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

SUMMARY: The U.S. Fish and Wildlife Service originally proposed to

designate critical habitat for the marbled murrelet (Brachyramphus

marmoratus marmoratus) in Washington, Oregon, and California on January

27, 1994 (59 FR 3811). Based on comments received on the original

proposal and additional information, the Service published a

supplemental proposed designation of critical habitat for the marbled

murrelet on August 10, 1995 (60 FR 40892).

The marbled murrelet is listed as a threatened species under the

Endangered Species Act (Act). It is a small seabird of the Alcidae

family that forages in the near-shore marine environment and nests in

large trees in coniferous forests. Located primarily on Federal land,

and to a lesser extent on State, county, city, and private lands, this

final critical habitat rule would provide additional protection

requirements under section 7 of the Act with regard to activities that

are funded, authorized, or carried out by a Federal agency. Section 4

of the Act requires the Service to designate critical habitat for

listed species on the basis of the best scientific information

available and to consider the economic and other relevant impacts of

including particular areas in the designation.

EFFECTIVE DATE: June 24, 1996.

ADDRESSES: The complete file for this rule is available at the U.S.

Fish and Wildlife Service, Oregon State Office, 2600 S.E. 98th Avenue,

Suite 100, Portland, Oregon 97266. The file for this rule will be

available for public inspection, by appointment, during normal business

hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Russell D. Peterson, State

Supervisor, U.S. Fish and Wildlife Service, see ADDRESSES section or

telephone 503-231-6179 or FAX 503-231-6195.

SUPPLEMENTARY INFORMATION:

Background

Previous Federal Actions

On January 15, 1988, the U.S. Fish and Wildlife Service (Service)

received a petition to list the North American subspecies of the

marbled murrelet (Brachyramphus marmoratus marmoratus) in Washington,

Oregon, and California as a threatened species under the Endangered

Species Act. On October 17, 1988, the Service published a finding that

the petition had presented substantial information to indicate that the

requested action may be warranted (53 FR 40479). Because of the

increased research effort and new information available, the status

review period was reopened, with the concurrence of the petitioners,

from March 5, 1990, through May 31, 1990 (55 FR 4913).

On June 20, 1991, the Service published a proposal to list the

marbled murrelet in Washington, Oregon, and California as a threatened

species (56 FR 28362). The comment period was reopened for 30 days on

January 30, 1992, to gather the most updated information about the

species (57 FR 3804). On October 1, 1992, following an order by the

U.S. District Court for the Western District of Washington denying a 6-

month extension, the Service published the final rule listing the

marbled murrelet in Washington, Oregon, and California as a threatened

species (57 FR 45328). In February 1993, the Service appointed a

Recovery Team to develop a recovery plan for the marbled murrelet.

On November 2, 1993, the U.S. District Court for the Western

District of Washington granted a motion by the plaintiffs in Marbled

Murrelet v. Babbitt to compel a proposed designation of critical

habitat. In the ruling, the court ordered the Secretary of the Interior

to propose designating critical habitat for the marbled murrelet no

later than January 21, 1994, and to make a final designation of

critical habitat as soon as reasonably possible under applicable law.

On January 27, 1994, the Service published a proposed rule for the

designation of critical habitat for the marbled murrelet (59 FR 3811).

Public comment was due by April 27, 1994. On March 14, 1994, the

Service received a request for a public hearing. To allow additional

comment, the public comment period was reopened for 30 days on May 9,

1994. The public hearing was conducted on May 24, 1994, in North Bend,

Oregon.

Based on comments received from the Marbled Murrelet Recovery Team,

other commenters, and additional information, the Service significantly

amended its proposed critical habitat designation and published a

supplemental proposed rule on August 10, 1995 (60 FR 40892). The

Service held five public hearings on the supplemental proposed rule in

Washington, Oregon, and California during the public comment period.

Public comment was accepted through October 10, 1995.

Based on the Service's interpretation of Public Law 104-6 as

prohibiting the expenditure of funds for making a final determination

of critical habitat, the record was closed and the comments archived at

the end of the public comment period. On February 29, 1996, Judge

Rothstein denied a motion to vacate her previous order on completion of

the designation of critical habitat and ordered the Service to complete

the final designation by May 15, 1996. This rule complies with that

order.

Ecological Considerations

The marbled murrelet is a small seabird of the Alcidae family. The

North American subspecies ranges from the Aleutian Archipelago in

Alaska, eastward to Cook Inlet, Kodiak Island, Kenai Peninsula and

Prince William Sound, south along the coast through the Alexander

Archipelago of Alaska, British Columbia, Washington, and Oregon to

central California. Some wintering birds are found in southern

California. A separate subspecies (Brachyramphus marmoratus perdix)

occurs in Asia. Though recent genetic analysis indicates that the two

subspecies may warrant full specific status (Friesen et al. 1994), a

status change has not yet been recognized.

Marbled murrelets spend most of their lives in the marine

environment where they feed primarily on small fish and invertebrates

in near-shore marine waters. They forage by pursuit diving in waters

generally up to 80 meters (260 feet) deep and 0.3 to 2 kilometers (0.2

to 1.2 miles) off-shore. Pairs are often seen diving simultaneously,

which researchers suggest may increase foraging efficiency (Strachan et

al. 1995). Courtship behaviors have been observed at sea although

copulation rarely has been witnessed. Marbled murrelets also aggregate,

loaf, preen, and exhibit wing-stretching behaviors on the water.

Marbled murrelets nest inland in Washington, Oregon, and

California, typically in large-diameter old-growth trees in low-

elevation forests with multi-layered canopies (Hamer and Nelson 1995b).

Marbled murrelets have been found occasionally on rivers and

[[Page 26257]]

inland lakes (Carter and Sealy 1986; Strachan et al. 1995).

Dispersal mechanisms are not well understood, however, social

interactions may play an important role. The presence of marbled

murrelets in a forest stand may attract other pairs to currently

unoccupied habitat within the vicinity. This may be one of the reasons

marbled murrelets have been observed in habitat not currently suitable

for nesting, but in close proximity to known nesting sites (Hamer and

Cummins 1990, Hamer et al. 1991, Suddjian 1995). Although marbled

murrelets appear to be solitary in their nesting habits, they are

frequently detected in groups in the forest (Nelson and Peck 1995;

USFWS 1995a). Two nests discovered in Washington during 1990 were

located within 46 meters (150 feet) of each other (Hamer and Cummins

1990), and two nests discovered in Oregon during 1994 were located

within 33 meters (100 feet) of each other (S. K. Nelson, Oregon

Cooperative Wildlife Research Unit, pers. comm. 1995). Therefore,

unoccupied habitat in the vicinity of occupied habitat may be more

important for recovering the species than suitable habitat isolated

from occupied habitat (USFWS 1995a). Similarly, murrelets are more

likely to discover newly developing habitat in proximity to occupied

sites.

Nesting occurs over an extended period from late March to late

September (Carter and Sealy 1987; Hamer and Nelson 1995b). During the

breeding period, the female marbled murrelet lays a single egg in a

tree containing a suitable nesting platform (e.g., large or forked

limbs, dwarf mistletoe (Arceuthobium spp.) infections, witches' brooms,

deformities, etc. (Hamer and Nelson 1995b). Both sexes incubate the egg

in alternating 24-hour shifts for approximately 30 days, and the young

fledge after an additional 27 to 40 days (Simons 1980; Hirsch et al.

1981; Singer et al. 1991; Hamer and Nelson 1995a; Nelson and Hamer

1995a). Adults feeding young fly from ocean feeding areas to nest sites

at all times of the day, but most often at dusk and dawn (Nelson and

Hamer 1995a). Chicks are fed at least once a day. The adults usually

carry only one fish at a time to the young (Hamer and Cummins 1991;

Singer et al. 1992; Nelson and Hamer 1995a). The young are semi-

precocial. Before leaving the nest, the young molt into a distinctive

juvenile plumage. A fledgling's first flight is from the nest directly

to the marine environment (Hamer and Cummins 1991).

Marbled murrelets have been observed at some inland sites during

all months of the year (Paton et al. 1987; Naslund 1993). Attendance at

breeding sites during the non-breeding season may enhance pair bond

maintenance, facilitate earlier breeding, or reinforce familiarity with

flight paths to breeding sites (Naslund and O'Donnell 1995; O'Donnell

et al. 1995).

With respect to critical habitat, the Service considered two

components of marbled murrelet habitat that are biologically

essential--(1) terrestrial nesting habitat and associated forest

stands, and (2) marine foraging habitat used during the breeding

season. Forested areas with conditions that support nesting marbled

murrelets are referred to as ``suitable nesting habitat.'' Marine areas

with conditions that support foraging marbled murrelets are referred to

as ``suitable foraging habitat.'' Because only terrestrial habitat is

being designated as critical habitat, the primary focus of this

description will be on the terrestrial environment.

Throughout the forested portion of the species' range, marbled

murrelets typically nest in forested areas containing characteristics

of older forests (Binford et al. 1975; Hamer and Cummins 1991; Quinlan

and Hughes 1990; Kuletz 1991; Singer et al. 1991, 1992; Hamer et al.

1994; Hamer and Nelson 1995b; Ralph et al. 1995a). The marbled murrelet

population in Washington, Oregon, and California nests in most of the

major types of coniferous forests in the western portions of these

states, wherever older forests remain inland of the coast. Although

marbled murrelet nesting habitat characteristics are somewhat variable

throughout the range of the species, some general habitat attributes

are characteristic throughout its range, including the presence of

nesting platforms, adequate canopy cover over the nest, landscape

condition, and distance to the marine environment.

Individual tree attributes that provide conditions suitable for

nesting include large branches (average of 32 centimeters (13 inches),

range of 10 to 81 centimeters (4 to 32 inches) in Washington, Oregon,

and California) or forked branches, deformities (e.g., broken tops),

dwarf mistletoe infections, witches' brooms, or other structures large

enough to provide a platform for a nesting adult murrelet (Hamer and

Cummins 1991; Singer et al. 1991, 1992; Hamer and Nelson 1995b). These

structures are typically found in old-growth and mature forests, but

may be found in a variety of forest types including younger forests

containing remnant large trees.

Northwestern forests and trees typically require 200 to 250 years

to attain the attributes necessary to support marbled murrelet nesting,

although characteristics of nesting habitat sometimes develop in

younger coastal redwood (Sequoia sempervirens) and western hemlock

(Tsuga heterophylla) forests. Forests with older residual trees

remaining from previous forest stands may also develop into nesting

habitat more quickly than those without residual trees. These remnant

attributes can be products of fire, wind storms, or previous logging

operations that did not remove all of the trees (Hansen et al. 1991;

McComb et al. 1993). Other factors that may affect the time required to

develop suitable nesting habitat characteristics include site

productivity and microclimate.

Through the 1995 nesting season, at least 95 active or previously

used tree nests had been located in North America, including 9 in

Washington, 41 in Oregon, and 12 in California (S. K. Nelson, pers.

comm. 1996; W. Ritchie, Washington Dept. of Fish and Wildlife, pers.

comm. 1996; Binford et al. 1975; Quinlan and Hughes 1990; Hamer and

Cummins 1990, 1991; Kuletz 1991; Singer et al. 1991, 1992; Hamer and

Nelson 1995b). All of the nests for which data are available in

Washington, Oregon, and California were in large trees that were more

than 81 centimeters (32 inches) diameter at breast height (dbh) (Hamer

and Nelson 1995b). Of the 37 nests for which data were available, 70

percent were on a moss substrate and 30 percent were on litter, such as

bark pieces, conifer needles, small twigs, or duff. Fifty-nine percent

of the nests were on large or deformed branches, 16 percent were on

forked limbs, 6 percent were on a limb where it attached to the tree

bole, 11 percent were on dwarf mistletoe, and 8 percent were on other

structures (Hamer and Nelson 1995b; T. Hamer, Hamer Environmental,

pers. comm. 1995).

More than 94 percent of the nests for which data were available

were in the top half of the nest trees, which may allow easy nest

access and provide shelter from potential predators and weather. Canopy

cover directly over the nests was typically high (average 84 percent;

range 5 to 100 percent) in Washington, Oregon, and California (Hamer

and Nelson 1995b; T. Hamer, pers. comm. 1995). This cover may provide

protection from predators and weather. Such canopy cover may be

provided by trees adjacent to the nest tree, and/or by the nest tree

itself. Canopy closure of the nest stand/site varied between 12 and 99

percent and averaged 48 percent (Hamer and Nelson 1995b; T. Hamer,

pers. comm. 1995).

[[Page 26258]]

Nests have been located in forested areas dominated by coastal

redwood, Douglas-fir (Pseudotsuga menziesii), mountain hemlock (Tsuga

mertensiana), Sitka spruce (Picea sitchensis), western hemlock, and

western redcedar (Thuja plicata) (Binford et al. 1975; Quinlan and

Hughes 1990; Hamer and Cummins 1991; Singer et al. 1991, 1992; Hamer

and Nelson 1995b). Individual nests in Washington, Oregon, and

California have been located in Douglas-fir, coastal redwood, western

hemlock, western redcedar, and Sitka spruce trees.

For nesting habitat to be accessible to marbled murrelets, it must

occur close enough to the marine environment for murrelets to fly back

and forth. The farthest inland distance for a known occupied site is 84

kilometers (52 miles) in Washington. The farthest known inland occupied

sites in Oregon and California are 61 and 56 kilometers (38 and 35

miles), respectively. Occupied sites are defined as forest stands where

marbled murrelets have been observed exhibiting behaviors associated

with nesting. Additionally, detections (not occupied sites) have been

documented farther inland in Oregon (S. K. Nelson, pers. comm. 1995)

and California.

Marbled murrelet nests are difficult to locate for several

reasons--(1) nests are generally located high in the canopy; (2) adults

and juveniles have cryptic plumage during most of the nesting season;

(3) adults are often (but not always) extremely quiet in the vicinity

of nests (Nelson and Peck 1995); and (4) adults may show activity near

the nest only once per day, usually under low light conditions.

Therefore, identification of occupied sites and suitable nesting

habitat are the best indicators of potential nest sites. Indicators of

occupied habitat include active nests; egg shell fragments; young found

on the forest floor; marbled murrelets seen flying through the forest

beneath the canopy, landing in trees, circling above the canopy, and

calling from a stationary perch; or large numbers of murrelets heard

calling from in and around a forest stand.

Inland, marbled murrelets are generally easier to detect at high-

use sites during the spring and late summer when breeding activities

peak (Paton and Ralph 1988; Nelson 1989). Inland detections of the

species are less frequent during the early fall when murrelets have

presumably completed breeding and are undergoing a flightless molt at

sea. Similarly, murrelets may be more difficult to detect in areas that

support low numbers of reproducing pairs, perhaps because birds

occurring in lower densities appear to be less vocal (Rodway et al.

1993; Dillingham et al. 1995).

Marbled murrelets spend most of their lives in the marine

environment where they consume a diversity of prey species. Areas that

support populations of prey species juxtaposed with nesting areas are

essential to maintaining successfully reproducing marbled murrelet

populations (Burkett 1995). Murrelets often aggregate near local food

concentrations, resulting in a clumped distribution in the marine

environment (Sealy and Carter 1984). Prey breeding areas (e.g., near-

shore kelp beds, sand or gravel beaches, sand banks, etc.) and areas

where prey may concentrate (e.g., near-shore upwellings, waters at the

mouths of bays and coastal rivers, eddies in the vicinity of headlands,

river mouths and associated plumes, and tidal rips, etc.) are likely

the most important features determining murrelet foraging opportunities

(Ainley et al. 1995; Hunt 1995). Human-caused disturbances (e.g.,

intense commercial or recreational fishing) may affect prey density or

accessibility.

