Federal Register: March 10, 2009 (Volume 74, Number 45)
DOCID: fr10mr09-15 FR Doc E9-4536
DEPARTMENT OF THE INTERIOR
Veterans Employment and Training Service
CFR Citation: 50 CFR Part 17
RIN ID: RIN 1018-AV52
FWS ID: [FWS-R4-ES-2008-0047; 92210-1117-0000-B4]
NOTICE: Part II
DOCID: fr10mr09-15
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Louisiana Black Bear (Ursus americanus luteolus)
DATES: This rule becomes effective on April 9, 2009.
DOCUMENT SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for the Louisiana black bear (Ursus americanus luteolus) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 1,195,821 acres (483,932 hectares) in Avoyelles, East Carroll, Catahoula, Concordia, Franklin, Iberia, Iberville, Madison, Pointe Coupee, Richland, St. Martin, St. Mary, Tensas, West Carroll, and West Feliciana Parishes, Louisiana, fall within the boundaries of the critical habitat designation.
SUMMARY:
Interior Department, Fish and Wildlife Service
SUPPLEMENTAL INFORMATION
Background
It is our intent to discuss only those topics directly relevant to the development and designation of critical habitat for the Louisiana black bear in this final rule. For more information on the biology and ecology of the Louisiana black bear, refer to the final listing rule published in the Federal Register on January 7, 1992 (57 FR 588), and to our 1995 final recovery plan, which is available from the Lafayette Ecological Services Field Office (see ADDRESSES section). For information on Louisiana black bear critical habitat, refer to the proposed rule to designate critical habitat for the Louisiana black bear published in the Federal Register on May 6, 2008 (73 FR 25354). Information on the associated draft economic analysis for the proposed rule to designate revised critical habitat was published in the Federal Register on November 12, 2008 (73 FR 66831).
Previous Federal Actions
We listed the Louisiana black bear (Ursus americanus luteolus) as threatened under the Act (16 U.S.C. 1531 et seq.) on January 7, 1992 (57 FR 588). In our final rule listing this subspecies, we determined that normal forest management activities supporting a sustained yield of timber products and wildlife habitats were compatible with Louisiana black bear's needs. Accordingly, we promulgated a special rule under section 4(d) of the Act, which can be found at 50 CFR 17.40(i), exempting the effects incidental to normal forest management activities within the subspecies' historic range, except for activities causing damage to or loss of den trees, den tree sites, or candidate den trees (57 FR 588). For the purposes of that exemption, normal forest management activities are those activities that support a sustained yield of timber products and wildlife habitats, thereby maintaining forestland conditions in occupied (i.e., breeding) habitat. Research has supported this decision. In fact, in some cases, such as leaving downed tree tops and creating openings, timber management can provide or enhance black bear habitat (Weaver 1999, pp. 126128; Hightower et al. 2002, p. 14; Weaver et al. 1990, p. 344; Lindsey and Meslow 1977, p. 424). Therefore, we have not considered changing the special rule at 50 CFR 17.40.
We first proposed critical habitat for the Louisiana black bear on December 2, 1993 (58 FR 63560), but never published a final rule designating critical habitat. On September 6, 2005, Mr. Harold Schoeffler and the Louisiana Crawfish Producers AssociationWest filed suit in U.S. District Court for the Western District of Louisiana (Civil Action No. CV051573 (W.D. La.)) regarding our failure to designate critical habitat for the Louisiana black bear.
On June 26, 2007, the Court ordered the Service to withdraw the December 2, 1993, proposed critical habitat rule and create a new proposed critical habitat designation by no later than 4 months from the date of the judgment and to publish a final designation by no later than 8 months from the date of the proposed or new rule. On September 5, 2007, following a settlement agreement, the Court revised its order to require the Service to: (1) Withdraw the December 2, 1993, proposed rule and submit a new prudency determination and, if prudent, a new proposed critical habitat designation to the Federal Register by April 26, 2008; and (2) submit a final critical habitat determination, if prudent, to the Federal Register by February 26, 2009.
On May 6, 2008, we proposed critical habitat designation for the Louisiana black bear in Avoyelles, Catahoula, Concordia, East Carroll, Franklin, Iberia, Iberville, Madison, Pointe Coupee, Richland, St. Martin, St. Mary, Tensas, West Carroll, and West Feliciana Parishes, Louisiana (73 FR 25354). Simultaneously, we announced our withdrawal of the 1993 proposal and our new prudency determination. The proposed rule described three units totaling approximately 1,330,000 acres (ac) (538,894 hectares (ha)) within Louisiana.
