted

Excluded or exempted

(ac)

(ha)

(ac)

(ha)

(ac)

(ha)

Washington:

USFS

3,601,564

1,455,032

2,909,739

1,177,528

680,197

274,800

NPS

835,510

337,546

0

0

835,510

337,546

Other Federal (Joint Base Lewis-McChord; 4(a)(3) exemption)

14,313

5,782

0

0

14,313

5,782

STATE

226,708

91,590

8,328

3,370

218,380

88,225

PRIVATE

178,310

72,037

0

0

178,310

72,037

Oregon: *

USFS

3,555,630

1,436,475

3,114,637

1,260,448

458,965

185,422

BLM

1,297,529

524,202

1,230,417

497,932

25,785

10,417

NPS

35,161

14,205

0

0

35,161

14,205

STATE

228,733

92,408

212,798

86,116

0

0

California:

USFS

2,367,916

956,638

1,933,411

782,423

389,387

157,312

BLM

186,082

75,177

98,195

39,738

70,735

28,577

NPS

127,913

51,677

0

0

127,913

51,677

STATE

215,333

86,995

70,444

28,508

144,889

58,487

PRIVATE

1,091,747

441,066

0

0

1,091,747

441,066

Grand Totals

13,962,449

5,640,829

9,577,969

3,876,064

4,271,291

1,725,553

(* Please note that no private lands in Oregon were proposed or included in this final designation.)

Note the difference in area between the proposed and final rules will not align exactly with the sum total of areas removed because they did not meet the definition of critical habitat and areas excluded or exempted from the final designation. Some minor discrepancies in area are due to mapping errors in the proposed designation have been corrected here, and may not be readily apparent through simple addition or subtraction of the total areas identified under various land categories. For example, the proposed rule mistakenly identified 16,031 ac (6,487 ha) of lands under the ownership of SDS and Broughton Lumber Companies in Washington as under consideration for exclusion. The accurate area included within the proposed critical habitat was, in fact, 2,035 ac (824 ha), and it is that area, which was excluded from this final designation, reflected in this final rule. The difference of nearly 14,000 ac (5,655 ha) will not be reflected in the difference between areas proposed and areas excluded in the final rule, as it was not really in the proposed critical habitat to begin with (and thus, was not excluded).

The number of subunits in the final critical habitat designation have changed as a result of exclusions under section 4(b)(2) or exemptions under section 4(a)(3). There were 11 critical habitat units and 63 subunits in the proposed rule. Eleven critical habitat units and 60 subunits comprise the final designation. In the North Coast Olympics, subunit NCO-3, composed entirely of Department of Defense lands at Joint-Base Lewis McChord, was exempted from the final designation under section 4(a)(3) of the Act (see Exemptions). In the Redwood Coast Region, subunits RDC-3 and RDC-4 were made up of private lands excluded under section 4(b)(2) of the Act (see Exclusions).

(5) Not all areas identified for potential exclusion in the proposed revised rule were excluded from the final designation. Based on the best available scientific information, we have found that the benefits of excluding other areas proposed or considered for exclusion do not outweigh the benefits of including them in the designation for the reasons discussed below. Therefore, the Secretary has determined not to exercise his discretion to exclude these lands. These areas are identified in Table 3 and are discussed further, below.

Table 3—Lands That Were Proposed for Exclusion, or Otherwise Considered for Exclusion, Which Are Retained in the Final Critical Habitat Designation for the Northern Spotted Owl

Type

State

Landowner

Acres

Hectares

State Lands

WA

Washington Department of Fish and Wildlife Lands

1

8,328

3,370

State Lands

OR

Oregon Department of Forestry

212,798

86,116

State Lands

CA

California State Forests

49,760

20,137

CA

Local Government Lands

2

20,684

8,371

Total

291,570

117,994

(a) State, County, and Municipal Lands Not Excluded.