Most of the information available about prey species of marbled

murrelets is from the Gulf of Alaska and British Columbia, and is

summarized by Burkett (1995). Marbled murrelets generally forage in

near-shore marine waters at distances of 0.3 to 2 kilometers (0.2 to

1.2 miles) from shore; however, they occur at distances up to 24

kilometers (14 miles) from shore in reduced numbers. Marine systems

producing sufficient prey to support marbled murrelets provide suitable

foraging habitat for the species.

Marbled murrelets have been reported feeding on a wide variety of

small fish and invertebrates, indicating their flexibility and

capability to use alternative prey sources. Prey include Pacific

sandlance (Ammodytes hexapterus), Pacific herring (Clupea harengus),

northern anchovy (Engraulis mordax), osmerids, sea perch (Cymatogaster

aggregata), euphausiids (Euphausia pacifica and Thysanoessa spinifera),

mysids (Neomysis spp.), and amphipods, among others (Sealy 1975; Sanger

1987; Sanger and Jones 1981; Carter and Sealy 1990; Strong et al. 1993;

Burkett 1995). Fish are an important component of the diet during the

summer, which coincides with the nestling and fledgling periods, while

euphausiids, mysids, and amphipods seem to be more important in the

winter and spring in some areas (Munro and Clemens 1931; Sealy 1975;

Krasnow and Sanger 1982; Sanger 1983, 1987; Carter 1984; Carter and

Sealy 1990; Vermeer 1992; Burkett 1995).

Prior to euroamerican settlement in the Pacific Northwest, nesting

habitat for the marbled murrelet was well-distributed, particularly in

the wetter portions of its range in Washington, Oregon, and California.

This habitat was generally found in large, contiguous blocks (Ripple

1994) as described under the Management Considerations section of this

rule. The Recovery Team and others (Ralph et al. 1995b) considered the

loss of nesting habitat to be one of the primary factors limiting

current population size from British Columbia to California.

Areas where marbled murrelets are concentrated at sea during the

breeding season are likely determined by a combination of terrestrial

and marine conditions. However, nesting habitat appears to be the most

important factor affecting marbled murrelet distribution and numbers.

Recent marine survey data confirm earlier conclusions (60 FR 40892)

that marine observations of murrelets during the nesting season

generally correspond to the largest remaining blocks of suitable forest

nesting habitat (Nelson et al. 1992; Ralph et al. 1995b; Ralph and

Miller 1995; Strong 1995; Varoujean et al. 1994). For example, suitable

nesting habitat data from aggregated GIS databases (S. Holzman, U.S.

Fish and Wildlife Service, pers. comm. 1996) were overlain on the

aerial survey data provided by Varoujean et al. (1994) and the boat

survey data provided by Strong (1995). Highest densities of murrelets

seen in 1992, 1993, 1994, and 1995 closely corresponded with the

presence of large blocks of suitable nesting habitat on the coasts of

northern coastal Washington and central and southern coastal Oregon.

Consistent with Varoujean et al.'s (1994) 1993 and 1994 aerial

surveys, Thompson (1996) found murrelets to be more numerous along

Washington's northern outer coast and less abundant along the southern

coast. He reported that this distribution appears to be correlated with

(1) proximity of old growth forest, (2) the distribution of rocky

shoreline/substrate versus sandy shoreline/substrate, and (3) abundance

of kelp; his analysis of these variables is continuing. In British

Columbia, Rodway et al. (1995) observed murrelets aggregating on the

water close to breeding areas at the beginning of the breeding season

and, for one of their two study areas, again in July as young were

fledging. Burger (1995) reported that the highest at-sea murrelet

densities in both 1991 and 1993 were seen immediately adjacent to two

tracts of old-growth forest, while areas with very

[[Page 26259]]

low densities of murrelets were adjacent to heavily logged watersheds.

In contrast, where nesting habitat is limited in southwest

Washington, northwest Oregon, and portions of California, few marbled

murrelets are found at sea during the nesting season (Ralph and Miller

1995; Ralph et al. 1995b; Strong 1995; Varoujean and Williams 1995;

Thompson 1996). The area between the Olympic Peninsula in Washington

and Tillamook County in Oregon (160 kilometers (100 miles)) has few

occupied sites or sightings at sea of marbled murrelets. In California,

approximately 480 kilometers (300 miles) separate the large breeding

populations to the north in Humboldt and Del Norte Counties from the

southern breeding population in San Mateo and Santa Cruz Counties.

Currently this reach contains few marbled murrelets during the breeding

season; however, the area likely contained significant numbers of

marbled murrelets before extensive logging (Paton and Ralph 1988,

Larsen 1991).

In addition to the proximity of suitable nesting habitat, it is

likely that marine factors such as prey abundance influence the local

distribution of breeding murrelets (Ralph and Miller 1995; Strachen et

al. 1995; Strong 1995). The influence of prey distribution and

abundance on the distribution of other alcids has been well documented

(Bradstreet and Brown 1985). In general, nesting murrelets, which must

return to their nest at least once per day, must balance the energetic

costs of foraging trips with the benefits for themselves and their

young (Skutch 1979; Ydenberg 1989; USFWS 1995a). Therefore, breeding

adults are energetically justified in taking relatively long foraging

trips only when they can gain access to high quality foraging areas

(Bradstreet and Brown 1985; Gaston 1985; Carter and Sealy 1990).

Breeding murrelets are known to cover large areas at sea to take

advantage of foraging opportunities (Carter and Sealy 1990; Ralph and

Miller 1995; Rodway et al. 1995). Therefore, use of marine habitat is

constrained during the breeding season by its distance from nesting

habitat and the quality of forage resources available. This is

consistent with the observed juxtaposition of suitable nesting habitat

and distribution of murrelets during the breeding season described

above, and it may explain the differences observed in marine

distribution patterns between murrelets and other non-forest nesting

seabirds (Varoujean et al. 1994). During years of low prey

availability, the distance from nesting areas to adequate foraging

areas is probably a critical determinant of reproductive success (USFWS

1995a).

Marbled murrelets can be adversely affected by impacts to their

nesting habitat, marine foraging habitat, and food supply, as well as

direct mortality from human activities such as oil spills and gillnet

fisheries. These impacts, and the resulting decline from historical

population levels, formed the basis for the listing of the species as

threatened in 1992 (57 FR 45328). Based on an analysis of likely ranges

of fecundity and survivorship of this species, Beissinger (1995)

developed a population model that estimated that marbled murrelets in

Washington, Oregon, and California may be declining at a rate between 4

and 6 percent per year. These results are consistent with the evidence

of a long-term decline from historical populations.

This decline may be a result of several factors. In addition to

habitat loss and fragmentation, which may reduce nesting success,

declines may be exacerbated by high mortality rates of the young of the

year prior to reaching the ocean, and high mortality rates of juveniles

and adults in the marine and terrestrial environments.

Marbled murrelets are believed to be highly vulnerable to predation

when on the nesting grounds, and the species has evolved a variety of

morphological and behavioral characteristics indicative of selection

pressures from predation (Ralph et al. 1995b). For example, plumage and

eggshells exhibit cryptic coloration, and adults fly to and from nests

by indirect routes and often under low-light conditions (Nelson and

Hamer 1995a). Potential nest predators include the common raven (Corvus

corax), Steller's jay (Cyanocitta stelleri), American crow (Corvus

brachyrhynchos), gray jay (Perisoreus canadensis), great horned owl

(Bubo virginianus), sharp-shinned hawk (Accipiter striatus), Cooper's

hawk (Accipiter cooperii), northern goshawk (Accipiter gentilis),

raccoon (Procyon lotor), marten (Martes americana), Townsend chipmunk

(Eutamias townsendii), northern flying squirrel (Glaucomys sabrinus),

Douglas squirrel (Tamiasciurus douglasi), and fisher (Martes pennanti)

(Marzluff et al. 1996). Ravens, Steller's jays, and possibly great

horned owls are known predators of eggs or chicks (Nelson and Hamer

1995b).

From 1974 through 1993, of those marbled murrelet nests in

Washington, Oregon, and California where success/failure was

documented, approximately 64 percent of the nests failed. Of those

nests, 57 percent failed due to predation (Nelson and Hamer 1995b). The

relatively high predation rate could be biased because nests near

forest edges may be more easily located by observers and more

susceptible to predation and because observers may attract predators.

Hamer and Nelson (1995b) believed that researchers had minimal impacts

on predation in most cases because the nests were monitored from a

distance and relatively infrequently, and precautions were implemented

to minimize predator attraction.

Several possible reasons exist for the high observed predation

rates of marbled murrelet nests. The first possibility is that these

high predation rates are normal, although it is unlikely that a stable

population could have been maintained under the predation rates

presently being observed (Beissinger 1995).

Another reason could be that populations of marbled murrelet

predators such as corvids (jays, crows, and ravens) and great horned

owls are increasing in the western United States, largely in response

to habitat changes and food sources provided by humans (Robbins et al.

1986; Rosenberg and Raphael 1986; Johnson 1993; Marzluff et al. 1994,

1996; National Biological Service 1996), resulting in increased

predation rates on marbled murrelets. It has also been proposed that

creation of excessive forest edge habitat may increase the

vulnerability of murrelet nests to predation and ultimately lead to

higher rates of predation. Edge effects have been implicated in

increased forest bird nest predation rates for other species of birds

(Chasko and Gates 1982; Yahner and Scott 1988).

The potential relationship between forest fragmentation, edge, and

adverse effects on forest nesting birds has received increased

attention during the last few decades. In a comprehensive review of the

many studies on this topic, Paton (1994) concluded that ``strong

evidence exists that avian nest success declines near edges.'' Small

patches of habitat have a greater proportion of edge than do large

patches of the same shape (Schieck et al. 1995). However, Paton (1994)

noted that many of these studies involved lands where forests and

agricultural or urban areas interface, or they involved experiments

with ground nests that are not readily applicable to canopy nesters

such as marbled murrelets. Paton (1994) therefore stressed the need for

studies specific to forests fragmented by timber harvest in the Pacific

Northwest and elsewhere.

Some research on this topic has been conducted in areas dominated

by timber production and using nests located off the ground (Ratti and

Reese 1988;

[[Page 26260]]

Rudnicky and Hunter 1993; Marzluff et al. 1996; Vander Haegen and

DeGraaf in press). Vander Haegen and DeGraaf (in press) found that

nests in shrubs less than 75 meters from an edge were three times as

likely to be depredated than nests greater than 75 meters from an edge.

Likewise, Rudnicky and Hunter (1993) found that shrub nests on the

forest edge were depredated almost twice as much as shrub nests located

in the forest interior. They also observed that shrub nests were taken

primarily by avian predators such as crows and jays, which is

consistent with the predators believed to be impacting murrelets, while

ground nests were taken by large mammals such as raccoons and skunks.

Ratti and Reese (1988) did not find the edge relationship documented by

Rudnicky and Hunter (1993), Vander Haegen and DeGraaf (in press), and

others cited in Paton (1994). However, Ratti and Reese (1988) did

observe lower rates of predation near ``feathered edges'' compared to

``abrupt'' edges (e.g., clearcut or field edges), and suggested that

the vegetative complexity of the feathered edge may better simulate

natural edge conditions than do abrupt edges. These authors also

concluded that their observations were consistent with Gates and

Gysel's (1978) hypothesis that birds are poorly adapted to predator

pressure near abrupt artificial edge zones.

Studies of artificial and natural nests conducted in Pacific

Northwest forests also indicate that predation of forest bird nests may

be affected by habitat fragmentation, forest management, and land

development (Hansen et al. 1991; Vega 1993; Bryant 1994; C. Chambers,

Oregon State University, pers. comm. 1994; Nelson and Hamer 1995b;

Marzluff et al. 1996). Nelson and Hamer (1995b), in the only direct

measure of marbled murrelet reproductive success, found that successful

murrelet nests were further from edge than unsuccessful nests. Marzluff

et al. (1996) are conducting the only experimental predation study that

uses simulated marbled murrelet nests, and they have documented

predation of artificial murrelet nests by birds and arboreal mammals.

Although the study is still continuing, preliminary results indicate

that proximity to human activity and landscape contiguity may interact

to determine rate of predation (J. Marzluff, pers. comm. 1996).

Interior forest nests in contiguous stands far from human activity

appear to experience the least predation (Marzluff et al. 1996).

In addition to studies of edge effects, some research has been

initiated to look at the importance of stand size. Among all Pacific

Northwest birds, the marbled murrelet is considered to be one of the

most sensitive to forest fragmentation (Hansen and Urban 1992).

Murrelet nest stand size in Washington, Oregon, and California varied

between 3 and 1,100 hectares (7 and 2,717 acres) and averaged 206

hectares (509 acres) (Hamer and Nelson 1995b). Nelson and Hamer (1995b)

found that successful murrelets tended to nest in larger stands than

did unsuccessful murrelets, but these results were not statistically

significant. Miller and Ralph (1995) compared murrelet survey detection

rates among four stand size classes in California. Recording a

relatively consistent trend, they observed that a higher percentage of

large stands (33.3 percent) had occupied detections when compared to

smaller stands (19.8 percent), while a greater percentage of the

smallest stands (63.9 percent) had no presence or occupancy detections

when compared to the largest stands (52.4 percent) (Miller and Ralph

1995). However, these results were not statistically significant, and

the authors did not conclude that murrelets preferentially select or

use larger stands. The authors suggested the effects of stand size on

murrelet presence and use may be masked by other factors such as stand

history and proximity of a stand to other old-growth stands. Schieck et

al. (1995) found that murrelet presence and abundance was positively

correlated with old-growth stand size in British Columbia, but their

data were not statistically significant. Rodway et al. (1993)

recommended caution when interpreting murrelet detection data, such as

that used by Miller and Ralph (1995) and Schieck et al. (1995), because

numbers of detections at different sites may be affected by variation

caused by weather, visibility, and temporal shifts.

In addition to stand size, general landscape condition may

influence the degree to which marbled murrelets nest in an area. In

Washington, marbled murrelet detections increased when old-growth/

mature forests comprised more than 30 percent of the landscape (Hamer

and Cummins 1990). Hamer and Cummins (1990) found that detections of

marbled murrelets decreased in Washington when the percentage of clear-

cut/meadow in the landscape increased above 25 percent. Additionally,

Raphael et al. (1995) found that the percentage of old-growth forest

and large sawtimber was significantly greater within 0.8-kilometer

(0.5-mile) of sites (203-hectare (501-acre) circles) that were occupied

by murrelets than at sites where they were not detected. Raphael et al.

(1995) suggested tentative guidelines based on this analysis that sites

with 35 percent old-growth and large sawtimber in the landscape are

more likely to be occupied. In California, Miller and Ralph (1995)

found that the density of old-growth cover and the presence of coastal

redwood were the strongest predictors of murrelet presence.

Although ongoing research should shed more light on the specific

factors that affect murrelet nest predation and stand size preferences,

the best available information strongly suggests that marbled murrelet

reproductive success may be adversely affected by forest fragmentation

associated with certain land management practices. Based on this

information, the Service concludes that the maintenance and development

of suitable habitat in relatively large contiguous blocks as described

in this rule and the draft Marbled Murrelet (Washington, Oregon, and

California Population) Recovery Plan (draft Recovery Plan) (USFWS

1995a) will contribute to the recovery of the marbled murrelet. These

blocks of habitat should contain the structural features and spatial

heterogeneity naturally found at the landscape level, the stand level,

and the individual tree level in Pacific Northwest forest ecosystems

(Hansen et al. 1991; Hansen and Urban 1992; Ripple 1994; Bunnell 1995;

Raphael et al. 1995; Schieck et al. 1995).

In addition to predation at the nest, adult and juvenile murrelets

are vulnerable elsewhere in the terrestrial and marine environments.

For example, in the terrestrial environment adult marbled murrelets

have been preyed upon by sharp-shinned hawks, peregrine falcons (Falco

peregrinus), bald eagles (Haliaeetus leucocephalus), and possibly

merlins (F. columbarius) (Marks and Naslund 1994).

