# Endangered and Threatened Wildlife and Plants; Proposed Special Rule for the Conservation of the Northern Spotted Owl on Non-Federal Lands

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URL: https://www.frixlaw.com/law-library/documents/fr%3A95-3922

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** February 17, 1995
- **Citation:** 60 FR 9484

## Text

SUMMARY: The implementing regulations for threatened wildlife generally
incorporate the prohibitions of Section 9 of the Endangered Species Act
(Act) of 1973, as amended, for endangered wildlife, except when a
``special rule'' promulgated pursuant to Section 4(d) of the Act has
been issued with respect to a particular threatened species. At the
time the northern spotted owl, Strix occidentalis caurina, (spotted
owl) was listed as a threatened species in 1990, the Fish and Wildlife
Service (Service) did not promulgate a special section 4(d) rule and,
therefore, all of the section 9 prohibitions, including the ``take''
prohibitions, became applicable to the species. Subsequent to the
listing of the spotted owl, a Federal Late-Successional and Old-growth
(LSOG) forest management strategy (Plan) was developed and then
formally adopted on April 13, 1994, in a Record of Decision (ROD) that
amended land management plans for Federal forests in northern
California, Oregon, and Washington. Although this proposed rule refers
to the Federal LSOG forest strategy as the ``Forest Plan'', it is noted
that the strategy is not a stand-alone management Plan but rather
effected a series of amendments to Forest Service and the Bureau of
Land Management planning documents. In recognition of the significant
contribution the Plan does make toward spotted owl conservation and
management, the Service now proposes a special rule, pursuant to
section 4(d) of the Act, to replace the blanket prohibition against
incidental take of spotted owls with a narrower, more tailor-made set
of standards that reduce prohibitions applicable to timber harvest and
related activities on specified non-Federal forest lands in Washington
and California.

DATES: Comments from all interested parties must be received by May 18,
1995.
The Service seeks comments from the interested public, agencies,
and interest groups on this proposed special rule and the potential
environmental effects of its implementation. A Draft Environmental
Impact Statement (DEIS) is being developed to accompany this proposed
rule and will be published soon after the proposed rule. The end of the
comment period on this proposed rule will be extended to coincide with
the end of the public comment period on the DEIS.

ADDRESSES: Comments and materials concerning this proposed rule should
be sent to Mr. Michael J. Spear, Regional Director, Region 1, U.S. Fish
and Wildlife Service, 911 N.E. 11th Avenue, Portland, Oregon 97232-
4181. The complete file for this proposed rule will be available for
public inspection, by appointment during normal business hours, at the
above address.

FOR FURTHER INFORMATION CONTACT: Mr. Curt Smitch, Assistant Regional
Director, North Pacific Coast Ecosystem, 3704 Griffin Lane SE, Suite
102, Olympia, Washington 98501 (206/534-9330); or Mr. Gerry Jackson,
Deputy Assistant Regional Director, North Pacific Coast Ecosystem, 911
N.E. 11th Avenue, Portland Oregon 97232-4181, (503/231-6159).

SUPPLEMENTARY INFORMATION:

Abstract

The implementing regulations for threatened wildlife generally
incorporate the prohibitions of section 9 of the Endangered Species Act
(Act) of 1973, as amended, for endangered wildlife, except when a
``special rule'' promulgated pursuant to Section 4(d) of the Act has
been issued with respect to a particular threatened species. When the
northern spotted owl, Strix occidentalis caurina, (spotted owl) was
listed as a threatened species in 1990, the Fish and Wildlife Service
(Service) did not promulgate a special 4(d) rule. Therefore, all of the
Section 9 prohibitions for endangered species were made applicable to
the spotted owl throughout its range, including the prohibitions
against ``take'' that apply to endangered species under the Act.
Subsequent to the listing of the spotted owl, a new Federal forest
management strategy was developed and proposed by the Forest Ecosystem
Management Assessment Team (FEMAT), which was established by President
Clinton following the April 2, 1993, Forest Conference in Portland,
Oregon. FEMAT was established to develop options for the management of
Federal LSOG-forest ecosystems in northern California, Oregon, and
Washington within the range of the spotted owl. FEMAT outlined those
options in the report, Forest Ecosystem Management: An Ecological,
Economic, and Social Assessment, which drew heavily upon previous
scientific studies conducted on the northern spotted owl. On July 1,
1993, the President identified ``Option 9'' in the FEMAT Report as the
preferred alternative for managing Federal LSOG-forests in northern
California, Oregon, and Washington. The proposed management scenario
under Option 9 of FEMAT established a system of late-successional
forest and riparian reserves that would, in conjunction with
Administratively withdrawn and Congressionally reserved areas, provide
the foundation of protected ``old growth'' habitat that would benefit
spotted owls, marbled murrelets, salmon and many other old growth
associated species; adaptive management areas (AMAs) and surrounding
``matrix'' lands would constitute the remaining forest management
designations on Federal lands in the planning area. Future timber
harvesting activities on Federal lands within the range of the northern
spotted owl were expected to occur primarily in AMAs and Federal lands
determined to constitute the ``matrix.''
A draft Supplemental Environmental Impact Statement was issued in
July 1993 to assess the environmental impacts of the alternatives which
were set forth in the FEMAT Report. A final SEIS was completed in
February 1994, and a Record of Decision was signed on April 13, 1994.
This process culminated in the formal administrative adoption of
Alternative 9 (a revised version of Option 9 as it had been presented
in the FEMAT Report), which has now become known, simply, as the Forest
Plan or Plan. This Plan provides a firm foundation for the conservation
needs of the spotted owl, especially in light of the net addition of
approximately 600,000 acres of Federal forest lands to protected
reserve status between its original formulation in the FEMAT Report and
the Record of Decision. On December 21, 1994, Federal District Court
Judge William L. Dwyer, issued his order upholding the adequacy of the
Plan. Judge Dwyer said ``The order now entered,* * *, will mark the
first time in several years that the owl-habitat forests will be
managed by the responsible agencies under a plan found lawful by the
courts. It will also mark the first time that the Forest Service and
BLM have worked together to preserve ecosystems common to their
jurisdictions.''
Despite enhanced owl protection under the final Forest Plan,
however, the Service believes that some supplemental support from non-
Federal forest lands remains necessary and [[Page 9485]] advisable for
owl conservation in certain parts of the range of the owl.
Based upon the possibility that the preferred alternative of FEMAT
(Option 9) would eventually be adopted, the Service published a Notice
of Intent (NOI) in the Federal Register (58 FR 69132) on December 29,
1993, and sent out a mailer advising the public of its intention to
prepare an Environmental Impact Statement (EIS) for a proposed special
rule that would ease restrictions for the spotted owl on certain non-
Federal forest lands. In response, the Service received and evaluated
more than 8,500 public comments. Taking these comments into
consideration, and based upon additional analyses, the Service now
proposes a special rule that would reduce the prohibition against
incidental take of spotted owls in the course of timber harvest and
related activities on specified non-Federal forest lands in Washington
and California.
For reasons discussed in more detail later, the Service is not
including Oregon, at this time, within the geographic scope of this
proposed special rule. The Service is aware of ongoing efforts within
Oregon between the Governor's office and large and small landowners to
fashion an ``Oregon Alternative'' to the Service's proposed action for
the State, as set out in the December 29, 1993, NOI. The Service is
supportive of this effort and will maintain the regulatory status quo
for spotted owls in Oregon in anticipation that an ``Oregon
Alternative'' approach to owl conservation will be developed. Thus, by
excluding Oregon altogether from this proposed special rule, the
Service retains for Oregon the original level of protection against
take for the owl established when the species was listed on June 26,
1990.
In assessing the conservation needs of the northern spotted owl on
non-Federal lands, the Service was particularly mindful of--(1) The
level of protection to be provided the owl under the Federal reserve
and riparian buffer systems established under the Forest Plan, as well
as the matrix and adaptive management area prescriptions under the
Plan; (2) the range, location, and number of spotted owls on non-
Federal and Federal lands; (3) recently developed State programs to
regulate forest practices to benefit the spotted owl; and (4) emerging
non-Federal landowner habitat management and owl conservation
strategies such as Habitat Conservation Plans and agreements to avoid
the incidental take of owls.
This special rule proposes to replace the currently applicable
blanket prohibition against incidental take on non-Federal lands
throughout the owls' range with a more particularized set of
prohibitions for Washington and California. For the State of
Washington, incidental take restrictions would be relaxed for
approximately 5.24 million acres of non-Federal land in conifer
forests. While only a considerably smaller acreage figure of non-
Federal forest land is presently affected by incidental take
prohibitions for the spotted owl, the fear of future owl restrictions
is a significant concern of forest landowners throughout the range of
the spotted owl. This proposed rule would ease incidental take
restrictions on designated non-Federal lands by limiting the incidental
take prohibition for timber harvest activities to actions that fail to
maintain the 70 acres of suitable owl habitat closest to a site center
for a spotted owl. By proposing this action, the Service is not
implying that incidental take cannot occur until harvest activities
approach and actually invade an owl's activity center. Rather, the
Service is proposing that, in certain portions of the owl's range, the
incidental take of an owl will no longer be a prohibited activity
unless it involves harvest activities within an activity center.
Current incidental take restrictions would be retained for those
spotted owls whose site centers are located within six designated zones
or ``Special Emphasis Areas'' (SEAs) in the State of Washington. The
six SEAs include the western portion of the Olympic Peninsula, the
Finney Block area, the I-90 Corridor, the Mineral Block area, the
Siouxon Creek area and the Columbia Gorge/White Salmon areas. These
areas were generally chosen to fill in gaps in protection under the
Forest Plan where the Federal land base alone appears currently to be
inadequate to provide for the conservation of the owl.
In addition, the Service proposes to implement a ``Local Option
Conservation Planning'' program in Washington to provide an opportunity
for additional relief from incidental take prohibitions for non-Federal
landowners who own between 80 and 5,000 acres of forest lands within an
SEA. The Local Option process is envisioned to be the equivalent of a
``short form'' Habitat Conservation Plan. The local option conservation
planning process would not apply to those areas where the Service
determines that suitable owl habitat (nesting, roosting or foraging
habitat) on non-Federal lands within SEAs can reasonably be expected to
provide important demographic support for Federal owl reserves. These
``Local Option'' conservation plans would provide non-Federal
landowners with the flexibility to develop alternative prescriptions or
restrictions for their lands which could achieve a level of protection
comparable to the conservation objectives set forth for the owl in this
rule.
For the State of California, this proposed rule would recognize the
significant conservation benefits accorded the northern spotted owl
under California law by easing the Federal prohibition against
incidental take from timber harvest activities in most of the Klamath
province of that State. The zone in which this would occur would be
called the Klamath Province Relief Area. The incidental take
prohibition for timber harvests in this Relief Area would be limited to
actions which fail to maintain the 70 acres of suitable owl habitat
closest to a site center for a spotted owl. Additional relief could be
provided to non-Federal landowners in four potential ``California
Conservation Planning Areas'' (CCPAs) referred to as the California
Coastal Area, Hardwood Region, Wells Mountain-Bully Choop area, and the
California Cascades pursuant to the planning process under the
California Natural Communities Conservation Planning (NCCP) Act or
through completion of a Habitat Conservation Plan (HCP) under Section
10(a)(1)(B) of the Act (Figure 1 to Sec. 17.41(c)).
Except for acreage actually located within owl activity centers,
the Service also proposes that small landowners who own no more than 80
acres of forest lands within a given SEA in Washington or one of the
four potential CCPAs in California, as of the publication date of this
proposed rule in the Federal Register, would be relieved of the general
prohibition against incidental take. The only exception to this
proposal would be for any small landowner who owns any or all of the 70
acres of forested lands closest to an owl site center. The incidental
take restriction would continue to apply within such 70 acres.
The Service also proposes to provide landowners within SEAs in
Washington or potential CCPAs in California additional flexibility for
avoiding incidental take liability if their lands are intermingled with
Federal matrix or Adaptive Management Area (AMA) lands. In such
situations, non-Federal landowners would be provided the alternative
option at their choosing of adopting the final harvest prescriptions
delineated for the surrounding Federal matrix or AMA lands, in lieu of
management practices which comply with current incidental take
restrictions. The one exception to this policy would [[Page 9486]] be
where the adoption of final matrix or AMA harvest prescriptions could
result in the incidental take of an owl whose site center is located
within a Forest Plan reserve or Congressionally reserved or
Administratively withdrawn areas. In such a case, the incidental take
restrictions would continue to apply for at least two more years,
pending review of the status of owls in affected reserve or withdrawn
areas.
For Tribal forest lands in Washington and California, the Service
proposes to lift the Federal prohibition against the incidental take of
the spotted owl except for harvest activities within the immediate 70
acres around a site center. Timber harvests conducted in accordance
with Tribal resource regulations would not be subjected to any
additional Federal prohibitions against incidental take of the owl.
Additionally, the Service proposes to include a ``sunset''
provision that would lift the incidental take restrictions within an
SEA or CCPA once the owl conservation goals for that area are achieved.
The Service also proposes to provide a ``safe harbor'' of certainty for
harvest activities within SEAs or CCPAs where more than 40 percent
suitable owl habitat would be retained after harvest within an owl's
median annual home range. In those instances where the ``safe harbor''
provision would apply, landowners would not be subject to a take
prohibition violation under any circumstances should an incidental take
of an owl nevertheless occur despite the landowner's efforts to avoid
take. The ``safe harbor'' provision would not apply, however, to any
timber harvest activities within the closest 70 acres of suitable owl
habitat surrounding an owl site center regardless of the percentage of
suitable owl habitat left within an owl's median annual home range.
In addition, the proposal sets out a new approach to provide
incentives to non-Federal landowners to restore or enhance degraded
spotted owl habitat, or to maintain existing suitable owl habitat,
without being penalized if their conservation efforts subsequently
attract spotted owls.