For more information on previous Federal actions concerning the Louisiana black bear, refer to the final rule listing this subspecies as threatened published in the Federal Register on January 7, 1992 (57 FR 588), and the proposed critical habitat rule published in the Federal Register on December 2, 1993 (58 FR 63560).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed designation of critical habitat for the Louisiana black bear during two comment periods. The first comment period associated with the publication of the proposed rule (73 FR 25354) opened on May 6, 2008, and closed on July 7, 2008. We also requested comments on the proposed critical habitat designation and associated draft economic analysis during a comment period that opened November 12, 2008, and closed on December 12, 2008 (73 FR 66831). We also contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule and draft economic analysis during these two comment periods.
During the first comment period, we received 12 comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received 15 comment letters addressing the proposed critical habitat designation or
[[Page 10351]]
the draft economic analysis. All substantive information provided
during both comment periods has either been incorporated directly into this final determination or addressed below.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that includes familiarity with the subspecies, the geographic region in which the subspecies occurs, and conservation biology principles. We received responses from three of the peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the Louisiana black bear. The peer reviewers generally concurred with
our methods and conclusions and provided additional information,
clarifications, and suggestions to improve the final critical habitat
rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments
(1) Comment: One peer reviewer questioned the permanency of
perpetual easements purchased through the Wetland Reserve Program (WRP)
and the process by which such easements could be terminated.
Our Response: According to the WRP Manual, found in Title II (Conservation) of The Farm Security and Rural Investment Act of 2002 (2002 Farm Bill; Public Law 107171), prior to making a decision regarding easement termination, the Natural Resources Conservation Service (NRCS) must: (1) Consult with the Service; (2) investigate whether reasonable alternatives to the proposed action exist; and (3) determine whether the easement modification is appropriate considering the purposes of WRP and the facts surrounding the request for easement modification or termination. Any WRP easement modification, including termination, must: (1) Be approved by the Director of the NRCS in consultation with the Service (the National WRP Program Manager must coordinate the consultation with the Service at the national level); (2) not adversely affect the wetland functions and values for which the easement was acquired; (3) result in equal or greater ecological (and economic) values to the U.S. Government; (4) further the purposes of the program and address a compelling public need; and (5) comply with applicable Federal requirements, including the Act, the National Environmental Policy Act (42 U.S.C. 4321 et seq.), Executive Order 11990 (Protection of Wetlands), and related requirements. At least 90 days before taking any action to terminate an easement, the Secretary of the Department of Agriculture must provide written notice of such action to the Committee on Agriculture of the U.S. House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the U.S. Senate. Therefore, based on our assessment of these requirements, the termination of a WRP easement appears highly improbable.
In addition, our Lafayette Ecological Services Field Office has partnered with NRCS to administer WRP in Louisiana since the inception of that program in 1992. Following a comprehensive review of our local files, and a search of national WRP records, we have been unable to find a single instance of a WRP easement being terminated in the history of that program (which includes nearly 10,000 projects on approximately 2 million ac (800,000 ha) of land nationwide). (2) Comment: One peer reviewer expressed concern about the potential future conversion of nonWRP forestland to agricultural uses.
Our Response: Results of recent studies indicate that there has
been a reversal in the pre1980s trend of forest conversion to
agricultural use in the Lower Mississippi River Alluvial Valley (LMAV).
Documentation of that reversal is limited, however, and a clear
understanding of the magnitude of afforestation to date has been
difficult because of the lack of collated data (Schoenholtz et al.
2001, p. 603). Nonetheless, available data indicates that over the past
three decades, forest restoration in the LMAV portions of Louisiana,
Mississippi, and Arkansas has increased dramatically, and has led to a
significant removal of land from agricultural production for the
purpose of hardwood forest establishment (Gardiner and Oliver 2005, p.
243). For example, in the LMAV region of Mississippi, the total
forested area increased by 11 percent between 1987 and 1994, and
reforestation of former agricultural lands accounted for nearly 40
percent of that increase (King and Keeland 1999, p. 352). Between 1993
and 2007, over 140,000 ac (57,000 ha) were restored to forestland via
WRP, and 200,000 ac (81,000 ha) via the Conservation Reserve Program,
within Louisiana black bear habitat priority areas in Louisiana (Ginger
et al. 2007, p. 41). In summary, there is no evidence that any
significant amount of forestland will be converted to agriculture in
the future, and to the contrary, there is a promising trend in the
annual increase of bottomland hardwood forest (BLH) forestation across the LMAV (Schoenholtz et al. 2001, p. 612).
(3) Comment: One peer reviewer questioned whether bottomland
hardwoods designated as critical habitat would be considered
jurisdictional wetlands which would require permit authorization under
section 404 of the Clean Water Act prior to filling for developmental,
agricultural, or other purposes. That reviewer also inquired about
habitat losses and associated impacts to bears should section 404
permits authorize the loss of forested wetlands within the critical habitat boundary.
