Federal Register: February 1, 2001 (Volume 66, Number 22)
DOCID: FR Doc 01-1798
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
CFR Citation: 50 CFR Part 17
RIN ID: RIN 1018-AG29
NOTICE: RULES
ACTION: Endangered and threatened species:
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Mexican Spotted Owl
DATES: This final rule is effective March 5, 2001.
DOCUMENT SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat under the Endangered Species Act of 1973, as amended (Act), for the Mexican spotted owl (Strix occidentalis lucida) (owl). The owl inhabits canyon and montane forest habitats across a range that extends from southern Utah and Colorado, through Arizona, New Mexico, and west Texas, to the mountains of central Mexico. We designate approximately 1.9 million hectares (ha) (4.6 million acres (ac)) of critical habitat in Arizona, Colorado, New Mexico, and Utah, on Federal lands. Section 7 of the Act requires Federal agencies to ensure that actions they authorize, fund, or carry out are not likely to destroy or adversely modify designated critical habitat. As required by section 4 of the Act, we considered economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat.
SUMMARY:
Critical habitat designations—; Mexican spotted owl,
SUPPLEMENTAL INFORMATION
Background
The Mexican spotted owl (Strix occidentalis lucida) is one of three subspecies of spotted owl occurring in the United States; the other two are the northern spotted owl (S. o. caurina) and the California spotted owl (S. o. occidentalis). The Mexican spotted owl is distinguished from the California and northern subspecies chiefly by geographic distribution and plumage. The Mexican spotted owl is mottled in appearance with irregular white and brown spots on its abdomen, back, and head. The spots of the Mexican spotted owl are larger and more numerous than in the other two subspecies, giving it a lighter appearance.
The Mexican spotted owl has the largest geographic range of the three subspecies. The range extends north from Aguascalientes, Mexico, through the mountains of Arizona, New Mexico, and western Texas, to the canyons of Utah and Colorado, and the Front Range of central Colorado. Much remains unknown about the species' distribution in Mexico, where much of the owl's range has not been surveyed. The owl occupies a fragmented distribution throughout its United States range, corresponding to the availability of forested mountains and canyons, and in some cases, rocky canyonlands. Although there are no estimates of the owl's historical population size, its historical range and present distribution are thought to be similar.
According to the Recovery Plan for the Mexican Spotted Owl (United States Department of the Interior 1995) (Recovery Plan), 91 percent of owls known to exist in the United States between 1990 and 1993 occurred on land administered by the U.S. Forest Service (FS); therefore, the primary administrator of lands supporting owls in the United States is the FS. These numbers are based upon preliminary surveys that were focused on National Forests in the southwest. Nevertheless, most owls have been found within Region 3 of the FS, which includes 11 National Forests in New Mexico and Arizona. FS Regions 2 and 4, including two National Forests in Colorado and three in Utah, support fewer owls. The range of the owl is divided into 11 Recovery Units (RU), 5 in Mexico and 6 in the United States, as identified in the Recovery Plan. The Recovery Plan also identifies recovery criteria and provides distribution, abundance, and density estimates by RU. Of the RUs in the United States, the Upper Gila Mountains RU, located in the central portion of the species' U.S. range in central Arizona and westcentral New Mexico, contains over half of known owl sites. Owls here use a wide variety of habitat types, but are most commonly found inhabiting mature mixedconifer and ponderosa pineGambel oak forests. The Basin and RangeEast RU encompasses central and southern New Mexico, and includes numerous parallel mountain ranges separated by alluvial valleys and broad, flat basins.
Most breeding spotted owls occur in mature mixedconifer forest. The Basin and RangeWest RU contains mountain ranges separated by non forested habitat. These ``sky island'' mountains of southern Arizona and farwestern New Mexico contain midelevation mixedconifer forest and lower elevation Madrean pineoak woodlands that support spotted owls. The Colorado Plateau RU includes northern Arizona, southern Utah, southwestern Colorado, and northwestern New Mexico, with owls generally confined to deeply incised canyon systems and wooded areas of isolated mountain ranges. The Southern Rocky MountainsNew Mexico RU consists of the mountain ranges of northern New Mexico. Owls in this unit typically inhabit mature mixedconifer forest in steep canyons. The smallest number of spotted owls occurs in the Southern Rocky MountainsColorado RU. This unit includes the southern Rocky Mountains in Colorado, where spotted owls are largely confined to steep canyons, generally with significant rock faces and various amounts of mature coniferous forest. The critical habitat units identified in this designation are all within these RUs.
A reliable estimate of the numbers of owls throughout its entire range is not currently available. Using information gathered by Region 3 of the FS, Fletcher (1990) calculated that 2,074 owls existed in Arizona and New Mexico in 1990. Based on more uptodate information, we subsequently modified Fletcher's calculations and estimated a total of 2,160 owls throughout the United States (USDI 1991). However, these numbers are not considered reliable estimates of current population size for a variety of statistical reasons, and a pilot study (Ganey et al. 1999) conducted in 1999, estimated the number of owls for the upper Gila Mountains Recovery Unit (exclusive of tribal lands) as 2,950 (95 percent confidence interval 7175,183).
Mexican spotted owls nest, roost, forage, and disperse in a diverse
array of biotic communities. Nesting habitat is typically in areas with
complex forest structure or rocky canyons, and contains unevenaged, multistoried mature or oldgrowth stands that have high
[[Page 8531]]
canopy closure (Ganey and Balda 1989, USDI 1991). In the northern
portion of the range (Utah and Colorado), most nests are in caves or on
cliff ledges in steepwalled canyons. Elsewhere, the majority of nests
appear to be in Douglas fir (Pseudotsuga menziesii) trees (Fletcher and
Hollis 1994, Seamans and Gutierrez 1995). A wide variety of tree
species is used for roosting; however, Douglas fir is the most commonly
used species in mixed conifer forests (Ganey 1988, Fletcher and Hollis
1994, Young et al. 1998). Owls generally use a wider variety of forest
conditions for foraging than they use for nesting/roosting.
Seasonal movement patterns of Mexican spotted owls are variable. Some individuals are yearround residents within an area, some remain in the same general area but show shifts in habitat use patterns, and some migrate considerable distances (2050 kilometers (km)) (1231 miles (mi)) during the winter, generally migrating to more open habitat at lower elevations (Ganey and Balda 1989b, Willey 1993, Ganey et al.1998). The homerange size of Mexican spotted owls appears to vary considerably among habitats and/or geographic areas (USDI 1995), ranging in size from 2611,487 ha (6473,688 ac) for individuals birds, and 3811,551 ha (9453,846 ac) for pairs (Ganey and Balda 1989b, Ganey et al. 1999). Little is known about habitat use by juveniles dispersing soon after fledging. Ganey et al. (1998) found dispersing juveniles in a variety of habitats ranging from highelevation forests to pinon juniper woodlands and riparian areas surrounded by desert grasslands.