Definitions

As used in this proposed rule:
``Activity center'' means the closest 70 acres of suitable habitat
around the nest tree of a pair of owls or around the primary roost of a
non-nesting pair or territorial single owl (see ``site center'').
``Adaptive management area'' means the ten landscape units that
were adopted in the April 13, 1994, Record of Decision for development
and testing of technical and social approaches to achieving specific
ecological, economic, and other social objectives.
``Administratively withdrawn area'' means lands that are excluded
from planned or programmed timber harvest under current agency planning
documents or the preferred alternative for draft agency planning
documents.
``California Conservation Planning Area (CCPA)'' means areas in
which the State of California Resources Agency could conduct planning
for spotted owls under the auspices of the California Natural
Communities Conservation Planning Act (CNCCPA) of 1991.
``Congressionally reserved area'' means those lands with
Congressional designations that preclude timber harvest, as well as
other Federal lands not administered by the Forest Service or Bureau of
Land Management, including National Parks and Monuments, Wild and
Scenic Rivers, National Wildlife Refuges, and military reservations.
``Conservation'' as defined in the Endangered Species Act generally
means the use of all methods and procedures that are necessary to bring
any endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary.
``Demographic support'' refers to the effects on a population from
a combination of births and deaths such that the net result is a stable
or increasing population. For the spotted owl this would occur through
provision and maintenance of: (1) Both suitable and dispersal habitat
to support individual owls; (2) small clusters or larger groups of
successfully breeding owls; and (3) the successful interaction and
movement between individuals and pairs.
``Dispersal'' refers to movements through all habitat types by: (1)
juvenile spotted owls from the time they leave their natal area until
they establish their own territory; (2) non-territorial single spotted
owls; or (3) displaced adults searching for new territories.
``Dispersal habitat'' means forest stands with adequate tree size,
structure, and canopy closure to provide--(1) cover for dispersing owls
from avian predators; and (2) foraging opportunities during dispersal
events.
``Federal reserve'' or ``Forest Plan reserve'' means those Federal
lands delineated in the April 13, 1994, Record of Decision in which
programmed timber harvest is not allowed and is otherwise severely
limited. There are two types of reserves--late-successional reserves,
which are designed to produce contiguous blocks of older forest stands,
and riparian reserves, which consist of protected strips along the
banks of rivers, streams, lakes, and wetlands which act as a buffer
between these water bodies and areas where timber harvesting is
allowed.
``Habitat Conservation Plan'' (HCP) means an agreement between the
U.S. Fish and Wildlife Service and either a private entity, local or
county government or State under section 10(a)(1)(B) of the Act that
specifies conservation measures that would be implemented in exchange
for a permit that would allow the incidental take of a listed species.
``Home range'' means the area a spotted owl uses and traverses in
the course of normal activities in fulfilling its biological needs
during the course of its life span.
``Incidental Take'' means any taking otherwise prohibited, if such
taking is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity.
``Matrix'' means those Federal lands generally available for
programmed timber harvest which are outside of the Congressionally
reserved and Administratively withdrawn areas, Federal reserves and
adaptive management areas as delineated in the Standards and Guidelines
adopted in the April 13, 1994, Record of Decision.
``Province'' or ``Physiographic Province'' means one of twelve
geographic areas throughout the range of the northern spotted owl which
have similar sets of biological and physical characteristics and
processes due to effects of climate and geology which result in common
patterns of soils and broad-scale vegetative communities.
``Record of Decision'' means the April 13, 1994, Record of Decision
for Amendments to Forest Service and Bureau of Land Management Planning
Documents Within the Range of the Northern Spotted Owl (USDA/USDI
1994).
``Site Center'' means the actual nest tree of a pair of spotted
owls or the primary roost of a non-nesting pair or territorial single
owl.
``Special Emphasis Area (SEA)'' means one of six specific areas in
the State of Washington where the Service has determined that it would
be necessary and advisable to continue to apply broad protection from
incidental take to support conservation efforts for the spotted owl.
``Suitable Habitat'' means those areas with the vegetative
structure and composition that generally have been found to support
successful nesting, roosting, and foraging activities of a territorial
single or breeding pair of spotted owls. Suitable habitat is
[[Page 9487]] sometimes referred to as nesting, roosting, and foraging
(NRF) habitat.
``Take'' means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct
with respect to a spotted owl.
``Threatened Species'' means a plant or wildlife species defined
through the Endangered Species Act that is likely to become within the
foreseeable future an endangered species throughout all or a
significant portion of its range.
``Timber harvest and related activity'' means any activity that
would result in the removal or degradation of suitable habitat.

Background

Regulatory History of the Northern Spotted Owl

The Service listed the northern spotted owl as a threatened species
on June 26, 1990, because of the past and continued projected loss of
suitable habitat throughout its range (55 FR 26114). This habitat loss
has been caused primarily by timber harvesting, but has been
exacerbated by the effects of catastrophic events such as fire,
volcanic eruption, and wind storms.
The inadequacy of regulatory mechanisms existing in 1990 under
State and Federal law also contributed to the decision to list the
northern spotted owl as a threatened species. During the period
immediately prior to listing, when the status of the owl was under
review, the annual Federal timber harvest in Oregon and Washington
averaged approximately 5 billion board feet per year. Much of that
harvest comprised suitable spotted owl habitat. Thus, Federal timber
harvest policies at that time contributed significantly to the decline
of the owl.
State protection for the owl in 1990 was also inadequate. Since
that time, California, Oregon and Washington have all recognized the
plight of the owl and have adopted forest management rules designed to
protect this threatened species. The degree of protection accorded the
northern spotted owl currently varies under State law. The northern
spotted owl is listed under Washington law as an endangered species,
under Oregon law as threatened, and under California law as a sensitive
species.
On January 15, 1992, the Service designated critical habitat for
the northern spotted owl (57 FR 1796). The critical habitat designation
encompassed 6.9 million acres of Federal land in 190 critical habitat
units in the States of California, Oregon, and Washington; non-Federal
lands were not included in the critical habitat designation. Of the
total acreage that was designated, 20 percent is in California, 47
percent is in Oregon, and 32 percent is in Washington.
Following the April 2, 1993, Forest Conference in Portland, Oregon,
President Clinton established a Forest Ecosystem Management Assessment
Team (FEMAT) to develop options for the management of Federal LSOG-
forest ecosystems to provide habitat that would support stable
populations of species associated with late-successional forests,
including the northern spotted owl. FEMAT developed ten options for the
management of LSOG-forest ecosystems on Federal lands in California,
Oregon, and Washington, which are outlined in the Team's report,
``Forest Ecosystem Management: An Ecological, Economic, and Social
Assessment'' (USDA et al. 1993). On July 1, 1993, the President
identified Option 9 as the preferred alternative for amending the
Federal agencies' land management plans with respect to LSOG forest
habitat. A modified version of Option 9 was adopted in the April 13,
1994, Record of Decision for Amendments to Forest Service and Bureau of
Land Management Planning Documents Within the Range of the Northern
Spotted Owl (ROD). It is based on a system of late-successional
reserves, riparian reserves, adaptive management areas, and a matrix of
Federal lands interspersed with non-Federal lands. These designations
complemented existing Administratively withdrawn and Congressionally
reserved lands.
The adoption of the Forest Plan was subsequently upheld in Federal
court. On December 21, 1994, Federal District Court Judge William L.
Dwyer rejected plaintiffs' challenges and issued an order upholding the
President's Forest Plan.
An underlying premise for the President's selection of the Forest
Plan was that Federal lands should carry a disproportionately heavier
burden for providing for the conservation of the northern spotted owl,
enabling an easing of restrictions on incidental take for the owl on
large areas of non-Federal lands. President Clinton thus directed the
U.S. Fish and Wildlife Service to issue regulations pursuant to section
4(d) of the Act looking to ease, where appropriate, restrictions on the
incidental take of spotted owls on non-Federal lands.
On December 29, 1993, the Service published in the Federal Register
a Notice of Intent (NOI) to prepare an Environmental Impact Statement
in support of a 4(d) rule for the spotted owl (58 FR 69132). The NOI
spelled out various alternative approaches for a 4(d) rule, including a
preferred approach or proposed action. This provided a preliminary
opportunity for public input prior to the actual publication of this
proposed rule.