In the marine environment, oil spills and commercial net fisheries

adversely affect marbled murrelets. Clean water is important for

survival and completion of the murrelet's life cycle and for the

conservation of the species. Clean, unpolluted water is essential for

maintaining the health of individual marbled murrelets and prey

species, and for providing areas for social interactions and other

behaviors.

Marbled murrelets have a high vulnerability to oiling, and oil

spills have had catastrophic effects when large spills have occurred in

the vicinity of murrelet concentrations. Impacts have been particularly

severe in Prince William Sound in Alaska, western Washington, and

central California (Carter and Kuletz 1995). The 45 marbled murrelets

recovered after the

[[Page 26261]]

Tenyo Maru spill in 1991 at the mouth of the Strait of Juan de Fuca in

Washington was the greatest number of murrelets recovered in any oil

spill, with the exception of the Exxon Valdez oil spill, and

represented a significant portion of the local population (Carter and

Kuletz 1995). Oil spills may also affect forage fish populations (Irons

1992; Oakley and Kuletz 1994; Piatt and Anderson In press), reduce

reproductive success, and disrupt breeding activity (Carter and Kuletz

1995). Chronic oil pollution can cause mortality through oiling and

ingestion of oil. Other forms of pollution may also affect birds

directly through toxic effects on their food supply.

Mortality of marbled murrelets from entanglement and drowning in

fishing nets has declined in recent years in Washington, Oregon, and

California, as fishing effort has declined and regulations to reduce

mortality have been implemented. However, mortality is still a concern,

particularly in Washington. Gillnet fisheries are most significant as a

threat to murrelets in the marine environment in Washington, although

closures of some areas, specifically to protect marbled murrelets, were

implemented in the 1995 season (USFWS 1995b, 1995c). Gillnet fisheries

no longer occur in Oregon, with the exception of those in the Columbia

River. In California, fishing regulations protect most murrelets from

this type of mortality (Carter et al. 1995).

Gillnet fisheries may occur at the mouth of the Columbia River, in

Willapa Bay, Grays Harbor, the Strait of Juan de Fuca, and Puget Sound,

although fishing efforts in coastal fisheries have been greatly reduced

because of depressed salmon (Oncorhynchus spp.) runs. An observer

program in 1994 in the all-citizens and Tribal sockeye salmon

(Oncorhynchus nerka) drift gillnet fishery of north Puget Sound, which

is the most significant fishery in Puget Sound, estimated an

entanglement of 15 murrelets, with a range of 2 to 59 murrelets (Pierce

et al. 1996). A National Marine Fisheries observer program for marine

mammals on the outer coast fisheries of Washington, where low numbers

of marbled murrelets are present, did not document marbled murrelet

mortality (Jeffries and Brown 1993). However, a number of entangled

birds of the Alcidae family were not identified to species.

Entanglement in other Washington drift net and set gillnet fisheries

has also been documented (Speich and Wahl 1989; Craig and Cave 1994;

BIA 1994; J. Grettenberger, USFWS, pers. comm. 1995). Observer programs

in 1993 and 1994 in Puget Sound salmon purse seine fisheries indicated

that entanglement rates of marbled murrelets were much lower with this

gear type (Natural Resources Consultants 1995). To date, there has not

been any documented murrelet mortalities from gillnet fisheries at the

mouth of the Columbia River.

It is likely that marbled murrelets, like many other seabirds, are

affected by fluctuations in marine environmental conditions such as El

Nino events (USFWS 1995a). In general, increased mortality of adult

seabirds and decreased reproductive efforts have been linked with El

Nino episodes when food supplies are depressed (Schrieber and Schrieber

1984; Hodder and Graybill 1985; Boekelheide et al. 1990), although

there may be marked differences in effects across regions and among

species with different foraging styles (Hatch 1987). Marbled murrelets

are relatively opportunistic foragers and probably have a great

flexibility in prey choice (USFWS 1995a). This capability may enable

them to respond, to some degree, to changes in prey availability caused

by fluctuating environmental conditions (USFWS 1995a). In general,

unfavorable conditions can result in adult mortality and reduced

productivity. However, a seabird's relatively long life span is an

adaptation which allows an individual to reproduce successfully despite

adverse conditions during its lifetime. This life history strategy

serves to maintain a population despite environmental fluctuations

(USFWS 1995a). However, cumulative impacts (including nest habitat

loss, oil spills, etc.), in addition to repeated El Nino events in

localized areas over a short time period could cause serious population

declines or extirpations (USFWS 1995a).

Management Considerations

Marbled murrelets are found in forests containing a variety of

forest structure, which is in part the result of varied management

practices and natural disturbance (Hansen et al. 1991; McComb et al.

1993). In many areas, management practices have resulted in

fragmentation of the remaining older forests and creation of large

areas of younger forests that have yet to develop habitat

characteristics suitable for marbled murrelet nesting (Hansen et al.

1991). Past and current forest management practices have also resulted

in a forest age distribution skewed toward younger even-aged stands at

a landscape scale (Hansen et al. 1991; McComb et al. 1993).

In many portions of the range of the marbled murrelet during the

last 50-70 years, forest management has concentrated on clear-cut

logging (Hansen et al. 1991). After forests are clear-cut, the sites

are traditionally replanted to a single or few tree species and

maintained as even-aged stands for maximum wood-fiber production. Site-

preparation and management activities may further decrease species

diversity (Hansen et al. 1991). These methods include prescribed

burning and the use of herbicides or mechanical methods to control

competing vegetation.

Prior to the widespread application of clearcut timber harvest,

historical logging practices in some portions of the species' range

consisted of more selective timber harvest, leaving remnant patches of

forests of varying ages with older forest characteristics. The uneven-

aged management practices used in these areas usually resulted in more

diverse forests that may currently provide some nesting habitat where a

few trees containing suitable marbled murrelet nesting structure remain

(Hansen et al. 1991).

Current and historic loss of marbled murrelet nesting habitat is

generally attributed to timber harvest and land conversion practices,

although, in some areas, natural catastrophic disturbances such as

forest fires have caused losses (Hansen et al. 1991; Ripple 1994;

Bunnell 1995). Reduction of the remaining older forest has not been

evenly distributed in western Washington, Oregon, and California.

Timber harvest has been concentrated at lower elevations and in the

Coast Ranges (Thomas et al. 1990), generally overlapping the range of

the marbled murrelet.

Habitat for marbled murrelets has been generally declining since

the arrival of European settlers. Bolsinger and Waddell (1993)

estimated that old-growth forest in Washington, Oregon, and California

has declined by two-thirds statewide during the last five decades.

Information specific to the range of the marbled murrelet is not

available. Historic forest conditions have been estimated for western

Washington and Oregon by several authors. Marbled murrelet habitat

represents a significant portion of area included in these estimates;

therefore, trends in habitat are assumed to follow the same general

pattern identified for the larger area.

Although the extent of mature and old-growth forest before the

1800s is difficult to quantify, western Washington and Oregon are

estimated to have been covered by approximately 9.7 to 12.8 million

hectares (24 to 32 million acres) of forest at the time of euroamerican

settlement in the early to

[[Page 26262]]

mid-1800s, of which about 5.6 to 7.9 million hectares (14 to 20 million

acres) (60 to 70 percent) are estimated to have been old-growth

(Society of American Foresters Task Force 1983; Spies and Franklin

1988; Morrison 1988; Norse 1988; Booth 1991; Ripple 1994). As of 1991,

there were approximately 1.4 million hectares (3.4 million acres) of

old-growth forest remaining in western Washington and Oregon, an 82

percent reduction from estimated prelogging levels (Booth 1991).

Estimates for a similar time period in northwestern California are

not as precise, but suggest there were between 526,000 and 1.3 million

hectares (1.3 and 3.2 million acres) of old-growth Douglas-fir/mixed

conifer forest and approximately 890,000 hectares (2.2 million acres)

of old-growth coastal redwood forest (Society of American Foresters

Task Force 1983; Laudenslayer 1985; Fox 1988; California Department of

Forestry and Fire Protection 1988; Morrison 1988). Currently there are

approximately 28,000 hectares (70,000 acres) of old-growth coastal

redwood forest remaining in California (Larsen 1991).

Some of the forests that were affected by past natural

disturbances, such as forest fires and windthrow, currently provide

suitable nesting habitat for marbled murrelets because they retain

scattered individual or clumps of large trees that provide structure

for nesting (Hansen et al. 1991; McComb et al. 1993; Bunnell 1995).

This is particularly true in coastal Oregon where extensive fires

occurred historically. Marbled murrelet nests have been found in

remnant old-growth trees in mature forests in Oregon.

Forests providing suitable nesting habitat and nest trees generally

require 200 to 250 years to develop characteristics that supply

adequate nest platforms for marbled murrelets. This time period may be

shorter in redwood and western hemlock forests and in areas where

significant remnants of the previous stand remain. Intensively managed

forests in Washington, Oregon, and California have been managed on

average cutting rotations of 70 to 120 years (USDI 1984; USDA 1988).

Cutting rotations of 40 to 50 years are common for some private lands.

Timber harvest strategies on Federal lands and some private lands have

emphasized dispersed clear-cut patches and even-aged management. Forest

lands that are intensively managed for wood fiber production are

generally prevented from developing the characteristics required for

marbled murrelet nesting. Suitable nesting habitat that remains under

these harvest patterns is highly fragmented.

Previous Management Efforts

Since 1990, several different approaches to management of older

forests and their associated species (including marbled murrelets) have

been developed through various Federal efforts. These include the

Interagency Scientific Committee's Conservation Strategy for the

Northern Spotted Owl (Thomas et al. 1990), the Scientific Panel on Late

Successional Forest ecosystems commissioned by the U.S. House of

Representatives (Johnson et al. 1991), the designation of spotted owl

critical habitat by the Service (57 FR 1796), and the U.S. Forest

Service's (Forest Service) Scientific Analysis Team Report (Thomas et

al. 1993). All of these efforts would have provided some level of

protection to marbled murrelets but most did not address murrelets

specifically or provide a framework for a specific marbled murrelet

management strategy.

In July 1993, the Service, Forest Service, U.S. Bureau of Land

Management, National Park Service, National Marine Fisheries Service,

and U.S. Environmental Protection Agency released the Report of the

Forest Ecosystem Management Assessment Team (FEMAT Report) (USDA et al.

1993a). Information from this report was used in developing the Final

Supplemental Environmental Impact Statement on Management of Habitat

for Late-Successional and Old-Growth Forest Related Species Within the

Range of the Northern Spotted Owl (USDA et al. 1993b) and the Record of

Decision for Amendments to the Forest Service and Bureau of Land

Management Planning Documents Within the Range of the Northern Spotted

Owl (ROD). This ROD is referred to as the Northwest Forest Plan (USDA

and USDI 1994). The FEMAT report and ROD provide a specific marbled

murrelet management strategy for Federal lands.

Within the range of the marbled murrelet, the Northwest Forest Plan

designates a system of Late-Successional Reserves, which provides large

areas expected to eventually develop into contiguous, unfragmented

forest. In addition to Late-Successional Reserves, the Northwest Forest

Plan designates a system of Adaptive Management Areas, where efforts

focus on answering management questions, and matrix areas, where most

forest production occurs. Administratively withdrawn lands, as

described in the individual National Forest or Bureau of Land

Management land use plans, are also part of the Northwest Forest Plan.

Specific measures in the Northwest Forest Plan protect all occupied

murrelet sites on Federal lands outside of the Federal reserve system.

These measures include surveys prior to activities that may affect

habitat and protection of contiguous marbled murrelet nesting and

recruitment habitat (stands capable of becoming suitable nesting

habitat within 25 years) within 0.8-kilometer (0.5-mile) of areas

occupied by murrelets.

An assessment of population viability of marbled murrelets was

conducted by the FEMAT. The assessment group concluded that ``We

believe there is only about a 60 percent likelihood (with a range of 50

to 75 percent) that the marbled murrelet population on Federal lands

would be stable and well distributed after 100 years, regardless of

which option is selected.'' An additional assessment based only on the

projected habitat condition at 100 years concluded that there was an 80

percent likelihood that nesting habitat would be well distributed on

Federal lands at 100 years under the option most similar to the current

Northwest Forest Plan.

The Service recognizes the value of the Northwest Forest Plan (USDA

and USDI 1994) and acknowledges its integral role in marbled murrelet

conservation. The Northwest Forest Plan complements this critical

habitat designation by stressing the need for protection of large,

unfragmented areas of suitable nesting habitat that are well-

distributed throughout the species' range, with special emphasis on

areas close to the marine environment.

Concurrently with the implementation of the Northwest Forest Plan,

the Marbled Murrelet Recovery Team continues to work on a Recovery Plan

that will outline a strategy for recovering the species. The Recovery

Plan, which builds on the Northwest Forest Plan, also addresses

management needs on non-Federal lands and in the marine environment.

The Marbled Murrelet Recovery Team is completing a final Recovery

Plan that will outline a strategy for recovering the species. The draft

Recovery Plan (USFWS 1995a) suggested the establishment of six Marbled

Murrelet Conservation Zones where viable populations of murrelets

should be maintained in Washington, Oregon, and California. The

Recovery Team would designate the Marbled Murrelet Conservation Zones

to address differing needs for recovery actions in portions of the

marbled murrelet's range and to maintain well-distributed populations.

The zones are generally described as follows: (1) the Puget Sound

Conservation Zone includes all the waters of Puget Sound, the eastern

waters of the Strait of Juan de Fuca and

[[Page 26263]]

associated inland habitat extending 80 km (50 miles) from eastern Puget

Sound and bisecting of the Olympic Peninsula; (2) the Western

Washington Coast Range Conservation Zone includes the outer coast of

Washington, the western waters of the Strait of Juan de Fuca and

associated inland habitat extending inland to the midpoint of the

Olympic Peninsula and in southwest Washington as far as 80 km (50

miles) from the Pacific Ocean shoreline; (3) the Oregon Coast Range

Conservation Zone includes most of the coastal waters of Oregon

(between the Columbia River and Coos Bay) within 2 km (1.2 miles) of

the shoreline and associated inland habitat extending inland a distance

of 56 km (35 miles); (4) the Siskiyou Coast Range Conservation Zone

includes a portion of the coastal waters of Oregon and California

(between Coos Bay, Oregon and the southern boundary of Humboldt County,

California) within 2 km (1.2 miles) of the shoreline and associated

inland habitat extending inland a distance of 56 km (35 miles) from the

Pacific Ocean shoreline; (5) the Mendocino Conservation Zone includes a

portion of the California coastal waters (from the Humboldt County line

to the mouth of San Francisco Bay) within 2 km (1.2 miles) of the

shoreline and associated inland habitat extending inland a distance of

up to 40 km (25 miles) from the Pacific Ocean shoreline; and (6) the

Santa Cruz Mountains Conservation Zone includes a portion of the

central California coastal waters (from the mouth of San Francisco Bay

to Point Sur, Monterey County) within 2 km (1.2 miles) of the shoreline

and associated inland habitat extending inland a distance of up to 24

km (15 miles) from the Pacific Ocean shoreline (USFWS 1995a).

In the marine environment, several laws apply that benefit

murrelets directly or indirectly. The Oil Pollution Act of 1990

addresses the development of a national planning and response system

for spills in marine and freshwater environments. A variety of planning

efforts are underway that address responses to worst-case discharges of

oil or hazardous substances, and mitigation or prevention of a

substantial threat of discharge from a vessel, offshore facility, or

onshore facility. Planning efforts include the development of a

national contingency plan, regional area contingency plans, and local

geographic response plans. The Service has worked extensively with the

U.S. Coast Guard, industry representatives, local response communities,

and other State, Federal, and Tribal natural resource trustees to

develop area contingency plans and geographic response plans for

Pacific coastal areas. These plans address mechanical recovery, use of

dispersants, in-situ burning, shoreline cleanup, protection of

sensitive areas, and protection, rescue, and rehabilitation of fish and

wildlife. These planning efforts and associated spill exercises should

help prevent or minimize the impact of spills on natural resources.