Mexican spotted owls do not nest every year. The owl's reproductive pattern varies somewhat across its range. In Arizona, courtship usually begins in March with pairs roosting together during the day and calling to each other at dusk (Ganey 1988). Eggs are typically laid in late March or early April. Incubation begins shortly after the first egg is laid, and is performed entirely by the female (Ganey 1988). The incubation period is about 30 days (Ganey 1988). During incubation and the first half of the brooding period, the female leaves the nest only to defecate, regurgitate pellets, or receive prey from the male, who does all or most of the hunting (Forsman et al. 1984, Ganey 1988). Eggs usually hatch in early May, with nestling owls fledging 4 to 5 weeks later, and then dispersing in midSeptember to early October (Ganey 1988).
Little is known about the reproductive output for the spotted owl. It varies both spatially and temporally (White et al. 1995), but the subspecies demonstrates an average annual rate of about one young per pair. Based on shortterm population and radio tracking studies, and longerterm monitoring studies, the probability of an adult owl surviving from 1 year to the next is 80 to 90 percent. Average annual juvenile survival is considerably lower, at 6 to 29 percent, although it is believed these estimates may be artificially low due to the high likelihood of permanent dispersal from the study area, and the lag of several years before marked juveniles reappear as territory holders and are detected as survivors through recapture efforts (White et al. 1995). Little research has been conducted on the causes of mortality, but predation by great horned owls (Bubo virginianus), northern goshawks (Accipter gentilis), redtailed hawks (Buteo jamaicensis), and golden eagles (Aquila chrysaetos), as well as starvation, and collisions (e.g., with cars, powerlines), may all be contributing factors.
Mexican spotted owls consume a variety of prey throughout their range, but commonly eat small and mediumsized rodents such as woodrats (Neotoma spp.), peromyscid mice (Peromyscus spp.), and microtine voles (Microtus spp.). Owls also may consume bats, birds, reptiles, and arthropods (Ward and Block 1995). Each prey species uses a unique habitat, so that the differences in the owl's diet across its range likely reflect geographic variation in population densities and habitats of both the prey and the owl (Ward and Block 1995). Deer mice (P. maniculatus) are widespread in distribution in comparison to brush mice (P. boylei), which are restricted to drier, rockier substrates, with sparse tree cover. Mexican woodrats (N. mexicana) are typically found in areas with considerable shrub or understory tree cover and high log volumes or rocky outcrops. Mexican voles (M. mexicanus) are associated with high herbaceous cover, primarily grasses, whereas long tailed voles (M. longicaudus) are found in dense herbaceous cover, primarily forbs, with many shrubs and limited tree cover.
Two primary reasons were cited for listing the owl as threatened in 1993: (1) Historical alteration of its habitat as the result of timber management practices, specifically the use of evenaged silviculture, and the threat of these practices continuing; and (2) the danger of catastrophic wildfire. The Recovery Plan for the owl outlines management actions that land management agencies and Indian tribes should undertake to remove recognized threats and recover the spotted owl. This critical habitat designation is based on recovery needs and guidelines identified in the Recovery Plan.
Previous Federal Actions
The entire spotted owl species (Strix occidentalis) was classified in the January 6, 1989, Animal Notice of Review (54 FR 554) as a category 2 candidate species. A category 2 candidate species was one for which listing may have been appropriate, but for which additional biological information was needed to support a proposed rule.
On December 22, 1989, we received a petition submitted by Dr. Robin D. Silver requesting the listing of the Mexican spotted owl as an endangered or threatened species. On February 27, 1990, we found that the petition presented substantial information indicating that listing may be warranted and initiated a status review. In conducting our review, we published a notice in the Federal Register (55 FR 11413) on March 28, 1990, requesting public comments and biological data on the status of the Mexican spotted owl. On February 20, 1991, we made a finding, based on the contents of the status review, that listing the Mexican spotted owl under section 4(b)(3)(B)(I) of the Act was warranted. Notice of this finding was published in the Federal Register on April 11, 1991 (56 FR 14678). We published a proposed rule to list the Mexican spotted owl as threatened without critical habitat in the Federal Register on November 4, 1991 (56 FR 56344).
We published a final rule listing the Mexican spotted owl as a threatened species on March 16, 1993 (58 FR 14248). Section 4(a)(3) of the Act requires that, to the maximum extent prudent and determinable, we designate critical habitat at the time a species is determined to be endangered or threatened. The Act's implementing regulations (50 CFR 424.12(a)(2)) state that critical habitat is not determinable if information sufficient to perform required analyses of the impacts of the designation is lacking or if the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. At the time of listing, we found that, although considerable knowledge of owl habitat needs had been gathered in recent years, habitat maps in sufficient detail to accurately delineate these areas were not available. After the listing, we began gathering the data necessary to develop a proposed rule to designate critical habitat.
On June 23, 1993, and again on August 16, 1993, we received petitions to remove the Mexican spotted owl from
[[Page 8532]]
the List of Endangered and Threatened Wildlife. In subsequent petition
findings published in the Federal Register (58 FR 49467, 59 FR 15361),
we addressed the issues raised in the petitions and determined that the
delisting petitions did not present substantial information indicating
that delisting the Mexican spotted owl was warranted. The petitioners
challenged this decision in Federal District Court in New Mexico in
Coalition of Arizona/New Mexico Counties for Stable Economic Growth v.
United States Fish and Wildlife Service, et al., CIV 941058MV. The
district court held that the Coalition failed to show that the Service
violated any procedural rules that amounted to more than harmless error
and failed to demonstrate that the Service acted arbitrarily or
capriciously in listing or refusing to delist the Mexican spotted owl.
A judgment was issued by the district court denying the plaintiff's petition to delist the owl.
On February 14, 1994, a lawsuit was filed in Federal District Court in Arizona against the Department of the Interior for failure to designate critical habitat for the owl (Dr. Robin Silver, et al. v. Bruce Babbitt, et al., CIV940337PHXCAM). On October 6, 1994, the Court ordered us to `` * * * publish a proposed designation of critical habitat, including economic exclusion pursuant to 16 U.S.C. Sec. 1533(b)(2), no later than December 1, 1994, [and] publish its final designation of critical habitat, following the procedure required by statute and Federal regulations for notice and comment,'' by submitting the final rule to the Federal Register no later than May 27, 1995. Under an extension granted by the court, we issued the proposed rule to designate critical habitat on December 7, 1994 (59 FR 63162).