Summary of Public Comments on Scoping Notice on 4(d) Rule

The Service received more than 8,500 comments from the public on
its scoping notice for a section 4(d) rule EIS for the spotted owl.
Most comments received were in response to a January 3, 1994, special
mailer sent by the Service to approximately 80,000 recipients. The
Service specifically asked for suggestions on issues to be addressed in
the 4(d) rule. In general, the comments reinforced issues and concerns
identified in previous planning efforts for the spotted owl.
In the scoping notice, the Service sought comments on ten specific
issues. The comments received are summarized below, by issue:
(1) Biological, commercial, trade, or other relevant data on the
distribution and abundance of the northern spotted owl on non-Federal
lands in California, Washington and Oregon.
No new data or information was provided to the Service relative to
this issue.
(2) Biological, commercial, trade or other relevant data on the
distribution and abundance of the northern spotted owl that identifies
the effects of the alternatives for a section 4(d) rule on the northern
spotted owl.
No new data or information was provided to the Service relative to
this issue.
(3) The scope of the issues that have been identified for the
environmental impact statement on a proposed special rule.
In addition to the issues identified in the scoping notice,
commenters identified several additional issues for the Service to
consider. Several commenters objected to any provision requiring that
40 percent of suitable habitat be retained within the median annual
home range circle of an owl located within SEAs, and, because it means
that 60 percent of suitable habitat within a home range may be lost,
requested an explanation of the biological basis for such a provision.
They also requested that the Service consider how habitat modification
on non-Federal land will affect owls on adjacent Federal lands.
Comments from non-Federal landowners requested that the Service
consider the possible economic benefits of a variety of silvicultural
regulations [[Page 9488]] to protect owl habitat. They also asked that
the Service evaluate whether the SEA concept fully takes into account
the contributions already provided by State agencies and those already
in place on Federal lands, and whether the regulatory burden of the
SEAs is disproportionate to the benefits.
(4) The range of alternatives that have been identified for the
environmental impact statement on a proposed special rule.
A number of commenters provided suggestions for additional
alternatives for Service consideration. These included requests to
increase or relieve the prohibitions against incidental take, to
consider the development of a program based entirely on voluntary
participation by forest land managers, to not use SEAs and use only 70
acre owl circles rangewide, and to provide incidental take protection
only to landowners who sell to domestic markets. Some commenters
requested that the Service provide an alternative with incentives for
growing habitat, or to buy or exchange land instead of promulgating a
section 4(d) rule. Another suggestion was to transplant spotted owls
rather than use a special rule to provide for connectivity, and depend
on Federal lands to provide the land base for connectivity.
Other suggested alternatives included using existing exceptions to
prohibitions, such as the HCP process, in combination with a final
recovery plan for the owl; protecting previously proposed critical
habitat on private lands in addition to, or instead of, the SEAs; and
applying the 50-11-40 rule to SEAs in addition to, or instead of,
retaining 40 percent of suitable habitat within a home range.
Modifications of the alternatives were also suggested. Some
examples include replacing the SEAs in Washington with the areas
proposed to the Washington Forest Practices Board in a report by the
Spotted Owl Scientific Advisory Group (SAG report), to add an SEA for
southwestern Washington, and to reduce or exclude the Olympic Peninsula
SEA.
Comments specific to California alternatives included requests to
provide a separate 4(d) rule for California; to apply the Washington/
Oregon approach with SEAs to California; to repeal existing owl rules
and designate specific ``no take'' areas; and to maintain existing
prohibitions of take and adopt the California Board of Forestry's new
late-successional forest rules.
(5) Input on how suitable habitat for the marbled murrelet should
be identified and how it should be protected, and data on marbled
murrelet distribution and abundance on non-Federal lands.
Numerous comments were received on the marbled murrelet, with most
stating that it is inappropriate to include the murrelet in the
regulatory process for the spotted owl because not enough information
about murrelets is available at this time to attempt a regulatory
definition of incidental take, and that any rule for the murrelet
should be done separately. One commenter stated that the Service should
consider adopting an interim 4(d) rule for marbled murrelets that can
be refined at a later date because they are associated with the same
forest ecosystem as the spotted owl, and that all suitable murrelet
habitat should be addressed including marine habitat. Another suggested
that, in identifying marbled murrelet habitat, the emphasis should be
on a definition that recognizes large contiguous areas of habitat
capable of supporting large numbers of birds, and not on defining the
lowest possible quantity and stand size used.
(6) Input on the use of ``local options'' to allow individuals to
propose adjustment to prohibitions against take of northern spotted
owls without going through the normal habitat conservation planning
process.
The potential use of the local option plan was responded to
favorably by many commenters. Most said that a ``local option'' plan
should be included as an additional tool to protect owls and to provide
landowner flexibility, and that these should provide the same legal
protection as HCPs. Others stated that the rule should provide
flexibility for applying local options based on the expertise and
knowledge of State forestry associations, State governments, and forest
landowners.
(7) Consideration of a small landowner exemption for non-commercial
forest land of ten acres or less.
Many commenters addressed this issue with the majority recommending
that the Service carefully examine and explain the rationale and
biological basis for such an exemption, and suggesting that any
provision to have less restrictive measures for small landowners would
unfairly shift the burden of responsibility to the larger landowners.
Others suggested that such an exemption may tend to break large
ownerships into smaller ownerships. Some expressed the view that while
appealing, it may set up an arbitrary distinction between landowners
based on size, and that the 10 acre size specified in the scoping
notice was too small to be meaningful.
(8) Boundaries of the SEAs in the proposed action, including the
impacts and effects of alternative boundaries.
Few suggestions were received relative to specific boundary
changes. Many comments were received regarding the number of SEAs, the
designation or lack of designation of specific SEAs, and the general
use of the SEA concept. Among the comments specific to the boundaries
was the suggestion that the Mineral Block and I-90 Corridor SEAs should
extend no farther west than necessary to provide reasonable
connectivity between the Federal conservation areas to the north and
south.
Regarding the Olympic Peninsula SEA, comments included the
assertion that there should be no SEA on the Olympic Peninsula because
Federal lands should be relied on for owl conservation in this area.
Another suggestion was that the Service move the southern boundary of
the proposed Olympic Peninsula SEA northward to run east and west from
the southern boundary of the Olympia National Forest. It was further
suggested that only the State of Washington's Olympic Experimental
Forest be included in the SEA for the Olympic Peninsula, and that this
SEA be rescinded following the approval of an HCP for the State Forest.
Many commenters were specifically concerned about the failure to
designate the White Salmon landscape as an SEA to provide demographic
interchange between owls on the Yakima Indian Reservation and Federal
lands in the eastern Washington Cascades. Other commenters noted that
there is no demonstrated need for an SEA in the White Salmon or Hood
River areas.
Many commenters asked that the Service provide the scientific basis
for determining the configurations and boundaries of the SEAs. There
were further suggestions that for SEA boundaries, the rule must specify
the requirements of ``owl shadows'' (restrictions on adjacent lands
near an owl site center) both within and outside of SEA's. Some
commenters stated that the Service should eliminate all SEAs as they
would provide further harvest restrictions which would be unduly
burdensome, and that they go beyond the Act by mandating conservation
measures on privately owned land.
(9) Possible mitigation measures, such as multi-species Habitat
Conservation Plans or conservation agreements that provide long-term
enforceable and protective land management prescriptions for non-
Federal lands.
Several commenters referenced the use of the HCP process,
requesting that the Service clarify the relationship
[[Page 9489]] between HCPs and the 4(d) rule. Specifically, they asked,
in the absence of an SEA designation, what guarantees would there be
that habitat will be protected between the time the 4(d) rule goes into
effect (and relief is granted) and the time HCPs are completed. There
was also concern expressed that there may be a lack of incentives for
other landowners to develop HCPs if there is no SEA designated. Others
suggested the 4(d) rule state that it will not apply to lands covered
by an approved HCP. Specific to California were recommendations that
the Service encourage the State to continue to recognize Federally
approved HCPs as a valid means of complying with regulations the State
adopts as a result of the 4(d) process.
(10) Retention of Federal incidental take restrictions for Indian
forest lands included within the boundary of an SEA.
Many comments were received regarding this issue, and most
suggested that it may be inappropriate to impose Federal take
prohibitions on tribal lands. One commenter stated that in promulgating
the special rule, the Service should direct attention to the special
status of Indian tribal lands as distinct and separate in treatment
from other non-Federal State and private lands; the Service should
adopt a special rule that exempts Indian forest lands from the
prohibitions against incidental take, including any that may be in
SEAs.
Some proponents of owl protection stated that the Service should
not lift take prohibitions on tribal lands in the absence of criteria
to ensure that the owl is adequately protected by tribal management
practices. They noted that progress on the part of the tribes is
variable, and this should be evaluated before lifting restrictions
within SEAs. Others commented that the special rule should ensure that
measures governing incidental take of the owl on Indian forest lands
contribute to the conservation of the species.
In addition to the ten issues for which the Service requested
input, comments were received on numerous other issues relative to the
proposed action. Three general areas of interest were common in the
comments from non-industrial landowners--(1) the proposed section 4(d)
rule was a disincentive to grow habitat for spotted owls and to
practice good silviculture; (2) the proposed rule represented an
unconstitutional taking of private property and that private landowners
should be compensated; and (3) the proposed 4(d) rule places an unfair
burden on non-Federal lands and actually provides little relief to
private lands.
Comments from industrial landowners included a request for ``safe
harbor'' from prosecution if the requirements of the 4(d) rule were met
and more that 40 percent suitable habitat was left within an owl circle
after harvest; and the suggestion that the 4(d) rule assist in
addressing the issue of access across Federal lands to non-Federal
lands. Concern also was expressed about potential conflict with anti-
trust laws when implementing, among several landowners, the requirement
that 40 percent suitable habitat be left within a home range circle,
and some asked that an anti-trust exemption be provided for multiple
landowners who have to deal with landscape issues. One commenter also
asserted that the creation of SEAs is a de facto designation of
critical habitat that must comply with the requirements of
Sec. 4(B)(2). Several commenters stated that there is no legal basis
under the Act for burdening private lands with recovery of a threatened
species, and that the 4(d) rule was essentially a recovery mechanism
being forced on private lands.
Proponents of spotted owl protection alleged that the scientific
basis for the proposed action is unclear, and it is particularly
unclear in how it relates to the recovery standards and objectives for
the owl. They suggested that any special rule for the spotted owl must
be part of a coordinated recovery approach among all Federal agencies
with responsibility for the owl. There were numerous references to the
SAG report, and that the special rule should provide the level of
protection as proposed in the SAG report.
Several commenters asked that the rule provide clearer definitions
for ``take'' and ``suitable habitat.'' There were requests for
information on the land ownership within SEAs, the number of owls
present, and the anticipated level of incidental take. Others also
requested information regarding the specific acreage of State and
private lands off limits to harvest under the proposed action. There
also were questions about how the rule would describe and determine the
70 acres to be protected around active spotted owl nests outside of
SEAs.
After reviewing these public comments, as well as other owl
management strategies and analyses, the Service now proposes this
special rule in response to the President's directive to review the
blanket set of incidental take prohibitions for the northern spotted
owl that has been in effect since the listing. In particular, this
proposed rule would relax incidental take restrictions for the owl for
timber harvests for certain non-Federal lands in Washington and
northern California. This proposed special rule excludes Oregon,
however, and does not propose any changes in the regulatory
prohibitions to protect the owl which are currently applicable within
that State. In March and December 1994, the Service received letters
from the Oregon Congressional Delegation requesting that further work
on a 4(d) rule for Oregon be suspended to provide an opportunity for
consensus to emerge among State officials and private landowners on a
strategy for the conservation of the spotted owl. Recognizing the
benefits that such a consensus approach offers, the Service agreed in
May 1994, to suspend further work on a federally developed 4(d) special
rule proposal for Oregon in order to encourage the development of a
``stakeholder'' based ``Oregon Alternative''.
The Governor's office in Oregon has taken the lead in working
cooperatively with non-Federal landowners through the Oregon Forest
Industries Council, Oregon Small Woodlands Association, Northwest
Forestry Association, Douglas County, and others to develop an
alternative owl conservation strategy. The Service is supportive of
this approach and is willing to review and consider any State
conservation proposal which results from this process.
Under the existing regulatory structure implementing section 4(d)
of the Endangered Species Act, each section 4(d) ``special rule'' for a
threatened species must contain all of the applicable prohibitions and
exceptions for that species throughout its range (50 CFR 17.31(c)).
Thus, in the past, Oregon would have been included in this proposed
4(d) rule, even if only to preserve the current regulatory status quo
protecting the spotted owl in Oregon.
In reviewing the request for exclusion from Oregon, the Service has
assessed whether it would be advantageous to adopt a new approach for
dealing with special rule situations in the future by authorizing the
revision of a listing of a threatened species through the subsequent
publication of a special rule that covers only part of, but not all of,
the range of the species. Under this approach, the general prohibitions
and exceptions applicable to threatened species not covered by special
rules would continue to apply in that part of the range of the species
not included under the provisions of a subsequent special rule. After
consideration of the [[Page 9490]] relevant factors on this matter, the
Service has decided to adopt this new approach for special rules and is
simultaneously proposing additional technical amendments to 50 CFR
17.11 and 50 CFR 1731(c) to accomplish this change.
In the specific case of the northern spotted owl, the owl was
originally listed as threatened without a special rule, and is subject
to the same general prohibitions and exceptions which are applicable to
endangered species pursuant to the current provisions of 50 CFR
17.31(a). These general prohibitions include a rangewide prohibition
against the incidental take or harm of an owl. These prohibitions apply
throughout the owl's range, including the State of Oregon. The Service
now proposes a section 4(d) special rule for the owl that applies only
to the States of Washington and California. Because the proposal for a
special rule only encompasses Washington and California, under its
current formulation owls in Oregon would remain fully protected against
incidental take or harm under the prohibitions established for the owl
when it was originally listed. As previously noted, the Service is
presently proposing the requisite technical changes to 50 CFR 17.11 and
50 CFR 17.31(c), as discussed above, to allow for the issuance of a
special rule that applies to only part of the range of a threatened
species like the spotted owl, while retaining the original protective
prohibitions for the remainder of the species' range in Oregon.
If a new ``Oregon Alternative'' proposal for the owl is
subsequently developed which is found to be consistent with the
requirements of the Act, the Service will initiate an analysis of the
new proposal under the National Environmental Policy Act and initiate
appropriate regulatory proceedings at that time.