Our Response: The U.S. Army Corps of Engineers (Corps) has been
delegated the authority to regulate the placement of fill in wetlands
and other waters of the United States. Wetland determination for
regulatory purposes, such as assessments of wetland losses incurred
from section 404permitted activities, is typically done on a project
specific basis by Corps personnel. Although regional largescale
wetland determination maps have not been typically used or developed by
the Corps for jurisdictional purposes, based on our knowledge of
forested ecosystems in the LMAV, we believe that most bottomland
hardwoods within the critical habitat boundary are jurisdictional
wetlands. Because the Corps evaluates permit applications on an
individual basis, it would not be possible to determine whether the
Corps would issue permits and if, or to what extent, they would be
modified to minimize impacts or to accurately assess the full extent of
future wetland losses from permitted projects. Given the nature and
extent of previously permitted activities in bottomland hardwood
wetlands within this region, we do not anticipate significant habitat
losses from section 404permitted projects. Furthermore, the Corps
requires that section 404 permittees provide compensatory mitigation to
replace wetland functions and values that are lost via their respective
projects. Compensatory mitigation area virtually always equals or
exceeds impacted area and is accomplished within, or in proximity to,
the watershed of the impact site. Such mitigation, although done
strictly for wetland replacement, would also provide habitat benefits
for bears and should exceed habitat losses experienced from permitted projects.
(4) Comment: One peer reviewer stated that we have not been able to [[Page 10352]]
document female interchange between the Deltic Timber tracts and the
Tensas River National Wildlife Refuge (TRNWR). Therefore, those
populations currently function as separate populations and should be described as such.
Our Response: After reevaluating all available information related
to bear populations and interchange between the Deltic Timber tracts
and the TRNWR, we agree with this statement and have considered this in
our analysis. It is more correct to state that the relationship between
those populations ``may soon begin,'' rather than ``have likely begun,'' to function as a single population.
(5) Comment: One peer reviewer requested that we provide a more
detailed description of the process used to approximate female bear home ranges for our breeding habitat delineation.
Our Response: Female bear home ranges were determined on a
populationspecific basis using published, telemetrybased research
(Anderson 1997, p. 37; Beausoleil 1999, p. 60; Marchinton 1995, p. 31;
Wagner 1995, p. 12; Weaver 1999, p. 70). The average home range sizes
that were calculated as minimum convex polygons for each population
were converted to average home range radii. Female locations
(determined from telemetry data collected for the abovereferenced
studies) were buffered with those populationspecific home range radii
using a geographic information system software package to establish an
approximate breeding habitat boundary. Minor modifications to that
boundary were made based on the availability of contiguous habitat and
the presence of movement barriers (such as large expanses of
agricultural land or poorquality habitat, waterways, highways, urban development, and other major landscape features).
(6) Comment: One peer reviewer stated that the estimate of minimum
habitat size for black bears presented by Cox et al. (1994, p. 50) is
probably too large for Louisiana black bears due to higher habitat
quality and more agricultural crop availability for many Louisiana black bear populations.
Our Response: We concur with this statement and did not intend to
suggest that the Cox et al. (1994) estimate would be used as a basis
for our habitat requirements assessment. We used known home range sizes
and habitat requirements for Louisiana black bears, on a population
specific basis (with emphasis on the TRNWR population as a stable
population that relies mostly on habitat containing features as
described by the primary constituent elements (PCE) for survival), to
determine the minimum required habitat size. Our mention of the Cox et
al. (1994) publication was only intended to present other research
findings related to minimum habitat requirements for black bears.
Consistent with this reviewer's comment, our minimum habitat size
calculation, as described in our May 6, 2008, proposed rule (73 FR
25354, p. 25364), yielded an estimate that is significantly smaller than that of Cox et al. (1994).
(7) Comment: One peer reviewer commented on the potential value of
smaller habitat fragments within larger habitat matrices, and whether
those smaller forested tracts should be designated as critical habitat for the Louisiana black bear.
Our Response: We concur that smaller habitat patches provide
benefits for bears, particularly to facilitate movement through
corridors between populations, when they are components of a larger
habitat matrix. Based on our review of available scientific literature,
we determined that habitat fragments as small as 12 ac (5 ha) may be
sufficient to provide linkage and facilitate movement across a
fragmented landscape (Pelton and Van Manen 1997, p. 33; Beausoleil et
al. 2005, pp. 409410). For that reason, we included ``corridors
consisting of habitat patches 12 ac (5 ha) or greater in size'' in our
May 6, 2008, proposed rule to designate critical habitat for the Louisiana black bear (73 FR 25354, p. 25363).
(8) Comment: One peer reviewer requested clarification of our definition of an ``actual den tree.''