We prepared a draft economic analysis, and published a notice of its availability in the Federal Register on March 8, 1995 (60 FR 12728; 60 FR 12730). The publication also proposed several revisions to the original proposal, solicited additional information and comments, opened an additional 60day comment period extending to May 8, 1995, and announced the schedule and location of public hearings. We published a final rule designating critical habitat for the Mexican spotted owl on June 6, 1995 (60 FR 29914).
After the listing of the Mexican spotted owl, a Recovery Team was appointed by our Southwestern Regional Director to develop a Recovery Plan in March 1993. The Team assembled all available data on Mexican spotted owl biology, the threats faced across the subspecies' range, current protection afforded the subspecies, and other pertinent information. Using that information, the Team developed the Recovery Plan, which was finalized in the fall of 1995. In 1996, the Southwest Region of the FS incorporated elements of the Recovery Plan into their Forest Plans.
In 1996, the Tenth Circuit Court of Appeals in Catron County Board of Commissioners v. United States Fish and Wildlife Service, 75 F.3d 1429, 1439 (10th Cir. 1996), ruled that the Service had to comply with the National Environmental Policy Act (NEPA) before designating critical habitat for two desert fish, the spikedace and loach minnow. In addition, a Federal district court in New Mexico later set aside the final rule designating critical habitat for the owl and forbid the Service from enforcing critical habitat for the owl (Coalition of ArizonaNew Mexico Counties for Stable Economic Growth v. U.S. Fish and Wildlife Service, No. 951285M Civil). As a result of these court rulings, we removed the critical habitat designation for the owl from the Code of Federal Regulations on March 25, 1998 (63 FR 14378).
On March 13, 2000, the United States District Court for the District of New Mexico, (Southwest Center for Biological Diversity and Silver v. Babbitt and Clark, CIV 99519 LFG/LCSACE), ordered us to propose critical habitat within 4 months of the court order, and to complete and publish a final designation of critical habitat for the Mexican spotted owl by January 15, 2001. On July 21, 2000, we published a proposal to designate critical habitat for the Mexican spotted owl in Arizona, Colorado, New Mexico, and Utah, mostly on Federal lands (65 FR 45336). The initial comment period was open until September 19, 2000. During this 60day comment period, we held six public hearings on the proposed rule. On October 20, 2000, we published a notice announcing the reopening of the comment period and announced the availability of the draft economic analysis and draft environmental assessment on the proposal to designate critical habitat for the Mexican spotted owl (65 FR 63047). The final comment period was open until November 20, 2000. Summary of Comments and Recommendations
In the July 21, 2000, proposed rule, we requested all interested parties to submit comments or information that might bear on the designation of critical habitat for the Mexican spotted owl (65 FR 45336). The first comment period closed September 19, 2000. The comment period was reopened from October 20 to November 20, 2000, to once again solicit comments on the proposed rule and to accept comments on the draft economic analysis and draft environmental assessment (65 FR 63047). We contacted all appropriate State and Federal agencies, Tribes, county governments, scientific organizations, and other interested parties and invited them to comment. In addition, we published newspaper notices inviting public comment and announcing the public hearings in the following newspapers in New Mexico: Albuquerque Journal, Albuquerque Tribune, Sante Fe New Mexican, Silver City Daily Press, Rio Grande Sun, Las Cruces Sun, and Alamogordo Daily News; Arizona: Arizona Republic, Arizona Daily Star, Arizona Daily Sun, Sierra Vista Daily Herald Dispatch, NavajoHopi Observer, White Mountain Independent, Lake Powell Chronicle, VerdeIndependentBugle, Eastern Arizona Courier, and Prescott Daily Courier; Colorado: Rocky Mountain News, Pueblo Chiefton, Denver Post, Colorado Springs Gazette, and Canon City Daily; and Utah: The Spectrum Newspaper, Southern Utah News, SaltLake City Tribune, and Times Independent. We held six public hearings on the proposed rule: Sante Fe (August 14, 2000) and Las Cruces (August 15, 2000), New Mexico; Tucson (August 16, 2000) and Flagstaff (August 17, 2000), Arizona; Colorado Springs, Colorado (August 21, 2000); and Cedar City, Utah (August 23, 2000). Transcripts of these hearings are available for inspection (see ADDRESSES section).
We solicited seven independent expert ornithologists who are
familiar with this species to peer review the proposed critical habitat
designation. However, only two of the peer reviewers submitted
comments. Both responding peer reviewers supported the proposal. We
also received a total of 27 oral and 813 written comments (the majority
of written comments were in the form of printed postcards). Of those
oral comments, 10 supported critical habitat designation, 14 were
opposed to designation, and 3 provided additional information but did
not support or oppose the proposal. Of the written comments, 756
supported critical habitat designation, 38 were opposed to designation,
and 19 were neutral but provided information. We reviewed all comments
received for substantive issues and new data regarding critical habitat
and the Mexican spotted owl. We address all comments received [[Page 8533]]
during the comment periods and public hearing testimony in the
following summary of issues. Comments of a similar nature are grouped into issues.
Issue 1: Biological Concerns
(1) Comment: The wording of the attributes of the primary
constituent elements are not consistent with the definitions of forest
cover types as described in the Mexican Spotted Owl Recovery Plan, and
there is a high potential for confusion over exactly which areas are
included in the proposed designation. Do all of the primary constituent
elements have to be present or just one, for the area to be considered
critical habitat? The constituent elements described are vague
(violating 50 CFR Sec. 424.12(c)) and should include the required
greater detail defining what constitutes critical habitat. The boundaries are impossible to identify.
Our Response: As stated in the critical habitat designation section, the critical habitat designation is consistent with the Mexican Spotted Owl Recovery Plan and includes areas within the mapped boundaries that meet the definition of protected and restricted areas. Protected areas are areas where owls are known to occur or are likely to occur. Protected areas include, (1) 600 acres around known owl sites within mixed conifer forests or (2) pineoak forests with slopes greater than 40 percent and where timber harvest has not occurred in the past 20 years. Restricted habitat include areas outside of protected areas which may contain Mexican spotted owls. Restricted areas include mixed conifer forest, pineoak forest and riparian areas.