Section 4(d) of the Endangered Species Act

The scope and authority for this proposed rule stems from section
4(d) of the Act, which grants the Secretary of the Interior broad
administrative discretion to promulgate regulations that he deems to be
necessary and advisable to meet the conservation objectives for a
threatened species. The section also confers authority to the Secretary
to apply to a threatened species any or all of the prohibitions against
take that the Act makes expressly applicable to endangered species. The
pertinent parts of section 4(d) provide:
* * *Whenever any species is listed as a threatened species
pursuant to subsection (C) of this section, the Secretary shall issue
such regulations as he deems necessary and advisable to provide for the
conservation of such species. The Secretary may by regulation prohibit
with respect to any threatened species any act prohibited under section
9(a)(1) . . . with respect to endangered species.* * *
As applied, this provision empowers the Service to promulgate a
special rule which adopts species-specific protective regulations upon
listing a species as threatened. Such a special rule may include
imposition of the section 9(a) prohibition against ``take,'' in some or
all of its particular manifestations, and in all or a portion of the
species' range, as well as other protective measures. While Congress
expressly mandated certain protections for endangered species by
statute (the section 9(a)(1) prohibitions), it intended to provide the
Service with flexibility in determining what protections are necessary
and advisable for threatened species. Section 4(d) is that grant of
rulemaking authority, and it provides the Secretary with broad
discretion to adopt regulations for the conservation of threatened
species.
In many circumstances the Service declines to issue a special rule
for a threatened species at the time it is listed, often because the
Service does not have sufficiently specific knowledge or the resources
necessary to develop a tailor-made rule. In this event, the general
threatened species regulations at 50 CFR 17.31 come into effect, which
provide for automatic application to threatened species of the
prohibitions the Act itself makes applicable to endangered species.
These ``blanket'' prohibitions act as a ``safety net'' for threatened
species until such time as the Service determines that it is
appropriate to issue a special rule for the species.
This latter course has been followed with respect to the northern
spotted owl. When the species was listed as threatened in June of 1990,
the Service did not promulgate a species-specific special take rule
under Rule 4(d), and thus the blanket prohibitions were triggered into
effect. The Service now has determined that it is appropriate to issue
a special rule tailor-made for this species, based on the Service's
more particularized knowledge about the respective conservation needs
of the owl across the various portions of its range, and the change in
LSOG-forest management occasioned by adoption of the Forest Plan.
Because this proposed rule does not involve regulated take, e.g.,
authorization of private predator control or sport seasons, the
provisions of section 3(3) regarding examination of population
pressures are not invoked.
The adoption of the Forest Plan--a comprehensive, interagency
strategy for management of Federal-LSOG forests in the owl's range
designating nearly 7.5 million acres as late-successional reserves--is
the major predicate for the Service's proposal of this special rule for
the owl. Upon issuing the Biological Opinion on the Forest Plan, the
Service stated that the plan ``will accomplish or exceed the standards
expected for the Federal contribution to recovery of the northern
spotted owl and assurance of adequate habitat for its reproduction and
dispersal.'' Thus, the Forest Plan is the primary foundation block for
owl recovery. This proposed rule would complement the Forest Plan and
provide for the conservation of the owl by retaining taking
prohibitions on non-Federal lands in a manner designed to build on the
protections the Forest Plan has provided. Further, the Service has
concluded that the owl take prohibitions that would no longer apply
under this proposed rule are no longer either necessary or advisable to
provide for the conservation of the owl, especially in light of the
Forest Plan's adoption.
In addition, as has been the case in other section 4(d)
regulations, the proposed rule ultimately would promote overall owl
recovery efforts in other ways. For example, with respect to a 4(d)
rule issued for the threatened population of gray wolves (Canis lupus)
in Minnesota, the Service determined that a government-implemented
depredation control program that includes the possibility of lethal
control measures would alleviate a source of public hostility to the
wolf and would, therefore, be protective of the species (see 50 CFR
17.40(d)). For the Louisiana black bear (Ursus americanus luteolus),
the Service promulgated a regulation under section 4(d) that authorized
the unintentional take of bear incidental to normal forest practices so
long as suitable habitat diversity for the bear was maintained (see 50
CFR 17.40(i); 56 FR 588, 593). As another instance, the Service has
proposed to authorize the take of the threatened coastal California
gnatcatcher (Polioptila californica californica) incidental to land use
activities conducted in accordance with a State of California-sponsored
Natural Community Conservation Plan (58 FR 16758). In the case of the
northern spotted owl, the Service is coordinating applicability of the
take prohibition with the comprehensive management strategy in the
Forest Plan and the [[Page 9491]] initiation of a comprehensive
campaign to encourage Habitat Conservation Planning in key portions of
the owl's range.
Generally, incidental take could involve either the harm or
harassment of a spotted owl. The harassment of the northern spotted owl
would occur through disturbance of active nesting pairs or territorial
single owls within an activity center; harm would result from
significant owl habitat removal around and beyond spotted owl site
centers.

Incidental Take of Spotted Owls: ``Harassment''

Timber harvest and related activities that disturb the breeding and
nesting functions of spotted owls within activity centers during the
breeding season can be considered incidental harassment of individual
spotted owls. Incidental harassment may include activities that could
result in disturbance of nesting spotted owls or the abandonment of
eggs, nestlings, or fledgling spotted owls. More specifically,
incidental harassment of spotted owls generally can include harvest
activities that occur within the closest 70 acres of suitable habitat
surrounding a site center during the owl's reproductive period. (The
reproductive period generally is between March 1 and September 30 of
each year. These dates may be modified where credible scientific
information establishes a different time period for a given area.)
Actions with the potential to disturb nesting spotted owls include, but
are not limited to, harvest related activities such as felling,
bucking, and yarding; road construction; and blasting.
A study by Miller (1989) examined the area used by fledgling
spotted owl juveniles in Oregon. Radio-telemetry data showed that the
average amount of nesting, roosting, and foraging habitat used by
fledgling spotted owls prior to dispersal was approximately 70 acres in
size. Under existing conditions in many areas, these activity centers
are seldom evenly distributed around a nest tree. Mortality rates for
juvenile spotted owls are significantly higher than for adults (Forsman
et al. 1984, Gutierrez et al. 1985, Miller 1989). Studies of juvenile
dispersal in Oregon and California indicated that few of the juvenile
spotted owls survived to reproduce (Miller 1989, Gutierrez et al.
1985). These research studies all reported very high mortality during
pre-dispersal.
Based on this and other information, the Service believes that the
maintenance of the closest 70 acres of existing suitable (nesting,
roosting, and foraging) habitat surrounding the nest tree will
contribute to a secure core area and is crucial to maximize fledgling
success and to provide a partial buffer against disturbance around the
site center. To avoid harassment, resident spotted owls are considered
to be nesting unless surveys conducted during the breeding season
indicate that not to be the case.

Incidental Take of Spotted Owls: ``Harm''

To successfully reproduce and maintain populations, studies have
suggested spotted owls require substantial quantities of suitable
(nesting, roosting, and foraging) habitat arrayed around their site
centers.
A number of radio-telemetry studies have described the quantity and
characteristics of habitat used by spotted owls. Studies by Hayes et
al. (1989) found a strong positive relationship between the abundance
of spotted owls and the percentage of older forests in the study area.
A similar analysis was performed on data collected by Bart and Forsman
(1992). The results showed that the number of spotted owls per square
mile, pairs of owls per square mile, young per square mile, and young
per pair increased with increasing amounts of older forest within the
study area. Productivity (number of young fledged per pair) increased
significantly with increasing amounts of older forest. Productivity in
areas with greater than 60 percent older forest was approximately three
times higher than productivity in areas with less than 20 percent older
forest.
Documentation in the 1990 Status Review of the Northern Spotted Owl
(USDI 1990a) indicates that productivity per pair is lowest in areas
with small amounts of older forest. This strongly suggests that, even
if some spotted owls persist in such areas, there is reason to believe
they are not reproducing and surviving at replacement levels.
The above research findings have supported the determination in the
past that reduced quantities of suitable habitat are likely to result
in lower spotted owl abundance and productivity rates. It has also been
suggested that a significant reduction of nesting, roosting, and
foraging habitat within the median annual home range of a spotted owl
pair or resident single creates a much higher risk of adverse effects
that actually kill or injure owls by significantly impairing essential
behavioral patterns, including breeding, feeding, and/or sheltering.
These are the primary elements of effects that ultimately can cause
harm to, and the incidental take of, spotted owls.
Recognizing the need to assist the public in avoiding the
incidental take of listed species, the Fish and Wildlife Service and
the National Marine Fisheries Service (NMFS) issued a joint policy
statement on July 1, 1994, committing the agencies to provide as much
guidance and assistance to the general public as possible so as to
avoid liability under the ESA for incidental takings (59 FR 34272,
1994). The policy statement also committed the agencies to designate in
future listing packages a key contact person within either the Service
or NMFS, as appropriate, to answer incidental take questions from the
general public.
In the particular case of the spotted owl, the Service has
encouraged the public to conduct owl surveys of property proposed for
harvest or development, as a primary means of avoiding harassment or
harm to an owl. The Service has recommended that such surveys be
conducted according to a March 17, 1992, Service-endorsed survey
protocol (USFWS 1992), available upon request from the FWS Ecological
Services State Offices listed below:

Sacramento Field Office, U.S. Fish and Wildlife Service, 2800 Cottage
Way, Suite E-1803, Sacramento, California 95825, 916-978-4866, Attn:
Field Supervisor
Oregon State Office, U.S. Fish and Wildlife Service, 2600 S.E. 98th
Avenue, Suite 100, Portland, Oregon 97266, 503-231-6179, Attn: Field
Supervisor
Washington State Office, U.S. Fish and Wildlife Service, 3704 Griffin
Lane S.E., Suite 102, Olympia, Washington 98501-2192, 206-753-9440,
Attn: Field Supervisor

Biology of the Northern Spotted Owl

The spotted owl is a long-lived bird that has a high degree of
nest-site fidelity within an established territory. This proposed rule
incorporates, by reference, recent documents addressing the biology and
ecology of the spotted owl, its habitat, and associated management
strategies in Washington, Oregon, and California, including: the final
rules listing the spotted owl as threatened and designating its
critical habitat; the Interagency Scientific Committee (ISC) report
(Thomas et al. 1990); the Scientific Analysis Team report (Thomas et
al. 1993); the final draft Recovery Plan for the Northern Spotted Owl
(USDI 1992); the Forest Ecosystem Management Assessment Team (FEMAT)
report (USDA et al. 1993); the supporting documents for the Forest Plan
(USDA/USDI 1994 a and b); and the Contribution of Federal and Non-
Federal Habitat to Persistence of the Northern Spotted Owl on the
Olympic Peninsula, Washington [[Page 9492]] (Holthausen et al. 1994).
The proposed rule also considered the Washington Spotted Owl Scientific
Advisory Group reports (Hanson et al. 1993 and Buchanan et al. 1994).
The range of the spotted owl has been divided into 12 physiographic
provinces (USDA/USDI 1994a): the Eastern and Western Cascades, Western
Lowlands, and Olympic Peninsula Provinces in Washington; the Eastern
and Western Cascades, Coast Range, Willamette Valley, and Klamath
Provinces in Oregon; and the Klamath, Coast, and Cascades Provinces in
California. The Klamath province was divided into two subprovinces by
State--the Oregon Klamath Province and the California Klamath
Province--even though the two provinces are part of the same geographic
area (Figure 4 to Sec. 17.41(c)).