Several other marine laws address threats to murrelets. These

include the Clean Water Act, which regulates the discharge of pollution

into marine waters and establishes National Contingency plans to

minimize damage from oil spills; the Coastal Zone Management Act, which

establishes the Coastal Nonpoint Source Pollution Control Program; the

Marine Protection, Research and Sanctuaries Act, which restricts ocean

dumping of waste, including dredged materials, and establishes marine

sanctuaries; and the Outer Continental Shelf Act, which regulates

offshore oil development.

Mortality of marbled murrelets in commercial net fisheries in

Washington is being addressed through changes in State and Tribal

regulations. In 1995, the State of Washington and the Tribes instituted

area closures in a number of areas with high densities of marbled

murrelets to reduce the potential for entanglement. In 1995, the first

year of a 2-year study to evaluate modified gillnets designed to reduce

seabird entanglement was completed, and the initial results were

encouraging (Melvin and Conquest 1996). Research was also conducted in

1995 to evaluate the extent of fisheries/murrelet overlap and factors

that affect entanglement. Educational programs have been implemented

that provide material to fishermen on marbled murrelet identification

and distribution. As a result of section 7 consultation, observer

programs were required in 1993 and 1994 to evaluate and quantify the

extent of marbled murrelet mortality in purse seine and gillnet salmon

fisheries (USFWS 1995b, 1995c).

Finally, the Forest Service published the ``Ecology and

Conservation of the Marbled Murrelet,'' a compilation of original

studies and literature reviews that represents the most current

treatise on marbled murrelets (Ralph et al. 1995a). The document is

particularly valuable for management, because it has assembled and

synthesized most of what is known about the marbled murrelet.

Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as ``(i)

the specific areas within the geographical area occupied by the

species, at the time it is listed * * * on which are found those

physical or biological features (I) essential to the conservation of

the species and (II) which may require special management

considerations or protection; and (ii) specific areas outside the

geographical area occupied by a species at the time it is listed * * *

upon a determination * * * that such areas are essential for the

conservation of the species.'' 16 U.S.C. 1532(5)(A). The term

``conservation,'' as defined in section 3(3) of the Act, means ``* * *

to use and the use of all methods and procedures which are necessary to

bring any endangered species or threatened species to the point at

which the measures provided pursuant to this Act are no longer

necessary * * *'' 16 U.S.C. 1532(3).

Role in Species Conservation

The use of the term ``conservation'' in the definition of critical

habitat indicates that its designation would include habitat essential

to a species' eventual recovery and delisting. However, when critical

habitat is designated at the time a species is listed or before a

recovery plan is completed, the Service frequently does not know all of

the habitat areas that are essential for a species' recovery. Thus, the

Act provides that critical habitat designations may be revised from

time to time (16 U.S.C. 1533(a)(3)(B)).

The designation of critical habitat is only one of several measures

available to contribute to the conservation of a listed species.

Critical habitat helps focus conservation activities by identifying

areas that contain essential habitat features (primary constituent

elements), thus alerting Federal agencies and the public to the

importance of an area in the species' conservation. Critical habitat

also identifies areas that may require special management or

protection. The identification of these areas may be helpful in

planning federally regulated land use activities. The added emphasis on

these areas for conservation of the species may shorten the time needed

to achieve recovery.

Critical habitat receives consideration under section 7 of the Act

with regard to actions carried out, authorized, or funded by a Federal

agency. As such, designation may affect non-Federal lands only where

such a Federal nexus exists. Federal agencies must insure that their

actions are not likely to result in destruction or adverse modification

of critical habitat. Aside from this added consideration under section

7, the Act does not provide any additional protection to lands

designated as critical

[[Page 26264]]

habitat. Designating critical habitat does not create a management plan

for the areas; does not establish numerical population goals or

prescribe specific management actions (inside or outside of critical

habitat); and does not have a direct effect on areas not designated as

critical habitat. Specific management recommendations for critical

habitat are addressed in recovery plans, management plans, and in

section 7 consultation.

In Washington, specific State Forest Practices rules are triggered

by Federal critical habitat designation covering private lands. Under

Forest Practices rules, a forest management activity within designated

critical habitat is classified as a ``Class IV--special'' forest

practice. The applicant for the forest practices permit must submit, in

addition to the usual information for the Forest Practices permit, an

environmental checklist under the State Environmental Policy Act

(SEPA). This checklist covers all resources, not just the species or

critical habitat in question. The Washington Department of Natural

Resources (WDNR) then makes a threshold determination from this

information. The WDNR may make a determination of nonsignificance,

mitigated determination of nonsignificance, or a determination of

significance. If a determination of nonsignificance or mitigated

determination of nonsignificance is reached, the action can proceed. If

a determination of significance is made, preparation of an

Environmental Impact Statement is required. This includes public

involvement, and may involve significant time delays and costs.

However, the State Forest Practices Board has the option to exclude any

Federal critical habitat from this designation under a Class IV

special. State regulations exclude from critical habitat, and Class

IV--Special review requirements, areas covered by a conservation plan

and permit approved the Service. State agencies are required to conduct

SEPA review on all State land projects, so the designation of critical

habitat designation will have less effect on their process.

In Oregon, State laws and regulations do not recognize critical

habitat. Therefore, no effect can be attributed to Federal critical

habitat through Oregon State law for critical habitat designated on

non-federal land.

In California, the California Endangered Species Act (CESA)

contains a similar concept to critical habitat called essential

habitat. The State does not necessarily designate essential habitat in

terms of mapped and described areas, as does critical habitat. Laws and

regulations do not specifically defer to or recognize Federal critical

habitat. California Department of Fish and Game biologists, in their

normal CESA and California Environmental Quality Act (CEQA) review of

proposed activities, may be aware of critical habitat and consider it

in lieu of essential habitat. However, there is no requirement to do

so, nor any prescribed manner for treating critical habitat. In the

absence of critical habitat, State biologists continue to consider the

concept of essential habitat. While State biologists may use Federal

critical habitat during CESA and CEQA reviews, the impact is not

expected to exceed impacts under the above laws in the absence of

critical habitat.

Primary Constituent Elements

A designation of critical habitat begins by identifying areas

essential to conservation of a species. In determining which areas to

designate as critical habitat, the Service considers those physical and

biological features essential to a species' conservation and that may

require special management considerations or protection. Such physical

and biological features, as stated in 50 CFR 424.12, include, but are

not limited to, the following:

(1) Space for individual and population growth, and for normal

behavior;

(2) Food, water, air, light, minerals or other nutritional or

physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, rearing of offspring; and

(5) Habitats that are protected from disturbance or are

representative of the historic geographical and ecological

distributions of a species.

The Service is required to base critical habitat designations on

the best scientific data available (16 USC 1533(b)(2)). In designating

critical habitat for the marbled murrelet in Washington, Oregon, and

California, the Service has reviewed its overall approach to the

conservation of the species. For a thorough discussion of the ecology

and life history of this subspecies, see the Service's Biological

Report (Marshall 1988); the final listing rule published in the Federal

Register on October 1, 1992 (57 FR 45328); The Status and Conservation

of the Marbled Murrelet in North America (Carter and Morrison 1992);

the Biology of the Marbled Murrelet: Inland and at Sea (Nelson and

Sealy 1995); the draft Recovery Plan (USFWS 1995a); the Ecology and

Conservation of the Marbled Murrelet (Ralph et al. 1995a); and the

Ecological Considerations section of this rule.

The Service has determined that the physical and biological habitat

features (referred to as the primary constituent elements) associated

with the terrestrial environment that support nesting, roosting, and

other normal behaviors are essential to the conservation of the marbled

murrelet and require special management considerations.

Within areas essential for successful marbled murrelet nesting, the

Service has focused on the following primary constituent elements: (1)

individual trees with potential nesting platforms, and (2) forested

areas within 0.8 kilometers (0.5 miles) of individual trees with

potential nesting platforms, and with a canopy height of at least one-

half the site-potential tree height. This includes all such forest,

regardless of contiguity. These primary constituent elements are

essential to provide and support suitable nesting habitat for

successful reproduction of the marbled murrelet.

Individual nest trees include large trees, generally more than 81

centimeters (32 inches) dbh with the presence of potential nest

platforms or deformities such as large or forked limbs, broken tops,

dwarf mistletoe infections, witches' brooms, or other formations

providing platforms of sufficient size to support adult murrelets.

Because marbled murrelets do not build nests, moss or detritus may be

important to cushion or hold the egg. Platforms should have overhead

cover for protection from predators and weather, which may be provided

by overhanging branches, limbs above the nest area, or branches from

neighboring trees. Based on current information from Washington,

Oregon, and California, nests have been found in Douglas-fir, coastal

redwood, western hemlock, western redcedar, or Sitka spruce (Hamer and

Nelson 1995b).

On a landscape basis, forests with a canopy height of at least one-

half the site-potential tree height in proximity to potential nest

trees are likely to contribute to the conservation of the marbled

murrelet. These forests may reduce the differences in microclimates

associated with forested and unforested areas (Chen et al. 1992; Chen

et al. 1993), reduce potential for windthrow during storms (Chen et al.

1992), and provide a landscape that has a higher probability of

occupancy by marbled murrelets (Raphael et al. 1995). The site-

potential tree height is the average maximum height for trees given the

local growing conditions, and is based on species-specific site index

tables. Nest trees may be scattered or clumped

[[Page 26265]]

throughout the area. Potential nesting areas may contain fewer than one

suitable nesting tree per acre.

Within the boundaries of designated critical habitat, only those

areas that contain one or more primary constituent element are, by

definition, critical habitat. Areas without any primary constituent

elements are excluded by definition.

Criteria Used To Identify Critical Habitat

Several qualitative criteria were considered in the selection of

specific areas for inclusion in critical habitat. These criteria are

similar to criteria used in the development of several recent Federal

management proposals, such as the Scientific Panel (Johnson et al.

1991) and Northwest Forest Plan (USDA and USDI 1994). The following is

a description of the criteria considered:

Suitable Nesting Habitat: The presence of suitable nesting habitat

as defined in the previous section. Suitable habitat was located

through the use of specific site knowledge, GIS data, remote sensing

data, and aerial photos.

Survey Data: Information about presence/absence and occupancy were

used to indicate murrelet use areas. Critical habitat units include

most of the known sites occupied by marbled murrelets on Federal,

State, county, and private lands. However, known occupied sites may

represent only a small portion of the population due to the limited

coverage of past survey efforts.

Proximity to Marine Foraging Habitat: During the nesting season,

marbled murrelets forage in the marine environment and return to the

nest at least once daily carrying a prey item to their young. Foraging

and nesting habitat areas must be juxtaposed within the flight

capabilities and energetic limits of the species. Critical habitat

units were designated taking into account the distance of murrelet

detections from the marine environment in a given area.

Large, Contiguous Blocks of Nesting Habitat: In response to the

problems of fragmentation of suitable habitat, potential increases in

predation, and reduced reproductive success, the Service concentrated

on defining critical habitat units in terms of large, contiguous blocks

of late-successional forest. The Service used the Late-Successional

Reserve system identified in the Northwest Forest Plan (USDA and USDI

1994) to the extent possible to provide large blocks of habitat.

Marbled murrelet locations and habitat were considered in the

development of these reserves. State, county, private, and city lands

were included where large blocks of Federal reserve areas were

insufficient or not available, but where critical habitat was crucial

to retaining distribution of the species.

Rangewide Distribution: To maintain the current distribution of the

species and reduce the impact of catastrophic losses of habitat or

murrelets, critical habitat units were identified throughout the range

of the species in the three states. Well distributed critical habitat

reduces the probability that a natural or human-caused catastrophe

would threaten the survival or recovery of the species in Washington,

Oregon, and California. Catastrophes that might threaten the species

include wildfires, windstorms or oil spills. Given the intense site

fidelity of many alcid species, maintaining rangewide distribution may

also be needed to provide potential source populations for the

recolonization of future habitat.

Adequacy of Existing Protection and Management: The Service

considered the existing legal status of lands in designating areas as

critical habitat. Areas with permanent legal protection of wildlife,

such as congressionally designated wilderness areas, National Parks,

and National Wildlife Refuges are not proposed unless specific threats

were identified that are not addressed by existing management and

protection. State park regulations vary, but are often more recreation

oriented, and less restrictive or protective of wildlife.

Designated Areas Identified by Applying Criteria

Application of the foregoing criteria and consideration of comments

and information received as a result of the supplemental proposal has

resulted in the designation of most of the Late-Successional Reserves

(LSR), as described in the Northwest Forest Plan, on Federal lands

within the range of the marbled murrelet in Washington, Oregon, and

California. These areas, as managed under the Northwest Forest Plan,

should develop into large blocks of suitable murrelet nesting habitat

given sufficient time. However, LSRs are plan-level designations with

less assurance of long-term persistence than areas designated by

Congress. Designation of LSRs as critical habitat compliments and

supports the Northwest Forest Plan and helps to ensure persistence of

this management directive over time. In some areas, these large blocks

of Federal land can provide the necessary contribution for recovery of

the species. In other areas, Federal ownership is limited and Federal

lands alone cannot meet recovery needs to reverse the current

population decline in marbled murrelets and maintain a well-distributed

population.

The FEMAT report recognized the limited ability of Federal agencies

to recover this species on Federal lands alone. ``Although the Forest

Ecosystem Management Assessment was designed to address only Federal

lands within the range of the northern spotted owl, the marbled

murrelet is an example of a species whose life history requirements

cannot be accommodated only on Federal lands. The marbled murrelet is a

seabird that nests inland and therefore is influenced by both the

marine and terrestrial environments. Its nesting range in the three-

state area includes land that is south of the range of the northern

spotted owl. In addition, several areas that are considered key to the

recovery of the marbled murrelet involve private and state lands''

(FEMAT Report at IV-151 and IV-152, USDA et al. 1993a).

Based on information provided in public comments, including the

recommendations of the Marbled Murrelet Recovery Team in the draft

Recovery Plan (USFWS 1995a), the Service is designating selected non-

Federal lands that meet the requirements identified in the Criteria for

Identifying Critical Habitat section, where Federal lands alone are

insufficient to provide suitable nesting habitat for the recovery of

the species.

Non-Federal lands are designated as critical habitat where Federal

lands are limited or nonexistent, and where non-Federal lands are

essential for maintaining marbled murrelet populations and nesting

habitat. State lands are particularly important in southwestern

Washington, northwestern Oregon, and California south of Cape

Mendocino. Small segments of county lands are also included in

northwestern Oregon and central California. This is consistent with the

Memorandum of Understanding between the Service and the State of

California signed in 1991.

Some private lands are being designated as critical habitat because

they provide essential elements and occur where Federal lands are very

limited, although habitat availability on private land is typically

much more limited than on public lands. These areas include the Arlecho

Basin, which supports occupied sites in the lowlands of northern

Washington; land supporting known occupied sites in southwestern

Washington and in the Siletz River drainage in Oregon; nesting habitat

and occupied sites for the at-sea murrelet population in the southern

portion of the Draft Recovery Plan's proposed Marbled Murrelet

Conservation Zone 4 in California,

[[Page 26266]]

including the Headwaters Forest area; and nesting habitat for the

central California population. State, county, city, and private lands

contain the last remnants of nesting habitat for the southern-most

population of murrelets, which is the smallest, most isolated, and most

susceptible to extirpation.

Areas Not Designated

Not all suitable nesting habitat is included in the designated

critical habitat units. Emphasis has been placed on those areas

considered most essential to the species' conservation in terms of

habitat, distribution, and ownership. That does not mean that lands

outside of designated critical habitat units are not important to the

marbled murrelet. Some Federal lands outside of designated critical

habitat will receive additional protection from the marbled murrelet

conservation measures outlined in the Northwest Forest Plan. Under the

ROD, all marbled murrelet habitat will be surveyed prior to removal or

degradation of habitat, and all occupied sites will be protected. The

Adaptive Management Areas, matrix lands, and administratively withdrawn

lands contain areas of occupied habitat that would be protected from

timber harvest.