We clarified the definitions and use of the terms protected and restricted habitat and the attributes of primary constituent elements of critical habitat in this rule. This final rule describes in the greatest detail possible the primary constituent elements important to Mexican spotted owls to the extent the elements are known at this time. If new information on the primary constituent elements becomes available, we will then evaluate whether a revision of designated critical habitat is warranted, depending on funding and staffing.
Critical habitat units are defined by Universal Transverse Mercator
(UTM) coordinates. A list of those coordinates can be obtained by
contacting the New Mexico Ecological Services Field Office (see
ADDRESSES section). We believe that with the revisions to the
description of primary constituent elements and the availability of UTM coordinates, the boundaries should be clear.
(2) Comment: Some areas proposed as critical habitat units contain
a considerable amount of land that is not suitable for or occupied by
Mexican spotted owls, and therefore, the areas should be mapped more
accurately. Some commenters questioned whether 13.5 million acres are needed for Mexican spotted owls.
Our Response: There are some areas within the critical habitat
boundaries that do not, and cannot, support the primary constituent
elements and are, by definition, not considered to be critical habitat,
even though they are within the identified mapped boundaries. We
clarified the primary constituent element descriptions to assist
landowners and managers in identifying areas containing these elements.
However, a lack of precise habitat location data and the short amount
of time allowed by the court to complete this final designation did not
allow us to conduct the finescale mapping necessary to physically
exclude all of the areas that do not contain suitable habitat. Critical
habitat is limited to areas within the mapped boundaries that meet the
definition of protected and restricted habitat in the Recovery Plan. In
addition, the total gross area included within critical habitat
boundaries in this final rule is 4.6 million acres, and the actual area
designated as critical habitat is considerably less than the 4.6 million acre figure provided in Table 1.
(3) Comment: Lack of forest management has resulted in successional
and structural changes to forests throughout the range of Mexican
spotted owl. Designation and management of critical habitat will place
an additional burden on land management agencies, further inhibiting
their ability to prevent and suppress catastrophic wildfire, one of the
greatest threats to the forest types this species inhabits. The risk
and intensity of wildfire will increase. Therefore, designating
critical habitat seems contradictory to the owl's recovery.
Our Response: Critical habitat designation does not prevent actions that alleviate the risk of wildfire, nor will it have an effect on suppression activities. The maintenance of mature forest attributes in mixed conifer and pineoak habitat types over a portion of the landscape and in areas that support existing owl territories is important to the recovery of the Mexican spotted owl; however, critical habitat designation does not emphasize the creation of these features where they do not currently exist. It also does not preclude the proactive treatments necessary to reduce the risk of catastrophic fire. Clearly, the loss of owl habitat by catastrophic fire is counter to the intended benefits of critical habitat designation.
Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to ``jeopardize the continued existence'' of a species are those that would appreciably reduce the likelihood of the species' survival and recovery (50 CFR 402.02). Actions likely to ``destroy or adversely modify'' critical habitat are those that would appreciably reduce the value of critical habitat for the survival and recovery of the listed species (50 CFR 402.02). Common to both definitions is an appreciable detrimental effect on both survival and recovery of a listed species. Given the similarity of these definitions, actions likely to destroy or adversely modify critical habitat would almost always result in jeopardy to the species concerned when the habitat is occupied by the species. Therefore, the designation of critical habitat likely will not require any additional restrictions for section 7 consultations, including projects designed to reduce the risk of wildfire (e.g., prescribed burns, mechanical thinning, etc.). Furthermore, we expect that some activities may be considered to be of benefit to Mexican spotted owl habitat and, therefore, would not be expected to adversely modify critical habitat or place an additional burden on land management agencies. Examples of activities that could benefit critical habitat may include some protective measures such as fire suppression, prescribed burning, brush control, snag creation, and certain silvicultural activities such as thinning.
We agree that many vegetative communities have undergone
successional and structural changes as a result of past and current
management practices. These practices include, to varying degrees, the
combined effects of longterm and widespread fire suppression,
reduction in surface fuels, rates of tree overstory removal and
regeneration treatments on cycles shorter than those found in natural
disturbance regimes, inadequate control of tree densities responding to
fire suppression and tree harvest, and in xeric forest types, decreases
in the proportion of the landscape in stands composed of more fire
resistant largediameter trees. We also agree that the vegetative
structural and landscape changes may require proactive management to
restore an appropriate distribution of age classes, control [[Page 8534]]
regeneration densities, and reintroduce some measure of natural
disturbance processes such as fire events. This may include prescribed
fire and thinning treatments, restoration of the frequency and spatial
extent of such disturbances as regeneration treatments, and
implementation of prescribed natural fire management plans where
feasible. We consider use of such treatments to be compatible with the
ecosystem management of habitat mosaics and the best way to reduce the
threats of catastrophic wildfire. We will fully support land management
agencies in addressing the management of fire to protect and enhance natural resources under their stewardship.
(4) Comment: The designation of critical habitat for the Mexican
spotted owl will conflict with the management objectives of other
animal and plant species and ecosystem management. The designation of
critical habitat will surely have an impact on many other species of wildlife.
Our Response: Critical habitat management primarily focuses on the maintenance of habitat features in mixed conifer and pineoak habitat types that support Mexican spotted owls, and the maintenance of good montane riparian habitat conditions. It does not emphasize the creation of these features where they do not currently exist, or do not have the potential to naturally occur. The management approach to critical habitat addresses diversity at the landscape scale by maintaining spatial variation and distribution of age classes, and at the stand scale by managing for complex withinstand structure. The methods to attain or conserve the desired measure of diversity vary, but are designed to maintain existing mature/old forest characteristics while allowing some degree of timber harvest and management of other objectives such as tree density control and prescribed fire. Older forests are productive successional stages that provide favorable environments for diverse assemblages of plants and animals. The maintenance of this under represented seral stage at landscape and stand scales will provide and enhance biological diversity. Therefore, critical habitat management does not preclude managing for other objectives or other species. In addition, critical habitat management is adaptive and will incorporate new information on the interaction between natural disturbance events and forest ecology. We continue to support sound ecosystem management and the maintenance of biodiversity.
As outlined in our final environmental assessment, in areas within
the geographic range occupied by the Mexican spotted owl, native fish,
wildlife, and plants may directly or indirectly benefit as a result of
ecosystem protections provided through the conservation of the owl and
the associated requirements of section 7 of the Act. Designation of
critical habitat in areas within the geographic range potentially
occupied by the owl could provide similar ecological benefits to fish, wildlife, and plants.