Habitat Characteristics

Northern spotted owls generally have large home ranges and use
large tracts of land containing significant acreage of older forest to
meet their biological needs. The median annual home range size of a
northern spotted owl, which varies in size from province to province,
is approximated by a circle centered on an owl site center. Estimated
median annual home range sizes represent the area used by half of the
spotted owl pairs or resident singles studied to date within each
province to meet their annual life history needs.
Home range sizes were estimated by analyzing radio-telemetry home
range data from studies conducted on the annual movements of spotted
owl pairs, referenced in the 1990 Status Review (1990a) and the
Interagency Scientific Committee report (Thomas et al. 1990).
Based on studies of owl habitat preferences, including habitat
structure and use and prey preference throughout the range of the owl,
spotted owl habitat consists of four components: (1) Nesting, (2)
roosting, (3) foraging, and (4) dispersal. Although this habitat is
variable over the range of the spotted owl, some general attributes are
common to the owl's life-history requirements throughout its range. The
age of a forest is not as important for determining habitat suitability
for the northern spotted owl as the structure and composition of the
forest. Northern interior forests typically may require 150 to 200
years to attain the attributes of nesting and roosting habitat;
however, characteristics of nesting and roosting habitat are sometimes
found in younger forests, usually those with significant remnant trees
from earlier late-successional stands.
The attributes of superior nesting and roosting habitat typically
include a moderate to high canopy closure (60 to 80 percent closure); a
multi-layered, multi-species canopy with large overstory trees; a high
incidence of large trees with various deformities (e.g., large
cavities, broken tops, mistletoe infections, and debris accumulations);
large accumulations of fallen trees and other debris; and sufficient
open space below the canopy for owls to fly (Thomas, et al. 1990).
Spotted owls use a wider array of forest types for foraging,
including more open and fragmented habitat. Habitat that meets the
spotted owl's need for nesting and roosting also provides foraging
habitat. However, some habitat that supports foraging may be inadequate
for nesting and roosting. In much of the species' northern range,
large, dense forests are also chosen as foraging habitat, probably
because they provide relatively high densities of favored prey, the
northern flying squirrel (Glaucomys sabrinus), as well as cover from
predators. Because much of the flying squirrel's diet is fungal
material, old decadent forests provide superior foraging habitat for
owls. In southern, lower-elevation portions of the owl's range, the
species often forages along the edges of dense forests and in more open
forests, preying on the dusky-footed woodrat (Neotoma fuscipes).
In general terms, suitable habitat means those areas with the
vegetative structure and composition necessary to provide for
successful nesting, roosting and foraging activities sufficient to
support a territorial single or breeding pair of spotted owls. Suitable
habitat is sometime referred to as nesting, roosting and foraging (NRF)
habitat.
Although habitat that allows spotted owls to disperse may be
unsuitable for nesting, roosting, or foraging, it provides an important
linkage among blocks of nesting habitat both locally and over the range
of the northern spotted owl. This linkage is essential to the
conservation of the spotted owl. Dispersal habitat, at a minimum,
consists of forest stands with adequate tree size and canopy closure to
provide some degree of protection to spotted owls from avian predators
and to allow the owls to forage at least occasionally.
Suitable and dispersal habitat vary by province and are described
separately under the discussion of each province in the following
section.
Discussion of Spotted Owl Provinces by State

As previously noted, the range of the northern spotted owl has been
subdivided into 12 separate provinces (Figure 4 to Sec. 17.41(c)). For
purposes of this rule, the Klamath province has been divided into two
provinces by State--the California Klamath province and the Oregon
Klamath province--even though the two provinces are part of the same
geographic area. In California, the three provinces are the California
Cascades, California Klamath, and California Coast. The Oregon Coast
Ranges, Willamette Valley, Oregon Klamath, Western Oregon Cascades, and
Eastern Oregon Cascades constitute the five provinces of Oregon. The
four Washington provinces are the Eastern Washington Cascades, Western
Washington Cascades, Western Washington Lowlands, and the Olympic
Peninsula. Only the seven provinces in Washington and California are
the subject of incidental take prohibition modifications under this
proposed rule and will therefore be discussed in more detail below.

Washington

1. Washington Olympic Peninsula Province
The Washington Olympic Peninsula province is bordered by the
Pacific Ocean on the west, the Straits of Juan de Fuca on the north,
Hood Canal on the east, and State Highway 12 to the south (Figure 4 to
Sec. 17.41(c)). Of the three million acres in the province,
approximately 51 percent are in Federal ownership. The central portion
of the province is high, mountainous terrain, surrounded by lower
elevation forest that provides habitat for the spotted owl. Almost all
Federal lands on the Peninsula have either been designated as a late
successional or riparian reserves under the Forest Plan or have been
Congressionally withdrawn from timber harvest; only 8,400 acres of
Federal forest land on the Peninsula are available for programmed
timber harvest. In general, the province is demographically isolated
from other parts of the owl's range. Natural catastrophic events such
as windstorms and wildfires are threats that have the capability of
destroying thousands of acres of habitat.
The recent report by Holthausen et al. concluded that ``* * * it is
likely, but not assured, that a stable population of owls would be
maintained * * *'' on Federal lands in the Olympic Peninsula Province.
However, the report also notes it would be ``unlikely'' that owls would
persist on ``* * * the western coastal strip of the National Park, * *
*'' if non-Federal habitat on the western side of the Peninsula were
excluded from current Federal protection for owls. The report went on
to explain that ``the retention of non-Federal habitat in the
[[Page 9493]] western portion of the peninsula was particularly
significant and provided for a larger area of core habitat on Federal
land in model analyses. In addition, the retention of this habitat
would likely increase the chances of maintaining a population on the
coastal strip of the Olympic National Park.'' When comparing the
relative value of an SEA on the western side of the Peninsula with a
possible SEA on the northern side of the Peninsula, the report noted
that the western SEA ``made a much greater contribution to owl numbers
and occupancy rates than did the northern SEA * * *. Mean numbers of
pairs over the 100-year simulation was as large with the western SEA
alone as with both SEAs.'' Thus, non-Federal lands on the northern
portion of the Peninsula were not viewed as having any appreciable
capability of making a significant contribution to the long-term
conservation of the spotted owl on the Olympic Peninsula.
Finally, the report stated that attempts to maintain a ``habitat
connection across southwestern Washington * * * would have little
effect on the status of the owl population on the Peninsula if that
population was stable or nearly stable.'' In other words, recent
analysis suggests that the likelihood of addressing past concerns about
the need to connect the Olympic Peninsula owl population to
southwestern Washington owls in order to maintain a viable population
is very low, given current conditions, especially when relying on the
application of incidental take prohibitions. According to Holthausen,
et. al, ``* * * the populations of owls on the Peninsula is
sufficiently large to avoid any short to mid-term loss of genetic
variation, * * *'' Except for the western portion of the Peninsula
where non-Federal lands are still important, the major problem for owls
on the Peninsula is the past loss of suitable habitat on Federal lands.
a. NRF Habitat. NRF habitat on the Olympic Peninsula consists, as a
general matter, of coniferous or mixed coniferous/hardwood forest with
multiple canopy layers; multiple large overstory conifers greater than
20 inches in diameter at breast height (dbh); and total canopy closure
among dominant, co-dominant and understory trees of greater than 60
percent.
b. Dispersal Habitat. Dispersal habitat on the Olympic Peninsula
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forest with smaller dominant trees or lower canopy closure
than NRF habitat; multiple canopy layers of multiple large overstory
conifers greater than 10 inches dbh; and a total canopy closure among
dominant, co-dominant and understory trees of greater than 60 percent.
2. Western Washington Lowlands Province
This province consists of the lowlands outside of the Olympic
Province that extend east from the Pacific Ocean to the western
foothills of the Washington Cascades (Figure 4 to Sec. 17.41(c)). The
Canadian border forms the northern boundary and the Columbia River the
southern boundary of the province. Forest lands in the north and
central portions of the province along Puget Sound have been converted
to agricultural, industrial and urban areas. The southwestern portion
is dominated by commercial tree farming. Of the 6.5 million acres
within this province, only one percent is under Federal management.
a. NRF Habitat. NRF habitat in the Western Washington Lowlands
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forest with multiple canopy layers; multiple large overstory
conifers greater than 20 inches dbh; and total canopy closure among
dominant, co-dominant and understory trees of greater than 60 percent.
b. Dispersal Habitat. Dispersal habitat in the Western Washington
Lowlands consists, as a general matter, of coniferous or mixed
coniferous/hardwood forest with smaller dominant trees or lower canopy
closure than NRF habitat; multiple canopy layers of multiple large
overstory conifers greater than 10 inches dbh; and a total canopy
closure among dominant, co-dominant and understory trees of greater
than 60 percent.
Spotted owls in this province have extremely low population levels
due to isolation of populations within the province and limited
nesting, roosting, and foraging habitat. The limited amount of habitat
in this province also contributes to the demographic isolation of the
Olympic Peninsula Province. As noted previously in the discussion on
the Olympic Peninsula, however, the recent study by Holthausen et al.
suggested that even substantial conservation efforts in Southwest
Washington would be unlikely to make any meaningful contribution to
maintaining a stable, long-term population of owls on the Olympic
Peninsula. Thus, while Southwest Washington is important as part of the
historic range of the owl, the continued application of blanket
incidental take prohibitions to the exceptionally limited suitable
habitat that still exists there makes any contribution to owls on the
Olympic Peninsula minimal at best.
Currently, the Service is attempting to address these conservation
opportunity limitations through a creative new approach which targets
the development of comprehensive multi-species Habitat Conservation
Plans with several of the large landowners in this province. The
Service has premised this cooperative approach, as opposed to
designating this area as a Special Emphasis Area, on the positive
commitments it has received from major landowners in this region to
negotiate comprehensive HCPs. In addition, one of the landowners has
entered into a ``take avoidance'' agreement while working on their HCP.
The take avoidance agreement insures that no owls will be lost as the
result of timber harvest during the period in which the HCP is being
developed.
3. Western Washington Cascades Province
The Western Washington Cascades province occupies the land west of
the Cascades crest, from the Columbia River north to the Canadian
Border and west to the Western Washington Lowland province (Figure 4 to
Sec. 17.41(c)). This province contains about 6.1 million acres of land,
of which approximately 61 percent is in Federal ownership. Most of the
non-federal lands occur along the western edge of the province and
along the major mountain passes in checkerboard ownership with Federal
lands.
a. NRF Habitat. NRF habitat in the Western Washington Cascades
Province consists, as a general matter, of coniferous or mixed
coniferous/hardwood forest with multiple canopy layers; multiple large
overstory conifers greater than 20 inches dbh; and total canopy closure
among dominant, co-dominant and understory trees of greater than 60
percent.
b. Dispersal Habitat. Dispersal habitat in the Western Washington
Cascades Province consists, as a general matter, of coniferous or mixed
coniferous/hardwood forest with smaller dominant trees or lower canopy
closure than NRF habitat; multiple canopy layers of multiple large
overstory conifers greater than 10 inches dbh; and a total canopy
closure among dominant, co-dominant and understory trees of greater
than 60 percent.
A Habitat Conservation Plan (HCP) was recently approved by the Fish
and Wildlife Service to cover Murray Pacific Corporation lands in Lewis
County in this Province. The permit for this 100-year Habitat
Conservation Plan for the northern spotted owl was signed on September
24, 1993, for the Murray Pacific Corporation, a Tacoma,
[[Page 9494]] Washington, based timber company. The plan provides for
the development and maintenance of dispersal habitat for the spotted
owl that is well distributed over the 54,610 acres of the company's
land, while allowing limited taking of spotted owls that is incidental
to the company's timber harvest activities.
The Murray Pacific planning area is situated between the Mineral
Block (an isolated block of Forest Service land) and the main portion
of the Gifford Pinchot National Forest, that is located immediately
south of Mt. Rainier National Park. The Mineral Block has been
designated as a late-successional Federal reserve under the Forest
Plan. The management of Murray Pacific property will promote the
opportunity for the dispersal of spotted owls to and from this isolated
reserve, providing a link with the Cascade Mountains population. The
Mineral Block also hosts the most westerly extension of spotted owls in
the Cascade Mountains.
General threats to the spotted owl in this province include low
population levels, limited habitat in the northern portion of the
province, declining habitat, and dispersal problems in areas of limited
Federal ownership.
4. Eastern Washington Cascades Province
This province lies east of the crest of the Cascades Mountains from
the Columbia River north to the Canadian Border (Figure 4 to
Sec. 17.41(c)). The province extends east to where suitable spotted owl
habitat naturally diminishes and drier pine forests become prevalent.
Approximately 62 percent of the province's 5.7 million acres is in
Federal ownership.
a. NRF Habitat. NRF habitat in the Eastern Washington Cascades
Province consists, as a general matter, of coniferous forest with
stands that contain greater than 20 percent fir (Douglas fir, grand
fir) and/or hemlock trees; multiple canopy layers of multiple large
overstory conifers greater than 12 inches dbh; and a canopy closure
among dominant, co-dominant and understory trees of greater than 50
percent.
b. Dispersal Habitat. Dispersal habitat in the Eastern Washington
Cascades Province consists, as a general matter, of coniferous forest
with stands that contain greater than 20 percent fir trees with smaller
dominant trees or lower canopy closure than NRF habitat multiple canopy
layers of multiple large overstory conifers of greater than 11 inches
dbh; and total canopy closure among dominant, co-dominant and
understory trees of greater than 50 percent.
Threats to the spotted owl in this province include natural
fragmentation of spotted owl habitat by geological features; loss of
spotted owl habitat from wildfires; loss of habitat from timber harvest
activities; and low spotted owl populations in some areas of the
province.

