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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD20

Endangered and Threatened Wildlife and Plants; Proposed Special

Rule for the Conservation of the Northern Spotted Owl on Non-Federal

Lands

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of Availability of the Draft Environmental Alternatives

Analysis for the Proposed Special Rule for the Conservation of the

Northern Spotted Owl on Non-Federal Lands and Extension of Public

Comment Period on the Proposed Special Rule.

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SUMMARY: The Service has prepared a Draft Environmental Alternatives

Analysis (EAA) for the proposed special rule for the conservation of

the northern spotted owl on non-Federal lands in California and

Washington. The proposed special rule was published in the Federal

Register on February 17, 1995 (60 FR, No. 33, Page 9484). The

implementing regulations for threatened wildlife generally incorporate

the prohibitions of Section 9 of the Endangered Species Act (Act) of

1973, as amended, for endangered wildlife, except when a ``special

rule'' promulgated pursuant to Section 4(d) of the Act has been issued

with respect to a particular threatened species. At the time the

northern spotted owl, Strix occidentalis caurina, (spotted owl) was

listed as a threatened species in 1990, the Fish and Wildlife Service

(Service) did not promulgate a special Section 4(d) rule and,

therefore, all of the Section 9 prohibitions, including the ``take''

prohibitions, became applicable to the species. Subsequent to the

listing of the spotted owl, a Federal Late-Successional and Old-growth

(LSOG) forest management strategy (Plan) was developed and then

formally adopted on April 13, 1994, in a Record of Decision (ROD) that

amended land management plans for Federal forests in northern

California, Oregon, and Washington. Although this proposed rule refers

to the Federal LSOG forest strategy as the ``Forest Plan'', it is noted

that the strategy is not a stand-alone management plan but rather

effected a series of amendments to Forest Service and Bureau of Land

Management planning documents. In recognition of the significant

contribution the Plan does make toward spotted owl conservation and

management, the Service proposed a special rule, pursuant to Section

4(d) of the Act, to replace the blanket prohibition against incidental

take of spotted owls with a narrower, more tailor-made set of standards

that reduce prohibitions applicable to timber harvest and related

activities on specified non-Federal forest lands in Washington and

California.

The Service seeks comments from the interested public, agencies,

and interest groups on the Draft EAA and for its proposed 4(d) rule.

The comment period for the proposed rule has been extended repeatedly

since the proposed rule's publication in February of 1995, and will be

extended one more time to coincide with the end of the public comment

period on the Draft EAA.

DATES: Comments from all interested parties must be received by April

8, 1996.

ADDRESSES: Comments and materials concerning this Draft Environmental

Alternatives Analysis and the proposed rule should be sent to Mr.

Michael J. Spear, Regional Director, Region 1, U.S. Fish and Wildlife

Service, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181. The

complete file for this proposed rule will be available for public

inspection, by appointment during normal business hours, at the U.S.

Fish and Wildlife Service, Office of Technical Support for Forest

Resources, 333 S.W. 1st Avenue, 4th Floor, Portland, Oregon 97204,

(503/326-6218).

FOR FURTHER INFORMATION CONTACT: Mr. Curt Smitch, Assistant Regional

Director, Region 1, U.S. Fish and Wildlife Service, 3704 Griffin Lane

S.E., Suite 102, Olympia, Washington 98501, (206/534-9330); or Ron

Crete, Office of Technical Support for Forest Resources, 333 S.W. 1st

Avenue, Portland, Oregon 97232-4181, (503/326-6218).

SUPPLEMENTARY INFORMATION: The Service has prepared a draft document

called an Environmental Alternatives Analysis (EAA) that describes and

analyzes the potential environmental effects of the proposed special

rule and six alternatives for the conservation of the northern spotted

owl on non-Federal lands in Washington and California. Each alternative

would revise to varying degrees the Federal prohibitions and exceptions

regarding the incidental take of spotted owls on non-Federal lands in

California and Washington. The proposed rule, analyzed in the Draft EAA

as Alternative 3, was published in the Federal Register on February 17,

1995 (60 FR, No. 33, Page 9484). The new document was prepared as a

draft EAA rather than as a draft Environmental Impact Statement (EIS)

because in the 1995 Rescissions Act signed in July of 1995, Congress

specifically exempted the Service from preparing an EIS under the

National Environmental Policy Act (NEPA) for this action. While not

subject to the provisions of NEPA as a matter of law, the Draft EAA

nevertheless follows the same general format and addresses the same

range of issues as is generally found in a draft EIS.