Some areas outside this critical habitat designation may prove to

contain elements important to the recovery of the species. This

includes several areas recommended in public comment (see Issue 26).

However, under the Administrative Procedure Act (5 U.S.C. 553), the

Service cannot finally designate areas which were not included in a

proposed rule; and the Service was under court order to finalize this

designation by May 15, 1996. The Service will consider these areas for

potential inclusion in any future revisions of marbled murrelet

critical habitat.

In considering whether tribal lands would be designated as critical

habitat, the Service gave particular attention to the Federal

government's trust responsibilities to Native Americans. The Hoopa

Valley Indian Reservation (Reservation) was considered but not

designated as critical habitat because no occupied sites have been

documented after 3 years of surveys on various portions of the

Reservation. The Reservation contains only a small quantity of

fragmented marbled murrelet habitat and is surrounded by Federal lands.

Some of those Federal lands contain high quality habitat supporting

occupied sites and are either designated as critical habitat or

protected as a Congressionally Withdrawn Area.

Three other areas of Tribal land were considered for inclusion in

critical habitat, including portions of the Quinault and Makah Indian

Reservations in Washington and lands owned by the Siletz Tribe in

Oregon. The Makah Indian Reservation was not designated because little

suitable habitat remains in this area. The Siletz lands support marbled

murrelets and contain suitable habitat. However, because these parcels

are small, isolated, and relatively few, they have limited ability to

contribute to recovery, especially considering the proximity of Federal

land in the area. Many of these tribal lands contain murrelet occupied

sites and activities on these areas undergo section 7 consultation

through the Bureau of Indian Affairs, providing an option for achieving

essential conservation contributions. Therefore, the Siletz lands were

not included in the supplemental proposed rule, for any future

revisions to critical habitat for the marbled murrelet.

The Quinault lands are considered important to the conservation of

the marbled murrelet. The North Boundary Area of the Quinault Indian

Reservation contains large blocks of contiguous, old-growth habitat.

Much of this habitat currently supports marbled murrelets. However, the

Quinault lands were not included in the supplemental proposed rule

after consideration of the Federal government's trust responsibilities

and the options for achieving essential conservation contributions

through other alternatives. The Service is still considering the

appropriateness of designating critical habitat on Quinault lands, for

any future revisions to critical habitat for the marbled murrelet.

The Service considered including five marine areas in critical

habitat. Clean water and accessible foraging opportunities are

important life history requirements for the marbled murrelet. These

five areas support the highest concentrations of murrelets during the

breeding season in Washington, Oregon, and California. One area

consisted of the waters of Puget Sound and the Strait of Juan de Fuca

in Washington, including the waters surrounding the San Juan Islands.

The Service also considered near shore waters (within 2 km (1.2 mi) of

the shore) along the Pacific coast from Cape Flattery to Point

Grenville in Washington, from Newport Bay to Coos Bay in Oregon, from

the California State border to Cape Mendocino in northern California,

and from Pillar Point to Davenport in central California.

While these marine areas are very important to the conservation of

marbled murrelets, the Service does not believe that they require

special management consideration or protection at this time beyond that

provided by the existing Federal laws and regulations discussed in the

Previous Management Efforts section. These laws and regulations

specifically address reducing the threats identified in the marine

environment.

While the draft Recovery Plan clearly indicates that marine habitat

is important to the survival of marbled murrelets, it also indicates

that the primary concern with respect to declining murrelet populations

is loss of nesting habitat. The Service's evaluation of the effects of

actions in the terrestrial environment focuses on the impacts to the

species' nesting habitat, although take of murrelets is also addressed.

With respect to the marine environment the Service is primarily

concerned with mortality issues.

Activities or events that adversely affect marbled murrelets at sea

seem to be more associated with the mortality of individual birds than

with long-term destruction or adverse modification of habitat. For

example, gillnet fisheries result in incidental capture of murrelets,

but may not significantly adversely affect the prey base. Murrelets

appear to forage opportunistically on available fish, and are likely

able to respond to minor changes in fish abundance and location.

Murrelets are also adversely affected by spills of oil and other

pollutants. Although these events undoubtedly harm the murrelet prey

base, their principal adverse impact is the death of birds in the area

of the event. The effects of these events on the murrelet prey base are

somewhat more difficult to predict than are the effects on any

murrelets that happen to be in the area. The Service's assessments of

these events typically relies upon an assessment of the mortality issue

rather than an assessment of habitat issues such as prey base.

Many of the threats specifically result in the loss of individuals

through death or injury. Such effects related to projects authorized,

funded, or carried out by a Federal agency can and should be considered

under section 7 of the Act. The Service will continue to monitor marine

threats and may propose marine critical habitat in the future if

warranted.

Changes From the Supplemental Proposal

The Service reviewed public comments, information on forest stands

provided by landowners during the public comment period, aerial

photographs, and updated GIS data. The Service dropped areas and

corrected

[[Page 26267]]

area descriptions accordingly. Generally, the corrections were

relatively minor adjustments to boundary lines.

A number of proposed units in southwest Washington on private and

State lands were reduced in size if it was determined that: (1) primary

constituent elements were not present or, (2) the area removed was not

considered necessary for the conservation of the species. The north

portion of Capital Forest (WA-04-a) was removed because of the lack of

primary constituent elements, coupled with high levels of motorized

recreational use that further reduce habitat potential.

In Oregon, the Elliott State Forest was originally proposed for

designation as critical habitat. The State of Oregon has since

completed the Elliott State Forest Habitat Conservation Plan that

includes provisions for the marbled murrelet and received an incidental

take permit. This permit describes how the area will be managed for

murrelets. Therefore, the Service has removed this area from the final

designation.

On Federal lands in Oregon, the Service included approximately 100

acres and deleted approximately 300 acres of land on the Siuslaw

National Forest at the request of the Forest Service. This change

reflects a land exchange intended to protect marbled murrelet occupied

sites. The Service deleted areas managed by the Siskiyou National

Forest (portions of subunits OR-07-e and OR-07-f); and the Eugene,

Roseburg and Medford Districts of the Bureau of Land Management

(subunits OR-04-h, and portions of subunits OR-06-d, OR-04-f, and OR-

04-I) based on survey information provided by the agencies during the

public comment period. Survey information included the location and

results (positive and negative) of murrelet surveys in the eastern

portion of these areas. The survey locations were based on planned

timber sales and habitat-based surveys in many areas, rather than a

statistically designed study to determine the inland distribution of

marbled murrelets. Therefore, the Service was only able to utilize the

survey information in critical habitat units where the survey effort

was greatest. The Service interprets lack of detections or occupied

sites, when coupled with habitat information, to indicate that these

areas are currently likely to support much lower densities of murrelets

than areas closer to the coast. The Service does not consider these

survey data to be sufficient at this time to define the full inland

distribution of murrelets in these areas and does not propose to change

the murrelet zones used in the Northwest Forest Plan.

In California, some portions of proposed critical habitat on

private and Federal lands in the Siskiyou Coast Range Zone (unit CA-10-

b and the east half of unit CA-10-a) and on city and state lands in the

Santa Cruz Mountains Zone were dropped based on information provided by

the landowners and land management agencies or other new information

available to the Service. These areas were dropped because the Service

determined that they did not contain the primary constituent elements

or were not considered essential to the conservation of the species.

All of Golden Gate National Recreation Area was dropped based on

information provided by the National Park Service indicating that the

Federal government owns the timber rights to any potentially suitable

murrelet habitat within the area. After reviewing this information, the

Service has determined that Federal lands within the Golden Gate

National Recreation Area do not require special management.

Portions of primary constituent element (3) from the supplemental

rule (forested areas of at least one-half the site-potential tree

height regardless of the presence of potential nest platforms) have

been incorporated into primary constituent element (2) in the final

rule, and the remainder dropped. Forested areas surrounding nest trees

were retained because they likely contribute to successful reproductive

efforts by providing the microclimate suitable for maintaining nest

tree characteristics and potentially reducing predation. The

contribution of forested areas to successful reproduction likely

decreases with increasing distance from the nest tree and at some

distance the contribution becomes indistinguishable. Raphael et al.

(1995) found an increased chance of occupancy in landscape conditions

with increased amounts of large saw timber and old growth components

within a 0.8 km (0.5 mile) radius circle. Specific studies are lacking

to document the value of forested conditions to marbled murrelet

nesting beyond the 0.8 km (0.5 mile) radius. Therefore, until these

studies are completed, it is the best professional judgement of Service

biologists that forested conditions within 0.8 km (0.5 mile) of a

potential nest tree contribute more significantly to successful

reproduction than those beyond this area and the Service has changed

the primary constituent elements accordingly.

Congressionally Withdrawn Areas

Congressionally Withdrawn Areas (e.g., wilderness areas and

national parks) are limited in the range of the marbled murrelet in

Washington, Oregon, and California. Few wilderness areas are within the

flight distance of marbled murrelets from the marine environment,

although those that are provide crucial contributions to the

conservation of the species. Wilderness areas and national parks

contain approximately 302,000 hectares (747,000 acres) of marbled

murrelet nesting habitat, representing 29 percent of the suitable

nesting habitat on Federal lands in the range of the marbled murrelet.

However, a substantial portion of the remainder of these areas is

incapable of producing marbled murrelet nesting habitat because of

forest composition, lack of forest cover, elevation, and other

constraints. By themselves, Congressionally Withdrawn Areas are

incapable of supporting stable and interactive populations of marbled

murrelets.

Marbled murrelet habitat in congressionally designated wilderness

areas, national parks, national monuments (natural areas), and national

wildlife refuges is generally managed by statutory requirements to

protect natural ecosystems and for the benefit of wildlife. Thus,

habitat in these areas does not require special management

consideration or protection. For example, a potential highway

realignment through the Redwood National Park in northern California

could result in the removal of occupied habitat. The Park's statutory

authority and general management goals, however, are considered

adequate to conserve the species without the additional designation of

critical habitat.

However, not all Congressionally Withdrawn Areas are managed in

this manner. For example, some national recreation areas may not be

managed to maintain older forest habitats or may face external actions

(e.g., outside ownership of mineral or timber rights) which may

threaten marbled murrelet habitat within the area. One congressionally

withdrawn area in California, the Golden Gate National Recreation Area,

was proposed for designation. Area staff indicated that potential

marbled murrelet habitat within the area might still be subject to

timber harvest and loss, because the National Park Service does not

control rights to the standing timber on some parts of the recreation

area. During the public comment period the National

[[Page 26268]]

Park Service was able to verify that any lands where timber rights may

not be secure do not contain potentially suitable marbled murrelet

habitat. Therefore the Recreation Area was dropped from designation

because murrelet habitat within the area no longer needs special

management consideration or protection beyond the area's existing

statutory requirements.

Several other congressionally designated areas were considered

important to recovery of the marbled murrelet because of their location

within the range of the species and presence of suitable nesting

habitat, but are not designated because they do not require special

management in light of their existing statutory requirements. These

include: (1) North Cascades, Olympic, and Mount Rainier National Parks;

Willapa National Wildlife Refuge; Mount Saint Helens National Volcanic

Monument; Mount Baker, Noisy Diobsud, Glacier Peak, Boulder River,

Henry M. Jackson, Alpine Lakes, Clearwater, Norse Peak, Glacial View,

Tatoosh, Buckhorn, The Brothers, Mount Skokomish, Wonder Mountain, and

Colonel Bob Wilderness Areas in Washington; (2) Drift Creek, Cummins

Creek, Rock Creek, Grassy Knob, Wild Rogue, and Kalmiopsis Wilderness

Areas in Oregon; and (3) the Kalmiopsis, Siskiyou, and Trinity

Wilderness Areas; Muir Woods National Monument and Point Reyes National

Seashore in California. Portions of the Smith River National Recreation

Area in California were not included because they did not contain high-

quality nesting habitat. External threats in these areas are very

limited, management goals are generally adequate to conserve the

species, and these areas do not require special management

consideration or protection beyond their individual statutory

authorities.

Economic Analysis Summary

Section 1(b)(2) of the Act requires the Service to consider the

economic and other relevant impacts of specifying any particular area

as critical habitat. The Secretary may exclude areas from critical

habitat if the benefits of exclusion outweigh the benefits of including

the area in critical habitat, unless failure to designate a specific

area would result in extinction of the species. The Service contracted

with ECONorthwest, a consulting firm in Eugene, Oregon, to conduct an

economic analysis of the potential economic effects of designating

critical habitat for the marbled murrelet. As required by the Act, the

report addresses only the incremental economic consequences of the

proposed critical habitat. It does not address the consequences of

listing the species or other actions that have been proposed or taken

to protect marbled murrelets prior to this designation.

The habitat covered by the designation plays a complex role in the

regional economy by producing multiple, valuable goods and services,

including: the marbled murrelet itself; other species, including

salmon; fresh water; recreational opportunities; and timber. The data

regarding the designation's impacts on some of these goods and services

are not sufficient to support a detailed conclusion about whether the

proposed designation would result in net economic benefits or costs.

Evidence indicates, however, that the designation's economic benefits

largely offset, and may even outweigh, its economic costs. The overall

net effect is expected to be close to zero.

The designation will have few immediate and direct impacts on the

economy. The primary effect of critical habitat is through the section

7 requirement for Federal agencies to avoid the destruction or adverse

modification of critical habitat through actions they fund, permit, or

carry out. The Service, with information provided by the cooperating

Federal agencies, has determined that the designation of critical

habitat for the marbled murrelet is not likely to significantly

restrict the activities of any Federal agency, whether on Federal or

non-federal lands. In particular, although the designation will

reinforce the efforts of the Forest Service and Bureau of Land

Management to protect and enhance the terrestrial habitat of the

marbled murrelet, it will not cause these agencies to manage Federal

lands in a manner that will have immediate, direct impacts on the flow

of timber and other goods and services from these lands.

For non-federal landowners with lands included in this designation,

the primary potential for an impact of critical habitat will be on

actions that require a Federal permit or involve Federal funding. One

of these activities is the issuance of incidental take permits under

section 10(a) of the Act. The Service works with landowners, at their

request, in the development of the HCP required for issuance of the

permit to allow activities to proceed while minimizing and mitigating

for impacts to listed species. The Service consults under section 7 on

the issuance of the permit, to ensure the permit will not jeopardize

the species or adversely modify critical habitat. The Service has

defined critical habitat for marbled murrelets to exclude lands covered

by a legally-operative incidental take permit for the species,

including marbled murrelet incidental take permits that may be issued

subsequent to the designation. Other permitting or funding agencies

have indicated that they do not expect critical habitat to have a

significant effect on permits or funding.

The designation may, however, lead to changes in the actions of the

Washington Department of Natural Resources (WDNR), which is required by

State regulations to take Federal critical habitat designations into

account when assessing applications for permits to conduct logging and

other activities. These regulations require WDNR to scrutinize more

thoroughly the potential impacts on all aspects of the environment--

natural, recreational, cultural, and infrastructural--when a proposed

activity will occur inside designated critical habitat. However,

marbled murrelet critical habitat is defined to exclude areas covered

by marbled murrelet incidental take permits. Washington State Forest

Practices regulations exclude areas covered by a marbled murrelet

incidental take permit from this requirement.

The economy most directly affected by the designation--western

Washington, western Oregon, and northwestern California--is highly

diversified and growing rapidly. Any potential loss of jobs should be

compensated for by other employment opportunities as has happened over

the last 15 years in this area. Markets are expected to respond

quickly, whatever the designation's impacts on the timber industry. The

designation is unlikely to cause any change in the prices of timber and

derivative products.