California

1. California Coastal Province
Extending from the Oregon border south to San Francisco Bay, this
province lies west of the Six Rivers and Mendocino National Forests
(Figure 4 to Sec. 17.41(c)). It consists of approximately 5.6 million
acres, of which about 87 percent is in non-Federal ownership. Timber
management is the primary land use on about 2 million acres, and is
concentrated in the heavily-forested redwood zone located within 20
miles of the Pacific Ocean coastline. In the more inland and southerly
portions of the province, owl habitat is largely confined to the lower
portions of drainages and is naturally fragmented by grasslands,
hardwoods, and chaparral, as well as by agricultural and urban areas.
a. NRF Habitat. NRF habitat in the California Coastal Province
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forests with multiple canopy layers; multiple overstory
conifers greater than 16 inches dbh; and total canopy closure among
dominant, co-dominant, and understory trees of greater than 60 percent.
Some nest sites may occur in stands of smaller trees or with a lower
canopy closure; however, such sites are not typical.
b. Dispersal Habitat. Dispersal habitat in the California Coastal
Province consists, as a general matter, of coniferous or mixed
coniferous/hardwood forests, with smaller dominant trees or lower
canopy closure than in NRF habitat; multiple canopy layers, with
multiple large overstory conifers greater than 10 inches dbh; a total
canopy closure among dominant, co-dominant; and understory trees of
greater than 40 percent.
This province is unique in that it supports several hundred pairs
of spotted owls (over \1/3\ of the State's population) within managed
second-growth timber stands. Factors that appear to contribute to the
suitability of these second-growth stands include the rapid growth of
trees in the coastal environment, the prevalence of hardwood
understories, and the widespread occurrence of a favored prey species,
the dusky-footed woodrat. The primary threat to the spotted owl in this
region is habitat alteration, but, due to the spotted owl's widespread
distribution, the predominance of selection harvest methods, the rapid
regrowth of habitat, and effective and comprehensive State wildlife
conservation and forest practice regulations, threats are considered
low to moderate in this portion of the spotted owl's range.
Because Federal lands in this province are limited, they play a
small role in spotted owl conservation in this province. Significant
non-Federal contributions to conservation are in place or under
development in this area. In addition to efforts by the state,
described in more detail later, several large timber companies in the
coastal province have made substantial investments in information-
gathering and planning for spotted owl conservation. The Simpson Timber
Company has completed a Habitat Conservation Plan and received a
section 10(a) permit for the incidental take of a limited number of
spotted owls on its 380,000-acre property. Pursuant to this plan,
Simpson Timber has set aside 40,000 acres of suitable owl habitat for
at least ten years, is conducting research on habitat characteristics,
and has banded over 600 spotted owls.
2. California Klamath Province
This province lies to the east of the California Coastal province,
and is contiguous with the Oregon Klamath province (Figure 4 to
Sec. 17.41(c)). The California Klamath province consists of
approximately 6.2 million acres, of which about 76 percent is in
Federal ownership. The U.S. Forest Service is the primary land manager.
About 25 percent of the Forest Service lands in the province are
believed to be currently suitable for nesting, roosting, and foraging
by the spotted owl.
a. NRF Habitat. NRF habitat in the California Klamath Province
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forests with multiple canopy layers; multiple overstory
conifers greater than 16 inches dbh; and total canopy closure among
dominant, co-dominant, and understory trees of greater than 60 percent.
Some nest sites may occur in stands of smaller trees or with a lower
canopy closure; however, such sites are not typical.
b. Dispersal Habitat. Dispersal habitat in the California Klamath
Province consists, as a general matter, of coniferous or mixed
coniferous/hardwood forests, with smaller dominant trees or lower
canopy closure than in NRF habitat; multiple canopy layers, with
multiple large overstory conifers greater than 10 inches dbh; a
[[Page 9495]] total canopy closure among dominant, co-dominant; and
understory trees of greater than 40 percent.
In many areas of the province, spotted owl habitat is naturally
fragmented by chaparral, stands of deciduous hardwoods, and low-
elevation vegetation types. In portions of the area, suppression of
fire over the last century may have encouraged development of mixed-
conifer habitat suitable for spotted owls. However, during the same
period, timber harvest has removed substantial amounts of suitable
habitat. Owl populations throughout the province were believed to be
declining due to habitat loss at the time of listing, and data suggest
that populations may well be continuing to decline in the province's
only demographic study area (Franklin et al. 1992). In the southern
portion of the province, especially on the Mendocino National Forest,
spotted owls and nesting, roosting, and foraging habitat are more
scattered than in northern areas due to both natural conditions and
recent harvest. However, despite extensive habitat fragmentation in
some areas during the last two decades, spotted owl populations appear
to remain distributed throughout most parts of the province.
Until the listing of the spotted owl, continued habitat alteration
due to clear-cutting was a primary threat to the species in this
province. The most important threat to habitat at the present time is
wildfire. In the past six years, large fires have destroyed or degraded
substantial quantities of owl habitat on the Klamath, Shasta-Trinity,
and Mendocino National Forests.
The Hoopa Valley Indian Reservation occupies about 88,000 acres
along the western margin of this province. The Hoopa Tribe has
conducted forestry operations under section 7 consultation conducted
between the Bureau of Indian Affairs and the Service, and is preparing
a comprehensive integrated resource management plan for forestry and
wildlife on their lands. The Tribe is also developing a Geographic
Information System (GIS) data base to integrate spotted owl
conservation into its timber management program. The maintenance of
adequate dispersal condition in this area would improve the intra-
provincial connectivity and dispersal between Federal reserves.
3. California Cascades Province
This province lies east of the California Klamath province. It
consists of approximately 2.5 million acres, of which about 46 percent
is in Federal ownership (Figure 3 to Sec. 17.41(c)). Checkerboard
Federal and non-Federal ownership patterns predominate. Due to the
relatively dry climate and the history of recurrent wildfires in this
province, spotted owl habitat is naturally fragmented by chaparral and
stands of deciduous hardwoods. As is the case in the California Klamath
Province, the suppression of wildfire over the last century may have
encouraged development of mixed-conifer habitat suitable for spotted
owls. However, timber harvest has removed substantial amounts of
suitable habitat. Existing spotted owl sites are widely scattered, and
the potential for dispersal across the province appears to be limited.
This province provides the demographic and genetic linkage between the
northern spotted owl and the California spotted owl of the Sierra
Nevada range.
a. NRF Habitat. NRF habitat in the California Cascades Province
consists, as a general matter, of coniferous or mixed coniferous/
hardwood forests with multiple canopy layers; multiple overstory
conifers greater than 16 inches dbh; and total canopy closure among
dominant, co-dominant, and understory trees of greater than 60 percent.
Some nest sites may occur in stands of smaller trees or with a lower
canopy closure; however, such sites are not typical.
b. Dispersal Habitat. Dispersal habitat in the California Cascades
Province consists, as a general matter, of coniferous or mixed
coniferous/hardwood forests, with smaller dominant trees or lower
canopy closure than in NRF habitat; multiple canopy layers, with
multiple large overstory conifers greater than 10 inches dbh; a total
canopy closure among dominant, co-dominant; and understory trees of
greater than 40 percent.
Currently, threats in this province include low population numbers,
difficulty in providing for interacting population clusters, and
fragmented dispersal habitat. Catastrophic wildfire is also an
important threat to habitat. In 1992, a 70,000-acre fire in Shasta
County substantially reduced the likelihood of contact between the
northern spotted owl and the California spotted owl for the next
several decades.

Northern Spotted Owl Populations on Non-Federal Lands

Due primarily to historic timber harvest patterns, approximately 75
percent of the known rangewide population of spotted owls is centered
on Federal lands. Owl site centers on non-Federal lands are usually
found in remnant stands of older forest, or in younger forests that
have had time to regenerate following harvest. In addition, adjacent
forested non-Federal lands can provide foraging and dispersal habitat
for owls whose site centers are on Federal lands.
As of July 1, 1994, there were 5,431 known locations, or site
centers, of northern spotted owl pairs or resident single owls in
Washington, Oregon, and California (located between 1989 and 1993)--851
sites (16 percent) in Washington, 2,893 (53 percent) in Oregon, and
1,687 (31 percent) in California. In Washington and Oregon, owl site
centers on non-Federal lands are typically widely scattered. Currently,
1,319 or 24 percent of known owl site centers are located on non-
Federal lands--140 in Washington, 342 in Oregon, and 837 in California.
Of those in California, 631 or 75 percent of the site centers located
on non-Federal lands are located in the California Coast Province,
where owls are relatively common in second-growth timber stands. Site
centers in the interior provinces of California are typically
scattered. In addition to the site centers located on non-Federal lands
in Washington, Oregon, and California, preliminary analyses indicate
that there are 151 site centers in Washington, 810 centers in Oregon,
and 204 centers in California, located on Federal lands that are
dependent upon some percentage of suitable owl habitat on adjacent non-
Federal lands to support the owls.
Non-Federal lands in certain portions of the owl's range are still
necessary to support and supplement the Federal lands-based owl
conservation strategy. While the type of support needed varies
depending on local conditions, the three general types of conservation
support needed within specially designated areas are:
(1) Habitat on non-Federal lands near Federal reserves where
existing owl populations are low to provide demographic support for owl
populations. Areas that are needed to provide demographic support for
Federal reserves include, in Washington: the western portion of the
Olympic Peninsula Province and portions of the Eastern and Western
Cascade provinces; and in California: the Cascades Province and the
southern portion of the Klamath Province;
(2) Dispersal habitat between Federal reserves, where Federal lands
may not be distributed to prevent isolation of populations, or between
non-Federal ownerships where the distance between reserves is not
great. Where distances are large, scattered breeding sites may be
important to improve connection between populations. Areas that can
provide valuable dispersal habitat on non-Federal lands include, in
Washington--the western portion of the Olympic Peninsula Province and
[[Page 9496]] portions of the Eastern and Western Cascade Provinces;
and in California--the Coast and Cascades Provinces and small portions
of the Klamath Province; and
(3) Suitable habitat for breeding populations in areas where
Federal ownership is limited. In these areas, functioning spotted owl
populations are desired to maintain a widely distributed population of
owls. Areas where non-Federal owl populations are believed to play an
important role in this regard include, in Washington--the western
portion of the Olympic Peninsula Province; and, in California--the
Coast and Cascades Provinces.