The Service believes that it is important to seek public comment on

the environmental analysis it has conducted on the various alternative

approaches to this proposed action. Therefore, a 45-day comment period

is provided.

The implementing regulations for threatened wildlife generally

incorporate the prohibitions of Section 9 of the Endangered Species Act

(Act) of 1973, as amended, for endangered wildlife, except when a

``special rule'' promulgated pursuant to Section 4(d) of the Act has

been issued with respect to a particular threatened species. When the

northern spotted owl, Strix occidentalis caurina, (spotted owl) was

listed as a threatened species in 1990, the Fish and Wildlife Service

(Service) did not promulgate a special 4(d) rule. Therefore, all of the

Section 9 prohibitions for endangered species were made applicable to

the spotted owl throughout its range, including the prohibitions

against ``take'' that apply to endangered species under the Act.

Subsequent to the listing of the spotted owl, a new Federal forest

management strategy was developed and proposed by the Forest Ecosystem

Management Assessment Team (FEMAT), which was established by President

Clinton following the April 2, 1993, Forest Conference, in Portland,

Oregon. FEMAT outlined those options in the report, Forest Ecosystem

Management: An Ecological, Economic, and Social Assessment, which drew

heavily upon previous scientific studies conducted on the northern

spotted owl. On July 1, 1993, the President identified ``Option 9'' in

the FEMAT Report as the preferred alternative for managing

[[Page 6965]]

Federal LSOG forests in northern California, Oregon, and Washington.

The Final Supplemental Environmental Impact Statement on FEMAT was

completed in February 1994, and the Record of Decision was signed on

April 13, 1994. This process culminated in the formal administrative

adoption of Alternative 9 as the President's Forest Plan. This Plan was

viewed as providing a firm foundation for the conservation needs of the

spotted owl, especially in light of the net addition of approximately

600,000 acres of Federal forest lands to protected reserve status

between its original formulation in the FEMAT Report and the Record of

Decision.

Despite enhanced owl protection under the final Forest Plan,

however, the Service believed that some supplemental support from non-

Federal forest lands remained necessary and advisable for owl

conservation in certain parts of the range of the owl.

The Service published a Notice of Intent (NOI) in the Federal

Register (58 FR, Page 69132) on December 29, 1993, to issue a 4(d) rule

on the spotted owl, and sent out a mailer advising the public of its

intention to prepare an Environmental Impact Statement (EIS) on the

proposal. In response, the Service received and evaluated more than

8,500 public comments. Taking these comments into consideration, and

based upon additional analyses, the Service subsequently proposed a

special rule that would reduce the prohibition against incidental take

of spotted owls in the course of timber harvest and related activities

on specified non-Federal forest lands in Washington and California.

The Service did not include Oregon within the geographic scope of

the proposed special rule at the request of the Oregon Congressional

delegation. The Service was asked to wait for state officials and

private landowners to develop an alternative owl conservation strategy

for the state. By excluding Oregon altogether from the proposed special

rule, the Service retained for Oregon the original level of protection

against take for the owl established when the species was listed on

June 26, 1990.

Although the release of this Draft EAA represents another important

milestone in the development of a 4(d) rule for the northern spotted

owl, the Service wants to reiterate that the ability to finalize such a

rule, providing relief to non-Federal landowners, is directly dependent

upon the continued strength of the President's Forest Plan, as well as

the continued viability of the assumptions underlying that Plan. Should

litigation or legislative enactments ultimately nullify key elements of

the Forest Plan, the Service would have to reassess its ability to

finalize any 4(d) rule.

The Draft EAA is being mailed to all persons who previously

requested a copy. A 35 page Executive Summary also is available by

calling (503) 326-6218. The document, including all maps, tables,

charts, and graphs, is available on the Internet's World Wide Web at

http://www.rl.fws.gov/4deaa/welcome.html.

Dated: February 15, 1996.

Michael J. Spear,

Regional Director, U.S. Fish and Wildlife Service, Region 1, Portland,

Oregon.

[FR Doc. 96-4116 Filed 2-22-96; 8:45 am]

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