Summary of the Exclusion Process

Under section 4(b)(2) of the Act, the Secretary may exclude any

area from critical habitat if he determines that the benefits of such

exclusions outweigh the benefits of specifying such areas as part of

the critical habitat, unless he determines that the failure to

designate such areas will result in the extinction of the species

concerned. To determine whether to include or exclude an area, the

Service has analyzed the economic and conservation benefits of

retaining or excluding critical habitat areas, and weighed those

benefits.

The economic analysis focused on Federal agencies because the

primary impact of critical habitat occurs through a Federal nexus. For

the supplemental proposed rule, the Service contacted all Federal

agencies operating within the range of the murrelet in Washington,

Oregon, and California. The Service

[[Page 26269]]

discussed the potential effects of critical habitat and the various

regulatory activities of the agencies, to assist in determining whether

the proposed designation would have a potential to affect the agency's

actions, including funding and permitting activities on non-federal

lands. Each agency contact was sent a questionnaire requesting

information on the potential impacts of the designation on any projects

or activities funded, permitted, or carried out by their agency,

followed by personal contact. Follow-up contacts were made with the

various agencies to answer any additional questions. For the final

rule, updates were requested.

Several portions of critical habitat were dropped from the proposed

rule due to new information made available to the Service during the

public comment period. Because the effects of critical habitat

designation vary by ownership and State regulation, the Service

evaluated the effect of the designation on areas defined by state and

ownership, beginning with critical habitat areas on Federal land in the

three States. Federal lands are managed under the same requirements,

through the Northwest Forest Plan. Therefore, potential effects of

critical habitat are similar for all these lands. Baseline condition of

Federal lands was established in the Northwest Forest Plan.

Within each state, the Service examined the potential effects of

critical habitat on the various ownerships and areas defined by

differences in the baseline condition. Effects examined included any

potential effects where Federal permits or funding were involved. In

addition, any effects of state regulations that tier to Federal

critical habitat were examined.

Based on the impacts revealed by the economic analysis summarized

above, and careful examination of the conservation benefits of the

critical habitat units, the Service has determined that the overall

conservation and other benefits to be gained from the designation

outweigh the benefits of excluding any remaining areas. Therefore, the

Service did not exclude any areas during this process and has made a

final determination to designate critical habitat for the marbled

murrelet. A copy of the economic analysis and description of the

exclusion process with supporting documents are included in the

Service's administrative record.

Effects of the Designation

This designation of critical habitat for the marbled murrelet

identifies 32 critical habitat units encompassing approximately

1,573,340 hectares (3,887,800 acres) of Federal and non-Federal lands

based on information available in the Interagency Geographic

Information System (GIS). Twenty-two critical habitat units include

State, county, city, or private lands. See Table 1.

Table 1.--Designated Critical Habitat by State, Ownership, and Land

Allocation

------------------------------------------------------------------------

Hectares Acres

------------------------------------------------------------------------

Washington:

Federal Lands:

Congressionally Withdrawn Lands. 740 1,800

Late-Successional Reserves...... 485,680 1,200,200

Non-Federal Lands:

State Lands..................... 172,720 426,800

Private Lands................... 1,020 2,500

Oregon:

Federal Lands:

Late-Successional Reserves...... 541,530 1,338,200

Non-Federal Lands:

State Lands..................... 70,880 175,100

County Lands.................... 440 1,100

Private Lands................... 350 900

California (Northern):

Federal Lands:

Late-Successional Reserves...... 193,150 477,300

Non-Federal Lands:

State Lands..................... 71,040 175,500

Private Lands................... 16,360 40,400

California (Central):

State Lands..................... 14,080 34,800

County Lands.................... 3,230 8,000

City Lands...................... 400 1,000

Private Lands................... 1,720 4,200

------------------------------------------------------------------------

Some small areas of naturally occurring or human-created unsuitable

habitat (i.e., areas that have never been or will likely never be

marbled murrelet nesting habitat, such as alpine areas, water bodies,

serpentine meadows, lava flows, airports, roads, buildings, parking

lots, etc.) are inside the boundaries of critical habitat units but are

not affected by the designation because they do not contain primary

constituent elements. Where possible, these areas were not included

within the critical habitat boundaries and acreage totals were adjusted

to reflect the exclusion of this non-suitable habitat. However, many of

these areas are small and could not be physically identified on the GIS

maps. Current mapping information does not allow precise identification

of the location of all forest areas containing primary constituent

elements. This is particularly true for potential nest trees. These

trees are often a small component of the forest stands and are not

recorded on many timber-oriented data systems. The Service used the

best existing data to locate the forest areas most likely to contain

the primary constituent elements. Where possible in the time frame

available, the Service refined the boundaries of the critical habitat

units to eliminate significant identified areas that do not contain one

or more of the primary constituent elements based on the best data

available.

Efforts by Federal agencies to survey for marbled murrelets have

been concentrated in areas of proposed

[[Page 26270]]

timber sales or limited research locations. A small fraction of

suitable nesting habitat has been surveyed to date, and surveys have

not been uniformly spread throughout the range of the species.

Therefore, known occupied sites provide only a partial indication of

the areas used by the species. In addition, there are a significant

number of known occupied sites within Redwood National Park that are

not currently on the database and are therefore not reported here. The

designated critical habitat includes 695 (86 percent) of the 807 known

occupied sites on Federal lands.

The Service had limited information about the amount of suitable

nesting habitat or habitat containing one or more of the primary

constituent elements on non-Federal lands within the species' range.

The Service relied on analysis of satellite imagery that does not

identify small features such as potential nest trees. The Service is

aware of at least 354 known occupied sites on non-Federal lands, of

which 218 (61 percent) are included within critical habitat. Several of

the occupied sites outside of critical habitat are within the Elliott

State Forest, which is operating under an active incidental take permit

for murrelets. The Service did receive specific and detailed

information in the public comments from some non-Federal landowners

relative to the forest condition on their lands. Based on this

information, the Service has removed from the designation lands that

are unlikely to contain either primary constituent element.

Available Conservation Measures

Two of the principal purposes of the Act, as stated in section

2(b), are to provide a means to conserve the ecosystems upon which

endangered and threatened species depend and to provide a program for

the conservation of listed species. The Act mandates the conservation

of species through several different mechanisms, such as section 7

(requiring Federal agencies to ensure that their actions will not

likely jeopardize the continued existence of the listed species or

result in the destruction or adverse modification of critical habitat);

section 9 (prohibition of taking of listed species); section 10

(habitat conservation plans); and section 6 (cooperative State and

Federal grants).

Recovery Planning

Designation of critical habitat does not offer specific direction

for managing marbled murrelet nesting or foraging habitat and does not

provide a management or conservation plan for the species. Guidance for

conservation is generally provided in recovery plans, which usually

include management recommendations for designated critical habitat. The

Service continues to work closely with the Marbled Murrelet Recovery

Team relative to critical habitat.

Recovery planning is an ``umbrella'' that guides conservation

activities under the Act and promotes a species' conservation. Recovery

plans provide guidance, which may include population goals and

identification of areas that are in need of protection or special

management. Recovery plans also include management recommendations for

areas proposed or designated as critical habitat. Critical habitat

promotes recovery by highlighting areas that should be given additional

consideration in local planning processes. Critical habitat helps focus

conservation activities by identifying areas that contain essential

habitat features (primary constituent elements) and that may require

special management or protection. Critical habitat complements recovery

plans by providing a regulatory mechanism when a Federal nexus is

present to increase immediate protection of primary constituent

elements and essential areas and preserve options for the long-term

conservation of the species.

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies to insure that

activities they authorize, fund, or carry out are not likely to destroy

or adversely modify designated critical habitat. This Federal

responsibility accompanies, and is in addition to, the requirement in

section 7(a)(2) of the Act that Federal agencies insure that their

actions are not likely to jeopardize the continued existence of any

listed species. A Federal agency must consult with the Service if its

proposed action may affect a listed species or critical habitat.

Regulations implementing this interagency cooperation provision of the

Act are codified at 50 CFR 402.

Destruction or adverse modification of critical habitat is defined

as ``* * * a direct or indirect alteration that appreciably diminishes

the value of critical habitat for both the survival and recovery of a

listed species. Such alterations include, but are not limited to,

alterations adversely modifying any of those physical or biological

features that were the basis for determining the habitat to be

critical.'' 50 CFR 402.02. Jeopardy is defined at 50 CFR 402.02 as any

action that would be expected to reduce appreciably the likelihood of

both the survival and recovery of a listed species in the wild. The

scope of analysis for evaluating the impacts of an activity on marbled

murrelet critical habitat is the broadly defined unit and conservation

zone, not each individual acre. The designation of critical habitat

does not create de facto wilderness or prohibit all human activities

within the boundaries. Many activities may take place in critical

habitat without resulting in the destruction or adverse modification of

the critical habitat.

Section 10 Incidental Take Permits (Habitat Conservation Plans)

Section 10(a) of the Act authorizes the Service to issue permits

for the taking of listed species incidental to otherwise lawful

activities. Incidental take permit applications must be supported by a

habitat conservation plan (HCP) that identifies conservation measures

that the permittee agrees to implement for the species to minimize and

mitigate the impacts of the requested incidental take. The issuance of

an incidental take permit is a Federal action and is subject to the

consultation requirements of section 7 of the Act. The Service cannot

issue an incidental take permit if the HCP would jeopardize any listed

species, or destroy or adversely modify any critical habitat.

The Service expects that critical habitat may be used as a tool to

help identify areas within the range of the murrelet most critical for

the conservation of the species and the Service will encourage

development of HCPs for such areas on non-federal lands. The Service

considers HCPs to be one of the most important methods through which

non-Federal landowners can resolve endangered species conflicts. The

Service provides technical assistance and works closely with applicants

throughout the development of HCPs to help identify special management

considerations for the murrelet. Several HCP efforts are currently

underway in areas designated as murrelet critical habitat in

Washington, Oregon, and California.

HCPs, coupled with Federal management under the Northwest Forest

Plan, provide an opportunity to develop a package of sufficient

management considerations that meet or enhance the conservation of the

species. Thus, they may remove the need for special management

consideration or protection, thereby removing the need to designate

such areas as critical habitat. Therefore, any lands within critical

habitat that are covered by a legally-operative incidental take permit

for marbled murrelets based on an approved HCP that addresses

conservation of the marbled murrelet are excluded from the critical

habitat

[[Page 26271]]

while the permit is active. The State of Oregon is currently operating

under an incidental take permit for murrelets on the Elliott State

Forest, therefore this area has been excluded from critical habitat.

Basis for Section 7 Analysis

Designation of critical habitat focuses on the primary constituent

elements within the designated habitat units and their contribution to

the species' survival and recovery. The evaluation of actions that may

affect critical habitat for the marbled murrelet would consider the

effects of a Federal action on any of the factors that were the basis

for determining the habitat to be critical, including the primary

constituent elements of potential nest trees and surrounding forest.

The range of the marbled murrelet has been subdivided by the

Recovery Team into six Marbled Murrelet Conservation Zones (USFWS

1995a), as discussed in the Previous Management Efforts section. These

subdivisions were not based on identification of separate populations

of marbled murrelets, but rather on the need for potentially different

recovery actions in various portions of the marbled murrelet's range,

and the need to maintain well-distributed populations. Marbled

murrelets within the conservation zones are likely to interact across

zone boundaries at some level.

For a wide-ranging species such as the marbled murrelet, where

multiple critical habitat units are designated, each unit has a

regional (conservation zone) and range-wide role in contributing to the

conservation of the species. The basis for an adverse modification

opinion would be whether a proposed action appreciably reduces the

ability of critical habitat to function in achieving the regional

conservation zone goals. In evaluating the effect of a proposed action,

the Service will analyze the impacts to individual units in light of

their overall contribution to the survival and recovery of murrelets in

the conservation zone described in the Previous Management Efforts

section, and the overall range of the marbled murrelet in Washington,

Oregon, and California. Thus, an adverse modification finding would be

based upon a broader inquiry than the mere assessment of adverse

effects at the local unit level. The loss of populations throughout one

or more conservation zones, or even a major part of a conservation

zone, could lead to genetic and demographic isolation of parts of the

population.

Examples of Proposed Actions

Section 4(b)(8) of the Act requires, for any proposed or final

regulation concerning critical habitat, a brief description and

evaluation of those activities (public or private) that may adversely

modify such habitat or may be affected by the critical habitat

designation. Regulations found at 50 CFR 402.02 define destruction or

adverse modification of critical habitat as a direct or indirect

alteration that appreciably diminishes the value of critical habitat

for both the survival and recovery of a listed species. Such

alterations include, but are not limited to, alterations adversely

modifying any of those physical or biological features that were the

basis for determining the habitat to be critical.

A variety of ongoing or proposed activities that disturb or remove

primary constituent elements may adversely affect, though not

necessarily ``adversely modify'' marbled murrelet critical habitat as

that term is used in section 7 consultations. Examples of such

activities include, but are not limited to, (1) forest management

activities which greatly reduce stand canopy closure, appreciably alter

the stand structure, or reduce the availability of nesting sites; (2)

land disturbance activities such as mining, sand and gravel extraction,

construction of hydroelectric facilities and road building, and (3)

harvest of certain types of commercial forest products (e.g. moss).

These activities have the following effects on the primary constituent

elements of murrelet critical habitat:

(1) Removal or degradation of individual trees with potential

nesting platforms, or the nest platforms themselves, that results in a

significant decrease in the value of the trees for future nesting use.

Moss may be an important component of nesting platforms in some areas.

(2) Removal or degradation of trees adjacent to trees with

potential nesting platforms that provide habitat elements essential to

the suitability of the potential nest tree or platform, such as trees

providing cover from weather or predators.

(3) Removal or degradation of forested areas with a canopy height

of at least one half the site-potential tree height and regardless of

contiguity, within 0.8 km (0.5 mile) of individual trees containing

potential nest platforms. This includes removal or degradation of trees

currently unsuitable for nesting that contribute to the structure/

integrity of the potential nest area (i.e., trees that contribute to

the canopy of the forested area). These trees provide the canopy and

stand conditions important for marbled murrelet nesting.

For a proposed action to result in the destruction or adverse

modification of critical habitat, it must appreciably diminish the

value of critical habitat for both the survival and recovery of a

listed species in the affected conservation zone. Each proposed action

requiring a section 7 consultation must be evaluated individually, in

light of the baseline condition of the critical habitat unit and

conservation zone, unique history of the area, and effect of the impact

on the critical habitat unit in light of its regional and range-wide

role in the conservation of the species. Activities that are acceptable

in one critical habitat unit or conservation zone may cause serious

effects in another, due to differences in current condition and

conservation needs. Therefore, the Service cannot provide, in this

rule, a detailed description of the threshold for future actions that

would result in the destruction or adverse modification of critical

habitat applicable throughout the range of the species.

A variety of activities would not affect the primary constituent

elements and therefore would not adversely modify critical habitat.

Such activities would include, but are not limited to, certain

recreational use and personal-use commodity production (e.g., mushroom

picking, Christmas tree cutting, rock collecting, recreational fishing

along inland rivers) and certain commercial commodity production (e.g.,

mushroom picking, brush picking). Actions that affect forest stands not

within 0.8 km (0.5 miles) of individual trees with potential nesting

platforms (are not primary constituent elements) also would not

adversely modify critical habitat, even if they are within the

boundaries of the area designated as critical habitat.

Activities that do not affect the primary constituent elements in

the forests are unlikely to be affected by the designation. However,

even though an action may not adversely modify critical habitat, it may

still affect marbled murrelets (e.g. through disturbance) and may,

therefore, still be subject to consultation under section 7 of the Act.

Activities conducted according to the standards and guidelines for

Late-Successional Reserves, as described in the ROD for the Northwest

Forest Plan would be unlikely to result in the destruction or adverse

modification of marbled murrelet critical habitat. Activities in these

areas would be limited to manipulation of young forest stands that are

not currently marbled murrelet nesting habitat. These forest management

activities would be

[[Page 26272]]

conducted in a manner that would not slow the development of these

areas into future nesting habitat, and should speed the development of

some characteristics of older forest.

