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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0050; FF09E21000 FXES1111090FEDR 223]

RIN 1018-BF01

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

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule; withdrawal and revision.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), revise the designation of critical habitat for the northern spotted owl (

Strix occidentalis caurina

) under the Endangered Species Act of 1973, as amended (ESA or Act), by withdrawing the January 15, 2021, final rule that would have been effective December 15, 2021, and which would have excluded approximately 3.4 million acres (1.4 million hectares) of designated critical habitat for the northern spotted owl (January Exclusions Rule); and instead as we proposed on July 20, 2021, we now exclude approximately 204,294 acres (82,675 hectares) in Benton, Clackamas, Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lane, Lincoln, Multnomah, Polk, Tillamook, Washington, and Yamhill Counties, Oregon, under section 4(b)(2) of the Act.

DATES:

As of November 10, 2021, FWS is withdrawing the final rule published January 15, 2021, at 86 FR 4820, delayed on March 1, 2021, at 86 FR 11892, and further delayed on April 30, 2021 at 86 FR 22876. This rule is effective December 10, 2021.

ADDRESSES:

This final rule is available on the internet at

https://www.regulations.gov

under Docket No. FWS-R1-ES-2020-0050 and at

https://www.fws.gov/oregonfwo.

• Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at

https://www.regulations.gov

under Docket No. FWS-R1-ES-2020-0050.

• The coordinates from which the Service generated the maps are included in the decision file for the rulemaking and are available at

https://www.regulations.gov

at Docket No. FWS-R1-ES-2020-0050 and at

https://www.fws.gov/oregonfwo.

• The Geographic Information System data reflecting the revised critical habitat units can be downloaded at

https://ecos.fws.gov/ecp/species/1123#crithab

under the heading Critical Habitat Spatial Extents.

FOR FURTHER INFORMATION CONTACT:

Paul Henson, Ph.D., State Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Avenue, Portland, OR 97266; telephone 503-231-6179. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.

We need to publish a rule in order to exclude areas from northern spotted owl designated critical habitat under section 4(b)(2) of the Act.

What this rule does.

This rule revises the designation of critical habitat for the northern spotted owl by withdrawing the exclusion of approximately 3.4 million acres as set forth in the January Exclusions Rule, and excluding instead approximately 204,294 acres (82,675 hectares).

Basis for this rule.

Under section 4(b)(2) of the Act, the Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. This revision to critical habitat excludes 204,294 acres (82,675 hectares) in Benton, Clackamas, Coos, Curry, Douglas, Jackson, Josephine, Klamath, Lane, Lincoln, Multnomah, Polk, Tillamook, Washington, and Yamhill Counties, Oregon, under section 4(b)(2) of the Act.

The Service is excluding lands that are within the Harvest Land Base land-use allocation described by the U.S. Department of the Interior Bureau of Land Management (BLM) in two recently revised resource management plans (RMPs) for areas it manages in Oregon: The Northwestern Oregon and Coastal Oregon Record of Decision and Resource Management Plan (BLM 2016a) and the Southwestern Oregon Record of Decision and Resource Management Plan (BLM 2016b). The BLM consulted with the Service on the effects of those RMPs, and in our resulting Biological Opinion, we found the BLM's proposed harvest over time of those areas allocated to the Harvest Land Base would not result in destruction or adverse modification of northern spotted owl critical habitat (FWS 2016, pp. 626-703). We are also excluding lands that were previously managed by the BLM under the RMPs but were subsequently transferred in trust to certain Indian Tribes pursuant to Federal legislation.

Previous Federal Actions

On December 4, 2012, we published in the

Federal Register

(77 FR 71876) a final rule designating revised critical habitat for the northern spotted owl. For additional information on previous Federal actions concerning the northern spotted owl, refer to that December 4, 2012, final rule.

In 2013, the December 4, 2012, revised critical habitat designation was challenged in court in

Carpenters Industrial Council et al.

v.

Bernhardt et al.,

No. 13-361-RJL (D.D.C) (now retitled

Pacific Northwest Regional Council of Carpenters et al.

v.

Bernhardt et al.

with the substitution of named parties). In 2015, the district court ruled that the plaintiffs lacked standing. The D.C. Circuit Court of Appeals reversed and remanded, and the case remained pending before the district court.

On April 13, 2020, we entered into a stipulated settlement agreement resolving the litigation. The settlement agreement was approved and ordered by the court on April 26, 2020, and the case dismissed. Under the terms of the settlement agreement, the Service agreed to submit a proposed revised critical habitat rule to the

Federal Register

that identified proposed exclusions under section 4(b)(2) of the Act by July 15, 2020, and to submit to the

Federal Register

a final revised critical habitat rule on or before December 23, 2020, or withdraw the proposed rule by that date if we determined not to exclude any areas from the designation under section 4(b)(2) of the Act. We delivered a proposed rule to the

Federal Register

on July 15, 2020, which was published on August 11, 2020 (85 FR 48487), proposing to exclude 204,653 acres (82,820 hectares) within 15 counties in Oregon under section 4(b)(2) of the Act. We opened a 60-day comment period on the August 11, 2020, proposed rule, which closed on October 13, 2020. On January 15, 2021, we published in the

Federal Register

the January Exclusions Rule (86 FR 4820), excluding approximately 3,472,064 acres (1,405,094 hectares) within 45 counties in Washington, Oregon, and California under section 4(b)(2) of the Act. Our August 11, 2020, proposed rule (85 FR 48487) and the January Exclusions Rule met the stipulations of the settlement agreement.

The initial effective date of the January Exclusions Rule was March 16, 2021. On March 1, 2021, we extended the effective date of the January Exclusions Rule to April 30, 2021 (86 FR 11892). At that time, we also opened a 30-day comment period, inviting comments on the impact of the delay of the effective date of the January Exclusions Rule, as well as comments on issues of fact, law, and policy raised by that final rule. After considering comments received in response to our March 1, 2021, final rule delaying the effective date, on April 30, 2021, we again extended the effective date of the January Exclusions Rule to December 15, 2021 (86 FR 22876).

On July 20, 2021, we published in the

Federal Register

a proposed revised critical habitat rule in which we proposed to withdraw the January Exclusions Rule, and to exclude 204,797 acres (82,879 hectares) within 15 counties in Oregon (86 FR 38246). The lands proposed for exclusion are the same lands we proposed for exclusion on August 11, 2020, with minor corrections in the number of acres.

For the convenience of the reader, the list below provides some

Federal Register

citations of prior rulemaking documents pertaining to the northern spotted owl. This list is not a comprehensive list of all pertinent prior rulemaking documents; instead, it contains only those documents that are referenced frequently in this final rule:

• Final rule to revise the designation of critical habitat: December 4, 2012, 77 FR 71876

• Proposed rule to revise the designation of critical habitat: August 11, 2020, 85 FR 48487

• Final rule to revise the designation of critical habitat: January 15, 2021, 86 FR 4820 (January Exclusions Rule)

• Final rule to delay the effective date of the January Exclusions Rule and to request comments: March 1, 2021, 86 FR 11892

• Final rule to further delay the effective date of the January Exclusions Rule: April 30, 2021, 86 FR 22876

• Proposed rule to revise the designation of critical habitat: July 20, 2021, 86 FR 38246

Summary of Factors Affecting the Northern Spotted Owl

Habitat loss was the primary factor leading to the listing of the northern spotted owl as a threatened subspecies in 1990 (55 FR 16114, June 26, 1990), and it continues to be a stressor on the subspecies due to the lag effects of past habitat loss, continued timber harvest, wildfire, and a minor amount from insect and forest disease outbreaks. The most recent rangewide northern spotted owl demographic study (Franklin

et al.

2021, entire) found that nonnative barred owls are currently the stressor with the largest negative impact on northern spotted owls through competition for resources. The study emphasized the importance of addressing barred owl management and also the importance of maintaining habitat across the range of the northern spotted owl regardless of occupancy to provide areas for recolonization and dispersal (Franklin

et al.

2021, p. 18). The study also found a significant rate of population decline in northern spotted owls, a rate of 6 to 9 percent annually on 6 demographic study areas, and 2 to 5 percent annually on 5 study areas. Populations dropped to or below 35 percent of historical population numbers on 7 of the study areas, and to or below 50 percent on the remaining 3 areas over a 22-year period (1995-2017).

On non-Federal lands, State regulatory mechanisms have not prevented the continued decline of nesting, roosting and foraging habitat of the northern spotted owl; the amount of northern spotted owl habitat on these lands has decreased considerably over the past two decades, including in geographic areas where Federal lands are lacking. On Federal lands, the Northwest Forest Plan has reduced habitat loss and allowed for the regrowth of northern spotted owl habitat; however, the combined effects of climate change, high-severity wildfire, and past management practices are changing forest ecosystem processes and dynamics.

Summary of Comments and Recommendations

In our July 20, 2021, proposed rule (86 FR 38246), we requested that all interested parties submit written comments by September 20, 2021. We also contacted appropriate Federal, State, and local agencies, and other interested parties and invited them to comment on the proposed rule. A newspaper notice inviting general public comment was published in The Oregonian on July 25, 2021, in the Eureka Times-Standard on July 30, 2021, and in The Olympian on August 6, 2021. We did not receive any requests for a public hearing. We noted in the proposed rule that comments previously submitted in response to our August 11, 2020, proposed revision to critical habitat for the northern spotted owl (85 FR 48487) did not need to be resubmitted, as we would consider them in producing this final rule. We also noted that parties who wanted comments they submitted in response to our March 1, 2021, rule extending the effective date of the January Exclusions Rule considered in this final rule should resubmit their comments.

During the comment period, we received 48 new public comment submissions addressing the proposed withdrawal of the January Exclusions Rule and revised critical habitat designation, in addition to the 572 public comments submitted in response to our original August 11, 2020 proposal to exclude approximately 204,653 acres (82,820 hectares). In addition, one commenter resubmitted their comments in response to our March 1, 2021, rule. Among the submissions on the July 20, 2021, proposed rule were letters from organizations signed by thousands of individuals expressing general support for our proposed rule. Many comments were nonsubstantive in nature, expressing either general support for or opposition to our proposal to withdraw the January Exclusions Rule and exclude 204,797 acres (82,879 hectares), with no supporting information or analysis, or expressing opinions regarding topics not covered within the proposed revised critical habitat rule. We also received many detailed substantive comments with specific rationale for support of or opposition to specific portions of the proposed revised rule.

Below, we summarize and respond to: The substantive comments on the July 20, 2021, proposed rule that were received by the September 20, 2021, deadline; substantive comments we received in response to the August 11, 2020, proposed rule; and resubmitted comments in response to our March 1, 2021, rule. Additionally, we provide explanations when our responses to comments received on our August 11, 2020, proposed rule differ substantially from responses we provided to those same comments in the January Exclusions Rule. Comments received were grouped into general categories and are addressed in the following summary.

Comments on the Withdrawal of the January Exclusions Rule

In order to facilitate the ability to cross-reference our previous responses to comments in the January Exclusions Rule, new and resubmitted comments received by September 21, 2021, on the proposed withdrawal of the January Exclusions Rule and the March 1, 2021, rule delaying the effective date of the January Exclusions Rule until April 30, 2021, are identified alphabetically; comments received on the proposed exclusions and other issues received in

response to both the August 11, 2020, proposed rule and new comments received for the July 20, 2021, proposed rule are identified numerically and follow the same relevant grouping of issues as in the January Exclusions Rule. We did not receive comments concerning the proposed withdrawal of the January Exclusions Rule from Federal agencies, the States, or Tribes.

Comments From Counties

Jackson County (Oregon) submitted a comment letter expressing their support and concurrence with the comment letter submitted by the Association of O&C Counties (AOCC); see

Comment (B)

for a summary of those comments.

Douglas County (Oregon) submitted a comment letter incorporating the American Forest Resource Council (AFRC)'s September 20, 2021, comment letter by reference and provided additional comments urging the Service not to rescind the January Exclusions Rule. Issues raised by Douglas County are incorporated and grouped with similar comments within this rule.

Harney County (Oregon) submitted a comment letter urging the Service not to rescind the January Exclusions Rule. Issues raised by Harney County are incorporated and grouped with similar comments within this rule.

Lewis and Skamania Counties (Washington) submitted a comment letter incorporating the September 20, 2021, comment letter of the AFRC by reference and provided other comments that are incorporated and grouped with similar comments within this rule.

Klickitat County (Washington) submitted a comment letter incorporating Lewis and Skamania Counties' comment letter by reference and provided other comments that are incorporated and grouped with similar comments within this rule.

Public Comments

Comment (A):

Commenters that opposed any exclusions from critical habitat stated that retaining and expanding critical habitat and conserving mature forests will provide significant economic benefits to communities by providing ecosystem services such as: Clean water, climate stability, fire resilience, fish and wildlife, recreation, and other services that serve as a stabilizing force for community development.

Our response:

While the designation of critical habitat for the northern spotted owl does not, in and of itself, change the land-use allocation for the areas designated (which is ultimately the decision of the entity managing the land, such as the BLM), we agree that in addition to its benefits for the northern spotted owl, conserving mature forests may provide economic benefits to communities through the ecosystem services described by the commenter. Although the final economic analysis (FEA) of the critical habitat designation for the northern spotted owl (IEc 2012) did not quantify these economic benefits, it qualitatively described the ancillary benefits of conservation measures that may be implemented to avoid the destruction or adverse modification of critical habitat. These benefits include public safety benefits, such as timber management practices that reduce the threat of catastrophic wildfire, drought, and insect damage; improved water quality that may reduce water treatment costs and provide human or ecological health benefits; aesthetic benefits of a more natural forest landscape that results in increased recreational use or increases the value of neighboring properties; and carbon storage that may ameliorate the impacts of climate change.

Comment (B):

The AOCC, representing the interests of counties in western Oregon, as well as other commenters, submitted comments opposing the withdrawal of the January Exclusions Rule, citing the following rationales:

(i):

The AOCC and others commented that the 2012 critical habitat designation negatively impacted the ability of BLM to manage certain former railroad grant lands in Oregon revested to the United States in 1916 (O&C lands) for their statutory purposes under the Oregon and California Revested Lands Sustained Yield Management Act of 1937, Public Law 75-405 (O&C Act) and reduced timber harvest and associated receipts shared with counties. They asserted that the 2012 designation caused BLM to manage these lands under their revised RMPs for the benefit of the northern spotted owl instead.

Our response:

The BLM developed its 2016 RMPs considering a variety of authorities and requirements, including the O&C Act, which addresses the management of O&C lands revested to the Federal Government under the Chamberlin-Ferris Act of 1916 (39 Stat. 218) and other authorities. As discussed further in response to

Comment 12,

we acknowledge that there is ongoing litigation regarding BLM's authorities and obligations under the O&C Act and the Endangered Species Act. Once that litigation is finally resolved, BLM will have to determine what, if any, changes to make to its management of the O&C lands under applicable law. Until that time, however, the BLM will, where appropriate, utilize its authorities in furtherance of the purposes of the Endangered Species Act. See also our response to

Comment (6).