Recent Conservation Programs and Strategies for the Northern
Spotted Owl

Non-Federal Management Efforts

To varying degrees, the laws, regulations, and policies of
California, Oregon, and Washington provide protection and contribute to
the conservation of the spotted owl. Each of the three states is a
cooperator with the Secretary of the Interior under section 6 of the
Act and each State has cooperative agreements with the Service to carry
out conservation activities for listed and candidate species of plants
and animals. Under these agreements, the States work cooperatively with
the Service on endangered and threatened species conservation projects
and are eligible for cost-share grant money from the Service to carry
out State-directed species research and conservation activities. Since
the spotted owl was Federally listed, Washington, Oregon, and
California have recognized the Federal status of the spotted owl and
have adopted forest management rules offering various levels of
protection for the species. In addition, numerous changes have been
made to State forest practices rules in the last few years in response
to the needs of declining species like the spotted owl, the marbled
murrelet, and various runs of salmon. Relevant authorities and programs
existing in the States of Washington and California are also briefly
described below.

California

California has adopted the most protective forest management
regulations for the spotted owl in the Pacific Northwest. The State has
also been in the forefront of efforts to approach forest management
from an ecosystem perspective.
Pursuant to the California Forest Practice Act, the California
Board of Forestry establishes regulations under Title 14 of the
California Code of Regulations governing timber harvest on private and
State lands (14 CFR Sec. 895, 898, 919, 939). Registered Professional
Foresters licensed by the Board must submit Timber Harvest Plans (THP)
to the California Department of Forestry and Fire Protection for review
and approval. The California Department of Fish and Game is also
responsible for reviewing THPs. THPs may be denied on a number of
grounds, including potential take of Federally or State listed
threatened or endangered species.
Following the Federal listing of the northern spotted owl, the
Board of Forestry implemented no-take rules using standards based on
biological advice from the Service. These standards include maintenance
of over 1,300 acres of suitable owl habitat within 1.3 miles of every
spotted owl site center and 500 acres within 0.7 miles. The rules
instituted a special review process for all proposed private timber
harvest to ensure that incidental take would not occur. The process
encouraged surveys for spotted owls in THP areas according to a
Service-endorsed protocol (USFWS 1992). The Board's no-take rules have
maintained options for future management by providing protection for
habitat around every known spotted owl site center, and have resulted
in greatly increased knowledge of the species' numbers and
distribution. Other Forest Practice Rules, including riparian buffers
and limitations on clear-cut size, may provide additional contributions
to the maintenance of spotted owl habitat in northern California. These
include the 40-acre limitation on clear-cut size, limits on adjacency
of clear-cuts, and protection of riparian buffers.
The Board of Forestry (Board) also recently adopted rules
establishing regulatory incentives for large-acreage landowners who
develop sustained yield plans (SYPs). The SYP rules may provide
considerable benefit to spotted owls, because ownerships operating
under these rules must maintain specified portions of each watershed in
timber stands of large size classes for several decades, thus providing
spotted owl habitat components throughout the landscape.
The Department of Fish and Game and Department of Forestry and Fire
Protection jointly maintain an interagency data base of Federal and
non-Federal spotted owl locations. The Forest Practice Rules require
that all information on spotted owl sites that is generated during
timber harvest planning be submitted to this data base, and relevant
data are made available to all parties planning timber harvest or other
activities. Thus, the data base is a functional tool in protection of
the species.
Following the listing of the northern spotted owl, the California
Board of Forestry directed the Department of Forestry and Fire
Protection to prepare a Habitat Conservation Plan (HCP) and section
10(a)(1)(B) incidental take permit application to address all private
timber harvest regulated by the Board. Following a three-year planning
effort by that Department and a number of cooperators from agencies,
industry, and environmental groups, the Board tabled consideration of
the draft Habitat Conservation Plan because significant issues remained
unresolved, most notably the funding mechanism. The draft plan
nevertheless represented a significant cooperative commitment to
resolve conservation issues by the State and other concerned parties
and many of the biological elements of the draft HCP may have future
application.

Washington

The spotted owl is listed under Washington law as an endangered
species. The Washington Department of Natural Resources has the
responsibility for regulating timber harvest activities on non-Federal
lands under the authority of the Washington State Forest Practices Act
(76.09 RCW) and its implementing regulations (WAC 222.08-222.50). These
regulations are promulgated by the Forest Practices Board.
Recent regulations (WAC 222.16.080(1)(h) have required forest
practices on the 500 acres of suitable habitat surrounding the site
center of known spotted owls to be reviewed under the State
Environmental Policy Act, WAC 222.16.080(1)(h). In practice, this rule
has led landowners to avoid applying for permits for forest practices
within the 500-acre area. This regulation expired on February 9, 1994,
and has been extended pending approval of a final rule. The Forest
Practices Board has established a Scientific Advisory Group to
recommend the scientific basis for a new rule to replace the current
rule. No other forest practices regulation expressly addresses the
protection of spotted owl habitat from timber harvest activities.
However, the Department notifies individual landowners when a proposed
forest practice occurs within the median annual home range of a known
spotted owl pair or resident single, and advises the landowner to
contact the Service. In addition, several other regulations contribute
habitat benefitting spotted owls, including regulations requiring
riparian zone protection, wetlands protection, and retention of
wildlife reserve trees. [[Page 9497]]
Riparian management zone regulations require the minimum retention
of 25-foot wide buffers along the sides of fish-bearing streams with a
varying ratio of trees to be retained per 1,000 feet of stream within
the buffers, based on stream location, width and bottom composition.
Wetland management regulations require the establishment of a zone
surrounding non-forested wetlands which varies in width from a minimum
of 25 to 50 feet depending on the size and category of the wetland. The
regulations also require the retention of a minimum number of trees
(75) per acre and that a percentage of those trees meet minimum size
classifications (six inches dbh) depending on the type of wetland. Of
this total, 25 trees are to be more than 12 inches dbh, and five of
them are to be more than 20 inches dbh, where they exist.
Clear-cut size and green-up regulations limit the maximum size of
clear-cut harvest units to 120 acres, unless a State environmental
Policy Act review is undertaken that could boost the potential size of
the harvest to 240 acres. The perimeter of harvest units must meet
minimum stand qualifications to maintain age class diversity adjacent
to the harvest unit before harvest may proceed.
Wildlife reserve tree regulations require the retention of three
snags (minimum of 12 inches dbh), two green recruitment trees (minimum
10 inches dbh), and two down logs (minimum 12 inches diameter at the
small end).
Besides regulating forest practices in Washington, the Department
of Natural Resources (WDNR) administers approximately five million
acres of State lands, 2.1 million acres of which are forested and
managed in trust for various beneficiaries. The WDNR has avoided the
take of spotted owls on its lands and has begun preparation of an HCP
under section 10(a)(1)(B) of the Act for all State lands in the range
of the owl. The WDNR is also developing a conservation strategy for the
spotted owl that would be applied to the Congressionally mandated
264,000-acre State Experimental Forest on the Olympic Peninsula.
Apart from these efforts by State government, various private
efforts are underway to conserve spotted owls, including the
development of, or commitment to, HCPs and ``no take'' agreements by
several major landowners in the State. In addition, the Yakima Indian
Nation is developing a conservation strategy for the spotted owl while
continuing to follow its previous interim spotted owl strategy and
selective timber harvest regime.

Past Federal Management Strategies

Prior to its listing as a threatened species, many different
approaches to northern spotted owl management and research were
undertaken by Federal and State resource agencies, for example,
designation of ``spotted owl habitat areas'' or ``SOHAs.'' Each of
these approaches fulfilled different conservation objectives for the
northern spotted owl. The conservation objective of the earliest
attempts at spotted owl management, which began in the mid-1970s, was
to temporarily protect sites that supported individual pairs of spotted
owls. In the 1980s, management strategies were based on conservation
objectives that tried to avoid land use conflicts while managing
spotted owls and late-successional forest habitat; these management
strategies were generally inadequate. A complete discussion of the
history and chronology of past spotted owl management attempts can be
found in Thomas et al. (1990).
Recent (post-listing) Federal northern spotted owl management
strategies have been based on the establishment of a system of large,
dispersed Federal land reserves, with conservation objectives somewhat
different from earlier strategies. These management strategies were
designed to meet the following conservation objectives--(1) provide
habitat to sustain approximately 20 or more breeding pairs of spotted
owls on each Federal reserve; (2) decrease the chance of catastrophic
loss of populations in reserves; (3) lower the risk of losing spotted
owls from a reserve due to a single catastrophic event; and (4) ensure
that adequate habitat existed between the reserves for dispersal of
owls throughout its range. To fulfill these objectives, these
management strategies proposed establishing a reserve network of
Federal lands based on blocks of late-successional habitat of
sufficient size and proximity to each other to maintain viable
populations of the spotted owl throughout its range. Assessments of
these strategies have generally recognized that, in certain areas of
the northern spotted owl's range, Federal lands are not, by themselves,
adequate to support the full recovery of the owl although they could
provide a major contribution toward the owl's conservation in other
parts of its range (USDI 1992).
To meet their conservation objectives, these management strategies
generally established Federal reserves designed to sustain at least 20
pairs of spotted owls where conditions allowed. These strategies
assumed that any smaller late-successional Federal reserves should be
placed closer together to increase the probability of successful
spotted owl dispersal between the reserves. In addition, plans provided
dispersal habitat sufficient to support movements between blocks. For
this reserve design, successful dispersal would accomplish two
objectives--it would help prevent genetic isolation in individual owl
populations and it would allow spotted owls to naturally recolonize
important areas that have few or no spotted owls present. By allowing
spotted owls to disperse between a series of discrete reserves, this
reserve design could maintain a spotted owl population over a large
area even if a single reserve was lost to catastrophe.
By way of example, the Interagency Scientific Committee (ISC)
developed a conservation strategy based on managing large, well-
distributed Federal blocks of suitable spotted owl habitat that were
sufficiently connected to maintain a stable and well-distributed
population of spotted owls throughout their range (Thomas et al. 1990).
The ISC did not integrate non-Federal lands into its conservation
strategy. To provide dispersal habitat between these reserves, the ISC
recommended a ``50-11-40 rule'' where 50 percent of Federal forest
habitat (based on quarter-townships) would be managed to retain
dominant or co-dominant trees with an average of 11 inches dbh and
provide a minimum 40 percent canopy closure. Canopy closure refers to
the degree to which the crowns (tops) of trees obscure the sky when
viewed from below. The ``50-11-40'' rule was set forth as one method of
providing for dispersal habitat on Federal forest lands; other
prescriptions have been and can be developed which provide comparable
dispersal conditions, e.g., Murray Pacific HCP dispersal prescription.