(5) Comment: How does the critical habitat designation correspond to the reasons why the owl is listed?
Our Response: The two primary reasons for listing the Mexican spotted owl as threatened were historical alteration of its habitat as the result of timber management practices, and the threat of these practices continuing; and the risk of catastrophic wildfire (58 FR 14248). The Recovery Plan outlines management actions that land managers should undertake to remove recognized threats and recover the spotted owl. This critical habitat designation is based on recovery needs identified in the Recovery Plan, and therefore promotes the reduction in the threats that necessitated listing the Mexican spotted owl. By not adversely modifying or destroying critical habitat, the threat of alteration by timber management practices is reduced. (6) Comment: Your list of constituent elements and condemnation of evenaged silviculture suggests that the constituent elements must occur on every acre of the 13.5 million acres. There appears to be an attempt to idealize and maximize owl populations over a very large area. The owl is flexible, adaptable, and capable of doing well with less and surviving.
Our Response: The determination of primary constituent elements and
designation of critical habitat is consistent with the Mexican Spotted
Owl Recovery Plan. In the Recovery Plan, we outline steps necessary to
remove the owl from the list of threatened species (see response to
comment 9). The Recovery Plan recognizes that Mexican spotted owls
nest, roost, forage, and disperse in a diverse array of biotic
communities. The Recovery Plan provides realistic goals for the
recovery of the species (including a significant increase in owl
population numbers), and these goals are flexible in that they require
local land managers to make sitespecific decisions, including silviculture management.
(7) Comment: Designation of critical habitat is not needed to
conserve the owl, because there is information that shows the spotted
owl is doing very well; a year ago you were in the process of delisting
the spotted owl, because it was doing well. What happened to that activity?
Our Response: We never proposed nor began the process of delisting
the Mexican spotted owl. Although the Mexican spotted owl appears to be
doing well in some areas of its range (e.g., Sacramento Ranger
District, Lincoln National Forest, New Mexico), other populations may
be declining (Seamans et al. 1999). On September 23, 1993, and April 1,
1994, we announced separate 90day findings on two petitions to remove
the Mexican spotted owl from the list of endangered and threatened
wildlife (FR 58 49467, FR 59 15361). We found that the petitions did
not present substantial scientific or commercial information indicating that delisting the Mexican spotted owl was warranted.
(8) Comment: The designation of critical habitat will not provide
any additional conservation benefit to the Mexican spotted owl, which is already protected under section 7.
Our Response: We agree that designation of critical habitat will
provide no additional regulatory benefit in areas already managed
compatibly with owl recovery. However, the designation of critical
habitat may provide some additional conservation benefit to the Mexican
spotted owl on lands that are within the geographic range potentially
occupied or that may become unoccupied in the future since section 7
consultations required under the listing of the species may not always
be done in these areas of potentially occupied habitat. Critical
habitat designation requires Federal agencies to consult with us to
ensure that any action they authorize, fund, or carry out is not likely
to result in the destruction or adverse modification of critical habitat.
(9) Comment: Several commenters questioned whether the designation
of critical habitat will improve conservation of the Mexican spotted
owl because the current Recovery Plan is being implemented.
Our Response: Lands managed by agencies who have formally adopted the Recovery Plan, as well as Indian Tribes who are implementing management plans compatible with owl recovery, have been excluded from the designation.
A recovery plan for the Mexican spotted owl was finalized in
December 1995. This plan recommends recovery goals, strategies for varying levels of habitat protection, population and
[[Page 8535]]
habitat monitoring, a research program to better understand the biology
of the Mexican spotted owl, and implementation procedures. In addition,
we have continued working with the Mexican spotted owl recovery team
since the plan was finalized. We believe this critical habitat
designation is consistent with the Recovery Plan and recommendations of
those team members, and will contribute to the conservation and
eventual recovery of the species. Designation of critical habitat will
help to implement the Recovery Plan because it helps to conserve
habitat for the Mexican spotted owl; one of the actions outlined in the Recovery Plan.
(10) Comment: One commenter stated that not enough information is
known about the total habitat requirements of the species to define critical habitat.
Our Response: Section 4(b)(2) of the Act states ``The Secretary
shall designate critical habitat, and make revisions thereto, under
section (a)(3) on the basis of the best scientific data available * *
*'' We considered the best scientific information available at this
time, as required by the Act. Our recommendation is based upon a
considerable body of information on the biology of the Mexican spotted
owl, as well as effects from landuse practices on their continued
existence. Much remains to be learned about this species; should
credible, new information become available which contradicts this
designation, we will reevaluate our analysis and, if appropriate,
propose to modify this critical habitat designation, depending on available funding and staffing.
Issue 2: Procedural and Legal Compliance
(11) Comment: The designation of critical habitat will place an
additional burden on land management agencies above and beyond what the
listing of the species would require. The number of section 7
consultations will increase; large areas where no Mexican spotted owls
are known to occur will now be subject to section 7 consultation and
will result in a waste of time and money by the affected agencies. Many
Federal agencies have been making a ``no effect'' call within
unoccupied suitable habitat. Now, with critical habitat there will be
``may effect'' determinations, and section 7 consultation will be required if any of the constituent elements are present.
Our Response: If a Federal agency funds, authorizes, or carries out
an action that may affect either the Mexican spotted owl or its
critical habitat, the Act requires that the agency consult with us
under section 7 of the Act. For a project to affect critical habitat,
it must affect the habitat features important to the Mexican spotted
owl, which are defined in the regulation section in this final rule.
Our view is and has been that any Federal action within the geographic
area occupied or potentially occupied by the species that affects these
habitat features should be considered a situation that ``may affect''
the Mexican spotted owl and should undergo section 7 consultation. This
is true whether or not critical habitat is designated, even when the
particular project site within the larger geographical area occupied by
the species is not known to be currently occupied by an individual
Mexican spotted owl. All areas designated as critical habitat are
within the geographical area occupied or potentially occupied by the
species, so Federal actions affecting essential habitat features of the
species should undergo consultation. Thus, the need to conduct section
7 consultation should not be affected by critical habitat designation.
As in the past, the Federal action agency will continue to make the
determination as to whether their project may affect a species even
when the particular project site is not known to be currently occupied by an individual Mexican spotted owl.
(12) Comment: Many commenters expressed concern that the Mexican
Spotted Owl Recovery Plan is not being implemented, and that federally
funded or authorized activities (i.e., logging, grazing, dam
construction, etc.) within Mexican spotted owl habitat are not
consistent with recovery for the species and/or are not undergoing section 7 consultation for potential impacts to the owl.