California

We retained a relatively limited area of State, County, and municipally owned or managed lands in California. Retained areas include lands managed as State Forests, County Parks, and a Municipal Water District. No habitat conservation plans (HCPs) or sage harbor agreements (SHAs) are currently in place on these lands. Most of these lands are in areas that have repeatedly been identified as critical to maintaining linkages among northern spotted owl populations in California. These State and County lands play an essential conservation role in this area of limited Federal ownership. Retaining these lands in the critical habitat designation promotes movement of northern spotted owls, and maintains the potential for genetic interchange. Including these lands would increase the awareness of State, County and local agencies about the status of and threats to spotted owls, the conservation actions needed for recovery, and the essential conservation role this habitat plays. It also increases the potential for educating visitors to State Forests and County Parks and Open Space areas about northern spotted owl conservation needs. Excluding these lands would have little impact on regulatory burdens because (a) current management of these lands is generally consistent with maintenance of habitat values, limiting the potential for adverse effects to critical habitat, and (b) management activities typically do not involve a Federal nexus. Therefore, the Secretary has chosen not to exclude the following California State, County, or municipal lands from the final designation of critical habitat for the northern spotted owl:

California Demonstration State Forests

—Two California State Forests are included in the final critical habitat designation: (1) Jackson Demonstration State Forest (DSF), within subunit 2 in the Redwood Coast CHU in Mendocino County, California; and (2) Las Posadas DSF within subunit 6 of the Interior Coastal California CHU in Napa County, California. The California Department of Forestry and Fire Protection (CALFIRE) requested that the Jackson DSF be

excluded from the final critical habitat designation for the northern spotted owl.

CALFIRE developed the Las Posadas DSF Management Plan (California Department of Forestry and Fire Protection, 1992) for the Las Posadas DSF and characterizes current management on the forest as “custodial.” Goals for fish and wildlife under the plan include maintenance of the “* * * Forest's status as one of the last relatively undisturbed fish and wildlife habitats in Napa County.” However, the management plan is quite dated, having been approved in 1992. There is acknowledgment of the presence of northern spotted owl activity sites in the management plan, but no specific provisions for owl management or conservation actions in the plan. There have been no publicly-available amendments or updates to the plan since its enactment in 1992 and the timeframe in which any revisions to the plan may take place is uncertain. The designation of critical habitat on these lands would perform an important educational function in highlighting their essential role in owl conservation as the State updates its plan and conducts management activities. Habitat within the plan area is not typical forested habitat often associated with the northern spotted owl but includes oak woodlands and grasslands in this southern part of the species range and represents a unique ecological setting for the species; the educational benefit of including this area in critical habitat is therefore high, as landowners may not be aware that the northern spotted owl inhabits this atypical habitat type. After reviewing the information available, we find that the benefits of including these areas as critical habitat will assist in maintaining linkages and movement among and between northern spotted owl populations, and heightening the awareness and educating visitors of the conservation role this habitat plays for recovery of the northern spotted owl. As a result we are not excluding the areas designated as critical habitat within the Las Posadas DSF.

CALFIRE has also developed a management plan for the Jackson DSF (Jackson Demonstration State Forest Management Plan (dated January 2008) and CALFIRE has requested that the area be excluded from the final designation. In their request for exclusion CALFIRE stated that the designation of the Jackson DSF as critical habitat was unnecessary given: (1) Extensive conservation planning and environmental assessment has already been completed for the area; (2) the designation would potentially have negative impacts on the mission of the Jackson DSF on implementing restoration and research projects; (3) that the draft economic analysis for the proposed critical habitat concluded that the designation would not affect timber harvest on State lands; and (4) designation does not provide meaningful wildlife benefits any different from those already in place.