See our response to

Comments (21)

and

(22)

for a discussion on the economic impacts of the designation on timber harvest.

(ii):

The AOCC commented that the designation of critical habitat on O&C lands is contrary to recent rulings that recognize the statutory requirement that timber on O&C lands is to be “sold, cut and removed” according to sustained yield principles and cannot be allocated to reserves, and that section 7 consultation requirements under the Act do not apply to the nondiscretionary obligation of BLM to manage these lands under the principles of sustained yield.

Our response:

See our responses to

Comments (6), (12),

and

(25b)

below.

(iii):

The AOCC commented that the 2012 critical habitat designation was flawed in that it did not identify or “actually” map habitat and that the methods used resulted in vast areas being designated as critical habitat that do not currently have the attributes of northern spotted owl habitat and therefore do not meet the statutory requirements for designation as critical habitat.

Our response:

This and similar comments that directly address concerns about our final rule designating critical habitat in 2012 were raised and addressed in the rulemaking for the 2012 rule, and we refer to our responses to such issues in that rulemaking,

see e.g., Public Comments on the Modeling Process

at 77 FR 71876, December 4, 2012; p. 72020. We address here only those comments relevant to the revisions proposed in July 20, 2021.

(iv):

The AOCC commented that the designation of critical habitat in 2012 created preserves that prevent sustained yield management and that actively managing critical habitat to support species recovery is not the equivalent of sustained yield management under the O&C Act, further citing the court ruling in

Headwaters, Inc.

v.

BLM, Medford Dist.,

914 F.2d 1174 (9th Cir. 1990) holding that withdrawing lands from sustained yield timber production for the benefit of wildlife is not a use recognized in the O&C Act and is inconsistent with sustained yield management. On this basis, the commenter seeks additional exclusions from the designated critical habitat.

Our response:

Critical habitat designations do not establish specific land-management standards or prescriptions, nor do designations affect land ownership or establish a refuge, wilderness, reserve, preserve, sanctuary, or any other conservation area where no active land management occurs. See our

responses to

Comments (6), (12),

and

(25b)

below.

(v):

The AOCC commented that “creative sustained yield management” can contribute substantially to the habitat needs of the northern spotted owl without the limitations imposed by a critical habitat designation and that sustained yield management to meet both the subspecies' needs and the O&C Act requirements has not been considered in BLM and U.S. Department of Agriculture, Forest Service (USFS) management plans, northern spotted owl recovery plans, and critical habitat designations. They provided examples of sustained yield strategies that could be considered should the BLM be required to revise their RMPs due to a pending court ruling and suggested that removing critical habitat is a necessary first step.

Our response:

As indicated by the comment, complying with and achieving the goals of the O&C Act and the Endangered Species Act can be an extraordinarily complicated task in the forest management arena. The BLM and USFS are responsible for managing O& C lands, and they do so by adopting land management plans that provide guidance and direction for subsequent management actions on those lands. Recovery plans under the Endangered Species Act provide recommendations for management actions that meet the recovery needs of listed species; they are not intended to guide compliance with other statutory requirements. Critical habitat designations, similarly, are focused on the needs of the species but take economic and other impacts into consideration.

The Service expressly considered the role of the O&C lands when revising critical habitat in 2012, but did not consider excluding them at that time because we concluded they were essential to the conservation of the subspecies (77 FR 71876, December 4, 2012; p. 72007).

We expressly consider in this rule excluding the O&C lands (outside of the BLM's Harvest Land Base lands) from the designation based on requests from the commenter and others, but for the reasons discussed in our weighing analysis, have determined not to do so (see Consideration of Impacts Under Section 4(b)(2) of the Act).

We note, however, that the BLM and USFS have proposed harvests from O&C lands within designated critical habitat, consulting with the Service on those actions. To date, we have reviewed such proposals on thousands of acres and have not found that the proposals result in the destruction or adverse modification of that habitat under the Act.

The critical habitat designation benefits the northern spotted owl as a landscape-scale conservation strategy that identifies areas on the landscape that may require special management considerations or protection. In addition, the designation informs management practices that contribute to the recovery needs of the subspecies. In both the critical habitat designation, and in site-specific consultations, the Service has supported active forest management, where appropriate, to provide for some timber harvest while also conserving habitat for the northern spotted owl and reducing the risk of wildfire.

(vi):

The AOCC commented that all O&C lands should be excluded from the critical habitat designation because the benefits of exclusion outweigh the costs and that there is no benefit to including these lands in the designation because the O&C Act “mandates for sustained yield production control over the ESA section 7(a)(2) consultation.” Additionally, they commented that the designation has had significant adverse economic impacts on the counties, affecting their ability to provide public services and has resulted in mill closures and job losses.

Our response:

As described elsewhere in this document, some timber harvest does occur within critical habitat, and total annual timber harvest levels on Federal lands in the range of the northern spotted owl have actually increased since the revision of critical habitat in 2012; see our response to

Comments (21b

and

25a).

See also our responses to

Comments (6

and

25)

concerning O&C lands and our weighing of the benefits of including O&C lands in the critical habitat designation versus excluding them in Consideration of Impacts Under Section 4(b)(2) of the Act.

(vii):

The AOCC commented that the economic impact of the critical habitat designation has not been properly evaluated by the Service and that these impacts are not solely attributable to the listing decision.

Our response:

See our response to

Comment (20)

below concerning our review of the FEA (IEc 2012) and our regulation on how economic analyses are conducted.

Comment (C):

The AFRC submitted comments in support of the January Exclusions Rule and expressed support for the Service's proposal to exclude the BLM's Harvest Land Base lands and lands transferred in trust to the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians (CTCLUSI) and the Cow Creek Band of Umpqua Tribe of Indians (CCBUTI). The AFRC resubmitted comments they previously provided on our 2007, 2008, and 2012 critical habitat rules. We previously responded to those comments in our final respective critical habitat rules; see 73 FR 47326, August 13, 2008, and 77 FR 71876, December 4, 2012. The AFRC's comments on our August 11, 2020, proposed rule (85 FR 48487), our March 1, 2021, rule delaying the effective date of the January Exclusions Rule (86 FR 11892), and our July 20, 2021, proposed rule (86 FR 38246) are summarized below. Comments submitted by AFRC that were similar to comments received on the August 11, 2020, proposed rule have been incorporated into the comment sections following this section. Several counties incorporated AFRC's comments by reference. In some instances, other commenters submitted comments similar to the comments submitted by AFRC; we include those comments in the following summarized comments.

(i):

The AFRC commented that the August 11, 2020, proposed revised critical habitat rule gave notice to the public that additional areas may be excluded in the final rule and that the Service (and Secretary) preserved broad discretion to make additional exclusions such that there was no “logical outgrowth” problem in the change from the proposed to final exclusions in the January Exclusions Rule.

Our response:

We requested comments in our August 11, 2020, proposed rule on the following: Additional areas, including Federal lands and specifically National Forest System lands, that should be considered for exclusion under section 4(b)(2) of the Act and any probable economic, national security, or other relevant impacts of excluding those areas. We also requested comments on any significant new information or analysis concerning economic impacts that we should consider in the balancing of the benefits of inclusion versus the benefits of exclusion in the final determination.

While our request indicated that we might consider additional exclusions, the scale of the final exclusions was much larger and broader than what the public could reasonably anticipate. In our proposed rule, we identified 204,653 acres (82,675 hectares) across 15 counties and 26 critical habitat subunits in Oregon for potential exclusion; the January Exclusions Rule increased the acres excluded by nearly 17-fold. The final rule included extensive areas that were not mentioned in the proposed rule, and for which no

details were provided in the January Exclusions Rule, within the States of Washington and California, 45 counties across the range, and 55 critical habitat subunits across the designation.

In response to our March 1, 2021, rule delaying the effective date of the January Exclusions Rule, we received many comments that the January Exclusions Rule was not a logical outgrowth of the August 11, 2020, proposed rule, including comments from natural resource agencies in Washington and California opposing the exclusions and expressing that they were not aware that exclusions were being considered in their respective States. Additionally, the Washington Department of Fish and Wildlife comments expressed surprise at the 765,175 acres (309,655 hectares) excluded in their State under the January Exclusions Rule. Further, the California Department of Fish and Wildlife commented in response to the March 1, 2021, rule that the January Exclusions Rule did not identify lands excluded in their State with enough specificity to provide a meaningful analysis and comment. Conservation groups and other members of the public commented in response to the March 1, 2021, rule that they were not given the opportunity to present arguments and facts contrary to the vast increase in exclusions as presented in the January Exclusions Rule.

Additionally, the January Exclusions Rule also included new rationales for the exclusions that were not identified in the August 11, 2020, proposed revised critical habitat rule (85 FR 48487). These included generalized assumptions about the economic impact of both the listing of the northern spotted owl and the subsequent designation of areas as critical habitat; the stability of local economies and protection of the local custom and culture of counties; the presumption that exclusions would increase timber harvest and result in longer cycles between harvest; that timber harvest designs resulting from the exclusions would benefit the northern spotted owl, and that the increased harvest would reduce the risk of wildfire; and that northern spotted owls may use areas that have been harvested if some forest structure was retained. The public did not have an opportunity to review or comment on these new rationales.

Further, the January Exclusions Rule failed to reconcile a change in our prior findings regarding areas managed under the O&C Act. In our 2012 rule revising the critical habitat designation for the owl, we found that areas managed under the O&C Act were essential to the conservation of the subspecies and that not including some of these lands in the critical habitat network resulted in a significant increase in the risk of extinction. Commenters stated that the exclusion of these lands in the January Exclusions Rule also conflicted with our December 15, 2020, finding that the northern spotted owl warrants reclassification to endangered status given the exacerbation of the threats it faces. We maintain that the public should have had an opportunity to comment on the expanded critical habitat exclusions made in January in light of the information included in the December 15, 2020, finding and supporting species report (85 FR 81144, FWS 2020, p. 83), which were published just 3 weeks before the January Exclusions Rule.

In summary, it is clear from the public comment record that not being afforded an opportunity to review and provide comment on the much larger and broader areas excluded and the rationale for those exclusions, particularly in light of the December 15, 2020, finding that the northern spotted owl warranted reclassification to endangered status, was considered by the public a lack of transparency and inability to participate in the public process as required under the Administrative Procedure Act. While our proposed August 11, 2020, rule and exclusions did signal the potential that the final rule could be different, on reconsideration we find that it is more prudent and transparent to conclude that an updated proposed rule and an additional opportunity to comment would be warranted were we to seek to put the January Exclusions Rule into effect.

(ii):

The AFRC commented that the Service's modeling of extinction risk in the 2012 critical habitat designation discounted millions of acres of potentially suitable habitat in national parks and designated wilderness that are not included in the designation and assert that our section 4(b)(2) analysis is flawed because the benefits these areas provide was not considered. The AFRC further commented that our assertion that these areas are relatively small and widely dispersed across the range of the northern spotted owl is inaccurate as these lands cover over 7 million acres (2.8 million hectares).

Our response:

We included Congressionally Reserved Lands (

e.g.,

designated wilderness and national parks) in our modeling analyses of the critical habitat network and extinction risk based on the assumption that habitat quality in these areas would be retained whether they were designated as critical habitat or not (Dunk

et al.

2012, pp. 19, 57). Our section 4(b)(2) analysis in the 2012 critical habitat rule considered the benefits of including these lands within the critical habitat designation and found that these areas are essential to the conservation of the northern spotted owl. However, unlike other Federal and State lands that have multiple use mandates that include commercial harvest of timber in the range of the spotted owl, such as National Forests, State Forests, and public-domain forests managed by the BLM, these reserved natural areas are unlikely to have uses that are incompatible with the purposes of critical habitat because the primary habitat threat to spotted owl critical habitat—commercial timber harvest—is generally prohibited on these lands. These natural areas are managed under explicit Federal laws and policies consistent with the conservation of the northern spotted owl, and there is generally little or no timber management beyond the removal of hazard trees or fuels management to protect structures, roads, human safety, and important natural attributes.

Accordingly, we found that a critical habitat designation of these reserved areas in the range of the spotted owl would provide no additional regulatory benefits beyond what is already on these lands due to their permanent status as protected lands and, importantly, the fact that commercial timber harvest is generally not permitted on these lands under Federal and State law and policy. Further, we found that the designation of these reserve areas would confer little additional educational benefits associated with the conservation of the spotted owl, as these educational messages are already being communicated in many of these areas under existing programs. In sum, although national parks and designated wilderness were excluded under section 4(b)(2) of the Act from the 2012 critical habitat designation, the conservation value of these lands was considered in our analysis and modeling of which lands were essential to the conservation of the northern spotted owl and in the design of a critical habitat network.

Regarding the size and distribution of national parks and designated wilderness, we initially identified and proposed to include approximately 2.6 million acres (1 million hectares) of these lands in the 2012 proposed critical habitat revision because they contained northern spotted owl habitat and were found to be essential to the conservation of the subspecies. These 2.6 million acres (1 million hectares), which we identified as habitat essential to the conservation of the northern spotted

owl, are the areas we describe as relatively small and widely dispersed, versus the entire 7 million acres (2.8 million hectares) as asserted by the AFRC. However, as we noted at the time of listing the northern spotted owl in 1990, many of these areas are also typically high-elevation lands and it is unlikely that the owl populations would be viable if their habitat were restricted to these areas alone (55 FR 26114, June 26, 1990; p. 26177). Additionally, as we stated in our July 20, 2021, proposed revision, some of these areas are widely dispersed and cannot be relied on to sustain the subspecies unless they are part of and connected to a wider reserve network as provided by the 2012 critical habitat designation (77 FR 71876, December 4, 2012).

(iii):

The AFRC commented that we stated that the barred owl is not the primary threat to northern spotted owls and that this is contradicted by the best available science. The AFRC and several counties stated that there is little to no benefit of including areas occupied by barred owls because the two species cannot coexist and the presence of barred owls makes these areas unsuitable for northern spotted owls. The AFRC commented that our conclusion that habitat availability is as important as managing the threat of barred owls is inaccurate.

Our response:

In our July 20, 2021, proposed rule, we stated that the large additional exclusions made in the January Exclusions Rule were premised on inaccurate assumptions about the status of the owl and its habitat needs particularly in relation to barred owls. The large additional exclusions were based in part on an assumption that barred owl control is the fundamental driver of northern spotted owl recovery, when in fact the best scientific data indicate that protecting late-successional habitat also remains critical for the conservation of the spotted owl (FWS 2020, p. 83). We did not intend this statement to be read to mean that the barred owl is not the primary threat to northern spotted owls. We meant that recovery of the northern spotted owl will require management of the barred owl as well as continued habitat protections. See our response to

Comment (13)

below for a discussion on the threat of barred owls to northern spotted owls and the importance of maintaining habitat in light of competition with barred owls. Although the northern spotted owl does not coexist well with the invasive barred owl and the two species have a high degree of overlap in their habitat preferences (Wiens

et al.