Our Response: We have consulted with Federal agencies on numerous
projects since we issued the Recovery Plan. The Recovery Plan
recognizes, as do we, that agencies must make management decisions for
multiple use objectives, and that other pressing resource needs may not
always be compatible with Mexican spotted owl recovery. Thus, agencies
consult with us under section 7 when they propose actions that may be
inconsistent with Recovery Plan recommendations, as well as when they
propose actions may affect the species or critical habitat. However,
there have been no consultations to date that have concluded that a
proposed action is likely to jeopardize the continued existence of the
Mexican spotted owl. Further, we are not aware of instances where
action agencies have failed to properly consult on actions that may affect the species or its habitat.
(13) Comment: One commenter believes that the designation of
critical habitat for the Mexican spotted owl conflicts with the Federal
Land Policy and Management Act of 1976, the Mining and Minerals Policy
Act of 1970, the National Materials and Minerals Policy, Research, and
Development Act of 1980, and other State and county policies and plans within the four States.
Our Response: We read through the comments and information provided
concerning the various acts and policies; however, the commenter failed
to adequately explain the rationale for why they believe critical
habitat designation conflicts with the above Federal laws and policies
or other State and County policies and plans. We are unaware of any conflicts with the cited laws, policies, and plans.
(14) Comment: The Rocky Mountain Region of the Forest Service
provided Geographic Information System (GIS) coverages for Pike and San
Isabel National Forests and the Royal Gorge Resource area of the BLM.
They requested that we revise the critical habitat units in these areas
by reducing the size of one critical habitat unit and increasing the
size of another. The FS indicated that suggested revisions are based
upon digital elevation models, elevation, vegetation, Mexican spotted
owl surveys, and BLM land management designations (i.e., wilderness
study areas). There was an expressed concern that much of the area
within the proposed critical habitat boundaries does not contain the
combination of primary constituent elements and attributes to meet the definition of critical habitat and should not be included.
Our Response: We considered the information provided by the commenter and determined that the critical habitat units contain areas that meet the definition of protected areas in the Recovery Plan (e.g., slopes greater than 40 percent where timber harvest has not occurred in the past 20 years). The BLM land management designations (i.e., wilderness study areas) do not provide ``special management considerations or protections,'' pursuant to the definition of critical habitat in section 3 of the Act. Likewise, we have no formal documentation (e.g., consultation records) that demonstrates whether the FS or BLM is integrating the Mexican Spotted Owl Recovery Plan into their activities. Thus, these lands do not meet our criteria for exclusion and we conclude the areas should be designated as they were originally proposed.
[[Page 8536]]
We recognize that some areas within the critical habitat units do
not contain protected habitat or restricted habitat. These areas are
not considered critical habitat. Critical habitat is limited to areas
within the mapped boundaries that meet the definition of protected or restricted habitat as described in the Recovery Plan.
(15) Comment: Some commenters expressed concern that there are
areas containing Mexican spotted owls, but these were not within the
critical habitat boundaries. Additional areas not identified in the proposed rule should be designated critical habitat.
Our Response: The critical habitat designation did not include some areas that are known to have widely scattered owl sites, low population densities, and/or marginal habitat quality, which are not considered to be essential to this species' survival or recovery. Section 3(5)(C) of the Act and our regulations (50 CFR Sec. 424.12(e)) state that, except in certain circumstances, not all suitable or occupied habitat be designated as critical habitat, rather only those areas essential for the conservation of the species. Additionally, section 4(b)(4) of the Act requires that areas designated as critical habitat must first be proposed as such. Thus, we cannot make additions in this final rule to include areas that were not included in the proposed rule. Designation of such areas would require a new proposal and subsequent final rule.
If, in the future, we determine from information or analysis that
those areas designated in this final rule need further refinement or
additional areas are identified which we determine are essential to the
conservation of the species and require special management or
protection, we will evaluate whether a revision of critical habitat is warranted at that time.
(16) Comment: Why are areas included in the designation that are not presently occupied by the Mexican spotted owl?
Our Response: The inclusion of both currently occupied and potentially occupied areas in this critical habitat designation is in accordance with section 3(5)(A) of the Act, which provides that areas outside the geographical area currently occupied by the species may meet the definition of critical habitat upon a determination that they are essential for the conservation of the species. Our regulations also provide for the designation of areas outside the geographical area currently occupied if we find that a designation limited to its present range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)). The species' Recovery Plan recommends that some areas be managed as ``restricted habitat'' in order to provide for future population expansion and to replace currently occupied areas that may be lost through time. We believe that such restricted habitat is essential and necessary to ensure the conservation of the species. (17) Comment: If land has dual ownership of private and Federal, is it critical habitat? The land in question is under private ownership and the mineral rights are owned by the BLM.
Our Response: The surface ownership is what would contain the
primary constituent elements of critical habitat. Because the surface
ownership is private and we are not including private land in this
designation, we would not consider the lands to be designated critical
habitat. However, if a Federal agency (e.g., BLM) funds, authorizes, or
carries out an action (e.g., mineral extraction) that may affect the
Mexican spotted owl or its habitat, the Act requires that the agency
consult with us under section 7 of the Act. This is required whether or not critical habitat is designated for a listed species.
(18) Comment: Fort Carson, Colorado, provided information during
the comment period that indicated the Mexican spotted owl is not known
to nest on the military installation and the species is a rare winter
visitor. Protected and restricted habitat is also not known to exist on
Fort Carson. Further, Fort Carson is updating the Integrated Natural
Resources Management Plan (INRMP) to include specific guidelines and
protection measures that have been recently identified through informal
consultation with us. The INRMP will include measures to provide year
round containment and suppression of wildland fire and the
establishment of a protective buffer zone around each roost tree. The
target date of completion for this revision is early 2001. Fort Carson,
through consultation with us, indicated they will ensure that the INRMP
will meet the criteria for exclusion. They also provided additional
information and support to indicate that no protected or restricted
habitat exists on the base, and asked to be excluded from the final designation.
Our Response: We agree that Fort Carson should be excluded from the
final designation (see discussion under Exclusions section).
Nevertheless, Federal agencies are already required to consult with us
on activities with a Federal nexus (i.e., when a Federal agency is
funding, permitting, or in some way authorizing a project) when their
activities may affect the Mexican spotted owl. For example, if Mexican
spotted owls are present during certain times of the year (e.g.,
winter) and there is the potential for Fort Carson's activities to
affect the species, the Act requires they consult with us under section 7, regardless of critical habitat designation.