The Service responds, as follows, to the four elements in CALFIRE'S request for exclusion. (1) While there are efforts by CALFIRE in the development of a forest management plan and environmental assessment for the Jackson DSF, the plan does not specifically provide for northern spotted owl conservation. We believe that the Jackson DSF Management Plan (CALFIRE, 2008) could provide potential benefits to the northern spotted owl, in that there is a high likelihood that land allocations stated in the plan, along with the long-term desired conditions for forest composition will improve habitat over time. However, we find that: (a) Existing management direction in the Plan relating to the northern spotted owl is vague; (b) the stated conservation policy for the owl is limited to a take-avoidance strategy; and (c) while CALFIRE collects monitoring data on northern spotted owl activity sites on a continuous basis, there is no apparent strategy for evaluating that information or applying it to the benefit of the species. The only overt policy statement in the 2008 Plan regarding the northern spotted owl states that “* * * forest management objectives * * * are to maintain or increase the number and productivity of nesting owl pairs through forest management practices that enhance nesting/roosting opportunities and availability of a suitable prey base.” The terms “maintain” and “increase” are not supported with measurable standards or targets; and there are no remedial measures or mechanisms in the 2008 Plan that are triggered by a decrease in activity sites or demographic productivity. The northern spotted owl conservation strategy in the 2008 Plan is predicated on take-avoidance (CALFIRE 2008, pp. 109 and 267). Take avoidance alone is not a sufficient conservation strategy and it will not necessarily satisfy CALFIRE's direction to maintain or increase owl activity sites or demographic performance. If there are local variations in the “true” optimal forest conditions that support owl occupancy, strict adherence to the take-avoidance provisions may not be satisfactory and occupancy rates may decrease, and there are no corrective mechanisms in the 2008 Plan to account for this possibility. This dual problem of the suitability and occupancy of activity sites is further complicated by barred owl intrusion, and likewise is not addressed by total reliance on a take-avoidance strategy. In addition, in the monitoring chapter for the 2008 Plan we find that there is continuous monitoring of northern spotted owl activity sites (CALFIRE 2008, p. 149), but it is not spelled out in detail. (For example, it does not include the detail and adaptability (i.e., adaptive management provisions) as are specified for instream conditions and fisheries (CALFIRE 2008, pp. 153-154). In addition, the 2008 Plan does not appear to contain guidance on how to process, evaluate, and interpret the continuous data that is currently being collected on northern spotted owl activity sites, or on how to apply that information to agency decision-making in the event that activity sites and demographic performance are not maintained or increased under the existing management direction. In summary, although the 2008 Jackson DSF Management Plan can potentially produce positive long-term outcomes for the northern spotted owl, it contains an incomplete conservation plan for the species.

(2) We do not agree with CALFIRE's contention that the designation would potentially have negative impacts on its ability to implement restoration and research projects. The fact that a Federal agency (i.e., U.S. Forest Service) is a research cooperator does not, by itself, create a section 7 nexus. The Service contacted the senior Forest Service scientist connected with the research program at Jackson DSF who described the Forest Service research activities as simply a scientific examination of the State's proposed actions. At this time, we see no Federal regulatory mechanism in connection with the Jackson DSF's existing cooperative research program that would trigger consultation under section 7 of the Act. Therefore, we believe any regulatory burden from designation would be minimal.

(3) The Service agrees with CALFIRE's observation, in their July 6, 2012 correspondence, that the economic analysis rightly concluded that critical habitat designation would have no effect on Jackson DSF harvest levels. The only potential effect on harvest schedules would occur if Federal permits or grants-of-funds were connected to the harvest activity.

(4) We disagree with CALFIRE's position that “designation would

provide no meaningful wildlife benefits from those already in place.” Our response to item 1, above, indicates that there are potentially meaningful informational benefits that may assist implementation of the existing Jackson DSF Management Plan. We believe designating these lands as critical habitat would serve a very important informational function as the management plan is implemented; it would highlight the fact that this habitat is essential to the conservation of the northern spotted owl.

While acknowledging that the 2008 Management Plan contains many features that have the potential to benefit the northern spotted owl over the long term, and also recognizing that there several remediable omissions in that Plan, the Secretary has elected not to exclude Jackson Demonstration State Forest from critical habitat designation under section 4(b)(2) of the Act because we believe that the educational and informational benefits of inclusion outweigh the benefits of exclusion.

Mount Tamalpais Municipal Watershed of the Marin Municipal Water District

—We are not excluding the Mount Tamalpais Watershed (Watershed) from critical habitat designation. The Watershed (18,500 ac (7,487 ha)) is administered by the Marin Municipal Water District (MMWD) in Marin County, California. The Watershed is flanked on all sides by public parks, county-administered open space areas, grazing land, and residential areas within the triangle formed by U.S. Highway 101, California State Route 1 and Sir Francis Drake Boulevard. The MMWD currently does not operate under a conservation plan such as an HCP or SHA.