Summary of Comments and Recommendations on the Supplemental Proposed

Rule

In the August 10, 1995, supplemental proposed rule for designation

of marbled murrelet critical habitat, the Service requested all

interested parties to submit information and comments concerning the

proposal. Additional comments were received at five public hearings

held on the supplemental proposed rule in Washington, Oregon, and

California.

During the public comment period, the Service received 339 written

comments. In addition, 60 people testified at the public hearings. All

comments received are part of the record for this designation and are

available for public review. Issues raised during the public comment

period that were not addressed in the body of the final rule are

discussed next.

Legal/Policy

Issue 1: Two commenters questioned whether the language of a

temporary injunction granted by Judge Chesney of the United States

District Court for the Northern District of California expanded the

scope of activities subject to consultation under section 7 of the Act,

and therefore the impact of critical habitat on non-federal lands.

Service Response: Judge Chesney ruled that there was a serious

question as to whether the Service's advice to a timber company, that

proposed logging would not result in take of the marbled murrelet in

violation of section 9 of the Act, was an action subject to section 7

consultation. On May 7, 1996, the U.S. Court of Appeals for the Ninth

Circuit reversed Judge Chesney's ruling and concluded that the

Service's advice to a private entity on compliance with section 9 is

not an action subject to section 7. Marbled Murrelet v. Babbitt, No.

95-16945 (9th Cir.).

A Federal nexus refers to a situation where a Federal agency

authorizes, funds, or carries out an action.

Issue 2: One commenter questioned whether the acceptance of Federal

funding for a project on a portion of a State forest would create a

Federal nexus for all activities on the forest.

Service Response: The Federal nexus would apply only to the funded

activity and related actions. Actions that are interrelated and

interdependent with the federally-funded activity would be considered

in the biological opinion and could be subject to modification. Any

modifications suggested by the Service would, for a non-jeopardy/non-

adverse modification action, be confined to ``minor'' changes which

would still allow the goals and intent of the project to be met. Other

unrelated actions would not be covered in the consultation.

Issue 3: Several commenters questioned the statement that critical

habitat designation would not affect activities on State, local, or

private lands unless there is a Federal permit, license, or funding

involved, citing potential impacts of the designation through State

laws.

Service Response: During the public comment period, the Service

sought and received additional information on the potential impact of

critical habitat designation resulting from State laws and regulations.

The potential impacts vary by state. See the Role in Species

Conservation section for a detailed discussion of the effects by state.

Issue 4: Several commenters recommended that the Service postpone

issuing a final rule until additional studies are conducted and better

information on the species' biology and threats is available. Other

commenters suggested that the Service should seek new information

before adopting a final rule.

Service Response: The Service is required to use the best available

information in designating critical habitat. The Service is under court

order to complete the designation of murrelet critical habitat by May

15, 1996. The Service did solicit new biological data and public

participation during the comment period and public hearings on the

revised proposed rule. The Service will continue to monitor and collect

new information and may revise the critical habitat designation in the

future if new information supports a change.

Issue 5: Several commenters raised issues already addressed in the

supplemental proposed rule for the designation of critical habitat for

the marbled murrelet (60 FR 40892). These include issues related to the

listing of the species, the potential for critical habitat to result in

the ``take'' of private lands, access across critical habitat, the need

for an Environmental Impact Statement, and questions on the

prehistorical condition of habitat in the Oregon Coast Ranges.

Service Response: The Service incorporates by reference its

responses to these issues contained in the supplemental proposed rule

(60 FR 40892). No new information was provided that would result in any

significant changes to the responses in the supplemental proposed rule.

Issue 6: One commenter maintained that the Service failed to

distinguish recovery objectives from the designation of critical

habitat.

Service Response: In the revised proposed rule, the Service

provided information on the link between recovery and critical habitat.

The areas designated as murrelet critical habitat conform to the Act's

requirements for critical habitat designations. Critical habitat

includes the areas ``essential to the conservation of the species'' (16

USC 1532(5)(A)). Conservation is defined in the Act as actions

necessary to promote recovery of the species (16 USC 1532(3)).

Therefore, critical habitat is linked to recovery.

The commenter also confused the issuance of a ``no jeopardy''

biological opinion on the Northwest Forest Plan with conservation of

the murrelet throughout three-state range. The biological opinion on

the Northwest Forest Plan addressed only the impacts on Federal lands.

Conservation of the murrelet has to be analyzed more broadly.

Issue 7: One commenter maintained that the Service failed to

provide reasoned explanation for changes between the first and second

proposals.

Service Response: The Service addressed the basis and rationale for

the differences in the supplemental proposed rule (60 FR 40892). In the

first proposal, the Service had indicated that some revisions might be

necessary and had requested information to assist the Service in making

changes.

Issue 8: One commenter suggested that the Service provide a method

to correct legal descriptions without going through the formal rule-

making process. Other commenters suggested that the Service specify

that lands traded from public to private ownership be excluded from

critical habitat once the trade is complete. Several commenters

believed that failure to exclude traded areas would effectively halt

the land exchanges.

Service Response: A rule designating critical habitat is required

to contain a sufficient description of areas designated to allow

persons to determine whether a particular segment of land is included

or excluded. If corrections or clarifications become necessary, the

Service will make them.

Areas were chosen because of their value to the conservation of the

marbled murrelet. The Service conducts section 7 consultation on any

land exchange that may affect critical habitat. During the consultation

process, the Service considers the conservation value of the

[[Page 26273]]

areas acquired, as well as the potential effects of the lands traded in

determining whether the action as a whole would destroy or adversely

modify critical habitat. Even in the event that a proposed exchange

would result in the destruction or adverse modification of critical

habitat, the Service will work with the action agency and any

applicants to craft reasonable and prudent alternatives that would

allow the action to proceed.

Changes in ownership do not by themselves change an area's status

as critical habitat. If a portion of land is moved from Federal to non-

Federal ownership, the effects of the designation may change.

Regardless of the original ownership, activities on non-Federal lands

are likely to be affected by the designation only when there is a

Federal nexus or where State law is triggered by the Federal

designation.

Issue 9: One commenter charged that the Service did not use the

best scientific information. The commenter interpreted the Act to allow

and require the use of only data, not theories or interpretations of

the data.

Service Response: The Service believes it has used the best

scientific information available, and will continue to review new

information as it arises. The Service reviewed all information provided

by commenters on the supplemental rule to determine if it supported

alternative conclusions. Science involves not only the use of raw data,

but the hypotheses, theories, and interpretations derived from those

data. Failure to use such information would be contrary to good

scientific practice and would not satisfy the Act's requirements. The

commenter provided several specific examples, which have been addressed

in the ``Ecological Considerations'' section as well as the Biological

Issues in this section of the rule.

Issue 10: One commenter contends that the Service erred by

designating areas not ``occupied by murrelets at the time of listing.''

The commenter asserts that on September 28, 1992 (the time of listing),

the species had completed nesting and were all on the ocean, therefore

no nesting habitat could be considered occupied at the time of listing.

Service Response: The commenter's interpretation of ``geographical

areas occupied by the species at the time of listing'' is erroneous.

The commenter appears to have confused the definition of ``occupied''

in the Pacific Seabird Protocol (designed to determine potential

breeding by birds located in a specific area in a specific year) with

the biological determination of species occupancy. Biologists consider

all areas used by members of a species, regardless of life stage or

season, as within the occupied range of the species.

Issue 11: One commenter suggested that the legal descriptions of

critical habitat in areas of intermingled Federal ownership should

specifically exclude the non-Federal lands through description, rather

than by definition.

Service Response: In the supplemental proposed rule, the Service

specified the ownerships included in the designation for each area

described. Within Federal LSRs, only Federal lands are included by

definition, thereby excluding any non-federal lands. In addition, only

lands that contain the primary constituent elements are included by

definition. This approach satisfies the requirements of the Act. The

Service continues to work on improving the descriptions of critical

habitat units. We appreciate the specific information provided by

private landowners on their ownerships within the Federal and State

lands designated. However, in this court-ordered final designation, the

Service has included and excluded areas by definition.

Issue 12: One commenter maintained that the Service had ignored the

presence of marbled murrelet habitat in Congressionally-withdrawn

areas, thereby increasing the area of non-Federal lands designated as

critical habitat.

Service Response: The Service is cognizant of the murrelet habitat

in lower-elevation, Congressionally-withdrawn areas, including Redwood

National Park. The Service assumes these areas will retain murrelet

habitat based on the statutory requirements applicable to these areas

and considered this in its designation of murrelet critical habitat.

Issue 13: Several commenters suggested that the rationale for

excluding Congressionally-withdrawn lands from designation as critical

habitat should also apply to the Late-Successional Reserves under the

Northwest Forest Plan because these areas were being managed to provide

old-growth habitat.

Service Response: Congressionally-withdrawn lands are designated by

statute, which secures their status. Any change to their management

requires an act of Congress. Those areas designated for management in a

manner consistent with murrelet conservation are expected to remain so.

Therefore, there is no added value to designating them as critical

habitat. In contrast, plan-level designations, such as Late-

Successional Reserves, are reviewed and revised periodically (at least

every 10-15 years), and therefore do not have the secure status of

Congressionally-withdrawn areas. Critical habitat designation serves to

remind future planners of the importance of these areas to the

conservation of the marbled murrelet. Therefore, designation of these

areas as critical habitat is valuable, even if current management is

consistent with murrelet conservation.

Issue 14: Several commenters suggested that the explanation for the

exclusion of Tribal lands, Congressionally-withdrawn areas, and marine

habitat could also be applied to all terrestrial critical habitat.

Service Response: The Service discussed of the reasons for each of

these exclusions in the final rule. A major consideration in the

exclusion of Tribal lands were factors related to the Federal

government's trust responsibilities and government to government

relationships with Native American tribes. Congressionally-withdrawn

lands have special and statutory designations that provide management

protection for wildlife.

In examining the information provided on marine habitat, the

Service identified two key components of the marine habitat that are

essential to the conservation of the murrelet, clean water and food.

Marine habitat is not generally subject to incremental and continuing

losses or removal as terrestrial habitat is. Threats in the marine

environment are often related to catastrophic events that cause loss of

individuals, not habitat. The primary identified threats to marine

murrelet habitat are pollution and toxic spills. Fishing does not

appear to be a threat to habitat at this time. Several laws regulate

activities that could result in pollution or toxic spills in the marine

environment that have no counterparts in the terrestrial environment,

and are briefly described in the Previous Management Efforts section.

Other marine concerns, such as the effect of El Nino and ocean

currents, are outside human control and would not be affected by the

designation of critical habitat. The Service will continue to monitor

the degree to which these and other regulatory measures ameliorate

identified threats and the need for special management consideration or

protection.

Issue 15: A number of commenters identified areas that they thought

should not be designated as critical habitat.

Service Response: If site-specific documentation on a site was

provided to the Service providing a rationale as to why an area should

not be designated

[[Page 26274]]

critical habitat, that information was evaluated and a determination

made as to whether modifications in the proposal were appropriate. For

example, habitat maps were provided by State and private landowners in

southwest Washington that allowed the Service to modify critical

habitat boundaries due to the absence of primary constituent elements.

Federal agencies in Oregon provided habitat and survey information that

allowed the Service to modify boundaries.

Issue 16: Some commenters suggested that the Service was breaching

the Memorandum of Understanding with the State of California signed in

1991 because the Service is designating non-Federal lands in

California.

Service Response: The Service chose non-Federal lands on the basis

of limited amounts of Federal lands in the vicinity that could support

a well-distributed population of marbled murrelets and on the basis of

the non-Federal land's contribution to recovery.

Issue 17: One commenter raised the question of the need to

designate private lands when they would never provide the large,

contiguous blocks of nesting habitat most desirable for marbled

murrelets.

Service Response: The Service acknowledges that private lands in

general do not have, nor will they probably have in the future, the

large contiguous blocks of habitat most desirable for the conservation

of the marbled murrelet. However, Federal lands, where large,

contiguous blocks of habitat could be developed, are lacking in

portions of the marbled murrelet's range. In these areas, critical

habitat units have been designated because smaller blocks of suitable

habitat on non-Federal lands are essential for maintaining the species'

range-wide distribution and numbers.

Issue 18: One commenter requested that we be more specific about

which, if any, gillnet fisheries create problems for marbled murrelets.

The commenter specifically stated that the Columbia River gillnet

fishery was not a fishery causing problems for marbled murrelets.

Service Response: The Service presently considers the Columbia

River gillnet fishery a very minor threat to marbled murrelets relative

to other fisheries, such as the Puget Sound commercial salmon fishery.

This is in part because of the very limited effort which now occurs in

this fishery. It is also because the Service recognizes that there are

currently few marbled murrelets present in the vicinity of the mouth of

the Columbia, although their historic presence in the area is well-

documented. However, while the observer program conducted from 1991-

1993 (Jeffries and Brown 1993) did not specifically describe any

entanglement of marbled murrelets, significant numbers of unidentified

alcids were entangled. Therefore, it cannot be stated conclusively that

the Columbia River gillnet fishery does not pose a threat to marbled

murrelets, particularly if fishing effort were to increase

dramatically.

Issue 19: One commenter stated that the economic analysis was

flawed because it failed to analyze the economic effects for each area

separately.

Service Response: The economic analysis for this critical habitat

designation is sufficient for consideration of the relevant impacts of

specifying particular areas as critical habitat.

Issue 20: Several commenters expressed the opinion that the Service

should consider the economic effects of critical habitat without

adjusting for the effects of the listing or the Northwest Forest Plan.

Service Response: The economic analysis is conducted to allow

informed consideration of the impacts of designating particular areas

as critical habitat. Areas may be excluded from critical habitat if the

benefits of excluding the area outweigh the benefits of including the

area, so long as the exclusion does not lead to the extinction of the

species. For this, the Service needs to determine the incremental

increase in economic effects from the designation. In the absence of

critical habitat, the listing of the species, other laws, and existing

Federal land management plans remain in effect. Therefore, to determine

the actual impact of a designation, the Service must determine the

effect that will occur with the designation above and beyond the

existing requirements. To attribute all economic effects of murrelet

conservation to critical habitat alone would not provide an accurate

assessment of the impacts of the designation.

Issue 21: Several commenters maintained that the removal of 4.4

million acres from the timber base would have severe economic impacts.

Other commenters addressed individual areas in a similar manner, making

the assumption that designation would stop all harvest.

Service Response: Critical habitat does not stop or prevent all

timber harvest or other activities on designated lands. In the absence

of a Federal nexus (funding, permitting, authorization, or action by a

Federal agency) or State regulations tiered to a designation, there is

no effect. Even with a Federal nexus, projects are not affected unless

they would appreciably diminish the value of critical habitat for both

the survival and recovery of the species. Whether a particular activity

will appreciably diminish the value of critical habitat will depend on

several factors, including the scope, magnitude, and location of the

activities, as well as the condition of the critical habitat unit and

the Marbled Murrelet Conservation Zone described by the Recovery Team

(USFWS 1995a). If the critical habitat areas in a zone are generally in

good condition, the potential for individual projects to diminish its

value is lower than where critical habitat in a zone is in poor

condition. Based on the application of previous designations,

significant adverse impacts to individual critical habitat areas may

not trigger the above threshold.

In addition, timber harvest in accordance with an approved HCP that

addresses marbled murrelets should also be unaffected by the present

determination of critical habitat, given the Service's intention to

defer to the special management considerations for the murrelet under

the HCP and the Service's exclusion of lands covered by an HCP from

critical habitat.

Issue 22: Some commenters disagreed with the use of sites

identified as occupied by marbled murrelets under the Pacific Seabird

Group protocol as a criterion for critical habitat designation, because

the commenters believe that some of the behaviors that resulted in

occupied status were not indicative of nesting. One commenter suggested

that ``the 1994 protocol dropped circling behavior from the definition

of occupied behaviors.