(19) Comment: How will the exclusion of certain lands (e.g., State,
private, Tribal) affect recovery and delisting of the Mexican spotted owl?
Our Response: In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, we are required to base critical habitat designation on the best scientific and commercial data available and to consider those physical and biological features (primary constituent elements) that are essential to conservation of the species and that may require special management considerations or protection. We designated critical habitat for those lands we determined are essential to conservation of the Mexican spotted owl. We did not include certain lands (e.g., State, private, and Tribal) because we determined these lands are either not essential to the recovery of the Mexican spotted owl or are already managed in a manner compatible with Mexican spotted owl conservation. The exclusion of State, private, and tribal lands in the designation of critical habitat for the Mexican spotted owl will not affect the recovery and future delisting of the species. Whether or not a species has designated critical habitat, it is protected both from any actions resulting in an unlawful take and from Federal actions that could jeopardize the continued existence of the species. (20) Comment: The areas proposed as critical habitat in Colorado make up 4.2 percent of the total proposed critical habitat. Much of the areas proposed in Colorado do not contain the primary constituent elements for critical habitat of the Mexican spotted owl. It is difficult to understand how the small amount of habitat proposed in Colorado is essential for the survival and recovery of the owl. The current tree stocking levels, species composition, and stand structure of areas proposed as critical habitat in Colorado do not currently nor are they likely to meet the definition of threshold habitat as defined in the Recovery Plan.
Our Response: We carefully considered the information provided with
the above comment. If habitat within the mapped boundaries does not
meet the definition of protected or restricted habitat as described in
the Recovery Plan, then it is not considered critical habitat. We agree that not all of the land within the critical habitat
[[Page 8537]]
boundaries in Colorado supports protected and restricted habitat and, therefore, is not critical habitat.
(21) Comment: The statement that continued grazing in upland
habitat will not adversely affect or modify critical habitat is
unsubstantiated and is counter to FS information that suggests grazing
may affect Mexican spotted owl prey and increase the susceptibility of owl habitat to fire.
Our Response: Our data indicate that continued grazing in upland
habitat has the potential to adversely impact the owl or its designated
critical habitat. We concur with reports that there may be a link
between continued grazing and an effect to Mexican spotted owl prey
populations. We understand that the natural fire regime of frequent
lowintensity and spatially extensive understory fire events has been
interrupted by a variety of reasons (e.g., grazing eliminating fine
fuels, suppression of wildfires, etc). When grazing activities involve
Federal funding, a Federal permit, or other Federal action,
consultation is required when such activities have the potential to
adversely affect the Mexican spotted owl or its critical habitat. The
consultation will analyze and determine to what degree those activities impact the Mexican spotted owl.
(22) Comment: A premise for the proposed rule is that the Service
was ordered by the court on March 13, 2000, to designate critical
habitat by January 15, 2001. The court may not order critical habitat
to be designated. Rather, the court may order the Service to make a
decision on whether to designate critical habitat. The designation of
critical habitat is an action that is ultimately discretionary, and the
Service must apply the criteria in the ESA and its regulations to
decide whether to designate critical habitat. Thus, the Service should
seek correction of that court order and reconsider whether and to what extent critical habitat should be designated.
Our Response: The commenter is correct that we cited a court order
requiring actual designation of critical habitat. However, recent case
law has indicated that critical habitat designation is required for
listed species except in only rare instances (for example, Natural
Resources Defense Council versus U.S. Department of the Interior 113 F.
3d 1121 (9th Cir. 1997); Conservation Council for Hawaii versus
Babbitt, 2 F. Supp. 2d 1280 (D. Hawaii 1998)). Thus, we saw no reason to challenge the court order.
(23) Comment: Are lands within a National Park that are already
protected, but proposed as wilderness areas, considered critical habitat?
Our Response: Yes, we consider lands that are within critical
habitat boundaries, that contain the primary constituent elements, and
required special management and protection, as critical habitat,
regardless of whether they are currently designated as wilderness.
(24) Comment: Military aircraft overflights and ballistic missile
testing activities have no adverse effect on Mexican spotted owl critical habitat.
Our Response: The designation of critical habitat will not impede
the ability of military aircraft to conduct overflights nor to conduct
ballistic missile testing activities. Activities such as these that do
not affect designated critical habitat will not require section 7
consultation. However, proposed lowlevel military aircraft overflights
that could potentially affect the Mexican spotted owl will be reviewed during the consultation process as they have in the past.
(25) Comment: Explain the rationale for excluding, by definition,
State and private lands from the proposed designation; there are
documented nesting sites for the Mexican spotted owl in Colorado
located on Stateleased lands; State and private lands should be
included; the majority of owl locations are from Federal lands because no one is doing surveys on private and State lands.
Our Response: Although we are aware of some Mexican spotted owl
locations on State and private lands, the majority of owl locations are
from Federal and Tribal lands. Thus, we believe that Mexican spotted
owl conservation can best be achieved by management of Federal and
Tribal lands, and determined that State and private lands are not essential to the species' recovery.
(26) Comment: Several commenters asked whether projects that have
obtained a biological opinion pursuant to section 7 of the Act would be
required to reinitiate consultation to address the designation of
critical habitat. Will the FS have to reinitiate consultation on their Forest Plans when critical habitat is designated?
Service Response: In the case of projects that have undergone
section 7 consultation and where that consultation did not address
potential destruction or adverse modification of critical habitat for
the Mexican spotted owl, reinitiation of section 7 consultation may be
required. We expect that projects that do not jeopardize the continued
existence of the Mexican spotted owl will not likely destroy or
adversely modify its critical habitat and no additional modification to the project would be required.
(27) Comment: The El Paso Natural Gas Company questioned whether
the designation of critical habitat will require consultation for
routine maintenance and operations. For example, if a linear pipeline
project crosses State, private, and FS lands, will consultation be required?
Our Response: Federal agencies are already required to consult with
us on activities with a Federal nexus (i.e., when a Federal agency is
funding, permitting, or in some way authorizing a project) when their
activities may affect the species. We do not anticipate additional
regulatory requirements beyond those required by listing the Mexican
spotted owl as threatened. For routine maintenance and operations of
public utilities or if a linear pipeline project crosses State,
private, and FS lands and does not affect critical habitat,
consultation will not be required. If maintenance activities would
affect critical habitat and there is a Federal nexus, then section 7 consultation will be necessary.