A key management consideration for the MMWD is the practical need to limit sediment delivery thereby extending the service life of the five reservoirs within the Watershed (Kent, Alpine, Bon Tempe, Lagunitas, and Phoenix Lakes). To that end, the policy of the MMWD is to maintain land in a natural condition and limit human activities to those that have the least impact on the Watershed. Within specified constraints, permitted public activities include hiking, bicycling, horseback riding, fishing and picnicking. Camping, swimming and boating are prohibited. There is limited public motor vehicle access into the Watershed on Panoramic Highway, Ridgecrest Boulevard and the Fairfax-Bolinas Road. These roads mostly access scenic vistas and day use areas around the reservoirs. The remainder of the road network in the Watershed is dedicated for firefighter access and administrative use, and is closed to public motor vehicles. The MMWD has produced several current management plans addressing specific subject areas, including public access, vegetation management, road and trail management, and long term fire and fuels management. Several elements in those plans are compatible with long-term northern spotted owl conservation. However, there is no explicit discussion about long-term owl management in any of the MMWD's planning documents. The upcoming Vegetation Management Plan (projected in 2013) may provide additional information that is relevant to northern spotted owl habitat management. We are not aware of any substantial benefits to excluding these areas from critical habitat and find that there would be significant educational benefits to including them in the designation in that it would highlight the significance this area has for northern spotted owl conservation in future planning efforts.

Marin County Parks and Open Space Department

—We have included in the designation six Open Space Preserves (OSPs) totaling 3,626 ac (1,467 ha) administered by the Marin County (California) Parks and Open Space Department (Department). We have designated three contiguous OSPs adjacent to the Mount Tamalpais Watershed and south of the communities of Lagunitas and Fairfax including Gary Giacomini (1,476 ac (597 ha)), White Hill (390 ac (158 ha)), and Cascade Falls (498 ac (202 ha)). We have also designated three contiguous OSPs adjacent the Watershed and west of the community of Corte Madera including Baltimore Canyon (193 ac (78 ha)), Blithedale Summit (899 ac (364 ha), and Camino Alto (170 ac (69 ha). The Parks Department currently does not operate under a conservation plan such as an HCP or SHA.

Park management emphasizes non-motorized public use. Five of the six OSPs are served only by fire roads that are closed to public motor vehicle access. The exception is the Camino Alto OSP which is flanked on the east by a public street. Several land management elements in the park system strategic plan (Marin County Parks and Open Space Department, 2008) are compatible with northern spotted owl. However, there is no explicit discussion about long term owl management in this planning document. We are not aware of any substantial benefits to excluding these areas from critical habitat and find that there would be significant educational benefits to including them in the designation.

Sonoma County Regional Parks Department

—Lands within Hood Mountain Regional Park, administered by the Sonoma County (California) Regional Parks Department (SCRPD), are included in the designation in subunit 6 of the Interior California Coast CHU. The proposed critical habitat designation includes all, or portions of, four assessor's parcels totaling 460 ac (186 ha) within the park boundary. The SCRPD does not operate under an HCP or SHA.

Hood Mountain Regional Park is minimally roaded; the Sonoma County General Plan of 2008 indicates a modest program of trail construction and management within the countywide regional parks system. Public information materials, along with maps showing the local road network, and the types and locations of facilities within Hood Mountain Regional Park, indicate that the SCRPD is emphasizing non-motorized recreation and protection of undeveloped land. Through public information sources in Sonoma County, we located a mission statement for the SCRPD but were unable to find any planning or guidance documents to indicate how the regional parks system would be managed over the long term. The absence of planning direction and the reasons for inclusion are similar to those for the Marin Municipal Water District and for the Marin County Parks and Open Space Department. We are not aware of any substantial benefits to excluding these areas from critical habitat and find that there would be significant educational benefits to including them in the designation.

Oregon

In Oregon, we considered excluding 228,733 ac (92,565 ha) of State lands managed by the Oregon Department of Forestry (ODF). These lands contain both demographically productive sites for northern spotted owls and provide connectivity linkages among northern spotted owl populations in the Oregon Coast and North Coast-Olympic Modeling Regions. These lands are not currently managed under any sort of conservation plan or agreement with the Service, but are managed by ODF for multiple benefits including commodity production.

The State of Oregon has indicated that the designation of their lands as critical habitat would have “virtually no impact—positive or negative * * *” on either the management of their lands or their ability to pursue HCPs, SHAs or other conservation agreements (ODF

in litt.

). This is because there is rarely a Federal nexus that would trigger Service regulatory authority, such as the section

7 consultation process and the adverse modification analysis. Thus, there would be little negative impact of including State lands in the critical habitat designation.