2021, p. 2), their presence does not alter the suitability of the habitat to support northern spotted owls. In fact, the availability of suitable forest conditions and addressing habitat loss is needed to work in concert with barred owl management to reduce population declines of northern spotted owls (Wiens

et al.

2021, pp. 1, 2).

(iv):

The AFRC commented that the Service's rationale for withdrawing the January Exclusions Rule based on the need for biological redundancy is flawed because critical habitat exacerbates the wildfire threat to the northern spotted owl and communities by inhibiting active forest management (other commenters, including several counties, reiterated this assertion that critical habitat conflicts with active management aimed at reducing wildfire risk). Specifically, the AFRC states that forest treatments that remove canopy cover to such an extent that habitat is “downgraded” (

e.g.,

habitat that supports nesting, roosting, and foraging is removed and the area can only support dispersal) are avoided or deferred due to regulatory constraints such as section 7 consultation requirements on critical habitat for projects that would reduce the risk of wildfire in dry forest ecosystems. The AFRC provided examples of projects that they assert were altered due to the critical habitat designation or litigated and delayed due to issues related to critical habitat.

Our response:

See our response to

Comment (27a)

regarding perceived conflicts between the critical habitat designation and active forest management to address risk of wildfire in the dry forest ecosystem. See also our response to

Comment (9)

regarding the need for biological redundancy within the critical habitat designation. In regard to the specific prescriptions for forest management treatments in dry forest ecosystems within critical habitat, in the section on Special Management Considerations or Protection, the 2012 critical habitat rule referred to the guidance discussed in the Revised Recovery Plan for the Northern Spotted Owl (Recovery Plan) (FWS 2011, pp. III-11 to III-39). The Recovery Plan recommended active forest management with the goal of maintaining or restoring forest ecosystem structure, composition, and processes that would be sustainable and provide resiliency under current and future climate conditions. The Recovery Plan acknowledged that short-term impacts to northern spotted owls and their habitat may occur due to these actions, but they may be beneficial in the long-term if they reduce future losses from disturbance events, such as wildfire, and improve resiliency to climate change (FWS 2011, p. III-14). Further, the Revised Recovery Plan for the Northern Spotted Owl states that “tradeoffs that affect spotted owl recovery will need to be assessed on the ground, on a case-by-case basis with careful consideration given to the specific geographical and temporal context of a proposed action” and that specific prescriptions to meet the goals of the recovery plan vary across forest types and the landscape (FWS 2011, p. III-14). Section 7 consultations conducted on forest management actions within critical habitat provide the avenue for these assessments and are one of the benefits of designating these areas.

In response to projects being altered due to the 2012 critical habitat designation, the examples that AFRC provided were for projects that were consulted on prior to the critical habitat designation but had not yet been implemented when the designation was finalized. Project modifications and additional time to address the effects to the physical and biological features of critical habitat and to consider the special management recommendations and protections discussed in the recently published critical habitat designation is a reasonable expectation for such projects. In response to projects being avoided or deferred within critical habitat, contrary to AFRC's assertion, projects to reduce the risk of wildfire continue to be consulted on with positive outcomes for the subspecies and the ecosystem while allowing for timber harvest that meets Federal agency timber production purposes; see our response to

Comment (27a)

for a discussion of recent consultations. The decision on whether to propose an action that will need to undergo section 7 consultation, however, is under the purview of the Federal land management agencies. As we noted in the 2012 critical habitat rule, specifically prescribing such management is beyond the scope or purpose of the critical habitat designation, but should instead be developed by the appropriate land management agency at the appropriate land management scale (

e.g.,

National Forest or BLM 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 (77 FR 71876, December 4, 2012; p. 71882).

In response to the comment that litigation associated with critical habitat designations demonstrates that the designation conflicts with forest

management, we note that historically Federal forest management projects are frequently the subject of litigation regardless of whether they occur within critical habitat or not. Litigation on these projects does not necessarily indicate that critical habitat conflicts with forest management. There are myriad reasons and issues that parties seek to litigate Federal forest management actions; because they do so is not a basis to conclude that the critical habitat designation is flawed.

(v):

The AFRC commented that northern spotted owl critical habitat restricts timber harvest, citing the USFS' recent Bioregional Assessment (USFS 2020), which states that timber production and restoration often conflict with habitat protection objectives and provides an example of reduced timber harvest on USFS matrix lands due to critical habitat designation. AFRC further commented that critical habitat has the effect of altering management direction on USFS matrix lands based on the USFS recommendation in the Bioregional Assessment to align their reserve allocations with the 2012 critical habitat designation. AFRC asserts that a conflict in management of USFS forest lands exists such that managing hazardous fuel loads that improve forest health and resilience to wildfire conflicts with maintaining vegetative cover that is needed for northern spotted owls.

Our response:

The USFS Bioregional Assessment (Assessment) (USFS 2020) is one of the initial steps the USFS has taken to address management plans that need to be updated. Most of the land management plans in the area analyzed under the Assessment were written about 30 years ago and need to be updated to reflect current science and social, economic, and ecological challenges across this area (USFS 2020, p. 10). The Assessment focuses on the most compelling issues across the landscape that need updating, including species' habitat needs and the need to address climate change, severe wildfire risk, and forest health. The Assessment indicates that timber harvest is no longer emphasized on USFS matrix lands that were designated as critical habitat and expresses the need to align their reserve allocations with the 2012 critical habitat designation (USFS 2020, pp. 60, 63). However, the Assessment further states that “better realignment of the late-successional reserve network with critical habitat could adjust the matrix lands available for ecological treatments, which might provide additional timber outputs” (USFS 2020, p. 74). Additionally, the Assessment states that “[b]etter alignment is needed between designated critical habitat for spotted owls and the late-successional old-growth portion of the late-successional reserve network; this could help simplify management direction and better protect high-quality habitat for owls and other old growth-dependent species, such as marbled murrelet. In addition to protecting these habitats, management direction that allows active management to restore and improve ecosystem resilience could help conserve and develop northern spotted owl habitat in the long term” (USFS 2020, p. 63).

The Assessment expresses an urgent need to update their land management plans to modify desired conditions associated with dry forest ecosystems and to allow for active management in fire-prone areas to restore ecological integrity and habitat (USFS 2020, pp. 63, 71, 76); active management to address these needs aligns with both the Recovery Plan for the Northern Spotted Owl and the 2012 critical habitat designation. Finally, the Assessment recognizes that “social values related to land management have begun to shift toward recognition of the broad benefits associated with our natural resources and the importance of balancing resource protection with timber production” (USFS 2020, p. 62).

We acknowledge that the designation of critical habitat on USFS matrix lands can inform where timber harvest is emphasized as the USFS considers the special management considerations and protections discussed in the 2012 critical habitat designation. Education and providing information are important functions of critical habitat designations, especially when designing and implementing forest management projects on public lands. However, the Service continues to advocate for active management of forests to reduce wildfire risks as described in our 2012 critical habitat rule and the Recovery Plan. We designated USFS matrix lands as critical habitat where they contain habitat that is essential to the subspecies' conservation (77 FR 71876, December 4, 2012; p. 71895).

See our response to

Comment (27a)

regarding perceived conflicts between the critical habitat designation and active forest management to address the risk of wildfire in the dry forest ecosystem.

(vi):

The AFRC commented that our July 20, 2021, proposed revised critical habitat rule fails to consider the contribution that management plans have in addressing connectivity across the landscape and the current level of connectivity provided by management since the NWFP was adopted. The AFRC stated that the Service acknowledged in the Recovery Plan that the NWFP provides direction to address connectivity and that both the reserve and matrix land-use allocations would contribute to connectivity. AFRC further stated that the USFS maintains dispersal habitat across their land-use allocations, that dispersal is not a limiting factor, and that there is far more dispersal habitat than is needed.

Our response:

See our response to

Comment (9)

regarding the need for biological redundancy within the critical habitat designation and our responses to

Comments (25c-e)

regarding our consideration of management plans. We evaluate effects of Federal actions on northern spotted owl dispersal habitat during the section 7 consultation process at a larger scale than effects of the action to nesting, roosting, and foraging habitat. This approach is to ensure that dispersal habitat is providing for connectivity across the landscape between large blocks of nesting, roosting, and foraging habitat that reproducing northern spotted owls prefer when available in an area. The amount of dispersal habitat varies across the designation and is limited in some geographic areas such as between the Coast Range and Cascade Range in southern Oregon (FWS 2020, pp. 28-32). The biological redundancy included in the design of the critical habitat network allows for some timber harvest and was included to address the unpredictability of the extent of natural disturbances such as wildfire.

(vii):

The AFRC commented that “mere connectivity is not an element of habitat or critical habitat, and effects only on connectivity cannot constitute `adverse modification' in violation of the ESA,” citing

Defs. of Wildlife

v.

Zinke,

856 F.3d 1248, 1262 (9th Cir. 2017) and that areas that provide only connectivity, therefore, cannot be designated as critical habitat.

Our response:

We do not agree with the commenter's interpretation of the cited case, which involved effects of a proposed Federal action to the desert tortoise. There, the project effects challenged were not to designated critical habitat, but rather to habitat that provided connectivity between designated critical habitat units. The Service concluded that although the project affected connectivity habitat for the tortoise, those effects did not adversely modify critical habitat. Plaintiffs asserted that the Service was obligated to evaluate the effect of that connectivity loss as an “adverse modification” to critical habitat. The Service appropriately considered the effects of the potential loss of

connectivity in examining whether the Federal action jeopardized the species, but reasonably concluded that alterations to habitat that is not designated as critical habitat did not “adversely modify” that critical habitat.

The court simply affirmed this rational approach; the court's decision does not stand for the proposition that designated critical habitat cannot include the characteristics of connectivity. To the contrary, the court recognized the well-established scientific principles of connectivity (“[c]onnectivity is the “degree to which population growth and vital rates are affected by dispersal” and “the flow of genetic material between two populations.”). Connectivity promotes stability in a species by “providing an immigrant subsidy that compensates for low survival or birth rates of residents” and “increasing colonization of unoccupied” habitat,”

Defs. of Wildlife

v.

Zinke

at 1254. This case is distinguishable from the circumstances of the northern spotted owl in that the Service has expressly designated “connectivity” habitat as critical habitat,

i.e.,

the dispersal habitat.

For the northern spotted owl, a project that proposes significant impacts to designated critical dispersal habitat that impedes connectivity between large blocks of designated critical habitat used for nesting, roosting, or foraging could result in a conclusion that the action would destroy or adversely modify critical habitat. Although habitat that allows for dispersal may currently be marginal with insufficient characteristics to support nesting, roosting, or foraging, it provides an important linkage function among blocks of higher-quality habitat both locally and over the northern spotted owl's range that is essential to its conservation. Juvenile dispersal is 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.

Dispersal habitat is habitat that both juvenile and adult northern spotted owls use when looking to establish a new territory. Both dispersing subadults and nonterritorial birds (often referred to as “floaters”) are present on the landscape and require suitable habitat to support dispersal and survival until they recruit into the breeding population; this habitat requirement is in addition to that already used by resident territorial owls. Successful dispersal of northern spotted owls is essential to maintaining genetic and demographic connections among populations across the range of the subspecies and population growth can occur only if there is adequate habitat in an appropriate configuration to allow for the dispersal of owls across the landscape; therefore, the Service included dispersal habitat as part of the critical habitat designated for the northern spotted owl.

(viii):

Comments submitted by AFRC (and incorporated by others) include assertions that the Service included within the 2012 critical habitat designation areas that are not “habitat” for the northern spotted owl, in contravention of the Supreme Court's subsequent ruling in 2018 that critical habitat designated under the Act must be habitat for the species in the first instance (

Weyerhaeuser Co.

v.

U.S. Fish and Wildlife Serv.,

139 S. Ct. 361, 368 (2018) (“

Weyerhaeuser

”). These commenters assert that areas that are not “habitat” for the owl within the critical habitat designation should be excluded by the Secretary under section 4(b)(2).

Our response:

As we explain in more detail in the

Background

section below, we reviewed our 2012 critical habitat rule for consistency with our new regulation defining “habitat” following the

Weyerhaeuser

decision, and demonstrate why all of the designated critical habitat is habitat for the northern spotted owl. We also respond to comments seeking a wide variety of exclusions based on general assertions that areas are not “habitat” for the northern spotted owl presently, explaining why the assumptions underlying these assertions are incorrect as matter of fact or law; see responses to

Comments (26-28).

Comment (D):

The AFRC and several counties commented on several other issues pertaining to our March 1, 2021, delay rule; April 30, 2021, delay rule; and proposed withdrawal of the January Exclusions Rule as summarized below:

(i):

Commenters stated that the Service predetermined to issue a further delay rule prior to publishing the March 1, 2021, delay rule.

Our response:

As described in the March 1, 2021, delay rule, the Service was concerned about the potential effects of the January 2021 exclusions to impede conservation of the northern spotted owl, and sought comments on the issues of fact, law, and policy regarding the January Exclusions Rule. We noted that an additional delay of the effective date might be warranted and expressly sought comment. As the first delay rule would expire by April 30, and it can take some time to develop and obtain publication of rules in the

Federal Register

, it was appropriate for the Service to prepare a draft of such a second rule while the first was being published. That the Service took steps to do so is not a “predetermination.” Agencies frequently prepare drafts of rules and change them based on internal and public comments. Any decision to move forward with a second delay rule is not final until authorized by the Service and published in the

Federal Register

.

(ii):

Commenters stated that the delay rule is unlawful and contrary to the Administrative Procedure Act and failed to effect a valid amendment of the January Exclusions Rule, which was due to go into effect on March 16, 2021. Commenters stated that the Service's issuance of the March 1, 2021, delay rule without providing an opportunity for public notice and comment was in violation of the Administrative Procedure Act. Commenters further stated that the April 30, 2021, rule delaying the effective date of the January Exclusions Rule until December 15, 2021, was issued after the first delay rule expired and the January Exclusions Rule had gone into effect.

Our response:

As the commenter noted, issues concerning the lawfulness of the delay rule are the subject of litigation brought against the Service on these topics in which they are plaintiffs, see

American Forest Resource Council

v.

Williams,

No. 1:21-cv-00601-RJL (D.D.C). The Service has responded to these assertions in briefs before the court. In summary, the Service's decision to delay the implementation of the January Exclusions Rule and ultimately to allow for this additional rulemaking to withdraw it, was consistent with all applicable laws. For further details, please see our responsive briefs in that litigation, available in our record for this rulemaking.

(iii):

Commenters stated that we cannot withdraw a rule that has been published; it must instead be repealed, rescinded, or amended. Based on this rationale, commenters stated that we must redesignate in a new rulemaking the acres that were excluded in the January Exclusions Rule if we are to retain them in the critical habitat designation and that we must complete a new economic analysis for those redesignated lands.

