Endangered and Threatened Wildlife and Plants; Proposed Revisions for Proposed Designation of Critical Habitat for the Mexican Spotted Owl

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD02

Endangered and Threatened Wildlife and Plants; Proposed Revisions

for Proposed Designation of Critical Habitat for the Mexican Spotted

Owl

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Supplemental proposed rule, proposed revisions to proposed

designation of critical habitat.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) announces

proposed exclusions from its previously published proposal to designate

critical habitat for the Mexican spotted owl. The draft economic

analysis upon which the exclusions are partly based has also been made

available.

DATES: The original comment period on the proposed rule to designate

critical habitat extended from December 7, 1994, to March 7, 1995. The

comment period on the proposal and the proposed exclusions extends

through May 8, 1995.

ADDRESSES: Requests for copies of the Service's Economic Analysis and

comments concerning that document and the proposal to designate

critical habitat for the Mexican spotted owl or [[Page 12729]] proposed

exclusions should be sent to the State Supervisor, U.S. Fish and

Wildlife Service, 2105 Osuna NE, Albuquerque, New Mexico 87113.

Comments and materials received will be available for public

inspection, by appointment, during normal business hours at the above

address.

FOR FURTHER INFORMATION CONTACT: Jennifer Fowler-Propst, New Mexico

State Supervisor, at the above address, telephone (505) 761-4525.

SUPPLEMENTARY INFORMATION:

Background

The Service listed the Mexican spotted owl as a threatened species

on March 16, 1993 (58 FR 14248). At the time of the listing, the

Service found that, although considerable knowledge of Mexican spotted

owl habitat needs had been gathered in recent years, habitat maps in

sufficient detail to accurately delineate these areas were not

available. Subsequent to listing the owl, the Service began gathering

the data necessary to develop the proposed rule to designate critical

habitat. On February 14, 1994, several environmental groups and an

individual filed a lawsuit in Federal District Court in Arizona against

the Department of the Interior for failure to designate critical

habitat for the Mexican spotted owl (Dr. Robin Silver, et al. v. Bruce

Babbitt, et al., CIV-94-0337-PHX-CAM). On October 6, 1994, the Court

ordered the Service to ``publish a proposed designation of critical

habitat, including economic exclusion pursuant to 16 U.S.C. Sec.

1533(b)(2), no later than December 1, 1994.'' The proposal was

published on December 7, 1994 (59 FR 63162); since the Service had not

yet completed an economic analysis on the potential effects of the

designation, economic exclusions were not proposed at that time. A

total of 4,770,223 acres was proposed for inclusion in critical habitat

for the Mexican spotted owl.

The extent and trend of habitat loss and degradation was the basis

for determining that protection under the Endangered Species Act (Act)

was necessary. The vegetative communities and structural attributes

used by the Mexican spotted owl vary across its range. In forested

habitat types, the vegetative communities consist primarily of warm-

temperate and cold-temperate forests, and, to a lesser extent,

woodlands and riparian deciduous forests. Canyons, deep drainages, and

other topographical features that influence vegetative associations are

also essential components of owl habitat. Characteristics associated

with forested Mexican spotted owl habitat usually develop with

increasing forest age, but their occurrence may vary by location, past

forest management practices, forest type, and productivity. The

attributes of nesting and roosting habitat typically include a moderate

to high canopy closure; a multi-layered canopy with large overstory

trees, often with various deformities; large snags; and accumulations

of fallen trees and other woody debris on the ground.

Currently, land managing agencies characterize Mexican spotted owl

habitat under the term ``suitable.'' Suitable habitat is often only

applied to habitat able to sustain the combined nesting, roosting, and

foraging needs of the species' life history. Additional habitat

utilized only for foraging frequently comprises the majority of the

surrounding habitat base. The term ``capable'' is applied to habitat

that was suitable some time in the past, but whose condition has

changed through natural or human-caused structural modifications, and

that retains the potential to return to suitable conditions at some

time in the future.