Inclusion of these lands in the critical habitat designation highlights their essential conservation role and provides opportunities for educating visitors to these areas, nearby landowners, and ODF about the potential conservation contribution of these lands to northern spotted owls. If ODF were to pursue some sort of conservation agreement, this critical habitat designation would provide a blueprint not only for the lands that would be essential to include in such an effort but also the types of management that would be appropriate there. If ODF does not pursue such an effort this designation clearly indicates the value of these lands for the conservation of the northern spotted owl. We believe the value of the information included in the designation would provide an opportunity for management direction that focuses on benefits to the species.

Because we are unaware of any negative impacts of including these ODF lands, the benefits of exclusion do not outweigh the benefits of inclusion for these lands, and the Secretary has chosen not to exercise his discretion to exclude these State of Oregon lands from the final designation.

Washington

In Washington we proposed or considered excluding 226,869 ac (91,811 ha) of State lands managed by the Washington Department of Natural Resources (225,013 ac; 91,059 ha), Washington State Parks (104 ac; 42 ha), and Washington Department of Fish and Wildlife (8,328 ac; 3,370 ha). We excluded the lands managed by the Washington Department of Natural Resources from the final designation based on their HCP, and excluded 104 ac (42 ha) of State Parks and Department of Fish and Wildlife Lands (see Exclusions). We retained 8,328 ac (3,370 ha) of State-owned lands managed by the State Department of Fish and Wildlife for wildlife habitat in the final designation. No conservation agreements are currently in place on these lands, but some could be covered by an HCP which is currently under development. Most of these lands are located in the central Cascades in an area that has repeatedly been identified as critical to maintaining linkages among spotted owl populations in Washington. These State lands play an essential conservation role in this area of limited or checkerboard Federal ownership. Retaining these lands in the critical habitat designation promotes movement of northern spotted owls between the northern and southern Cascades Range, as well as between the western and eastern slopes of the Cascades. Including these State lands would increase the awareness of State agencies about the essential conservation role these lands play and the conservation actions needed for recovery. Excluding these lands would impose little regulatory burden because (a) management of these lands is consistent with maintenance of habitat values, limiting the potential for adverse effects to critical habitat, and (b) management activities typically do not involve a Federal nexus. Therefore, the Secretary has chosen not to exercise his discretion to exclude lands managed by the Washington Department of Fish and Wildlife from the final designation of critical habitat for the northern spotted owl.

Summary of Changes From the Proposed Rule

The areas identified in this final rule constitute a revision from the areas we designated as critical habitat for the northern spotted owl in 2008 (August 13, 2008; 73 FR 47326), which was a revision of the areas we initially designated as critical habitat for the northern spotted owl in 1992 (January 15, 1992; 57 FR 1796; see Changes from Previously Designated Critical Habitat, below). This final rule supersedes and replaces both of these earlier designations. The changes to the proposed revised critical habitat designation identified above result in a final designation of 9,577,969 ac (3,876,064 ha), a decrease of 4,197,484 ac (1,689,072 ha) from the 13,962,449 ac (5,649,660 ha) identified as meeting the definition of critical habitat in the March 8, 2012 (77 FR 14062) proposed rule (Table 4, below).

Table 4—Differences Between Proposed and Final Revised Critical Habitat. Totals Many Not Sum Due to Rounding (Rounded to Nearest 100 Units). Small Differences Between the Proposed and Final Revised Critical Habitat That Are Not Noted as Additions or Deletions Are the Result of Corrections of the GIS Map and Rounding Error

Critical habitat unit

Proposed

acres

Proposed

hectares

Final

acres

Final

hectares

East Cascades North

1,919,469

775,465

1,345,523

544,514

East Cascades South

526,810

212,831

368,381

149,078

Inner California Coast Ranges

1,276,450

515,686

941,568

381,039

Klamath East

1,111,679

449,118

1,052,731

426,025

Klamath West

1,291,606

521,809

1,197,389

484,565

North Coast Olympic

1,595,821

644,712

824,500

333,663

Oregon Coast Ranges

891,154

360,026

859,864

347,975

Redwood Coast

1,550,747

626,502

180,855

73,189

West Cascades Central

1,353,045

546,630

909,687

368,136

West Cascades North

820,832

331,616

542,274

219,450

West Cascades South

1,624,836

656,434

1,355,198

548,429

Total

13,962,449

5,640,829

9,577,969

3,876,064

V. Changes From Previously Designated Critical Habitat

In 2008, we designated 5,312,300 ac (2,149,800 ha) of Federal lands in California, Oregon, and Washington as critical habitat for the northern spotted owl (73 FR 47326; August 13, 2008). In this revision, we are designating 9,577,969 ac (3,876,064 ha) as critical habitat for the northern spotted owl. We have revised the designation of critical habitat for the northern spotted owl to be consistent with the most current assessment of the conservation needs of the species, as described in the 2011 Revised Recovery Plan for the Northern Spotted Owl (USFWS 2011, Appendix B). In this final designation, 4,085,808