Our response:

Whether or not the Service uses the term “withdraw, repeal, or rescind” does not alter the result of this final rule—the exclusions finalized (but not in effect) in the January rule are “withdrawn, repealed, or rescinded” by this final rule. Because this final rule to take this action was developed with notice and comment rulemaking, “repeal” would be

consistent with the language used in the Administrative Procedure Act for the notice and comment rulemaking here. However, as the January Exclusions Rule was final, but never went into effect, “withdraw” is similar to situations in which a rule is developed but never went into effect as cited by the commenters. In any event, as the January Exclusions Rule never went into effect, the Service was not obligated to “redesignate” the critical habitat areas already designated and unchanged since the 2012 critical habitat rule.

(iv):

Commenters stated that withdrawing the January Exclusions Rule violates the terms and intent of the settlement agreement in

Carpenters Industrial Council et al.

v.

Bernhardt et al.,

No. 13-361-RJL (D.D.C.) (retitled

Pacific Northwest Regional Council of Carpenters et al.

v.

Bernhardt et al.

with the substitution of named parties before being dismissed).

Our response:

The commenter does not dispute that the Service completed the production of a proposed and final rule per the timeline in the settlement agreement, as extended. Rather, the commenter asserts that because of the alleged flaws in the delay rules, the withdrawal of the January Exclusions Rule violates the settlement agreement terms and intent. The Service addresses the assertions regarding the delay rules above. As to the “intent” of the settlement agreement, the Service is here finalizing a revision to the 2012 critical habitat rule excluding additional areas under authority of section 4(b)(2). This final rule is not the broad exclusions that the commenters sought, but this does not mean the Service violated either the intent, let alone the terms, of the settlement agreement with the litigating parties. The Service did not (nor could it have) pre-committed in a settlement agreement to ultimately determine a set of exclusions in advance of public notice and comment rulemaking.

Comment (E):

Douglas County commented that exclusion of O&C lands would not result in extinction of the northern spotted owl and that exclusion of these areas would result in a stronger partnership with local forest managers.

Our response:

See our consideration of the benefits of partnerships and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.

Comment (F):

Commenters stated that our reevaluation of the exclusions in the January Exclusions Rule is counter to the finding the Secretary made in 1992 that “overall effects on the Northwest timber industry and to some counties in particular, were potentially severe and that further consideration should be given to excluding additional acreage from the final designation to reduce the overall economic impacts that may result from the designation of critical habitat.”

Our response:

Under section 4(b)(2) of the Act, the Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species. In making that determination, the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor; this discretion is not limited by previous determinations such as we made in 1992. In this rulemaking, the Secretary has exercised her discretion to exclude certain areas and not others from the critical habitat designation after weighing these benefits.

Comment (G):

Conservation groups commented that to the extent the January Exclusions Rule relied on economic impacts, recent research (Ferris and Frank 2021) shows that the economic impacts of the 2012 critical habitat designation have been overstated and are instead consistent with what the Service found at that time.

Our response:

Ferris and Frank (2021) discuss the impact that the 1990 listing of the northern spotted owl and subsequent critical habitat designation in 1992 had on employment in the Lumber and Woods Products Sector between 1984 and 2000. The authors found that the impacts to employment in this sector were similar to what the government projected at the time of listing of the northern spotted owl and were not as large as projected in industry studies. Their study, however, did not focus on the incremental impacts of designating critical habitat for the northern spotted owl above those impacts attributed to listing, which is how the Service assesses the economic effect of critical habitat designations.

Comments Specific to Exclusions

Comments From Federal Agencies

Comment (1):

The USFS stated that, as critical habitat in southern Oregon and northern California becomes more fire prone, as evidenced by the 2020 fire season, the USFS continues to be concerned for the persistence of the northern spotted owl in the Pacific Northwest. The USFS encouraged connectivity between existing critical habitat units. In particular, the USFS commented that the Service should consider the probability of wildfire events, the effect of climate change, and projected wildfire behavior as tools for determining where critical habitat designations should be revised throughout the range of the northern spotted owl. Additionally, on December 15, 2020, after the comment period closed on our August 11, 2020, proposed rule, we received a comment letter from the Under Secretary, Natural Resources and Environment, Department of Agriculture, supporting Interior's efforts to revise the northern spotted owl critical habitat designation because of difficulties encountered by the USFS in achieving its statutory mission for managing the National Forests. The letter discussed the devastation to the spotted owl habitat and to other property caused by wildfire in general, using the 2020 wildfire season as an example. The letter requested that the USFS and the Service work together in protecting the northern spotted owl and lowering the risks of catastrophic wildfire.

Our response:

In response to the comment submitted by the Department of Agriculture, it is important to note that the Service works closely with the USFS and other land managers to both recover the northern spotted owl and lower the risk of catastrophic wildfire. For example, the Service has completed multiple consultations under section 7 with Federal agencies on fuels reduction, stand resiliency, and pine restoration projects in dry forest systems within the range of the northern spotted owl. Those actions have included treatment areas that reduce forest canopy to obtain desired silvicultural outcomes, lower potential wildfire severity, and meet the need for timber production. They also promote ecological restoration and are expected to reduce future losses of spotted owl habitat and improve overall forest ecosystem resilience to climate change. We have concluded in these consultations that the actions do not destroy or adversely modify critical habitat as defined under the Act and our implementing regulations. Thus, in our experience, Federal agencies are able to plan and implement active forest management, including commercial timber harvests, to reduce wildfire risk in northern spotted owl designated critical habitat.

In addition, the Service considered the potential impacts of wildfire in our 2012 critical habitat designation (77 FR 71876, December 4, 2012). The 2012 critical habitat rule represented an increase in the total land area identified

from previous designations in 1992 and 2008. This increase in area was due, in part, to the need to provide for essential biological redundancy in northern spotted owl populations and habitat in fire-prone landscapes (Noss

et al.

2006, p. 484; Thomas

et al.

2006, p. 285; Kennedy and Wimberly 2009, p. 565). Please see our response to

Comment (9)

concerning the impact of the 2020 wildfires.

In response to these and similar comments from others asserting that excluding areas from critical habitat would lead to a reduction in wildfire risks, the January Exclusions Rule acknowledged that Federal land managers could conduct active management in areas of designated critical habitat without violating the adverse modification prohibition of section 7 of the Act. The January Exclusions Rule went further, however, and inferred that the exclusion of areas from designated critical habitat would increase the potential for Federal land managers to include more lands in the Harvest Land Base, and allow longer cycles between timber harvests to provide many environmental benefits, including reductions in wildfire risk. It is certainly true that longer cycles between timber harvests,

i.e.,

allowing trees to become older before they are removed, can have environmental benefits for species dependent on mature forests such as the northern spotted owl. However, it is speculative to conclude that Federal land managers would change their approach to allow for longer rotations if lands are excluded from the northern spotted owl critical habitat designation. There also remains scientific uncertainty about the conclusion that harvest of timber always lessens risks for catastrophic wildfire as compared with, for example, a focus on fuel reduction treatments targeted to restore more sustainable ecological processes. While the efficacy of standalone treatments such as thinning is uncertain and site-dependent, there exists widespread agreement that combined effects of thinning plus prescribed burning consistently reduce the potential for severe wildfire across a broad range of forest types and conditions (Prichard

et al.

2021, Fule

et al.

2012, Kalies

et al.

2016, Stephens

et al.

2021).

In response to the USFS comments concerning spotted owl habitat connectivity, providing connectivity while also supporting other uses of forest lands is consistent with the critical habitat designation. For example, we found in our 2016 Biological Opinion on the revised BLM RMPs that the spatial configuration of “reserve” land use allocations identified in the RMPs provide for northern spotted owl connectivity across the landscape. Reserve land-use allocations are areas in which BLM prioritizes management for resources other than commercial timber production, although active management such as harvest may occur in some reserves in order to achieve management objectives. The Harvest Land Base land-use allocation describes areas where BLM prioritizes commercial timber production. The BLM's management of the Late-Successional Reserve for northern spotted owl habitat and other reserves for non-timber objectives, along with the management and scheduling of timber sales within the Harvest Land Base, are expected to provide for northern spotted owl dispersal between physiographic provinces and between and among large blocks of habitat designed to support clusters of reproducing northern spotted owls (FWS 2016, p. 698), while also allowing BLM to meet its timber harvest goals.

Comments From States

Section 4(b)(5)(A)(ii) of the Act requires the Service to give actual notice of any designation of lands that are considered to be critical habitat to the appropriate agency of each State in which the species is believed to occur, and invite each such agency to comment on the proposed regulation. Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency's comments or petition.” We notified the States of Washington, Oregon, and California of the proposed additional exclusions in Oregon. We did not receive comments from any State or State agency on the August 11, 2020, or July 20, 2021, proposed rules, only comments regarding the January Exclusions Rule; see our response to

Comment (Ci).

Comments From Counties

We received comments from Klickitat, Lewis, and Skamania Counties in Washington; from Douglas, Jackson, and Harney Counties in Oregon; and from Siskiyou County in California. Most comments from counties pertained to either economic analysis or exclusions; see Economic Analysis Comments and Exclusions Comments below for County comments and our responses. Other comments from the counties are addressed in the section above titled Comments on the Withdrawal of the January Exclusions Rule and the section below titled Comments on July 20, 2021, Proposed Rule.

Comments From Tribes

We received comments from the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians; the Cow Creek Band of Umpqua Tribe of Indians; and the Coquille Indian Tribe.

Comment (2):

The Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians and the Cow Creek Band of Umpqua Tribe of Indians commented in support of the proposed exclusion of lands recently transferred to them in trust. The Cow Creek Band of Umpqua Tribe of Indians expressed concern, however, that the proposed rule did not consider Tribal management plans and objectives for Indian forest land as a basis for the exclusions. The Coquille Tribe similarly commented in general that the rule should include a statement that recognizes the dominant purpose of the Coquille Forest to generate sustainable revenues sufficient to support the Coquille Tribal government's ability to provide services to Coquille Tribal members, and ensure that the resulting critical habitat designation avoids burdening the Coquille Forest's dominant purpose.

Our response:

No Indian lands were designated in the December 4, 2012, critical habitat rule (77 FR 71876). Since 2012, Federal lands managed by the BLM were transferred in trust to the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians and the Cow Creek Band of Umpqua Tribe of Indians pursuant to the Western Oregon Tribal Fairness Act (Pub. L. 115-103). This revised rule excludes those recently transferred lands from critical habitat designation. We considered Tribal management plans in our analysis of these exclusions as requested by the commenters; see Consideration of Impacts Under Section 4(b)(2) of the Act.

We have not designated critical habitat within the Coquille Forest. Should we consider revisions to the critical habitat designation in the future, the Service will coordinate with the Coquille Tribe to address effects to the Forest and its dominant use as managed by the Tribe.

Public Comments

Public Comments on Critical Habitat Boundaries

Comment (3):

Commenters expressed concern that areas we proposed for exclusion in our August 11, 2020, proposed rule and our July 20, 2021, proposed rule provide important connectivity between the Coast Range, Cascades, and Klamath/Siskiyou Mountains populations of northern

spotted owls, and that exclusion could reduce colonization and gene flow, cause further isolation, and increase the probability of extinction of the owl. Commenters further stated that we should not rely on outdated plans that assume that northern spotted owls can successfully disperse in low-quality habitat, and that the distribution of reserves on National Forests alone will not meet the subspecies' need for well-connected habitat.

Our response:

The BLM updated their RMPs in 2016; we found in our 2016 Biological Opinion on the revised BLM RMPs that the spatial configuration of reserves, the management of those reserves for the retention, promotion, and development of northern spotted owl habitat, and the management and scheduling of timber sales within the Harvest Land Base land use allocation are all expected to provide adequate opportunities for northern spotted owl dispersal between physiographic provinces and between and among large blocks of habitat designed to support clusters of reproducing northern spotted owls (FWS 2016, p. 698). Thus, by excluding areas within the Harvest Land Base, we are not diminishing or altering connectivity functions of the remaining designated critical habitat to any significant degree. Additionally, regarding the reliance on reserves alone to facilitate connectivity, this revised designation retains USFS matrix lands that are essential to the conservation of the subspecies in addition to reserve lands. Please see our response to

Comment (9)

concerning the impact of the 2020 wildfires and

Comment (26b)

concerning the quality of dispersal habitat.

In response to this comment, the January Exclusions Rule concluded that connectivity would remain protected without the critical habitat designation because Federal actions that “may affect” northern spotted owls would still require consultation under section 7 of the Act to evaluate whether the action jeopardizes the continued existence of the subspecies. On further review, we conclude that assumption was overstated as a basis to exclude these lands. It is true that Federal actions that “may affect” northern spotted owls, including actions that impact northern spotted owl habitat even if not designated as “critical,” would still undergo section 7 consultation (whether informal or formal, depending on the effects, see our response to

Comment 7,

below). The critical habitat designation, however, benefits the northern spotted owl as a landscape-scale conservation network that connects large blocks of habitat that are able to support multiple clusters of northern spotted owls. The designation identifies areas on the landscape that may require special management considerations or protection.

The section 7 consultation on effects to critical habitat ensures these considerations occur and evaluates the post-project functionality of the network to provide for connectivity at the subunit, unit, and designation scales. Evaluating habitat at multiple scales in a consultation on critical habitat ensures the landscape continues to support the habitat network locally, regionally, and across the designation.

These considerations are not necessarily involved to the same degree when considering the effects to northern spotted owl habitat that is not designated as critical as part of the jeopardy analysis in a section 7 consultation. A consultation on effects to the species (including effects resulting from changes to the non-designated habitat of the species) as part of the “jeopardy” prong looks primarily at how the project affects individuals, populations, and the species rangewide. Consultation on the effects to the designated critical habitat (the “critical habitat” prong of the consultation) focuses on that habitat network. This reflects Congress's clear articulation of two limits on Federal actions in section 7: A prohibition against jeopardizing the species, and a prohibition against destroying or adversely modifying its designated critical habitat. While we do evaluate the effects of landscape level impacts to habitat as part of the jeopardy analysis, this does not mean that the analysis of impacts to critical habitat are no longer necessary; the two analyses are not necessarily interchangeable.

Additionally, many of the lands that were excluded in the January Exclusions Rule are reserves or matrix lands that provide habitat that we found in our 2012 critical habitat rule were essential to the conservation of the northern spotted owl (77 FR 71876; p. 71895). See our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act. The Harvest Land Base lands that we exclude here in this final rule represent only a small portion (less than 2 percent) of the critical habitat designation and represent only 7 percent of the land base managed by the BLM under the 2016 RMPs, with the remaining lands largely managed as reserves. We evaluated the effects of future harvest on the Harvest Land Base lands in our 2016 biological opinion on the BLM's revised RMPs (BLM 2016a, b) and found that recovery of the northern spotted owl would not be impeded and that the critical habitat units would continue to provide connectivity and sufficient habitat across the landscape (FWS 2016). Therefore, additional section 7 consultation on critical habitat within the Harvest Land Base as currently described in the 2016 RMPs would provide no incremental conservation benefit as the management direction under the RMPs already provides a conservation strategy consistent with recovery of the northern spotted owl and will not appreciably diminish the conservation value of the critical habitat designation.