The Service's determination of the extent and trend of habitat loss

and degradation was based on the assessment of the impacts of timber

management in forested owl habitat. Under presently approved forest

management plans, timber on the majority of lands on which the owl

occurs is managed primarily under a shelterwood harvest regime. The

shelterwood harvest method results in even-aged stands, rather than the

uneven-aged, multi-layered stands used by Mexican spotted owls. In

addition, the shelterwood silvicultural system calls for even-aged

conditions in perpetuity. Thus, stands already changed from suitable to

capable would not be allowed to return to a suitable condition, and

acreage slated for future harvest would be similarly rendered

perpetually unsuitable for Mexican spotted owls. National Forest plans

currently in place in the Southwest Region allow for up to 95 percent

of commercial forest (59 percent of suitable owl habitat) to be managed

under a shelterwood system. The Service also considered the various

Federal and State laws and agency management policies, and concluded

that existing regulatory mechanisms were inadequate to protect the

Mexican spotted owl.

Proposed Revisions to Proposed Critical Habitat

In analyzing potential areas of critical habitat for the owl, the

Service evaluated the known and primary threats to the species: even-

aged timber harvest practices, steep-slope timber harvests, and

inadequate regulatory mechanisms. Areas of known or suspected threats

were compared to areas containing habitats that support or could

support the nesting, roosting, and foraging requirements of the owl.

This process resulted in the identification of the approximately 4.8

million acres that were included in the proposed rule to designate

critical habitat.

After the Service identified areas to be proposed for designation

as critical habitat, information was submitted to the Service by the

Jicarilla Apache Tribe concerning the occurrence of the Mexican spotted

owl on its Reservation and the Tribe's plan for protecting the species

and managing timber resources. After reviewing this information, the

Regional Director of the Southwest Region of the Service (Regional

Director) is of the opinion that the Jicarilla Apache Reservation lands

do not require special Federal management considerations or protection.

Therefore, for reasons discussed in more detail below, the Service is

proposing to delete the reservation lands described below from the area

proposed for critical habitat designation in the Federal Register on

December 7, 1994.

Approximately 101,923 acres of Jicarilla Apache Tribal lands, in

five discrete units (NM-JAIR-1, NM-JAIR-2, NM-JAIR-3, NM-JAIR-4, and

NM-JAIR-5), were included in the proposed designation of critical

habitat for the Mexican spotted owl. These critical habitat units

(CHUs) run north-south along a series of canyon-incised mesas, and lie

between the proposed CHUs in the Santa Fe National Forest to the south

and the Colorado-New Mexico state line. A parallel north-south series

of proposed CHUs in the Jicarilla Ranger District of the Carson

National Forest lie 5 to 18 kilometers to the west. The majority of the

high-potential breeding habitat (steep slopes, mixed conifer) receives

little or no timber management, and the surrounding foraging habitat is

managed primarily under uneven-age silviculture. Furthermore, there are

only two known records for the Mexican spotted owl on the Jicarilla

Reservation. Both records were documented in the 1980's approximately 3

miles west of the Town of Dulce. Additional records exist for areas

adjacent to the Reservation. Extensive surveys between 1990 and 1994

were unsuccessful in locating any owls, nests, or roost sites on the

Jicarilla Reservation.

Informal discussions between staffs of the Service's New Mexico

Ecological Services State Office and Jicarilla Game and Fish Department

on owl related issues were initiated during the data

[[Page 12730]] collection period for critical habitat development in

early summer 1993. Continued discussions led to a mutual recognition of

the significant differences between resource management and habitat

conditions on federally administered lands and Jicarilla Apache

Reservation lands. These differences afforded an opportunity to address

the threats identified in the listing proposal through the development

of a tribal management plan for the owl. Working independently, the

Jicarilla Game and Fish Department developed a draft ``Conservation

Plan for the Mexican Spotted Owl on the Jicarilla Apache Reservation,

New Mexico'' and requested review of the document by the New Mexico

Ecological Services State Office at a meeting on November 21, 1994.

Reviews were conducted and recommendations provided by the Service at

that meeting and during subsequent telephone conversations with

representatives of the Tribe. On December 16, 1994, the Jicarilla

Apache Tribal Council approved the plan and formally submitted it to

the Service.