ac (1,653,468 ha) are the same as in the 2008 designation. Of the current designation, 5,679,162 ac (2,298,275 ha) are lands not formerly designated in 2008, and 1,229,119 ac (497,405 ha) of lands that were included in the former designation are not included here, for reasons detailed below.

This revision of critical habitat represents an increase in the total land area identified from previous designations in 1992 and 2008. This increase in area is due, in part, to: (a) The unanticipated steep decline of the northern spotted owl and the impact of the barred owl, requiring larger areas of habitat to maintain sustainable spotted owl populations in the face of competition with the barred owl (e.g., Dugger

et al.

2011, p. 2467); (b) the recommendation from the scientific community that the conservation of more occupied and high-quality habitat is essential to the conservation of the species (Forsman

et al.

2011, p. 77); (c) the need to provide for redundancy in northern spotted owl populations, by maintaining sufficient suitable habitat for northern spotted owls on a landscape level in areas prone to frequent natural disturbances, such as the drier, fire-prone regions of its range (in other words, “back-up” areas of habitat so that owls have someplace to go if their habitat burns or trees die due to insect infestation, etc.) (Noss

et al.

2006, p. 484; Thomas

et al.

2006, p. 285; Kennedy and Wimberly 2009, p. 565); and (d) in contrast to the previous critical habitat designation, the inclusion of some State lands in areas where Federal lands are not sufficient to meet the conservation needs of the northern spotted owl.

The new delineation of areas determined to provide the physical or biological features essential for the conservation of the northern spotted owl, or otherwise determined to be essential for the conservation of the species, was based, in part, on an improved understanding of the forest characteristics and spatial patterns that influence habitat usage by northern spotted owls which were incorporated into the latest population evaluation and mapping technology. The modeling process we used to evaluate alternative critical habitat scenarios differed fundamentally from the conservation planning approach used to inform the 1992 and 2008 designations of critical habitat for the northern spotted owl. These past designations relied on

a priori

(predefined) rule sets derived from the best scientific information and expert judgment available at that time regarding the size of reserves or habitat conservation blocks, target number of spotted owl pairs per reserve or block, and targeted spacing between reserves or blocks (USFWS 2011, p. C-4), which we then assessed and refined based on local conditions. This revised designation reflects our use of a series of spatially explicit modeling processes to determine those specific areas where biological features are essential to the conservation of the northern spotted owl, and in the case of unoccupied habitat, to determine the areas that are otherwise essential to the conservation of the owl, as described in Criteria Used to Identify Critical Habitat. These models enabled us to compare potential critical habitat scenarios in a repeatable and scientifically accepted manner (USFWS 2011, p. C-4), using current tools that capitalize on new spatial information and algorithms (rule sets to solve problems) for identifying the most efficient habitat network containing what is essential for conservation.

The areas designated are lands that were occupied at the time of listing and that currently provide suitable nesting, roosting, foraging, or dispersal habitat for northern spotted owls, or that are otherwise essential to the conservation of the species. However, as noted above, not every site of known owl occupancy, either at present or at the time of listing, is included in the designation. We did not include owl sites if they were isolated from other known occurrences or in areas of marginal habitat quality such that they were unlikely to make a significant contribution to the conservation of the species, and therefore were not considered to provide the essential features.

The critical habitat network development and evaluation strategy we used attempted to maximize the efficiency of the network by prioritizing Federal lands. Utilization of new scientific information and advanced modeling techniques accounts for many of the changes in the revised critical habitat; in particular, the location of areas essential to northern spotted owls may have shifted from previous designations based on the best information available regarding the spatial distribution of high-value habitat. These advances include improvements in remotely-sensed vegetation data, use of models that better identify spatial configurations of habitat features important to owls, and assessment of relative population performance of northern spotted owls under different critical habitat designations. In addition, negative effects of barred owls on northern spotted owl populations were incorporated into the modeling process.