Our Response: Specific language affording protection of actual den
trees was included in the 1992 4(d) rule that was part of the listing
of the Louisiana black bear as a threatened subspecies (57 FR 588, p.
593). That rule did not, however, define the criteria to be used for
determining whether a tree is an ``actual den tree.'' We interpret that
regulatory language to extend protection to den trees as long as bear
usage is determinable (i.e., it is recognizable by visual observation
of the subject tree, or was known to be used in previous denning
seasons), such that those trees are protected even when bears are not
actively using them. We determine bear use of a den tree by visual or
audible confirmation (if it is actively being used), telemetry data, and the presence of bear claw marks.
(9) Comment: One peer reviewer questioned the portion of our
critical habitat designation strategy that involves maintaining the
viability of existing populations, stating that he does not believe that existing populations have been proven viable.
Our Response: We concur that existing populations have not been
proven to have longterm (i.e. , 100 years or more) viability. All
known breeding populations of Louisiana black bears that were present
at the time of listing, however, continue to exist more than 15 years
later. Population estimates for Louisiana black bears at the time of
listing appear to be lower than what recent research would indicate,
and there is circumstantial evidence that the population is growing
(LDWF 2007, p. 22). Therefore, we consider these populations to be
viable (at least in the near term) for planning purposes related to habitat restoration and corridor establishment.
(10) Comment: One peer reviewer questioned the application of
habitat requirements for the TRNWR subgroup, which benefits from
extensive access to adjacent agricultural fields, to the Upper and
Lower Atchafalaya River Basin (ARB) (Critical Habitat Units 2 and 3)
populations, which have less opportunity to forage on agricultural
crops. He asserted that due to agricultural crop availability and use
by the TRNWR subgroup, a greater land base may be necessary for the two
ARB populations to compensate for the lack of available agriculture.
Our Response: We agree that the TRNWR subgroup is situated in an
area that provides greater access to agricultural crops with higher
nutritional value (e.g., corn, wheat, and soybeans) than the crops that
are available for the two ARB populations. The Deltic Timber area in
the northern portion of the Tensas River Basin (Critical Habitat Unit
1) is a highly fragmented system of isolated forested tracts
interspersed within an expansive agricultural landscape. Agricultural
crops used by bears in this area is well documented and occurs at
greater rates than for any other subgroup or population of Louisiana
black bears. It should be noted, however, that even within this TRNWR
subgroup, agricultural crops used by bears varies greatly by season and
natural foods comprise most of the diet (by volume) for half of the
year (Anderson 1997, p. 53). We believe that bears in both ARB
populations also have access to, and will forage on, agricultural crops
in their vicinity. Because sugarcane is the most commonly grown crop in
this region, bears in these populations likely benefit less from the
use of adjacent agriculture than bears in the TRNWR subgroup.
Accordingly, we incorporated more PCEdefinitional habitat into our critical habitat boundary (423,170 ac (171,251
[[Page 10353]]
ha) total for Units 2 and 3) for the two ARB populations than is
currently inhabited by bears in the TRNWR subgroup (141,868 ac (57, 412
ha)). As explained in our proposal to designate critical habitat (73 FR
25354, pp. 2536425365), because the TRNWR subgroup sustains itself
throughout much of the year primarily on habitats containing the PCEs,
and that subgroup is viable, based on the results of population
viability analyses, that subgroup was used as a model to evaluate the
minimum habitat requirements for maintenance of longterm population viability.
(11) Comment: One peer reviewer stated that the shared boundary
(i.e., the corridor) between Units 2 and 3 seems relatively constricted
and may not be adequate to ensure longterm connectivity and dispersal across those two units.
Our Response: We have reassessed the landscape along the southern
boundary of Unit 2 and the northern boundary of Unit 3 relative to
potential travel corridors for bears. As explained in the Methods
section of this document, increasing the unit width in this region
would incorporate primarily agricultural fields and urban development,
and virtually no additional forested habitat. Accordingly, the shared
boundary of these two units has not been modified from our original proposal.
(12) Comment: One peer reviewer had several questions regarding the
use of the terms ``occupied at time of listing'' and ``currently
occupied'' and the basis for critical habitat designation only in
habitat that was occupied at the time of listing. Also, one public commenter expressed similar concerns.
Our Response: Louisiana black bear resource managers have commonly used the term ``occupied'' habitat to indicate areas with physical evidence of reproduction (e.g., young, females with young, or lactating females). Critical habitat is defined in section 3 of the Act in part as the specific areas within the geographical area occupied by a species at the time it is listed in accordance with the Act, 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. Therefore, for critical habitat designation, we use the term ``occupied'' in a less restrictive sense to indicate the subspecies' presence in an area without regard to reproductive information (i.e., the transient or permanent presence of male or female bears). In order to avoid confusion, we use the term ``breeding areas'' or ``breeding habitat'' in this document to refer to areas with physical evidence of reproduction. We inadvertently used the term ``currently occupied'' once in the proposal when we should have used the term ``current breeding habitat.'' We have noted this error and revised our text.