The Federal Forest Plan

The range of the spotted owl includes approximately 24,518,000
acres of Federal lands of which 20,577,000 acres are forested. The
Forest Plan represents a management strategy for Federal LSOG-forests
in the coastal western states of California, Oregon, and Washington
that provides habitat to support the persistence of well distributed
populations of species that are associated with late-successional
forests, including the northern spotted owl.
The Forest Plan established a network of reserves totalling over
11.5 million acres of Federal land in northern California, Oregon, and
Washington. That total includes 7.43 million acres of late-successional
reserves, 2.63 million [[Page 9498]] acres of riparian reserves, and
1.48 million acres of administratively withdrawn areas. This acreage is
in addition to 7.32 million acres of Congressionally reserved lands.
The late-successional reserves currently provide 3.2 million acres
of suitable habitat for the spotted owl. The interim riparian reserve
provide an additional 0.74 million acres of suitable habitat and the
administratively withdrawn areas provide an additional 0.31 million
acres of this habitat.
Late-successional reserves are expected to provide the primary
contribution to the recovery of the spotted owl by maintaining large
clusters of spotted owls and spotted owl habitat throughout a
significant portion of the range of the species. The reserves are
expected to increase in value for spotted owl recovery as young
forested stands grow into suitable habitat and increase their capacity
to support additional numbers of stable spotted owl pairs.
Programmed timber harvest operations are not allowed in late-
successional reserves under the Forest Plan. However, carefully
controlled thinning activities are allowed in any stand of one of these
reserves less than 80 years of age. Salvage operations also would be
allowed on these reserves in areas where catastrophic loss exceeded ten
acres. In both cases, harvest proposals must be reviewed by an
interagency oversight group to ensure sound ecosystem management.
No programmed timber harvest is allowed in riparian reserves under
the Forest Plan and Federal agencies are required to minimize the
effects of roads, cattle grazing, and mining activities in these areas.
These riparian reserves are eventually expected to provide a
considerable amount of late-successional forest, because they currently
represent approximately 31 percent of the lands that would otherwise be
designated as Matrix. Based on current information (USDA et al. 1993),
approximately .74 million acres (28 percent) of the 2.63 million acres
in riparian reserves currently provide suitable nesting, roosting, and
foraging habitat for spotted owls and 1.42 million (54 percent) of the
riparian reserves provide suitable dispersal habitat for spotted owls.
The Forest Plan places 1.5 million acres of Federal land in 10
special ``Adaptive Management Areas (AMAs).'' Management activities in
these AMAs would emphasize innovative forestry techniques with the goal
of speeding attainment of late-successional characteristics and on
restoring watersheds. These activities are expected to benefit northern
spotted owl management in the long-term, but would not be expected to
contribute substantially to owl conservation needs in the short-term.
Suitable habitat for the northern spotted owl represents approximately
0.37 million acres of the lands that have been designated as AMAs.
Programmed timber harvests also are allowed on approximately four
million acres of Federal forests designated as the Matrix under the
Forest Plan. The Plan differs from previously proposed strategies in
that the 50-11-40 rule does not apply to Matrix areas between late-
successional and other Federal forest reserves. The Plan concluded that
the need for spotted owl dispersal habitat could be met with the
combination of reserves as proposed, plus additional Matrix
prescriptions.
In Washington and Oregon, the Plan requires leaving 15 percent of
the trees (``green tree retention'') in all harvest units on AMAs and
matrix areas outside of the Coast Ranges and Bureau of Land Management
lands in southern Oregon. The Plan encourages these trees to be left in
small clumps with the expectation that they, along with the riparian
reserves, would contribute to the creation of dispersal habitat. The
Forest Plan adopted this prescription to improve the future condition
of these forests. These prescriptions could ultimately be adjusted as a
result of watershed analysis and other planning activities related to
the implementation of the Forest Plan.
In California, the Forest Plan incorporates the Matrix
prescriptions contained in the draft National Forest land management
plans. These prescriptions are designed to maintain dispersal habitat
in a variety of timber types.
The FEMAT report (p. IV-43 and p. IV-153) stated that
implementation of Option 9 (which served as the basis for the Forest
Plan) would result in a projected future likelihood of 83 percent that
spotted owl ``habitat is of sufficient quality, distribution, and
abundance to allow the species population to stabilize in well
distributed areas of Federal lands,'' and a projected future likelihood
of only 18 percent that ``habitat is of sufficient quality,
distribution, and abundance to allow the species population to
stabilize, but with some significant gaps in the historic species
distribution on Federal land. These gaps cause some limitation in
interactions among local populations.'' Moreover, implementation of
Option 9 was rated by FEMAT as resulting in a zero likelihood that
``habitat only allows continued species existence in refugia, with
strong limitations on interactions among local populations'', and a
similar zero likelihood that implementation of the option would result
in ``species extirpation from Federal lands''.
These probability judgments reflect the contributions to
conservation expected to be provided by the implementation of the
Forest Plan on Federal lands. They indicate a high likelihood that,
over the long-term, the Forest Plan will provide conditions on Federal
lands that would contribute significantly to the conservation and
recovery needs of the spotted owl. This assessment is consistent with
the Federal policy to provide the predominant protection for spotted
owls on Federal lands and it is within this context that the Service
proposes to modify the incidental take prohibitions for certain non-
Federal lands.

General Approach Used to Develop This Special Rule

The goal of this proposed rule was to identify non-Federal lands
that are no longer either necessary or advisable to the conservation of
the spotted owl given the contributions of the Forest Plan the likely
possibility of numerous large scale, multi-species Habitat Conservation
Plans, and other measures and practices in effect. In reviewing the
alternatives identified in the NOI, the Service evaluated the
contributions to the conservation of the owl provided by the Forest
Plan, past Federal owl conservation strategies, existing State forest
practices regulations, tribal conservation and private timber
management plans, as well as public comments provided in response to
the NOI.
The Service considered various factors in identifying areas of non-
Federal land where relief could be provided and other areas where
incidental take restrictions should be maintained at this time. The
Service first considered the conservation benefits that the Federal
Forest Plan provided the owl for a given area. These benefits were then
compared and contrasted with the conservation goals for the area
originally established under the Final Draft Recovery Plan for the
northern spotted owl. The Service focused particularly on Forest Plan
impacts affecting the conservation of owl habitat and owl numbers, as
well as the size and location of Federal reserves. It then identified
certain areas of non-Federal land which were still important for owl
conservation and what the conservation goals should be for such areas.
The Service gave particular care and attention to the non-Federal lands
[[Page 9499]] which were noted as important in the Report of the Forest
Ecosystem Management Assessment Team (FEMAT), IV 150-151. In
identifying boundaries for such areas, the Service considered, among
other things, current owl population status on non-Federal lands, the
need for owl population support within adjacent Federal reserves, and
the need for connectivity between such reserves. The Service also
attempted to exclude wherever possible large areas of non-Federal land
with little or no owl habitat.
The Forest Plan is a habitat based conservation strategy that would
anchor and secure millions of acres of Federal land across the range of
the spotted owl, an unprecedented commitment of Federal resources
towards the conservation of the owl. Given that commitment to a habitat
based strategy and the scope of the Forest Plan, the Service no longer
believes that it is essential to the conservation of the spotted owl to
continue to prohibit the incidental take of the owl on all non-Federal
land located within the range of the owl. The Service also believes
that the combination of Federal and non-Federal habitat based
strategies for the spotted owl contained in this proposed rule, the
Forest Plan and multi-species Habitat Conservation Plans will, over
time, further the conservation of the species and its recovery.
When developing objectives for regulatory relief for non-Federal
lands which were consistent with the Forest Plan, the Service evaluated
past biological information and has concluded that it is still
important to retain the closest 70 acres of suitable owl habitat
surrounding site center regardless of whether the center is in an area
of proposed relief or not. The Service also believes that the
substantial loss of suitable habitat within the estimated median annual
home range of an owl is likely to result in inadequate nesting,
juvenile development, and adult dispersal and survival, and will
significantly increase the likelihood of actual harm to, and incidental
take of, an owl.
As the riparian reserve, matrix, adaptive management areas, and
late-successional reserve management criteria of the Forest Plan are
implemented, along with the requirements of underlying State law and
other provisions proposed in this rule for owl protection, dispersal
and connectivity conditions for the species' survival should improve
over time throughout its range. For this reason, the Service has chosen
not to include in this proposed rule mandatory dispersal prescriptions
such as the 50-11-40 rule which was designed originally to generate
dispersal habitat conditions for Federal lands only.
For those areas where satisfactory dispersal conditions likely are
not present, the Service believes that such conditions can be achieved
over time through other means such as full protection against
incidental take, large scale Habitat Conservation Planning (HCPs),
Local Option Conservation Plans, or voluntary conservation
contributions by non-Federal landowners. Recognizing the limitations on
Federal authority to mandate the development of dispersal habitat in
these areas, this proposed rule would encourage non-Federal landowners
to manage their lands in ways that are more consistent with the
conservation of the spotted owl. In some areas it would remove the
disincentives associated with maintaining suitable spotted owl habitat,
and, would bring more certainty to future planning for timber
management as well as for owl conservation activities.
Upon consideration of all of the above factors, the following
summarizes the provisions of this 4(d) rule:

Regulatory Provisions Common to Both Washington and California

Some protective measures for the owl would be identical for both
the State of Washington and California. The prohibition on killing or
injuring of spotted owls would not be relieved in any part of the owl's
range by this proposed rule. Similarly, timber harvesting of the
closest 70 acres of suitable owl habitat surrounding a site center
would remain prohibited throughout Washington and California, unless
the site has been determined to be abandoned.
In addition, the Service would retain for an additional two years,
the prohibition against incidental take as applied to owls which are
dependent upon non-Federal lands and whose site centers are located
within Federal Forest Plan Reserves or Congressionally reserved or
Administratively withdrawn areas which are outside of Special Emphasis
Areas or are on the western portion of the Olympic Peninsula in
Washington, or are located on Federal Forest Plan reserves or
Congressionally reserved or Administratively withdrawn areas within the
Klamath Province in California. At the end of this period, the Service
will review any new information or data involving the status of such
owls and their habitats in the affected areas, including the results of
any completed watershed analysis and other planning efforts under the
Federal Forest Plan. In particular, the Service would assess on a local
area-by-area basis whether the continuation of the incidental take
prohibition on affected, adjacent non-Federal lands was still necessary
and advisable for achieving the conservation goals of the Forest Plan
for that area. The Service would then lift the incidental take
restrictions where warranted and require the protection of only the
closest 70 acres of suitable habitat surrounding an affected site
center.

Relief From Current Incidental Take Provisions in Washington
A total of approximately 10.6 million acres of non-Federal land in
the range of the spotted owl in Washington (the Washington Lowlands
Province, portions of the Western and Eastern Cascades Provinces and
portions of the Olympic Peninsula Province) would be excluded from the
boundaries of proposed Special Emphasis Areas (SEAs) and be exempted
from the future application of current incidental take restrictions for
the northern spotted owl. Of this land base outside SEAs, 8.3 million
acres have some sort of forest cover of which 5.24 million acres are in
conifer cover. Actually, only a small percentage of these lands are
currently affected by present incidental take prohibitions for owls.
Absent this proposed rule, however, much of this remaining land could
potentially be affected should a spotted owl relocate to any adjacent
suitable owl habitat at some point in the future. Approximately 1.7
million acres of non-Federal lands would be left inside of SEAs. Of
this acreage figure, 1.3 million acres of non-Federal land is in
conifer forest and would remain subject to the incidental take
prohibitions for any owl found present in this area. In fact, only a
portion of this acreage inside SEAs is currently affected by the
presence of owls. Of the approximately 510,000 acres of non-Federal
forestland which are today under incidental take restrictions for known
owl sites, no less than 325,000 acres or almost 60 percent would be
relieved from such restrictions as a result of this rule.
Of the 140 spotted owl site centers on non-Federal lands in
Washington, 84 are in the six proposed SEAs and would retain current
incidental take protection. Fifty-six spotted owl site centers are
outside SEAs on non-Federal lands and would be released from current
incidental take prohibitions. There are an additional 121 site centers
on Federal lands within the proposed SEA's, of which 68 may be
dependent on non-Federal lands. There are also 83 site centers on
Federal lands outside the SEAs that may be dependent on non-
[[Page 9500]] Federal lands. Of the 83 site centers outside of SEAs, 71
site centers are located within either a Federal Forest Plan Reserve or
a Congressionally reserved or Administratively withdrawn area. The
Olympic Peninsula contains 41 of these sites with the remaining 30
sites located outside of SEAs in the rest of the State.

Activities Outside of Designated SEAs

The Service proposes to reduce the current prohibition against the
incidental taking of owls for those non-Federal lands which are located
outside of SEAs proposed in Washington. In areas outside of SEAs, a
non-Federal landowner would only be required to retain the closest 70
acres of suitable owl habitat surrounding an owl site center. Legal and
administrative boundaries were used wherever possible to assist in
refining identified SEA boundaries. As noted above, the Service
estimates that approximately 10.6 million acres of non-Federal land in
Washington lie outside of SEAs, of which 5.24 million acres are
forested with conifers. These would be the primary areas receiving
relief under this rule for Washington. In these areas, the incidental
take of owls would not be prohibited as long as timber harvest
activities did not take place within the closest 70 acres of suitable
owl habitat immediately surrounding an owl site center.
As noted previously, the above reduction to 70-acres would not be
applicable for non-Federal lands affected by any owl site center which
is located within a Forest Plan reserve or Congressionally reserved or
Administratively withdrawn area which is outside of an SEA. The Service
intends to reassess the importance of these sites within the next two
years as additional data and planning information is developed under
the Forest Plan. The one region in Washington where this two-year
retention of prohibitions would not be applied outsid

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-3922. Public record. Not legal advice.