Late-successional reserves (LSRs) were not prioritized in this approach based solely on their status as a reserved land allocation, but were included in the 2012 designation only where the habitat quality was high enough to meet the selection criteria. In contrast, the 2008 critical habitat identified lands in part based on status as LSRs. However, LSRs were not originally designed under the NWFP solely to meet the needs of the northern spotted owl, but may include areas designated for other late-successional forest species. Therefore, not all LSRs contain habitat of sufficient quality to be included in the critical habitat network for the northern spotted owl. Connected to the decision to designate lands in part because of their status as LSRs, we did not include NWFP matrix on Forest Service lands in 2008. In this designation we have included NWFP matrix lands where they contain high quality habitat essential to the species' conservation. As described in the section Changes from the Proposed Rule, we tested a habitat network that did not include many of these high-value matrix lands; doing so led to a significant increase in the risk of extinction for the species, therefore these lands are retained in this final designation.

Table 5 shows a comparison of areas included in the 2008 designation and those included in this revision to critical habitat. The process we used to determine occupied areas containing essential features and unoccupied areas essential to the conservation of the species is described in Criteria Used to Identify Critical Habitat.

Table 5—Comparison of Area Included in 2008 Critical Habitat and 2012 Critical Habitat by Region. The 11 Regions Are Described in Detail in the Proposed Revised Critical Habitat Designation Section

Modeling region

2012 Critical habitat

acres

hectares

2008 Final critical habitat

acres

hectares

North Coast Olympics

824,500

333,663

485,039

196,289

Oregon Coast

859,864

347,975

507,082

205,209

Redwood Coast

180,855

73,189

70,153

28,390

West Cascades North

542,274

219,450

390,232

157,921

West Cascades Central

909,687

368,136

546,333

221,093

West Cascades South

1,355,198

548,429

700,421

283,450

East Cascades North

1,345,523

544,514

687,702

278,303

East Cascades South

368,381

149,078

207,291

83,888

Klamath East

1,052,731

426,025

667,795

270,247

Klamath West

1,197,389

484,565

667,795

270,247

Inner California Coast Ranges

941,568

381,039

535,863

216,856

Grand total

9,577,969

3,876,064

5,312,327

2,149,823

The reduction in the number of critical habitat units from 33 in 2008 to 11 in 2012 is a reflection, in part, of our decision to aggregate habitat by regions. The 2008 designation included 33 critical habitat units; the 2012 revision includes 11 critical habitat units with 60 subunits.

Our determination of PCEs in this revised designation incorporates new information resulting from research conducted since the last revision in 2008. This new information, along with relevant older studies, allowed us to include a higher level of specificity in the PCEs in this revision. This final rule also includes two changes in overall organization. The 2008 revised designation considered nesting and roosting habitat as separate PCEs. In this designation, we have combined these habitat types, because northern spotted owls generally use the same habitat for both nesting and roosting; they are not separate habitat types, and function differs only based on whether a nest structure is present. At the scale of a rangewide designation of critical habitat, nesting and roosting habitats cannot be systematically distinguished, and, therefore, we combined them in our analysis and resulting rulemaking. For project planning and management of northern spotted owls at the local scale, the distinction between nesting and roosting habitat remains useful, especially in portions of the subspecies' range where nesting structures are conspicuous (e.g., mistletoe brooms). The second organizational change was to subdivide the range of the northern spotted owl into four separate regions, and to describe PCEs for foraging habitat separately for each of these to provide more appropriate region-specific information.

VI. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:

(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features;

(a) Essential to the conservation of the species; and

(b) Which may require special management considerations or protection; and

(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features: (1) Which are essential to the conservation of the species, and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the principal biological or physical constituent elements (PCEs—primary constituent elements such as roost sites, nesting grounds, rainfall, canopy cover, soil type) that are essential to the conservation of the species.

Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. For example, an area that was not occupied at the time of listing but is essential to the conservation of the species may be included in the critical habitat designation. We designate critical habitat in areas outside the geographical area occupied by a species only when a designation limited to its range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)).

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the

Federal Register

on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species. Additional information sources may 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, other unpublished materials, or experts' opinions or personal knowledge.