Under the Act and its implementing regulations (50 CFR 424.12(e)),
we can designate critical habitat in areas outside of the geographical
area occupied by the species at the time it is listed only when (1) the
inclusion of specific areas occupied at the time of listing defined by
the essential physical and biological features are not sufficient to
conserve the species and (2) we determine that those areas outside the
geographical area occupied by the species are essential for the
conservation of the species. In preparing this final critical habitat
designation, we did not find any areas outside of the geographical area
occupied by the Louisiana black bear at the time of listing that are
essential for the conservation of the subspecies, and we believe the
specific areas included in this designation are sufficient to conserve
the subspecies; therefore, we are not designating areas outside of the geographical area occupied by the subspecies.
(13) Comment: One peer reviewer stated that coastal habitat is not
superior habitat but that the small number of data points and bear use of garbage for food may have affected those estimates.
Our Response: That statement referenced a speculation made by researchers over 10 years ago (Wagner 1995, p. 25). We agree that the knowledge we have gained about the coastal population indicates the commenter is correct, and we have included that in our discussion. (14) Comment: One peer reviewer requested additional information on how we will evaluate the cumulative effects of critical habitat alteration.
Our Response: Critical habitat receives protection under section 7
of the Act through the prohibition against Federal agencies carrying
out, funding, or authorizing the destruction or adverse modification of
critical habitat. Section 7 of the Act requires consultation on Federal
actions that may affect critical habitat. Under section 7 of the Act,
the Federal action agency must provide an analysis of cumulative
effects, along with other information, when requesting formal
consultation. The Service is required to consider cumulative effects of
a proposed action in formulating our biological opinion. Under the
provisions of the Act, we determine destruction or adverse modification
on the basis of whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain the current ability for the primary constituent elements to be
functionally established) to serve its intended conservation role for the species.
(15) Comment: One peer reviewer stated that, through the
coordinated efforts of Federal, State, and private groups, remarkable
progress in the protection and restoration of black bear habitat has
been achieved in Louisiana in the past 10 years and was achieved
without the benefit of critical habitat designation. The commenter wished to congratulate all those involved.
Our Response: We agree that the progress made in Louisiana black bear habitat protection and restoration is noteworthy. We estimate that about 600,000 ac (240,000 ha) of land have been restored or protected in the bear's range since it was listed in January 1992. This includes lands that have been purchased by State and Federal agencies, public and private lands protected from development, and privately owned lands where bear habitat has been restored. All this was accomplished through the voluntary participation of many partners, such as the NRCS and other Federal agencies, State agencies in Louisiana and Mississippi, the Black Bear Conservation Committee (BBCC), the Louisiana Forestry Association, universities, and private citizens. We believe that designation of critical habitat will provide benefits in addition to those provided through private landowner incentive and conservation programs, and will further conservation of this subspecies. (16) Comment: Two peer reviewers stated that critical habitat designation has the potential to diminish landowner support for conservation activities benefitting the Louisiana black bear. One suggested that we precede critical habitat designation with a public education campaign.
Our Response: We agree that negative perceptions associated with
critical habitat designations could potentially alienate the private
landowners that have been, and continue to be, so vital in the
Louisiana black bear recovery. As we discuss in the ``State Comments''
section and in the ``Benefits of Inclusion'' section of this rule, we
continue to recognize that designating critical habitat in areas where
we have partnerships with private landowners that have led to
conservation or management of listed species may impact landowners and future partnerships and conservation efforts.
[[Page 10354]]
Therefore, we have excluded private lands enrolled in the WRP under
permanent conservation easements from critical habitat designation.
Furthermore, lands that currently do not contain the physical and
biological features essential to the conservation of the Louisiana
black bear do not meet the definition of critical habitat and are not
designated as critical habitat, nor would they be considered to be such
if they were restored, or allowed to naturally regenerate, to forested habitat subsequent to this designation.
We also agree that public education regarding critical habitat is important. From the beginning of this designation process, we have made efforts to inform the public (landowners and public agencies) about critical habitat and the designation process through newspapers, fact sheets, and informal meetings. We are committed to continuing public education about the Louisiana black bear and its critical habitat. (17) Comment: Two reviewers stated that our approach was logical and reasonable. One commenter indicated that we had thoroughly reviewed and appropriately interpreted the most recent scientific literature. One commenter indicated that we had designated sufficient quantity and quality in a way that encompassed all breeding populations and all primary constituent elements.