The January Exclusions Rule, in response to this comment, also stated that “some of the areas used by the northern spotted owl for migration are secondary growth forests” and that “excluding such areas from critical habitat will not change their characteristics as secondary growth forests” and they will continue to be used for “migratory purposes.” On further review we find it is accurate that northern spotted owls may use areas of secondary growth forest; however, their use of these areas is dependent on the age, diversity, and condition of those forests. See also our response to

Comment (26)

below. An increase in the areas available for timber harvest, which was identified as a benefit of excluding the 3.4 million acres (1.4 million hectares) in the January Exclusions Rule, could occur if these lands were excluded from the critical habitat designation and land management agencies were no longer required to consider the special management considerations of critical habitat and subsequently amended their management approach or land management plans to allow for more harvest. The resulting increase in timber harvest could significantly alter the ability of these stands to provide for dispersal. While these changes in management and any resulting projects would not be immediate if these areas were excluded from the designation, over time expanded timber harvest would reduce connectivity of these areas to older, more complex forests that provide nesting, roosting, and foraging habitat for populations of northern spotted owls. Conserving or enhancing connectivity between populations to facilitate dispersal and subsequent colonization of large blocks of habitat that can support clusters of reproducing northern spotted owls was a key feature in the design of the critical habitat network.

Additionally, the January Exclusions Rule assumed that the reduced regulatory burden in the process of Federal planning and implementation of timber management would result in increased harvest. Increased harvest at the scale of exclusions in the January Exclusions Rule would reduce the overall connectivity and suitability of the critical habitat network. That reduction in connectivity under the January Exclusions Rule was, in hindsight, quite significant because of the expansive elimination of critical habitat designated in areas of the northern spotted owl range, with some critical habitat subunits being reduced by up to 90 percent. The much smaller exclusions we finalize here eliminate only portions of critical habitat units that overlap with the Harvest Land Base allocation, which, as we already determined in our 2016 biological opinion, could be harvested without affecting the conservation value, including connectivity, of that designated critical habitat. See also our response to

Comment (9)

concerning the impact of the 2020 wildfires.

Comment (4):

Commenters noted that the lands proposed for exclusion in our August 11, 2020, proposed rule and July 20, 2021 proposed rule, in particular Federal lands, met the definition of critical habitat for the northern spotted owl and were determined to be essential in our 2012 critical habitat designation (77 FR 71876), and so questioned how those lands could now be appropriate for exclusion from designation. Additionally, commenters questioned how the exclusion of these lands will not result in extinction.

Our response:

Areas that are found essential to the conservation of the species may be considered for exclusion from a critical habitat designation under section 4(b)(2) of the Act. The Secretary may exclude an area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless she determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.

We found the areas we designated in 2012 to be essential to the conservation of the northern spotted owl. However, the BLM revised their RMPs in 2016, amending their conservation strategy for the northern spotted owl and related land use allocations (BLM 2016a, 2016b). We found in our 2016 Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in the Harvest Land Base land use allocation, the management direction implemented under the RMPs is consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and would not appreciably diminish the conservation value of, or adversely modify, critical habitat (FWS 2016, p. 702). Because we had this updated information and analysis, we reconsidered whether exclusion of these areas was appropriate. We have determined that the benefits of exclusion of the Harvest Land Base land outweigh the benefits of including these areas, and that exclusion of these lands will not result in the extinction of the northern spotted owl. See our exclusion and extinction analyses for Harvest Land Base lands under Consideration of Impacts Under Section 4(b)(2) of the Act.

The January Exclusions Rule, which excluded all areas managed by the BLM under the O&C Act, including reserves as well as the Harvest Land Base, states that excluding the 3.4 million acres (1.4 million hectares) identified in that rule will not cause the extinction of the northern spotted owl. As discussed in our proposed rule, on reconsideration we find that conclusion is not supported by the science of conservation biology, the current population trend of the northern spotted owl, nor the purpose of the Act. See our analysis in the Withdrawal of the January Exclusions Rule section of this rule for a more detailed discussion.

Comment (5):

A commenter stated that smaller blocks of northern spotted owl critical habitat, such as those areas in the Harvest Land Base proposed for exclusion, are also important for the following reasons: They are migration/dispersal corridors linking larger habitat blocks; they link the Coast Range province with the Cascade Range province; and they provide migration corridors that allow a species to adapt to climate (and habitat) change by relocating to higher quality habitat.

Our response:

See our response to

Comment (3).

Additionally, the BLM manages the Harvest Land Base acres in accordance with the management direction of the BLM RMPs (BLM 2016a, 2016b). In our 2016 Biological Opinion on the BLM RMPs (FWS 2016), we found that, even with the projected timber harvest in the Harvest Land Base, the area would continue to function for the dispersal of northern spotted owls and would provide connectivity between large blocks of habitat designed to support clusters of reproducing northern spotted owls.

Comment (6):

Commenters stated we failed to explain why the Service no longer believes that Oregon and California Railroad Revested Lands (O&C lands) make a significant contribution toward meeting the conservation objectives for the northern spotted owl and that we cannot attain recovery without them. Other commenters expressed concern about excluding lands in southwest Oregon where the majority of O&C lands occur.

Our response:

The O&C lands were revested to the Federal Government under the Chamberlin-Ferris Act of 1916 (39 Stat. 218). The Oregon and California Revested Lands Sustained Yield Management Act of 1937, Public Law 75-405 (O&C Act) addresses the management of O&C lands. The O&C Act identifies the primary use of revested timberlands for permanent forest production. The Harvest Land Base lands that we exclude in this revision are mostly on O&C lands managed by the BLM under the 2016 RMPs. However, portions of O&C lands, outside of the Harvest Land Base, that are managed by either the BLM or the USFS that provide essential habitat and are located in a spatial configuration that provides connectivity across the designation are still important to northern spotted owl conservation and are retained as critical habitat in this revision. As we noted above, we found in our 2016 Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in the Harvest Land Base land use allocation, the management direction implemented under the RMPs is consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and would not appreciably diminish the conservation value of, or adversely modify, critical habitat (FWS 2016, p. 702). Thus, for the reasons explained in Consideration of Impacts Under Section 4(b)(2) of the Act, we have excluded the Harvest Land Base from the critical habitat designation. This conclusion is based in part on the expectation that these lands and the remaining designated critical habitat in other land use allocations will be managed consistent with the BLM's 2016 RMPs.

The January Exclusions Rule, because it excluded all O&C lands, provided a different response to this comment: “The O&C Act provides, and the courts have confirmed, that the primary use of these revested timberlands is for permanent forest production on a sustained yield basis. The Supreme Court has additionally determined that the ESA does not take precedence over an agency's mandatory (non-discretionary) statutory mission. Based on these court rulings, we have determined that exclusion of the O&C

lands as critical habitat is proper in this case.” 86 FR 4820, January 15, 2021, p. 4822.

Though not stated explicitly, this response implied (and has been interpreted by some commenters to mean) that the O&C Act removes any discretion the BLM may have in how to manage the O&C lands on a sustained-yield basis such that the Endangered Species Act does not apply to the BLM's management of those lands at all. We take this opportunity to correct that implication. Courts reviewing the BLM's management of O&C lands have found that the BLM retains discretion as to how to achieve sustained yield timber production.

See AFRC

v.

Hammond,

422 F.Supp. 3d 184 at 190-91 (D.D.C. 2019);

see also Swanson Grp. Mfg. LLC

v.

Salazar,

951 F. Supp. 2d 75, 82 (D.D.C. 2013),

vacated on other grounds sub nom. Swanson Grp. Mfg. LLC

v.

Jewell,

790 F.3d 235 (D.C. Cir. 2015);

Portland Audubon Soc.

v.

Babbitt,

998 F.2d 705, 709 (9th Cir. 1993).

None of these courts—including

AFRC

v.

Hammond,

that found legal infirmities in the BLM's adoption of its 2016 RMPs—has held that the O&C Act precludes the BLM from considering opportunities to conserve threatened and endangered species when authorizing actions on O&C lands. Indeed, that district court decision narrowly ruled only that BLM lacks the authority to designate

reserves

on O&C lands because it violates the mandate to manage those lands for sustained yield timber harvest. It expressly stated that BLM had discretion in the management of those lands, and certainly did not hold that BLM lacks such discretion altogether. To the extent the January Exclusions Rule relied on the assumption to the contrary, it was incorrect. In short, “reserves” are not the same as designated critical habitat.

In any case, as we discuss further in Consideration of Impacts Under Section 4(b)(2) of the Act, we conclude that the exclusion of some O&C lands from the designation as critical habitat is appropriate, but the exclusion of all O&C lands is not.

Public Comments Regarding the Northwest Forest Plan (NWFP) or the BLM Revised Resource Management Plans (RMPs)

Comment (7):

Commenters expressed concern that exclusions would allow BLM to harvest timber without project-specific consultation under section 7 of the Endangered Species Act. Commenters also expressed concern that the Service no longer considers habitat fitness when assessing project effects and incidental take in section 7 consultations. Commenters further assumed that section 7 consultations would be required only if surveys confirm northern spotted owl presence, which commenters considered problematic because they conclude we cannot reliably detect northern spotted owls when barred owls are present. Thus, critical habitat provides a benefit through section 7 review likely resulting in the retention of the physical and biological features needed by northern spotted owls, which cannot be addressed otherwise through section 7 consultations.

Our response:

We completed a programmatic section 7 consultation on the BLM RMPs in 2016, under the assumption that BLM will implement actions consistent with the RMPs' specific management direction over an analytical timeframe of 50 years (FWS 2016, p. 2). This approach allowed us to evaluate at a broad scale BLM's plans to ensure that the management direction and objectives are consistent with the conservation of listed species. We found that the BLM's plans, at the programmatic scale, were not likely to jeopardize the continued existence of the northern spotted owl, or destroy or adversely modify the owl's designated critical habitat (FWS 2016).

In our July 20, 2021, proposed revision to the critical habitat designation, we explained that Federal actions in the Harvest Land Base that may affect designated critical habitat require section 7 consultation at the project-level scale. As discussed further below in Consideration of Impacts Under Section 4(b)(2) of the Act, based on our experience in project consultations since the BLM 2016 RMPs were implemented, addressing effects to designated critical habitat in the Harvest Land Base provides no incremental conservation benefit over the conservation already provided for in the BLM RMPs (2016a, 2016b) and project-level consultations that still occur regardless of the presence of critical habitat. Thus, continuing to require BLM to include an analysis of effects to designated critical habitat in the Harvest Land Base within otherwise triggered, project-level consultations is not contributing to the conservation and recovery of the subspecies, nor is it an efficient use of limited consultation and administrative resources.

With the exclusions finalized here, actions within the Harvest Land Base that affect northern spotted owl habitat (even if that habitat is no longer designated as critical) will still be subject to section 7 consultation to ensure that actions are not likely to jeopardize the continued existence of the subspecies, but we are removing the regulatory burden to consult under section 7 to address designated critical habitat by excluding the Harvest Land Base. We have consulted on the program of timber harvest planned under the RMPs, which will occur primarily in the Harvest Land Base. We already determined in that consultation (FWS 2016) that harvest in the Harvest Land Base will not appreciably diminish the value of the critical habitat for the conservation of the northern spotted owl and that BLM's management approach provided under the RMPs will sustain critical habitat over time. Northern spotted owls are expected to continue to be able to disperse across the landscape due to the habitat conditions and protections in the Late-Successional Reserves and Riparian Reserves, the stand retention incorporated into the management direction for timber harvest in the Harvest Land Base, and because any detrimental effects to northern spotted owl dispersal capability will be spread over 50 years during which time ingrowth in the reserves will also be occurring. The BLM's revised 2016 RMPs included approximately 177,000 additional acres (71, 630 hectares) of reserved lands compared to lands originally reserved under the NWFP in 1994; these acres contribute additional dispersal capability across the management area. These factors represent a significant improvement in the capability of the landscape to provide for spotted owl movement and dispersal. Given these provisions and assurances, in conjunction with all of the other considerations discussed in Consideration of Impacts Under Section 4(b)(2) of the Act, we conclude that the benefits of including these Harvest Land Base areas as designated critical habitat are relatively minor when compared to the benefits of excluding them.

The commenter is incorrect in stating that we do not consider habitat fitness in our evaluations of effects in section 7 consultations for the subspecies in the absence of affected designated critical habitat. We consult on Federal actions that have effects to northern spotted owl habitat even if it is not designated as critical habitat, regardless of whether the subspecies currently occupies that habitat, and consider this information in our analysis of whether the action is likely to jeopardize the continued existence of the subspecies. The commenter may be confusing the question of “occupancy” for consideration of whether “incidental take” of the species will occur. Even if we conclude that a Federal action that

adversely affects habitat does not result in a “jeopardy” finding for the species, we must still assess whether the Federal action will result in the incidental take of the species. Because “take” of the species is dependent in part on the Federal action proximately causing actual injury to the species, information about the presence or absence of the animal during the proposed activity (often referred to in the terminology of “occupied” versus “unoccupied”) is particularly relevant. In order to evaluate whether a Federal action affecting northern spotted owl habitat will incidentally “take” that subspecies, we consider a number of factors, including habitat effects and survey results for the presence of the owl. As a result, in some cases we may find that adverse effects to northern spotted owl habitat (not designated as critical habitat) will occur, but we are unable to conclude with reasonable certainty that the habitat effects will result in incidental “take” of the owl. See

Arizona Cattlegrower's Assn.

v.

U.S. Fish and Wildlife Serv.,

273 F.3d 1229 (9th Cir. 2001).

The commenter is correct that detectability of northern spotted owls is reduced when barred owls are present, which led us to endorse an updated protocol for surveying for northern spotted owls to take this into account (FWS 2012), a protocol that has been upheld on review by the courts (

Cascadia Wildlands

v.

Thrailkill,

49 F. Supp. 3d 774, 779-80 (D. Or. 2014),

aff'd,

806 F.3d 1234 (9th Cir. 2015)). Our jeopardy analysis considers the effects to habitat regardless of occupancy. With the exclusions finalized today, Federal agencies will no longer have the obligation to consult on the effect of their actions to (formerly) designated critical habitat in the areas excluded. They will still be required to consult with us if their discretionary actions result in effects to northern spotted owl habitat that remains, and they will be precluded from jeopardizing the subspecies as a result of that habitat modification. We will also still continue to evaluate whether the Federal actions affecting habitat, even if they do not jeopardize the subspecies, result in the incidental take of northern spotted owls, and if so, will identify reasonable and prudent measures and terms and conditions to minimize that incidental take.

Comment (8):

Commenters expressed concern that wildlife provisions in the BLM RMPs do not apply in the Harvest Land Base and that the exclusion of critical habitat would remove overlapping protections.