Habitat is dynamic, and northern spotted owls may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to insure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) the prohibitions of section 9 of the Act on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

Physical or Biological Features

In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied by the species at the time of listing to designate as critical habitat, we consider the physical or biological features essential to the conservation of the species and which may require special management considerations or protection. These include, but are not limited to:

(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, or rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species.

For the northern spotted owl, the physical or biological features essential to the conservation of the species are forested areas that are used or likely to be used for nesting, roosting, foraging, or dispersing. The specific characteristics or components that comprise these features include, for example, specific ranges of forest stand density and tree size distribution; coarse woody debris; and specific resources, such as food (prey and suitable prey habitat), nest sites, cover, and other physiological requirements of northern spotted owls and considered essential for the conservation of the species. Below, we describe the life-history needs of the species and the broader physical or biological features essential to the conservation of the northern spotted owl, which informed our identification of the primary constituent elements (PCEs). The following information is based on studies of the habitat, ecology, and life history of the species, as described in the final listing rule for the northern spotted owl, published in the

Federal Register

on June 26, 1990 (55 FR 26114); the Revised Recovery Plan for the Northern Spotted Owl released on June 30, 2011 (USFWS 2011); the Background section of this document; and the following information.

Although the northern spotted owl is typically considered a habitat and prey specialist, it uses a relatively broad array of forest types for nesting, roosting, foraging, and dispersal. The diversity of forest types used is a reflection of the large geographical range of this subspecies, and the strong gradation in annual precipitation and temperature associated with both coastal mountain ranges and the Cascade Range. While the northern spotted owl is unquestionably associated with old-growth forests, habitat selection and population performance involves many additional features (Loehle

et al.

2011, p. 20). This description of physical or biological features summarizes both variation in habitat use and particular features or portions of the overall gradient of variation that northern spotted owls preferentially select, and that we, therefore, consider essential to their conservation. We begin by considering the broad-scale patterns of climate, elevation, topography, and forest community type that act to influence northern spotted owl distributions and space for population growth and dispersal. We then discuss the abundance and pattern of habitats used for nesting, roosting, and foraging at the landscape scale that influence the availability and occupancy of breeding sites and the survival and fecundity of northern spotted owls. Thus, we begin by considering factors that operate at broader spatial scales and proceed to factors that influence habitat quality at the forest stand scale. When we discuss the physical or biological features, we focus on features that are common range wide, but also summarize specific

features or patterns of habitat selection that characterize particular regions.

Physical Influences Related to Features Essential to the Northern Spotted Owl

Climate, elevation, and topography are features of the physical environment that influence the capacity of a landscape to support habitat with high value for northern spotted owls and the type of habitat needed by the species. The distribution and amount of habitat on the landscape reflects interactions among these physical elements. Several studies have found that physical aspects of the environment, such as topographic position, aspect, and elevation, influence the northern spotted owl's selection of habitat (e.g., Clark 2007, pp. 97-111; Stalberg

et al.

2009, p. 80). These features are also factors in determining the type of habitats essential to northern spotted owl conservation.

Climate

—Population processes for northern spotted owls are affected by both large-scale fluctuations in climate conditions and by local weather variation (Glenn 2009, pp. 246-248). The influence of weather and climate on northern spotted owl populations has been documented in northern California (Franklin

et al.

2000, pp. 559-583), Oregon (Olson

et al.

2004, pp. 1047-1052; Dugger

et al.

2005, pp. 871-877; Glenn

et al.

2010, pp. 2546-2551), and Washington (Glenn

et al.

2010, pp. 2546-2551). Climate and weather effects on northern spotted owls are mediated by vegetation conditions, and the combination of climate and vegetation variables improves models designed to predict the distribution of northern spotted owls (e.g., Carroll 2010, pp. 1434-1437).

Climate niche models for the northern spotted owl identified winter precipitation as the most important climate variable influencing ability to predict the distribution of northern spotted owl habitat (Carroll 2010, p. 1434). This finding is consistent with previous demographic studies that suggest there are negative effects of winter and spring precipitation on survival, recruitment, and dispersal (Franklin

et al.

2000; pp. 559-583). Niche modeling suggested that precipitation variables, both in winter and in summer, were more influential than winter and summer temperatures (Carroll 2010, p. 1434-1436).

Wet, cold w

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