Our Response: We appreciate the peer reviewers' positive evaluation
of the biological and scientific basis for our critical habitat determination.
(18) Comment: One commenter provided suggestions on the consistent
use of terms, citations, and other grammatical inconsistencies.
Our Response: We have made those corrections where appropriate and necessary in this designation.
(19) Comment: One peer reviewer stated that he did not consider a
density of one bear per 686 ac (278 ha) as low (even in the
southeastern United States) and that, while this density is low when
compared to densities on the nearby Deltic lands, it was more likely slightly higher than average across the Southeast.
Our Response: We agree and have made this correction. (20) Comment: One peer reviewer requested clarification on the methods we would use to determine the presence of a breeding population in Mississippi.
Our Response: There have been only three documented occurrences of
successful reproduction of Louisiana black bears in Mississippi (Ginger
et al. 2007, p. 34); there is no overlap in the home ranges of the
three female bears that produced those litters. Based on our analysis
of over 15 years of Louisiana black bear research and telemetry data,
we have concluded that an isolated female bear (though she may
occasionally produce a litter of cubs) does not constitute a breeding
population. We have determined that a breeding population must consist
of at least five adult females that are known to have successfully
reproduced and that have overlapping home ranges. Evaluation of
existing telemetry data indicates that habitats used by fewer than five
adult females serve as temporary residences during atypical patterns of
dispersal (i.e., movement patterns that are most often observed in bears translocated during reintroduction programs).
(21) Comment: One peer reviewer questioned why it might be
desirable to exclude WRP lands enrolled under a permanent easement.
Our Response: Due to the level of protection from development afforded these lands, and the potential that negative perceptions associated with critical habitat designations could potentially alienate the private landowners that have been so vital to the Louisiana black bear recovery, we have determined that the benefits of exclusion outweigh the benefits of inclusion for lands enrolled under permanent easements in the WRP. In addition, we believe that this determination will not result in the extinction of the Louisiana black bear. Please refer to the ``Benefits of Exclusion'' section of this rule for further information.
Comments From States
Section 4(i) of the Act states ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulation consistent with the agency's comments or petition.''
Comments received from State agencies regarding the proposal to
designate critical habitat for the Louisiana black bear are addressed below.
(22) State Comment: The Louisiana Department of Wildlife and
Fisheries (LDWF) stated that critical habitat designation is not
necessary for the successful restoration of the black bear in Louisiana.
Our Response: According to section 4(a)(3) of the Act, the Service
is required to designate critical habitat for threatened and endangered
species to the maximum extent prudent and determinable. Also, as a
result of a lawsuit filed by Harold Schoeffler and Louisiana Crawfish
ProducersWest, we were ordered by the court to designate critical
habitat, if prudent, for the Louisiana black bear. We have already
determined that designation of critical habitat is prudent (May 6,
2008, 73 FR 25354). Therefore, we must designate critical habitat to fulfill those statutory and legal obligations.
(23) State Comment: The LDWF stated that critical habitat
designation for the Louisiana black bear has the potential to alienate
private landowners who have habitat upon which the bear depends. They
furthermore indicated that a cooperative relationship is necessary with
those landowners in order to collect data and accomplish habitat restoration needed for delisting.
Our Response: We agree with the LDWF that negative perceptions
associated with critical habitat designations could potentially
alienate the private landowners that have been and continue to be so
vital to the Louisiana black bear recovery. We also recognize that the
significant strides made in habitat restoration for this subspecies are
in large part due to conservation actions taken by private landowners
and will continue to be needed to conserve this subspecies. As we
discuss in the ``Benefits of Inclusion'' section of this rule, we
continue to recognize that designating critical habitat in areas where
we have partnerships with private landowners that have led to
conservation or management of listed species may impact landowners and
future partnerships and conservation efforts. Therefore, we have
excluded private lands enrolled under permanent conservation easements
in the WRP from critical habitat designation. Furthermore, lands that
currently do not contain features essential for the Louisiana black
bear's conservation do not meet the definition of critical habitat and
are not designated as critical habitat, nor would they be considered to
be such if they were restored, or allowed to naturally regenerate, to
forested habitat subsequent to this designation. We continue to be
committed to working on habitat restoration with private landowners in the future. See our response to Comment 16 above.
(24) State Comment: The LDWF and several other commenters stated
strong support for exempting lands enrolled in the NRCS' WRP program
from critical habitat designation. They also requested that we consider
exemptions for other Federal conservation assistance programs including
the NRCS' Conservation Reserve Program (CRP), the Conservation Reserve
Enhancement Program (CREP), and the Wildlife Habitat Incentive Program (WHIP).