The plan addresses the identified threats to owl habitat by

maintaining sufficient suitable habitat across the landscape and the

site-specific retention of complex forest structure following timber

harvest. Nest/roost habitats, primarily in mixed conifer and steep

slope areas, are not managed for timber extraction and are to remain in

suitable nest-roost condition. Foraging habitat consisting of ponderosa

pine is to be managed almost entirely by uneven-aged methods. Timber

harvest may lower the quality of a fraction of the foraging habitat

base, but adequate residual structure remains so that the habitat may

rapidly reattain suitable condition. At any point in time the majority

of foraging habitat remains in suitable foraging condition across the

landscape. Site-specific management of territories address both habitat

conditions and behavioral disturbance within owl territories.

Territorial management includes the establishment of 300-acre protected

activity centers (PAC) around nest-roost sites. No timber, or oil and

gas development is to occur within these areas, and no behaviorally

disturbing activities are permitted within \1/4\ mile of any nest or

roost site during the breeding season. Habitat in the areas surrounding

the PACs are to be managed as described above.

The plan fully incorporates the Service's criteria for management

of critical habitat. These criteria were adopted, in part, from the

recommended guidelines outlined in the Draft Recovery Plan prepared by

the Mexican Spotted Owl Recovery Team. In addition, the Jicarilla plan

has increased protection in ponderosa pine foraging habitat above those

levels identified in the Draft Recovery Plan.

Based on information provided during the initial public comment

period by the Jicarilla Apache Indian Tribe, the Service has determined

that identified threats to the species over the majority of its range

have been removed on the Jicarilla Apache Indian Reservation through

the establishment and enforcement of the Tribe's Mexican Spotted Owl

Conservation Plan. Therefore, the Service proposes to delete the

101,923 acres in Critical Habitat Units NM-JAIR-1, NM-JAIR-2, NM-JAIR-

3, NM-JAIR-4, and NM-JAIR-5, on the Jicarilla Apache Indian Reservation

from the proposed rule to designate critical habitat based on the new

information provided by the Tribe.

Section 4(b)(2) of the Act (16 U.S.C. 1533 (b)(2)) requires the

Service to consider economic and other impacts of designating a

particular area as critical habitat. In a final designation of critical

habitat, the Service is required to balance the benefits of excluding a

significantly impacted area against the benefits of including that area

within the boundaries of critical habitat. In fulfillment of that

requirement, the Service has prepared a draft economic analysis of the

effects that may be caused by the designation of critical habitat. The

Service will provide a copy of the Economic Analysis to interested

parties upon request. Based on the data provided for the draft economic

analysis, and the assessment of identified economic impacts, the lands

of the Navajo Nation, and the Southern Ute, Mescalero Apache, and San

Carlos Apache tribes are being proposed for exclusion under section

4(b)(2), contingent upon Service receipt and review of specific

economic information for each of those tribes, and biological data

concerning the presence, distribution, and habitat use of Mexican

spotted owls on those tribal lands. Information provided for the draft

economic analysis indicates that significant economic impacts may occur

on lands of these tribes due to the designation of critical habitat.

However, the information was not conclusive. In one instance, data were

grouped together for three of the tribes: Jicarilla Apache, Mescalero

Apache, and Southern Ute. Such aggregation does not allow specific

impacts to be delineated for individual tribes. In another instance,

information provided on economic impacts on the Navajo Reservation was

contradictory and may require further review and analysis. While

information is available regarding economic effects, biological

information is lacking concerning the abundance, distribution and

management of Mexican spotted owls on the Navajo, Southern Ute,

Mescalero Apache, and San Carlos Apache reservation lands. Therefore,

the Service is inviting submission of information and comment on these

and any other relevant issues. A more detailed discussion of economic

impacts is provided in the Economic Analysis. The Service will consider

the critical habitat designation in light of all additional relevant

information obtained during the comment period before making a final

decision with respect to the proposed rule.

A series of public hearings have been scheduled in connection with

the announcement of availability of the draft economic analysis; notice

of the times and locations of the hearings appears elsewhere in today's

issue of the Federal Register. Comments regarding the proposed

exclusions described above will also be accepted at these hearings or

in writing through the end of the comment period on May 8, 1995.

Author

The primary author of this notice is Jennifer Fowler-Propst, New

Mexico State Supervisor, at the above address.

Authority

Authority for this action is the Endangered Species Act of 1973 (16

U.S.C. 1531 et seq.)

Dated: March 6, 1995.

George T. Frampton Jr.,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 95-5809 Filed 3-7-95; 8:45 am]

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