Our response:

According to the 2016 BLM RMPs for western Oregon, the management objectives and management direction described for resource programs (including wildlife) apply across all land-use allocations, unless otherwise noted (BLM 2016a, p. 47, BLM 2016b, p. 47). Regarding overlapping protections, see our response to

Comment (7)

for our rationale for excluding these lands from critical habitat for the northern spotted owl.

Comment (9):

Commenters stated that we should consider the impact of recent wildfires that have occurred in Washington, Oregon, and California on the northern spotted owl and its habitat since the 2016 BLM RMPs were finalized, and that recent events make the modeling and analyses in the RMPs ineffective and obsolete. Commenters noted that the number of acres burned has exceeded the number of acres affected by wildfire that were modeled for the first decade in the BLM RMPs. Commenters further stated that excluding lands from critical habitat will lead to more regeneration logging, which will lead to increased fuels and uncharacteristic wildfire and that additional critical habitat should be designated in order to protect forests from regeneration harvest and further the objectives of the final recovery plan to provide habitat redundancy and avoid fire hazard.

Our response:

In September 2020, several major wildfires burned across portions of the range of the northern spotted owl in Washington, Oregon, and California affecting habitat conditions. The fires impacted multiple ownerships, including Federal lands managed by the BLM and USFS, State lands, and private lands. Although the wildfires that occurred during the fall of 2020 had significant impacts to some critical habitat units at the local level, the longer term impacts to spotted owl conservation will vary depending on fire severity (see our discussion in

Comment (27b)

regarding the use of previously burned habitat). Although some subunits have experienced a partial and/or temporary reduction in connectivity in places, overall the critical habitat units and the rangewide network designated in 2012 will continue to provide demographic support and connectivity to the northern spotted owl as intended in the 2012 critical habitat designation.

The 2012 critical habitat rule was an increase in designated area compared to previous designations, in part to provide for biological redundancy in northern spotted owl populations and habitat by maintaining sufficient habitat on a landscape level in areas prone to frequent natural disturbances, such as the drier, fire-prone regions of its range (Noss

et al.

2006, p. 484; Thomas

et al.

2006, p. 285; Kennedy and Wimberly 2009, p. 565). The historical range of the northern spotted owl within Oregon, Washington, and California is about 57 million acres (23 million hectares), including both Federal and non-Federal (33 million) acres (USDA-USFS and DOI-BLM 1993, p. 23). The Northwest Forest Plan area, which was explicitly identified in 1994 to encompass the range of the northern spotted owl on Federal lands, is approximately 25 million acres (10 million hectares) in size and included 19 National Forests, 7 BLM Districts, and other Federal lands. The 2012 designation of 9.6 million acres (3.9 million hectares) of critical habitat (reduced in this revision to approximately 9.4 million acres (3.8 million hectares)) is a parsimonious and scientifically appropriate identification of only those lands within these 25 million acres (10 million hectares) that are critical to the conservation and recovery of the spotted owl.

The 2012 designation is based upon almost three decades of scientific research on the spotted owl. Estimating actual historical forested habitat within this range is difficult, but during our evaluation of whether to list the northern spotted owl, we concluded the best available information was that some 17.5 million acres (7 million hectares) of “suitable” habitat were available to the owl historically, before the advent of significant timber harvesting of old growth forests (55 FR 26114, June 26, 1990; p. 26151). When we initially designated critical habitat for the owl in 1992, we estimated that only 7.2 million acres (2.9 million hectares) of this “suitable” habitat (in this context meaning the types of older, more mature stands preferred by the northern spotted owl for nesting, roosting, and foraging when available in an area) remained on Federal lands, and most of it (60 percent) was in land allocations available for harvest (57 FR 1796, January 15, 1992; p. 1799). We found in the 1992 critical habitat designation that the best available information was that it could all be removed within 25-30 years (57 FR 1796, January 15, 1992; p. 1800). The critical habitat revision in 2012 was built upon this scientific work, while also incorporating the best available updated scientific information and taking into account more recent concerns such as the barred owl invasion, climate change, and the

increasing impacts associated with severe wildfire.

In the development of habitat conservation networks generally, the intent of spatial redundancy is to increase the likelihood that the network and populations can sustain habitat losses by inclusion of multiple populations unlikely to be affected by a single disturbance event. This redundancy is essential to the conservation of the northern spotted owl because disturbance events such as fire can potentially remove large areas of habitat with negative consequences for northern spotted owls. The evaluation process used by the Service incorporates the recommendations of the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) by addressing spatial redundancy at two scales: By (1) making critical habitat subunits large enough to support multiple groups of owl sites, and (2) distributing multiple critical habitat subunits within a single geographic region. This was particularly the case in the fire-prone Klamath and Eastern Cascades portions of the range.

In summary, we acknowledge that the recent wildfires had negative impacts on some local northern spotted owl populations and critical habitat subunits and that future fires are likely to have additional negative impacts. However, the additional exclusions we make here represent a relatively small area compared with the designated areas that remain, and they do not appreciably diminish the conservation value of the designation to the northern spotted owl. These areas that remain in the designation will be managed in the long term for northern spotted owl conservation under the Northwest Forest Plan (NWFP) (USFS and BLM 1994a, USFS and BLM 1994b) and BLM RMPs (BLM 2016a, BLM 2016b) and are expected to provide an adequate amount of habitat at the listed-entity scale to withstand periodic natural disturbances such as wildfire.

Regarding the comment that exclusions will lead to regeneration harvest and subsequent increased fuel load and uncharacteristic wildfire, we assume the Harvest Land Base will continue to be managed consistent with the management direction defined in the 2016 RMPs. As previously stated, we found in our 2016 Biological Opinion on the BLM RMPs (FWS 2016, p. 700) that, even with the projected timber harvest in the Harvest Land Base land use allocation, the management direction implemented under the RMPs is consistent with the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and would not appreciably diminish the conservation value of, nor adversely modify, critical habitat (FWS 2016, p. 702).

The January Exclusions Rule considered that one benefit of exclusion could be a lessening of the regulatory burdens for discretionary Federal decisions when considering management practices to protect forested lands from catastrophic wildfire. See our responses to

Comments (1)

and

(27a)

regarding section 7 consultation and the recommendations in our 2012 critical habitat rule for fuels management and dry forest restoration projects.

Comment (10):

A commenter expressed concern that habitat for the northern spotted owl will not grow as projected in the Recovery Plan and the BLM RMPs due to climate change and the combined effects of increased fire, insects, disease, storms, and carbon enrichment. Commenters stated that the exclusions will lead to more logging and greenhouse gas emissions and that mitigating the risks of climate change requires greater conservation of northern spotted owl habitat, particularly older forests that store significant amounts of carbon; therefore, these additional exclusions should not be made.

Our response:

As mentioned earlier, the 2012 spotted owl critical habitat designation was enlarged from previous designations, in part to provide increased redundancy in the face of climate change. We analyzed climate change and its potential impact on spotted owl recovery in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011). We noted the combined effects of climate change and past management practices are altering forest ecosystem processes and dynamics (including patterns of wildfires, insect outbreaks, and disease) to a degree greater than anticipated in the NWFP. The Recovery Plan encourages land managers to consider this uncertainty and how best to integrate knowledge of management-induced landscape pattern and disturbance regime changes with climate change when making spotted owl management decisions. The Recovery Plan further recommended an adaptive management approach to reduce scientific uncertainties. Recovery Action 5 in the Recovery Plan for the Northern Spotted Owl states: “Consistent with [Secretarial] Order 3226, as amended, the Service will consider, analyze and incorporate as appropriate potential climate change impacts in long-range planning, setting priorities for scientific research and investigations, and/or when making major decisions affecting the spotted owl” (FWS 2011, p. III-11). The Recovery Plan acknowledged the uncertainty associated with estimating rates of habitat recruitment (FWS 2011, p. B-8).

The BLM RMPs state that if the need for adaptive management to address changes in the climate would so alter the implementation of actions consistent with the RMPs that the environmental consequences would be substantially different than those anticipated in the Proposed RMP/Final Environmental Impact Statement, then the BLM would engage in additional planning steps and procedures under the National Environmental Policy Act (NEPA) (BLM 2016a, p. 111). Additionally, the effects of climate change will be considered in the development of forest management actions and analyzed in future NEPA analyses and section 7 consultations at the project level.

The BLM may also apply adaptive management by taking additional planning steps and NEPA procedures based on information found through the monitoring questions (Appendix B) (BLM 2016a, p. 111; BLM 2016b, p. 133). The late-successional and old-growth ecosystems effectiveness monitoring program characterizes the status and trend of older forests to answer the basic question: Is implementation of the BLM RMPs maintaining and restoring late-successional and old-growth forest ecosystems to desired conditions on Federal lands in the planning area? (BLM 2016a, p. 116; BLM 2016, p. 138). Effectiveness monitoring reports will also include analysis of whether the BLM is achieving desired conditions based on effectiveness monitoring questions and, where possible, inform adaptive management (BLM 2016a, p. 111; BLM 2016b, p. 139). As discussed further in our response to

Comment (33),

we established benchmarks in our biological opinion on the BLM's RMPs for evaluating the effectiveness of their program.

In sum, BLM's RMPs are consistent with the Recovery Plan recommendations for addressing uncertainty, and provide the tools for adaptive management if needed to address effects from climate change. The Harvest Land Base exclusions finalized here will not impair that adaptability.

Comment (11):

Commenters asserted that our statement in the proposed rule that the proposed exclusion provides “no incremental conservation benefit over what is already provided for in the RMPs” conflicts with the Service's prior finding that the owl “fared very poorly”

on reserves within the NWFP compared to designated critical habitat.

Our response:

The statement concerning “reserves faring very poorly” in the 2012 critical habitat rule was in reference to a modeling scenario where we tested population performance of a potential critical habitat designation based on only NWFP reserves. Our 2012 designation was not based on this modeling scenario. The critical habitat designation retains northern spotted owl habitat in reserve land-use allocations, and retains northern spotted owl habitat in the matrix and some non-Federal public lands that we found essential to the conservation of the subspecies. The designation of these lands was supported by our statement in the 2012 critical habitat rule: “In some areas, for example the O&C lands, our modeling results indicated that those Federal lands make a significant contribution toward meeting the conservation objectives for the northern spotted owl in that region, and that we cannot attain recovery without them. Likewise, in addition to our modeling results, peer review of both the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) as well as our proposed rule to revise critical habitat, suggested that retention of high-quality habitat in the matrix is essential for the conservation of the subspecies. Population performance based on reserves under the NWFP, for example, fared very poorly compared to this final designation of critical habitat. As described in the section Changes from the Proposed Rule, we tested possible habitat networks without many of these matrix lands, which resulted in a significant increase in the risk of extinction for the northern spotted owl.” (77 FR 71876, December 4, 2012; p. 72007).

We are excluding the portion of O&C lands (approximately 172,712 acres (69,894 hectares)) allocated by the BLM to the Harvest Land Base. The remaining O&C lands under USFS and BLM management (1,209,229 acres (489,357 hectares)) are retained within the critical habitat designation in this final rule. We have determined that the benefits of exclusion of the Harvest Land Base land outweigh the benefits of including these areas, and that exclusion of these lands will not result in the extinction of the northern spotted owl. See our discussion of the benefits of exclusion versus inclusion of Harvest Land Base lands in Consideration of Impacts Under Section 4(b)(2) of the Act.

Comment (12):

Commenters expressed concern that the BLM RMPs that we rely on for our basis for exclusions could be vacated due to current litigation and that the protection in place under the 2016 RMPs would no longer apply.

Our response:

A district judge in the U.S. District Court for the District of Columbia found that the BLM RMPs violate the O&C Act because BLM excluded portions of O&C timberland from sustained yield harvest (

i.e.,

the BLM allocated some timberlands to reserves instead of the Harvest Land Base);

see, American Forest Resource Council et al.

v.

Hammond,

422 F.Supp.3d 184 (D.D.C. 2019). Although a decision as to remedy has not yet been issued, depending on the final outcome of that litigation, the Harvest Land Base might change through court order or land use planning by BLM. We have excluded lands based on the BLM RMPs as they are, not as they may be modified in the future. See also our response to

Comment 25(b),

below, and our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.

Public Comments on Competition From Barred Owls

Comment (13):

Commenters expressed the importance of preserving mature and old-growth forest for spotted owls in light of competition with barred owls and stated that the Service has not fully explored how much more habitat needs to be conserved to mitigate for northern spotted owl habitat occupied by barred owls. Commenters stated that reducing critical habitat will increase the probability of competitive exclusion and that we should not reduce critical habitat without a barred owl management plan in place.

Our response:

In addition to the effects of historical and ongoing habitat loss, the northern spotted owl faces a significant and complex threat in the form of competition from the congeneric (referring to a member of the same genus) barred owl (FWS 2011, pp. I-7 to I-8). Franklin

et al.

(2021) found that spotted owl populations declined 6 to 9 percent annually on 6 demographic study areas and 2 to 5 percent annually on 5 study areas. Applying the annual rates of decline, populations dropped to or below 35 percent of the historical population on 7 of the study areas, and to or below 50 percent on the remaining 3 areas over a 22-year period (1995-2017). The presence of barred owls on spotted owl territories was the primary factor negatively affecting apparent survival, recruitment, and thus the population change, and was a contributing factor in our recent determination that the subspecies warranted reclassification to endangered status.

An analysis of occupancy based on northern spotted owl and barred owl detections supported the conclusion that barred owl presence has a negative effect on northern spotted owls, increasing territorial extinction and decreasing territorial colonization of spotted owls. While barred owl occupancy was the dominant negative effect on spotted owl territory occupancy and population trend, other factors such as habitat condition had a weaker, but positive, effect on occupancy and trend. These other factors such as habitat were insufficient to reverse the negative trend, but suggest the importance of maintaining spotted owl habitat on the landscape, even if it is unoccupied, in the face of competitive exclusion by barred owls, as noted by Dugger

et al.

2011. The authors in Franklin

et al.

(2021) noted that maintenance of habitat across the landscape would (1) provide areas available for recolonization by northern spotted owls should management actions allow for reduction of barred owl populations and (2) facilitate connectivity by dispersing northern spotted owls among occupied areas, citing to Sovern

et al.

2014. The authors stated, “Our analyses indicated that northern spotted owl populations potentially face extirpation if the negative effects of barred owls are not ameliorated while maintaining northern spotted owl habitat across their range.” (Franklin

et al.,

2021, p. 19)

The Service conducted experimental removal of barred owls to test its efficacy in improving spotted owl demographic performance on four study areas spread across the northern spotted owl range in Washington, Oregon, and northern California. Peer-reviewed analysis of the experiment (Wiens

et al.