[[Page 10355]]
Our Response: Under section 4(b)(2) of the Act, in considering whether to exclude a particular area from the designation, we must identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and determine whether the benefits of exclusion outweigh the benefits of inclusion. If, based on this analysis, we make the determination that the benefits of exclusion outweigh the benefits of inclusion, then we can exclude the area only if such exclusion would not result in the extinction of the species.
In the case of lands enrolled under a permanent easement in the WRP, those easement restrictions provide substantial protection and management for the Louisiana black bear and its essential habitat features in contrast to the designation of critical habitat, which only precludes destruction or adverse modification. We have determined that the benefits of exclusion outweigh the benefits of inclusion for lands enrolled under permanent easements in the WRP. In addition, we believe that this determination will not result in the extinction of the Louisiana black bear. Please refer to the ``Exclusions Under Section 4(b)(2) of the Act'' section of this rule, as well as responses to Comments 16 and 23, for further information.
We share the LDWF's concern and acknowledge the benefits that other private landowner incentive and conservation programs (i.e., CRP, CREP, WHIP) offer for the Louisiana black bear and other wildlife. However, landowners who enroll in those programs are not bound by an easement that permanently prohibits development or conversion of those lands. Instead, landowners sign an agreement (generally 10 to 15 years in duration) and at the end of that agreement those properties may be converted to another use. In those instances, the protection provided to those lands is not significantly different from that provided via critical habitat under section 7 of the Act (i.e., protection from adverse modification or destruction). Therefore, while we believe that excluding lands enrolled in those conservation agreements may provide benefits in terms of maintaining landowner cooperation, we have determined not to exclude them from this critical habitat designation.
We recognize that critical habitat designated at a particular point
in time may not include all of the habitat areas that we may later
determine are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not promote the
recovery of the species. We continue to be committed to working on habitat restoration with private landowners in the future.
(25) State Comment: The LDWF expressed agreement with the proposed
critical habitat geographic boundaries. The LDWF also indicated that
those boundaries are consistent with the most current LDWF telemetry,
research, and habitat data. In addition, the agency stated that while
bear sightings may occur throughout Louisiana, the proposed critical
habitat protects the core breeding populations and the highest quality bear habitat.
Our Response: We appreciate the LDWF's positive evaluation of the
biological and scientific basis for our critical habitat determination. Public Comments
(26) Comment: One commenter stated that he believed the Louisiana black bear population to be between 500 and 700 bears.
Our Response: Current Louisiana black bear population estimates vary somewhat among the professional community, primarily due to the lack of a reliable and comprehensive estimate. We used every published population estimate available (Beausoliel 1999, p. 51; Boerson et al. 2003, p. 203; Pelton and Van Manen 1997, p. 38; Triant et al. 2004, p. 653) to support our estimated current population size of 400 to 700 bears. A more comprehensive population study is currently being conducted, but will not be finalized prior to the courtordered deadline for publication of this critical habitat designation. (27) Comment: One commenter stated that a map published by the BBCC in 2006 indicated that bears had been observed in virtually every Louisiana parish. That commenter also discussed potential critical habitat designation in specific areas based on anecdotal sighting information from locations throughout Louisiana and in portions of Arkansas and Mississippi.
Our Response: We acknowledge that bears have been observed
throughout Louisiana and in portions of its neighboring States.
Included in those sightings are confirmed Louisiana black bear
occurrences in relatively major urban areas such as Abbeville, Bossier
City, Crowley, Lafayette, and New Iberia. Current breeding habitat and
corridors linking breeding areas were paramount in the delineation of
this critical habitat designation. We do not have data to show that
these specific bear sightings suggested by the commenter, in portions
of Louisiana, Arkansas, and Mississippi, are part of a resident
population, within current breeding habitat, or within a suitable
travel corridor that would warrant designation as critical habitat.
Therefore, we have not included these areas in our designation of critical habitat.
(28) Comment: One commenter briefly described the significance of
corridors, expressed concern regarding our designation of corridors
that only link existing populations, and stated that additional
corridors in other areas should be considered. Several suggested
potential corridors were described, including those that would link:
(1) Felsenthal National Wildlife Refuge (NWR) in south Arkansas to the
Upper Ouachita NWR in north Louisiana; (2) the Gulf of Mexico to the
Town of Bogalusa in Louisiana, which would include the Pearl River and
Old River Wildlife Management Areas (WMA) and the Bogue Chitto NWR; (3)
Cat Island NWR and Tunica Hills WMA to St. Catherine Creek NWR in
Mississippi; and (4) eastcentral Louisiana (i.e., Lasalle and Rapides
Parish) to Texas via the Red River Alluvial Plain (incorporating various State WMAs and U.S. Forest Service parcels).