Service Response: The Service used all available information in the

selection of areas for designation as critical habitat. Survey

information was only one of the criteria considered in selecting areas

for proposed critical habitat designation. Survey results (including

occupied sites, marbled murrelet presence, and lack of detections) were

used as indicators of the presence/absence of marbled murrelets in

specific areas. However, survey efforts have been minimal in many

areas, and coverage of areas is discontinuous. Such information was of

limited use in designating critical habitat in portions of the range.

The 1994 protocol did not remove circling behavior from the

definition of occupied behaviors. In fact, both the 1993 (p. 11) (Ralph

et al. 1993) and 1994 (p. 12) (Ralph et al. 1994) versions of the

protocol include it under criteria indicating occupancy. This

relationship

[[Page 26275]]

has been statistically analyzed and verified. Under ``occupied stands''

(p. 13 and again on pg. 21) in the 1994 protocol, Ralph et al. (1994)

clearly state that birds circling above the canopy is a criterion

indicating occupancy. This conclusion was affirmed in the March 8, 1995

addendum to the 1995 protocol (Ralph et al. 1995c), as well as in a

signed declaration prepared by Dr. C.J. Ralph on September 27, 1995

(Ralph 1995).

Issue 23: Some commenters suggested that the Service designate

additional habitat to compensate for the loss of high quality occupied

murrelet nesting habitat that may be harvested as a consequence of

timber sales released by the so-called ``Salvage Rider'' (Public Law

104-19, Section 2001).

Service Response: The government's position is that section

2001(k)(2) of P.L. 104-19 expressly forbids the harvest of identified

nesting sites. The Federal District Court for the District of Oregon

disagreed with the government's position and directed the government to

release for harvest the majority of these sites. The Government has

appealed this decision to the Ninth Circuit Court of Appeals, and as of

this writing the harvest is temporarily stayed until the Ninth Circuit

rules on the case. Therefore, the Service believes any compensatory

designation of additional critical habitat is unwarranted at this time.

Issue 24: Several commenters expressed concern that critical

habitat is a disincentive to landowners contemplating developing

habitat conservation plans (HCPs) within designated areas.

Service Response: The Service does not intend to discourage HCPs

with the designation of critical habitat. We expect that critical

habitat may be used as a tool to help identify areas within the range

of the murrelet more critical for the conservation of the species. The

Service considers HCPs to be one of the most important methods by which

non-Federal landowners can resolve endangered species conflicts.

All HCPs are reviewed to determine whether they are likely to

jeopardize the continued existence of the species or cause adverse

modification to designated critical habitat. In most cases, the Service

provides technical assistance and works closely with the applicant

throughout the development of the HCP to reduce the probability of the

applicant developing an HCP that would not meet these criteria. Well

developed HCPs should be able to meet the section 7 requirement to

avoid adverse modification of critical habitat by providing sufficient

special management considerations for the constituent elements

identified for murrelet critical habitat. The Service does not

anticipate that the designation of critical habitat for the marbled

murrelet will affect ongoing negotiations for HCPs with landowners like

the State of Washington or various large timber companies.

Issue 25: Several commenters disagreed with removing areas covered

under an HCP from designation. Whereas in contrast, another commenter

felt that planning approaches such as the development of multi-species

HCPs were preferable to critical habitat designation.

Service Response: The Service recognizes that critical habitat is

only one of many conservation measures for federally-listed species.

HCPs are perhaps one of the most important tools for reconciling land

use with the conservation of listed species on non-Federal lands. Since

HCPs can provide an alternative means of addressing the special

management considerations necessary for the constituent elements of

marbled murrelet critical habitat, those areas covered by a legally-

operative incidental take permit for marbled murrelets based on an

approved HCP are excluded from critical habitat.

Consistent with this approach, the Service has not designated the

Elliott State Forest in Oregon as critical habitat based on the State

completing an HCP for that forest. Other areas without completed HCPs

have been included in this designation. When those HCPs are completed

and incidental take permits for marbled murrelets issued, critical

habitat will be lifted.

Issue 26: Numerous commenters recommended that the Service

designate marine critical habitat. Several commenters recommended

addition of the following terrestrial areas as critical habitat:

In California, commenters recommended inclusion of private lands in

Del Norte, Humboldt, Mendocino, Sonoma, San Mateo, and Santa Cruz

Counties. One private property owner requested designation of her 60

acres in the Santa Cruz Mountains Zone. The Midpeninsula Regional Open

Space District requested that the District's Purisima Creek Redwoods

Open Space Preserve be designated in San Mateo County. Commenters also

suggested inclusion of county parks along the Van Duzen River. State

lands recommended for inclusion included Van Damme State Park and

Navarro River Redwood State Park in the Mendocino Zone, and Nisene

Marks State Park and Soquel State Demonstration Forest in the Santa

Cruz Mountains Zone. In Washington, commenters recommended the

inclusion of Washington Department of Natural Resource lands in the

Clallam Bay block and the Chehalis State Forest, Deception Pass State

Park, additional lands adjacent to Jim Creek, private lands in the

Mineral block, and private lands with occupied sites in the north

Cascades.

Service Response: Under the Administrative Procedures Act (5 U.S.C.

553), the Service cannot finally designate areas as critical habitat

unless they were proposed for designation in a proposed rule. Further,

the Service is under a court order to finalize this critical habitat

designation by May 15, 1996. These recommendations will be considered

in any future revisions of critical habitat for the marbled murrelet.

Biology

Issue 27: Commenters suggested that prey distribution and

abundance, rather than inland forest conditions, may dictate murrelet

distributions at sea.

Service Response: As described in the Ecological Considerations

section, the Service agrees that prey distribution and abundance is an

important ecological factor for murrelets at sea. However, particularly

during the nesting season, marbled murrelets are found in high numbers

in close proximity to areas where inland forested conditions are

considered suitable for nesting throughout large portions of coastal

Washington, Oregon, and California (Carter and Erickson 1992; Ralph and

Miller 1995; Ralph et al. 1995b; Strong 1995, Varoujean and Williams

1995). Conversely, marine concentrations tend to be low where on-shore

habitat is limited. Concentrations of other alcids during the nesting

season in 1994 did not correspond closely to murrelet distribution

patterns (Varoujean et al. 1994), which one would expect if prey

distribution was the single or most important determinant of seabird

distribution.

The distribution of marbled murrelets in the marine environment

changes after the nesting season. This suggests that proximity to their

nesting habitat is important for marbled murrelets during the breeding

season even though food may be more abundant elsewhere (Ralph et al.

1995b). However, changes in prey distribution and abundance may

sometimes occur coincidentally with the end of the nesting season.

Marbled murrelets have been documented to use a variety of prey

species, which suggests that they are capable of exhibiting flexibility

regarding food resources available to them during the nesting season.

Therefore, the Service believes

[[Page 26276]]

that the condition of inland nesting habitat is an important factor

explaining distributions in the marine environment during the nesting

season.

Issue 28: Some commenters disagreed with Service statements that

marbled murrelets are found in high numbers at sea in close proximity

to areas where inland forested conditions are considered suitable for

nesting throughout large portions of coastal Washington, Oregon, and

California. They contend that the 1994 and 1995 at-sea survey data did

not support this assertion.

Service Response: As described in the Ecological Considerations

section, the Service believes murrelet concentrations at sea are likely

to be determined by a combination of terrestrial and marine conditions.

However, we believe that recent at-sea survey data support our earlier

conclusions that marine observations during the nesting season

generally correspond to the largest remaining blocks of suitable forest

nesting habitat (Nelson et al. 1992; Varoujean et al. 1994; Ralph and

Miller 1995; Ralph et al. 1995b; Strong 1995).

Issue 29: One commenter stated that the proposed designation was

premised on the incorrect assumption that the most important problem

for marbled murrelet conservation was the availability of terrestrial

nesting habitat. They stated that Beissinger's model, along with an

additional modeling effort and other life-history information, shows

that the marine environment is much more important than the terrestrial

environment and, therefore, the Service should concentrate critical

habitat designation on marine habitat features.

Service Response: The Service agrees that the marine environment is

very important to the murrelet, as discussed both in the supplemental

critical habitat proposal (60 FR 40892) and the draft Recovery Plan

(USFWS 1995a). However, there are a number of reasons why critical

habitat is only being designated in the terrestrial environment.

Currently, factors affecting the marine environment and murrelets while

at-sea can be addressed through existing laws and regulations as

discussed in this final rule (see Areas Not Designated section). In

addition, numerous sources have stated the importance of nesting

habitat as a major limiting factor in murrelet recovery. Although adult

mortality does occur at-sea, it also has been documented in the

terrestrial environment. Therefore, the designation of critical habitat

in the terrestrial environment is appropriate at this time.

Issue 30: Several commenters raised issues related to nest

predation and predator numbers. These were primarily related to the

effects of timber harvest and forest edge on predator numbers and

marbled murrelet nest predation rates and the appropriateness of

applying nest predation studies from other regions of the country to

the Pacific Northwest. One commenter raised the potential use of

predator control as a management tool. Several commenters suggested

that predator numbers correlated with human use and therefore private

lands may have fewer predators than public lands.

Service Response: The Service has amended the final rule to reflect

the comments and to provide additional documentation on statements

related to predation. However, as discussed in the Ecological

Considerations section, the Service believes that existing data

strongly suggest that nest predation may be significantly higher for

some forest birds nesting near artificially created edges, even if the

exact causal mechanisms that affect the predation rates are unclear.

The Service agrees with Paton (1994) and the commenters that research

addressing this issue in Pacific Northwest forests is needed, and the

Service is currently supporting such efforts (e.g., Marzluff et al.

1996). However, the few completed studies addressing this issue in the

Northwest or in commercial timberland areas elsewhere indicate the

timber harvest in a forest can increase nest predation rates on forest

birds under certain circumstances (Ratti and Reese 1988; Rudnicky and

Hunter 1993; Vega 1993; Bryant 1994; Vander Haegen and DeGraaf, in

press). In fact, Ratti and Reese (1988) found that abrupt forest edges

created by commercial timber harvest could lead to increased nest

predation rates, and they concluded that their data are consistent with

the hypothesis that birds are poorly adapted to predator pressure near

abrupt artificial edge zones.

Some commenters failed to distinguish between the studies that

address ground nesting birds (e.g., Small and Hunter 1988), and those

cited by the Service that concern species that nest above the ground

like the marbled murrelet. Small and Hunter (1988) investigated

predation rates on ground nests and concluded that distance from edge

was not related to nest predation (although they did conclude that

nests in smaller forest fragments were more vulnerable than nests

located in larger forest stands). They felt their results were due to

the relatively high numbers of ground predators (i.e., fox, raccoon,

and skunk) compared to low numbers of bird predators (corvids). These

findings are consistent with the more recent work of Vander Haegen and

DeGraaf (in press) and Rudnicky and Hunter (1993). Both of these

studies found no edge effect for ground nests but a two- to three-fold

increase in predation for above-ground nests near edges when compared

to above-ground nests in the forest interior. Although not completely

representative of the high canopy nesting situation of murrelets, these

results are significant because they more closely approximate the

potential impacts of the avian predators believed to be affecting

murrelets.

Predator control as a management tool to recover species has been

used effectively only in very limited situations. It may serve as a

short-term solution to address an immediate threat while long-term

solutions are being formulated. The high cost, logistical difficulties

and high probability that the predator control will be unsuccessful

(Goodrich and Buskirk 1996), however, argue against the use of predator

control for a wide-ranging species such as the marbled murrelet.

Regarding the issue that levels of human activity on public lands

may result in predation rates which are higher than on private lands,

the Service agrees that public lands that are easily accessible have

higher levels of human use, with resultant activities that are

attractive to corvids. However, corvids have also been shown to travel

significant distances to urban centers, dumps, etc. which are often as

close or closer to private lands than to public lands (Marzluff et al.

1996). The other factor which appears to increase predation rates is

higher levels of landscape fragmentation (Marzluff et al. 1996), which

is generally greater on private lands. Therefore, it is difficult to

generalize about the relationship between land ownership and predation

rates.

Issue 31: One commenter suggested that the Service ignored the

findings of Raphael et al. (1995) that occupied murrelet sites had more

complex patterns with more edge, greater variety of cover types, and

more complex shapes than unoccupied sites. The commenter indicated that

these conclusions seem to contradict statements made by the Service

concerning forest edge and landscape patterns.

Service Response: The Service disagrees with this commenter's

interpretation of Raphael et al. (1995). The most important and

relevant conclusions of Raphael et al. (1995) (M. Raphael, pers.

comm.), are: (1) proportions of old-growth and large saw

[[Page 26277]]

timber were greater among sites occupied by murrelets compared to

unoccupied sites, and (2) mean size of patches of old-growth and large

saw timber were also greater among occupied sites compared to

unoccupied sites. As Raphael et al. (1995) state, these findings are

consistent with earlier research documenting the value of large old-

growth stands to nesting murrelets.

These findings support, rather than contradict, the hypothesis that

murrelets are preferentially selecting larger stands of older trees for

breeding because these stands and trees have the specific structural

features the birds require. That the murrelets occur more often in

larger patches (i.e., less edge relative to area) of old-growth

compared to smaller patches is also consistent with the edge-effect

concerns expressed in this rule. The Service believes that resident

marbled murrelets may be made more vulnerable to predation associated

with the newly created edges when existing old-growth stands are

further fragmented into smaller patches.

Issue 32: One commenter suggested that the Service conduct a

population viability analysis (PVA) of the marbled murrelet before

designating critical habitat.

Service Response: This final rule is directly related to management

directives that preceded or were developed simultaneously with the

critical habitat rule. Of greatest significance were the draft Recovery

Plan (USFWS 1995a) and the marbled murrelet viability panels of the

FEMAT process (USDA et al. 1993a). It is the Service's opinion that

these efforts incorporate many of the concepts which should be

considered when a formal PVA is not conducted (Ruggiero et al. 1994),

and provide the best guidance for management. The function of a PVA is

to incorporate what is known about population dynamics of a species,

and to analyze the effects of stochastic events and changes in

parameters, as well as to identify factors for study, management and

monitoring (Lacey in Press). However, PVA's can be compromised because

of a lack of natural history data (Minta and Kareiva 1994). Therefore,

the Service believes that a PVA developed based on current knowledge of

the marbled murrelet would be premature, and is not a suitable tool for

determining critical habitat.

Issue 33: Several commenters suggested that the Service has

dismissed natural marine phenomena as unimportant in affecting marbled

murrelet population fluctuations and distributions. One commenter used

the extinction of the Labrador duck (Camptorhynchus labradorus) as an

example of how marine fluctuations can cause natural extinctions of

marine birds, and suggested that the current decline of the marbled

murrelet is analogous to the extinction of the Labrador duck.

Service Response: As stated in the Ecological Considerations

section and elsewhere, the Service appreciates the role that natural

marine fluctuations play in the demography of the marbled murrelet. The

murrelet, like many other seabirds, is affected by stochastic factors

such as gross water temperature changes and shifting patterns of prey

abundance. Likewise, it is affected by terrestrial stochastic factors

such as fire and windthrow. It is a generally accepted tenet of

conservation biology that extinction for a declining species becomes

more likely due to natural stochastic factors as a population becomes

smaller and more fragmented. Maintenance of high quality nesting

habitat in key areas will better enable the species to successfully

endure marine and terrestrial stochastic events when they do occur. For

example, Clark et al. (1990) found that limited availability of

suitable nest sites hindered the population growth and recovery of red-

tailed tropicbirds (Phaethon rubricauda) following catastrophic ocean

events.

The Service disagrees with the commenter's assertion that the

Labrador duck went extinct solely from natural causes, and that this

so-called natural decline is analogous to natural forces acting to

depress the marbled murrelet population. Although the Labrador duck was

never very abundant, the best available information suggests that over-

exploitation by humans caused the extinction of the species; the bird

was hunted for market and for down, and its eggs were collected

(Ehrlich et al. 1988; Terres 1980; Bell

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