2021) showed a strong, positive effect of barred owl removal on survival of spotted owls in the treated areas and a weaker but positive effect on spotted owl dispersal and recruitment. The estimated mean annual rate of population change for spotted owls stabilized in areas with removals (0.2 percent decline per year), but continued to decline sharply in areas without removals (12.1 percent decline per year). Barred owl removal had a strong positive effect on spotted owl survival, which was the primary factor in stabilizing the populations. Barred owl removal also demonstrated a weaker, though still positive, effect on recruitment of new spotted owls to the territorial populations. This weaker

response is probably due to the depressed reproduction in recent years and the subsequent limited availability of new recruits. The experiment demonstrated that barred owl removal can achieve rapid results in improving the persistence of northern spotted owls, though effects on reproduction and long-term population trend will take a longer period of management effort.

These two analyses (Wiens

et al.

2021, and Franklin

et al.

2021) indicate that, while barred owl presence was the primary and strongest driver of spotted owl population trend leading to the rapidly decreasing spotted owl populations, habitat availability and quality were important components of managing for the survival and recovery of spotted owls in the future. The Service is in the process of developing a barred owl management strategy, using the information from both of these studies.

Similar to our response above to the comment suggesting the need for increased habitat redundancy in the face of catastrophic wildfire, we find that the critical habitat designation, which includes more area than what was previously designated in 1992 and 2008, is consistent with the Revised Recovery Plan for the Northern Spotted Owl (2011) and provides for the conservation of northern spotted owls as they face growing competition from barred owls. The exclusions we finalize here are not of a scale to appreciably affect that approach. See also our discussion of our analysis in the biological opinion on BLMs RMPs and their approach to barred owl management in our responses to

Comments (15, 18, and 33).

Other Public Comments

Comment (14):

Commenters asked why regulatory oversight of critical habitat is no longer necessary in light of the Service's previous position that old-growth reserves of the Northwest Forest Plan “are plan-level designations with less assurance of long-term persistence than areas designated by Congress. Designation of Late-Successional Reserve) as critical habitat complements and supports the Northwest Forest Plan and helps to ensure persistence of this management directive over time” as well as the Service's prior statements that critical habitat has significant additional value to listed species separate from any value provided by land management plans. Commenters further stated that our previous position is in contrast to our statement in the proposed rule that these exclusions are to “clarify the primary role of these lands in relation to northern spotted owl conservation,” and “eliminat[e] any unnecessary regulatory oversight.”

Our response:

In this final rule, we are not excluding lands within reserve land use allocations from the critical habitat designation. Our exclusion of the Harvest Land Base lands managed by BLM is based on new information since the December 4, 2012, critical habitat designation (77 FR 71876),

i.e.,

the 2016 BLM RMPs and our evaluation of those RMPs through the section 7 consultation process. As described earlier, the lands we exclude in this final rule were already reviewed for their value to long-term spotted owl conservation in the 2016 Biological Opinion on the BLM RMPs, and the RMPs provide a robust long-term conservation strategy that is consistent with the goals of the 2011 Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) and the 2012 critical habitat designation.

The January Exclusions Rule, in justifying the exclusion of 3.4 million acres (1.4 million hectares), stated that even on excluded lands, all discretionary Federal actions and decisions on areas that are occupied by the subspecies will be required to undergo section 7 consultation if such action or decision “may affect” the northern spotted owl and that such consultation will ensure that the continued existence of the northern spotted owl is not jeopardized. See our further review of these statements in our response to

Comment (3)

and our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.

Comment (15):

Commenters stated that when the critical habitat designation was originally established, it was understood that much of the old forest reserves would require considerable time to recover old-growth characteristics and support northern spotted owl reproduction, having been subject to logging prior to 1990 and that critical habitat should not be reduced until the reserve system is fully restored. The commenters asserted that much of the occupied habitat in the Harvest Land Base would need to be left unlogged during the intervening time, to assure an ecologically sustainable continuity of old-growth forest, with no significant net loss.

Our response:

In our 2016 Biological Opinion on the BLM RMPs, we concluded that there will be a net increase in habitat for northern spotted owls during the life of the RMPs due to forest ingrowth outpacing harvest, and the RMPs containing more reserve acres and habitat than the NWFP (FWS 2016, p. 5). During the first 5 to 8 years of the RMPs, the BLM will implement measures to avoid take of northern spotted owls until implementation of a barred owl management program has begun. In addition, subsequent effects to northern spotted owls would be meted out over time in the Harvest Land Base and minimized in other land use allocations. These measures in the RMPs will minimize near-term negative effects to occupied northern spotted owl habitat in the Harvest Land Base as habitat continues to further develop late-successional characteristics in the reserve land use allocations.

Comment (16):

Commenters stated that our proposal to exclude the Harvest Land Base lands ignores the northern spotted owl Recovery Plan recommendation to protect older, complex forests on Federal lands west of the crest of the Cascades range.

Our response:

We relied on the recovery criteria set forth in the Revised Recovery Plan for the Northern Spotted Owl (FWS 2011) to determine what is essential to the conservation of the subspecies and identified a critical habitat designation that ensures sufficient habitat to support stable, healthy populations across the range and within each of the 11 recovery units.

The Revised Recovery Plan for the Northern Spotted Owl relies on the NWFP's Late-Successional Reserve network as the foundation for northern spotted owl recovery on Federal lands (FWS 2011, p. III-41). The revised plan recommended “continued application of the reserve network of the NWFP until the 2008 designated spotted owl critical habitat is revised and/or the land management agencies amend their land management plans taking into account the guidance in this Revised Recovery Plan” (FWS 2011, p. II-3). BLM's 2016 revision of its RMPs fully considered the 2011 Recovery Plan recommendation.

The BLM RMPs provide protection to older, complex forests through the system of reserves. Reserve land use allocations (Late-Successional Reserve, Congressionally Reserved Lands and National Conservation Lands, District-Designated Reserves, Riparian Reserve) comprise 74.6 percent (1,847,830 acres (747,790 hectares)) of the acres of BLM land within land use allocations (FWS 2016, p. 9). These lands are managed for various purposes, including preserving wilderness areas, natural areas, and structurally complex forest; recreation management; maintaining facilities and infrastructure; some timber harvest and fuels management; and conserving lands

along streams and waterways. Of these lands, 51 percent (948,466 acres (383,830 hectares)) are designated as Late-Successional Reserve, 64 percent of which (603,090 acres (244,061 hectares)) are located within the critical habitat designation for the northern spotted owl (FWS 2016, p. 9). The management objectives on Late-Successional Reserve are designed to promote older, structurally complex forest and to promote or maintain habitat for the northern spotted owl and marbled murrelet (

Brachyramphus marmoratus

). In this final rule, we are not excluding lands within reserve land use allocations from the critical habitat designation.

The January Exclusions Rule stated that “the correct analysis for purposes of section 4(b)(2) is whether the Secretary concludes that the specific exclusion of these areas of critical habitat will result in the extinction of the species.” We agree with this statement; however, see our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.

Comment (17):

Commenters expressed concern that excluding critical habitat will impede recovery of the northern spotted owl and that we should not exclude areas that contain sites with a history of northern spotted owl reproduction.

Our response:

In our 2016 Biological Opinion on the 2016 Revised BLM RMPs, we found that the conservation needs of the northern spotted owl will continue to be met because the BLM's plan is consistent with the guidance of the northern spotted owl Recovery Plan, at the landscape scale over 50 years, as follows:

• The BLM RMPs will conform to the northern spotted owl Recovery Plan, including the location and function of large blocks of habitat for reproducing spotted owls and the ability of the landscape to support spotted owl movement between those blocks.

• The BLM RMPs will include approximately 177,000 more acres (71,629 hectares) of Late-Successional Reserve and Riparian Reserves than in the NWFP, which will be managed for the retention and development of large trees and complex forests across the RMP landscape.

• The BLM RMPs will improve the amount, quality, and distribution of nesting habitat on BLM lands over the first 50 years modeled under the RMPs through management of these increased reserves.

• The BLM RMPs will facilitate and improve northern spotted owl dispersal capability across the landscape through the management of the increased reserves.

Given the management, spatial configuration, and projected improvement of habitat in the reserves, we find that excluding the Harvest Land Base lands will not preclude recovery of the northern spotted owl if the 2016 RMPs are implemented as described. In addition, the Indian lands excluded herein represent only 0.21 percent of the overall designation; we have found that we can achieve the conservation of the northern spotted owl by limiting the designation to other lands.

The January Exclusions Rule determined that the exclusion of 3.4 million acres (1.4 million hectares) from the critical habitat designation outweighed the benefits of inclusion, and that, based upon the best scientific and commercial data available, it did not conclude that exclusion of those areas will result in extinction of the subspecies. See our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.

Comment (18):

Commenters expressed concern that the downward trend in northern spotted owl populations has continued since the 2016 BLM RMPs were finalized, and that we should evaluate the 2020 meta-analysis (demographic analyses that are performed every 5 years under the NWFP) prior to making changes in the critical habitat designation. Commenters further expressed concern that we should be conserving more habitat in light of the Service's recent finding that the northern spotted owl warrants reclassification to endangered status.

Our response:

The most recent meta-analysis, Franklin

et al.

(2021), found that the northern spotted owl continues to suffer a significant population decline across its range, due primarily in recent years to increasing competition from the invasive and aggressive barred owl. Unless barred owls are proactively managed while also maintaining northern spotted owl habitat across the range, northern spotted owls are likely to become extirpated across portions of their range (Franklin

et al.

2021, pp. 18-19).

We find the BLM RMPs provide an approach that minimizes negative impacts to spotted owls and offsets these impacts with proactive positive actions providing for the long-term survival and recovery of the northern spotted owl. When considered in its entirety, implementation of the BLM RMPs will have both negative and positive effects on the northern spotted owl. Negative impacts will primarily be due to resource utilization such as timber harvest on less than one-quarter of the BLM land base, and other resource programs. Positive effects of the plan will accrue due to the following: An increase in the total area of protected forest reserves on BLM lands (approximately 80 percent of BLM ownership); BLM's management of forest habitat to increase the rate of development of late-successional conditions; and BLM's support for, and cooperation in, the barred owl removal experiment and a potential barred owl management program (see our response to

Comment (13)

regarding the completion of the barred owl removal experiment and the development of a barred owl management program). When aggregating these negative and positive impacts with the environmental baseline, it is our conclusion that the impact of the BLM RMPs will be a net conservation gain for the northern spotted owl during the next 50 years under the plans.

Over the 50-year life of the BLM RMPs (BLM 2016a, BLM 2016b), there will also be a significant net gain over current levels in spotted owl habitat largely within reserves that will be managed to maintain and produce high-quality spotted owl habitat of the kind preferred by owls for nesting, roosting, and foraging when available in an area. This increase will provide large blocks of habitat of Federal land capable of supporting more than 25 spotted owl pairs. Spotted owl dispersal through these areas also will continue to be facilitated and is expected to improve over time under BLM's management.

Although impacts to spotted owl habitat in the Harvest Land Base were anticipated, wherever possible those impacts will be spread out over time to minimize site abandonment as a barred owl management strategy is implemented. Given this, and the landscape of reserves providing for blocks of habitat and northern spotted owl movement consistent with the recovery needs of the spotted owl, we concluded the BLM RMPs will not appreciably diminish the ability of the BLM lands to provide for a well-distributed population of owls.

Because of the expected retention and improvement of northern spotted owl populations on BLM lands, the Service concluded that implementation of the BLM RMPs would not represent an appreciable reduction in the likelihood of survival and recovery of the northern spotted owl in the wild due to

reductions in reproduction, numbers, or distribution (FWS 2016, p. 624). BLM's commitment to participate in and support a barred owl management strategy, combined with the RMPs' allocation of reserves, is projected to result in a significant improvement in the northern spotted owl population's trend, and in the reproduction, numbers, and distribution over projected baseline conditions with no barred owl management and no timber harvest.

Comment (19):

Commenters stated that the BLM and Service cannot avoid their duties under the ESA simply because the area in question involves O&C lands and that section 4(b)(2) exclusions should not be used as a tool to circumvent section 7 consultation recommendations.

Our response:

Our rationale for excluding the Harvest Land Base is not to circumvent section 7 consultation, nor because the area in question involves O&C lands. Rather, we have concluded based on our programmatic review in our Biological Opinion on the BLM 2016 RMPs, and our experience in project consultations since the BLM 2016 RMPs were implemented, that addressing effects to designated critical habitat in the Harvest Land Base provides no incremental conservation benefit over the conservation already provided for in the BLM RMPs (2016a, 2016b) and project-level consultations that still occur regardless of the presence of critical habitat. Thus, continuing to designate critical habitat in order to require BLM to include effects to critical habitat designated in the Harvest Land Base within otherwise triggered, project-level consultations is not contributing to the conservation and recovery of the subspecies, nor is it an efficient use of limited consultation and administrative resources.

The January Exclusions Rule stated because there will continue to be section 7 consultations for discretionary actions in areas where the spotted owl occurs, we have concluded that the additional regulatory requirement related to review for adverse modification is outweighed by other relevant factors. See our response to

Comment (3)

concerning section 7 consultations and our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts Under Section 4(b)(2) of the Act.

Economic Analysis Comments

Comments From Counties

Comment (20):

Several counties requested that the Service undertake a new economic analysis to reconsider the economic impacts of the 2012 designation on local communities and natural resource-based economies.

Our response:

We reviewed the FEA (IEc 2012) conducted for the December 4, 2012, critical habitat designation (77 FR 71876) as well as additional information submitted during the public comment period. We also conferred with the economists who prepared the FEA regarding the additional information submitted (IEc 2020). See our response to

Comment (21)

below for further detail. In general, we found that the commenters disagree with the Service's incremental methodology used to analyze the economic effects of the critical habitat designation for northern spotted owl, although that approach was the Service's policy at the time and has since been codified in its regulations; see 50 CFR 424.19(b)). In addition, because the January Exclusions Rule has not gone into effect and we are only excluding (

i.e.,

removing) additional areas from critical habitat, the economic impact will be further reduced from that analyzed in 2012 and a new economic analysis is not necessary. Even if the January Exclusions Rule were to go into effect, an entirely new economic analysis would not be required for this final rule because (1) this rule does not designate any new areas that were not included in the 2012 critical habitat designation and analyzed in the 2012 FEA; (2) the 2012 FEA estimated potential incremental economic impacts of the 2012 designation over a 20-year timeframe, which has not yet ended as of the date of this final rule; and (3) the Service has considered the updated economic-impact information provided by commenters, as discussed more fully below. The Service has fully considered the economic impacts of this final rule, consistent with the requirements of ESA Section 4(b)(2).

The January Exclusions Rule stated that our FEA completed in 2012 (IEc 2012) in combination with a new report prepared by the Brattle Group (2020) (Brattle Report) continue to be the best scientific and commercial data available; we no longer find this to be the case as discussed in our response to

Comment (21)

addressing IEc's review of and our concerns with information contained in the Brattle Report (IEc 2020, IEc 2021).