(28) Comment: The National Forests in Arizona have amended their
land and resource management plans to incorporate the Mexican Spotted
Owl Recovery Plan. Consistent with the Service's justification for not
designating critical habitat on certain tribal lands because habitat
management plans are still valid and being implemented on these lands,
the designation of critical habitat on FS lands may not be necessary
because of existing land and resource management plans that are responsive to Mexican spotted owl conservation.
Our Response: We determined that FS lands in Arizona and New Mexico
do not meet the definition of critical habitat, and have not been included in this designation (see Exclusions section).
(29) Comment: Several commenters questioned what the phrase, ``may
require special management considerations,'' means; what kind of management activities might be implemented?
Our Response: Under the definition of critical habitat, an area
must be both essential to a species' conservation and require ``special
management considerations or protections.'' Our interpretation is that
special management is not required if adequate management or
protections are already in place. Adequate special management or
protection is provided by a legally operative plan that addresses the maintenance and improvement of the
[[Page 8538]]
primary constituent elements important to the species and manages for
the long term conservation of the species (see Exclusions Under Section 3(5)(A) Definition section).
(30) Comment: Maps and descriptions provided are vague and violate the Act and 50 CFR Sec. 424.12(c).
Our Response: The required descriptions of areas designated as
critical habitat are available from the New Mexico Ecological Services
Field Office (see ADDRESSES section), as are more detailed maps and GIS
digital files. The maps published in the Federal Register are for
illustration purposes, and the amount of detail that can be published
is limited. If additional clarification is necessary, contact the New Mexico Ecological Services Field Office.
Issue 3: National Environmental Policy Act (NEPA) Compliance and Economic Analysis
(31) Comment: Several commenters questioned the adequacy of the
Environmental Assessment (EA) and other aspects of our compliance with
NEPA. They believe the Fish and Wildlife Service should prepare an Environmental Impact Statement (EIS) on this action.
Our Response: The commenters did not provide sufficient rationale
to explain why they believed the EA was inadequate and an EIS
necessary. An EIS is required only in instances where a proposed
Federal action is expected to have a significant impact on the human
environment. In order to determine whether designation of critical
habitat would have such an effect, we prepared an EA of the effects of
the proposed designation. We made the draft EA available for public
comment on October 20, 2000, and published notice of its availability
in the Federal Register (65 FR 63047). Following consideration of
public comments, we prepared a final EA and determined that critical
habitat designation does not constitute a major Federal action having a
significant impact on the human environment. That determination is
documented in our Finding of No Significant Impact (FONSI). Both the
final EA and FONSI are available for public review (see ADDRESSES section).
(32) Comment: Several local and county governments, a coalition of
Arizona and New Mexico counties, and a Soil and Water Conservation
District requested Joint Lead Agency or Cooperating Agency status in
preparation of the NEPA documents for this critical habitat designation. Why were those requests denied?
Our Response: The Village of Cloudcroft; Otero County, New Mexico; the Board of Coalition of Arizona/New Mexico Counties for Stable Economic Growth; and the San Francisco Soil and Water Conservation District, New Mexico, requested Joint Lead Agency status to assist us in preparation of the NEPA documents on the critical habitat designation. When preparing an EIS, a Joint Lead Agency may be a Federal, State, or local agency. However, a cooperating agency may only be another Federal agency (40 CFR 1501.5 and 1501.6). In our EA on the proposed action, we determined that an EIS was not necessary. Thus, the EA resulted in a FONSI, and the issue of Joint Lead Agency or Cooperating Agency status on preparation of an EIS became moot. (33) Comment: The draft economic analysis failed to adequately estimate the potential economic impacts to landowners regarding various forest management practices.
Our Response: The economic analysis addressed a variety of forest
management concerns that were voiced by stakeholders (e.g., fire and
grazing management, timber harvesting, etc.). These activities are
usually subject to a Federal nexus because the actions involve Federal
funding, permitting, or authorizations. Although critical habitat
designation may result in new or reinitiated consultations associated
with activities on Federal lands, we believe these activities likely
will not result in additional modifications beyond that required by
listing. Whether or not a species has designated critical habitat, it
is protected both from any actions resulting in an unlawful take and
from Federal actions that could jeopardize the continued existence of the species.
(34) Comment: Several commenters voiced concern that they were not
directly contacted for their opinions on the economic impacts of critical habitat designation.
Our Response: It was not feasible to contact every potential
stakeholder in order for us to develop a draft economic analysis. We
believe we were able to understand the issues of concern to the local
communities based on public comments submitted on the proposed rule and
draft economic analysis, on transcripts from public hearings, and from
detailed discussions with Service representatives. To clarify issues,
we solicited information and comments from representatives of Federal,
State, Tribal, and local government agencies, as well as some landowners.
(35) Comment: The draft Economic Analysis and Environmental
Assessment were not available for comment during the first comment
period; the opportunity for public comment on these documents was limited.
Our Response: We published the proposed critical habitat
determination in the Federal Register on July 21, 2000, and invited
public comment for 60 days. We used comments received on the proposed
critical habitat to develop the draft economic analysis. We reopened
the comment period from October 20 to November 20, 2000, to allow for
comments on the draft Economic Analysis, Environmental Assessment, and
proposed rule. We believe that sufficient time was allowed for public comment given the short time frame ordered by the court.
(36) Comment: Your draft Economic Analysis did not consider
watersheds, nor water rights, State water rights, nor adjudication with
Texas on water rights, nor the effect on water rights of any of the people within those watersheds.
Our Response: In conducting our economic analysis, we read through these comments and concluded that the commenter failed to adequately explain the rationale for why they believe critical habitat designation for the Mexican spotted owl impacts watersheds or water rights. (37) Comment: The draft economic analysis and proposed rule do not comply with Executive Order 12866, which requires each Federal agency to assess the costs and benefits of proposed regulations.
Our Response: We determined that this rule will not have an annual
economic effect of $100 million or adversely affect an economic sector,
productivity, jobs, the environment, or other units of government.
Thus, a costbenefit analysis is not required for purposes of Executive Order 12866 (see Required Determinations section).
(38) Comment: The draft economic analysis, draft environmental
assessment, and proposed rule failed to adequately estimate and address
the potential economic and environmental consequences and how timber,
fuel wood, land acquisition and disposal, oil and gas development, and mining would be impacted by the designation.
Our Response: We solicited further information and comments associated with the potential impacts of designa
FOR FURTHER INFORMATION CONTACT
Joy Nicholopoulos, Field Supervisor, New Mexico Ecological Services Field Office, at the above address; telephone 505/3462525, facsimile 505/3462542.