Comment (21):

The AFRC (AFRC 2020; AFRC 2021) provided public comments requesting that the Service exclude at least 2,515,491 additional acres (1,017,983 hectares) in addition to the 204,653 acres (82,820 hectares) proposed for exclusion. The AFRC provided the Brattle Report critiquing our FEA and a supplement to the Brattle Report (Brattle supplement) responding to our responses to comments in the January Exclusions Rule (The Brattle Group 2021). The Brattle Report included updated estimates of the economic impacts of the 2012 rule using more recent data and/or different assumptions. The Oregon Farm Bureau and Oregon Cattlemen's Association; California Farm Bureau Federation; Lewis, Skamania, and Klickitat Counties in Washington; and Douglas County in Oregon also cited the Brattle Report and/or supplement in their comment letters as justification for additional exclusions. We summarize AFRC and other comments pertaining to economic analysis issues in the following:

(a)

A focus of the Brattle Report and supplement (referred to as reports here) is a review of our analysis of potential timber harvest losses attributable to northern spotted owl critical habitat designation in 2012. The Brattle reports follow the same analytic approach for measuring timber harvest impacts as employed in the economic analysis for the critical habitat designation (IEc 2012), but use alternative assumptions or updated inputs. These adjustments yield the following differences when compared to the results of the FEA (see IEc 2020 for more details):

• The number of acres where incremental harvest impacts may occur is higher;

• The baseline annual harvest potential is higher;

• The potential reductions in harvest volumes due to the impact of critical habitat are larger; and

• The estimated stumpage values are lower.

As described by IEc in their review of this information (IEc 2020, 2021), the effect of these changes in inputs by the Brattle reports is a higher measure of the negative annualized timber harvest impacts across the affected acres,

i.e.,

a projection of greater economic effects. The Brattle reports assert that, across 1.7 million acres (687,966 hectares), the critical habitat designation greatly diminishes harvest and causes losses to the market of between $66.4 million and $77.2 million (or between $66.4 million and $85.4 million per the supplement) on an annualized basis, and between $753 million and $1.18 billion (or between $869 million and $1.31 billion per the supplement) over 20 years on a net present value (NPV) basis. AFRC and others suggest the results of the

Brattle reports support their request for exclusion of additional acres based on economic impacts.

Our response:

We find several issues with the analysis provided in the Brattle reports, specifically the assumptions or data used to produce the estimate of negative annualized timber harvest impacts due to the critical habitat designation, and we do not agree with their ultimate conclusions.

First, the Brattle reports state that the higher number of acres where incremental impacts may occur is based upon a review of GIS files and other related information. Their estimated acreage of lands affected changed considerably between the Brattle Report and supplement. However, the supplement provides no clear basis for this increase. We asked IEc to review the Brattle reports, and they concluded that they could not replicate the result, but determined that the magnitude of differences in the acreages identified in the reports versus those identified in our FEA are unlikely to substantially alter the ranking of potential impacts by subunit. The Brattle reports provide retrospective impacts by subunit, but do not provide a composite ranking. In contrast, our FEA included an analysis of acreages by subunit where impacts may occur, scored these areas by the potential extent of impact, and then ranked each subunit according to a composite score against all other subunits (see Section 4.3 of IEc 2012).

Second, the Brattle reports assume a much higher baseline annual harvest potential on USFS and BLM lands (a more than five-fold increase) than the best available information indicates is likely. We understand that the reports relied on average yields from a short time period of harvest data (2018-2020) on lands managed by BLM for moist and dry forests and then translated these harvest levels into estimates of long-term annual yields across the acres where the reports assume incremental impacts may occur. Based on comments from AFRC, the reports also assume similar yields on BLM and USFS lands, a standard rotation age of 100 years where one percent of the land would be regeneration-harvested, and one percent would be thinned. The assumptions are at best hypothetical and not widely applicable. The BLM and USFS are unlikely to have similar yields generally for a variety of reasons, including that there is no standard of a 100-year rotation age or one percent regeneration harvest used by either agency for all of their managed lands. The USFS and BLM apply “uneven-aged” stand management, rather than “even-aged” stand rotations, on many of these areas to meet multiple use goals such as wildfire risk reduction, recreation, forest restoration, and biodiversity conservation, especially in drier portions of the range. In contrast, we based our yield rates on actual harvest data provided by the BLM and USFS over an extended period (IEc 2012). For lands managed by BLM, the FEA used data BLM provided on 30 years of planned timber harvest by land allocation type (reserve/matrix), forest conditions (nesting/roosting habitat, predominantly younger forests), and harvest type (thinning, regeneration) at the critical habitat subunit level. For lands managed by USFS, our FEA used projected yield rates provided by the USFS for each critical habitat unit.

Third, the Brattle reports assume an 80 percent reduction in harvest volumes due to the critical habitat designation versus the 20 percent used in the FEA high-impact scenario. The reports indicate that the assumption of an 80 percent reduction in harvest volumes is based on discussions with AFRC and unspecified comments provided by the USFS and BLM on the 2012 economic analysis. As a result, it is unclear on what basis the Brattle reports assume an 80 percent reduction in harvest volumes. The most likely cause is by improperly conflating the impact that the listing of the northern spotted owl in 1990 and other economic and logistical factors had on timber harvest with the incremental effect of the subsequent designation of critical habitat, particularly in areas that are currently unoccupied by the subspecies.

The Brattle Report also noted that it “cannot model the timber markets that influence the demand for timber in the Pacific Northwest” to test the reasonableness of its assumption concerning timber harvest effects (The Brattle Group 2020, p. 17). The potential incremental effect of critical habitat on harvest levels was a point of significant debate for the 2012 critical habitat designation (see section 4.4.2 of the FEA). As IEc notes in its assessment of the Brattle Report, “Various land managers, Service experts, and other commenters concluded that the direction and magnitude of effect due to critical habitat was uncertain, noting that harvest levels could be higher or lower depending on a variety of land management considerations and harvest factors. In addition, the implementation of timber harvest in critical habitat occurs within a complex set of factors, including volatility in global demand for wood products, general timber industry transformation, and existing regulatory and statutory requirements, among other factors.” The FEA used three separate scenarios, along with additional sensitivity analysis to capture this uncertainty and the concerns of multiple stakeholders, including BLM and USFS. “The Brattle report does not endeavor to model markets or other factors that influence the demand for timber in the Pacific Northwest” (IEc 2020). The Brattle Report did not include a sensitivity analysis to address the uncertainty of effects associated with critical habitat.

Fourth, concerning estimated stumpage values, as IEc noted in their review, our FEA “recognized that prices vary across forest, land manager, and year, and that future prices were uncertain. The analysis captured annual average prices from Federal timber sales on BLM and USFS managed lands between 2000 and 2011. The low-end price ($100 per thousand board feet (mbf)) was similar to more recent prices (as of 2012) from Federal timber sales, which had been below historical averages. The higher end was selected to purposely capture the highest price received since the year 2000. This high price, therefore, served as a conservative approach, meaning it would yield the highest negative impacts from any constraints on timber harvest volumes due to critical habitat designation. Beyond this range, the 2012 economic analysis conducted a further sensitivity analysis based upon a comment received from AFRC. In this scenario, an even higher price of $350 per mbf was analyzed for its effect and included in the economic analysis. Thus, the original range and further sensitivity analysis captured a reasonable upper and lower bound of the role of timber prices on potential impacts. In contrast, the Brattle report uses similar average stumpage prices from similar sources, but only from 2018 to 2020, a much shorter time frame. In addition, its price range of $83 to $191 per mbf is consistent with the price range used in the 2012 report, especially when considering the passage of eight years and the general market volatility of lumber prices.” (IEc 2020).

In sum, the Brattle reports and associated commenters concluded that the total effect of these alternative inputs is a higher measure of negative annualized timber harvest impacts across the total of potentially affected acres compared to what was estimated in the FEA (IEc 2012) ($66 to $77 million estimated in the Brattle Report, $66 to $85 million in the supplement, versus $6.5 million in the FEA). As noted above, the Brattle supplement added the distribution of its overall measure of impacts across the designation's subunits. Understanding

relative impacts by discrete areas of critical habitat is a necessary aspect of an accurate benefits-weighing process. We note that the Brattle reports include additional conclusions, such as effects on Gross Domestic Product and employment. However, these conclusions are based on the assumptions we discuss above, which are misapplied or cannot be confirmed with the methods provided. Therefore, for the reasons discussed above, we do not consider the Brattle reports to be the best scientific and commercial data available, and we do not agree with the conclusions of the Brattle reports and the comments that rely on them. More specific analysis of the Brattle reports can be found in our record on this rulemaking (IEc 2020, 2021).

The January Exclusions Rule considered the negative economic impacts on rural communities of the critical habitat designation and the listing of the northern spotted owl in its weighing of the benefits of excluding 3.4 million acres against the benefits of inclusion and concluded that the benefits of exclusion outweighed the benefits of inclusion. We do not now find these conclusions to be appropriate; see our reconsideration of the weighing of the benefits of inclusion versus the benefits of excluding these lands and our extinction analysis in Consideration of Impacts under Section 4(b)(2) of the Act.

(b)

The Brattle Report included information on annual timber harvest levels on Federal lands in 18 counties within California, Oregon, and Washington, from 2002 through 2018. The report concluded that these data demonstrate that timber harvest in these counties declined as a direct consequence of the 2012 critical habitat designation.

Our response:

We acknowledge that the listing of the northern spotted owl in 1990, in addition to other social and economic factors, affected timber industry employment and establishments (Ferris and Frank 2021, p. 12). However, we have reviewed the information in the Brattle Report and found significant errors and unsubstantiated assumptions.

First, 4 of the 18 counties cited in the analysis (Calaveras, Riverside, and Mono in California, and Morrow in Oregon) are located outside of the range of the northern spotted owl and do not contain designated northern spotted owl critical habitat, so the designation would not have impacted timber harvest in these counties. The Brattle supplement states that this information was provided for context, although it does not explain how referencing this context aids in assessment of impacts from the northern spotted owl. In fact, the data from these counties document that timber harvest and related economic patterns were concurrently volatile in rural counties outside the range of the spotted owl, suggesting larger market forces were impacting timber markets both within and outside the range of the owl.

Second, of the remaining 14 counties cited in the report that contain some spotted owl critical habitat, the Brattle reports describe timber harvest declines occurring in 7 counties somewhere around (

i.e.,

proximally before and after) the year 2012, stable or flat trends in 3 counties, and increased harvest levels in 4 counties. Of the declines highlighted by the commenter, several began prior to the designation in December 2012, casting doubt on the potential direct impact of the 2012 designation. Almost all of these counties also show large fluctuations in harvest levels between years going back to 2002, indicating that there are likely other confounding economic and logistical factors influencing these dynamic timber harvest levels aside from the 2012 critical habitat designation, as described in our response to

Comment (22).

Third, the analysis provided charts of harvest decline in specific counties within the critical habitat designation. A rapid assessment of the same data source cited by the commenter, but evaluating a random number of additional counties in Oregon, Washington, and California in the range of the northern spotted owl, revealed no discernible pattern in timber harvest declines that could reasonably be attributed to the 2012 critical habitat designation. Some counties experienced general increases in timber harvest after 2012, some declined, and some were relatively flat when compared to long-term trends. A similar pattern of fluctuation exists for individual counties located outside of the range of the spotted owl but within Oregon, Washington, and California, as well as in other western States. Most of these counties showed wide fluctuations in timber harvested on Federal lands, both before and after 2012, again indicating the influence of factors other than the designation of critical habitat.

Using the same data source cited by this commenter (with 2019 data from BLM and USFS on timber volume offered for sale), we reviewed Federal land harvest data in Oregon counties that are within the northern spotted owl critical habitat designation. The annual average harvest from 2002 through 2012 on all BLM lands in the range of the spotted owl was approximately 159 million board feet per year prior to the 2012 critical habitat designation. The annual average harvest on BLM lands located in the range of the spotted owl from 2013 through 2019, after the 2012 critical rule was published, was 235 million board feet; the total in 2020 was 249 million board feet offered for sale (BLM 2021a). Thus, rather than suffering a decline, annual harvest appears to have increased substantially subsequent to the 2012 designation of critical habitat.

Likewise, the annual average harvest from 2002 through 2012 on USFS lands located within the range of the spotted owl was approximately 196 million board feet per year prior to the 2012 critical habitat designation. The annual average harvest on USFS land from 2013 through 2019, after the 2012 critical rule was published, was 288 million board feet. We also reviewed Federal harvest data in Oregon counties outside the range of the spotted owl (and therefore in counties with no spotted owl critical habitat or obligation for Federal agencies to consult under ESA section 7) and saw harvest volume fluctuations similar to those in counties located within critical habitat. Based on these data it does not appear that designation of critical habitat in 2012 had a significant incremental depressive effect on subsequent Federal timber harvest.

Comment (22):

Douglas County requested that the Service exclude all land within Douglas County from the critical habitat designation due to severe and disproportionate economic impacts. The County provided a 2007 report that discusses the negative economic impacts of reduced harvest on Federal lands. Additionally, Douglas County asserted that our FEA is flawed with respect to Douglas County and should be revised. Among other exclusions that are addressed in

Comments (25-28),

Douglas County requested that all private and State lands, and county lands specifically in Oregon, be excluded.

Our response:

The report provided by Douglas County focuses on the impact that termination of “safety net” payments under the Secure Rural Schools and Community Self-Determination Act would have on counties in western Oregon. The report discusses reductions in harvest on Federal lands in the O&C counties attributable to a range of factors, resulting in a loss of revenue sharing that limited county budgets and rapid contractions of the wood products sector as logging declined and mills closed or reduced shifts. The report, prepared in 2007, does not discuss impacts of the critical habitat

designation but describes general pressures on the timber industry.

In addition, during this same time period, timber-related tax revenue flowing to Oregon counties has declined due to large reductions in State and local property and severance taxes on private timber lands. According to one in-depth analysis, half of Oregon's 18 western counties lost more revenue due to tax cuts on private lands than they did due to reductions in Federal timber harvest levels (Younes and Schick 2020). It is unclear if the Brattle analysis incorporated this data into its analysis of net declines in timber revenue to local economies.

Our FEA (IEc 2012) addressed the incremental effects of critical habitat within the area proposed for designation for the northern spotted owl. Consistent with our practice at the time (now codified in regulations) the FEA quantifies the economic impacts that may be directly attributable to the designation of critical habitat, comparing scenarios both “with critical habitat” and “without critical habitat.” Our incremental analysis did not consider the economic impact of changes other than from the proposed revised critical habitat designation, and did not evaluate the economic condition or status of the timber industry at large. Rather, it addressed the effects related to the impacts to Federal agencies and their activities, because Federal agencies are the only entities directly subject to the requirement to evaluate and consider effects of their actions on designated critical habitat.

Nonetheless, we acknowledged that, “[m]ultiple forces have contributed to the recent changes in the Pacific Northwest timber industry. In general, the timber industry is characterized as being highly competitive; there is a relatively low degree of concentration of production among the largest producers and there is essentially a single national price for commodity grades of lumber. In recent decades, competition has intensified with increased harvesting in the U.S. South and interior Canadian Provinces. New technologies and increased mechanization have led to mill c

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