Our Response: We concur that corridors perform a significant role
in the conservation of the Louisiana black bear. Accordingly, we have
designated corridors between all known breeding populations of the
Louisiana black bear. We also acknowledge that anecdotal Louisiana
black bear sighting information exists for various locations throughout
Louisiana and in portions of its neighboring States. As previously
explained, such sightings are not always evidence of a resident
population or of an important (or even suitable) travel corridor that
would warrant designation as critical habitat. Accordingly, we do not
believe that the designation of Felsenthal NWR and the Upper Ouachita
NWR, including a corridor linkage, would further the conservation of
the Louisiana black bear. Since 2000, over 100 bears (including both
adult females and cubs) have been captured on White River NWR and
neighboring lands and reintroduced to Felsenthal NWR. Those bears,
however, are not considered Louisiana black bears; therefore, the
regulations implementing the Act and associated critical habitat
designations would not apply to that population or to Felsenthal NWR.
There have been occasional bear sightings on the Upper Ouachita NWR,
which have increased since the initiation of the Felsenthal NWR black bear reintroduction program (USFWS 2008,
[[Page 10356]]
pp. 4850); however, we do not have any evidence of a breeding
population on Upper Ouachita NWR. Consequently, we do not believe that
there is justification to warrant designation of Felsenthal NWR (with a
nonU. a. luteolus population), Upper Ouachita NWR (with no
population), or a corridor linkage between those properties.
Although bear sightings are occasionally reported in the Pearl River Basin between the Gulf of Mexico to the Town of Bogalusa, there is no documented evidence of reproduction of Louisiana black bears occurring east of the Mississippi River in Louisiana. Very few bear studies have been conducted east of the Mississippi River in Louisiana due to the extremely low density of bears in this region. We are aware of just one such study, where only one confirmed bear occurrence was documented during a 5month study involving 70 bait stations (Stinson 1996, p. 12). In addition to the Pearl River Basin not supporting a breeding population, it does not form a logical corridor between any known populations of Louisiana black bears. Accordingly, we have determined that this area does not contain the features essential to the conservation of the subspecies; therefore, it was not included within our critical habitat boundary.
Cat Island NWR and Tunica Hills WMA occur within, and St. Catherine Creek NWR occurs immediately north of, the Stinson (1996, p. 13) study area. As described above, that study confirmed speculations that this region supports very few bears. Louisiana black bear reproduction has not been documented on any of these lands, and establishing a corridor between them would serve little, if any, function for bear conservation. Therefore, we have determined that this area does not contain the features essential to the conservation of the subspecies, and it was not included within our critical habitat boundary.
Although occasional sightings are reported, there is no evidence that Louisiana black bears travel the Red River Alluvial Plain between eastcentral Louisiana (i.e., Lasalle and Rapides Parish) and Texas with any frequency. There is also no data to support classification of any areas within this region as Louisiana black bear breeding habitat.
In summary, as stated above, current breeding habitat was paramount
in this delineation of critical habitat, and was based on known
locations and home ranges of reproductive females. Corridors linking
those core breeding areas were also designated based on the best
available science (primarily telemetry studies) and extensive
landscapelevel habitat analyses which are described in the Methods
section of our previous proposal May 6, 2008, (73 FR 25354, pp. 25359) and in this Final Rule.
(29) Comment: Several commenters suggested that we evaluate the
effect of major highways on Louisiana black bear dispersal and habitat
access. Specific reference was made regarding U.S. Highway 90 (Hwy. 90)
in St. Mary Parish, Louisiana and U.S. Interstate 20 (I20) in Madison
Parish, Louisiana, and their apparent lack of permeability for bear movement.
Our Response: We concur that Hwy. 90 and I20 are major obstacles
to intra and interpopulation bear movement. Over the last several
years, we have organized numerous site inspections and meetings
involving biologists from both the National Wildlife Refuge System and
the Ecological Services Divisions of the Service, the LDWF, the
Louisiana Department of Transportation and Development, the Federal
Highway Administration (FHWA), private environmental and engineering
firms, and the BBCC to address issues with highwayassociated impacts
to bears. We have completed a biological opinion on the effects of a
proposed upgrade of Hwy. 90 to interstate specifications on the
Louisiana black bear, which included a conservation recommendation that
the FHWA ``install large mammal/bear crossings at suitable locations
along the subject reach of Hwy. 90.'' With the assistance of the BBCC,
private corporations, and major local landowners, we are currently
developing a largescale habitat restoration and protection plan to
address both habitat issues and highwayassociated limitations on bear
conservation in this region of the State. We have designed similar
plans along I20, most of which have been successfully implemented,
primarily through the designation of a WRP Special Project Area.
Although I20 in Madison Parish has numerous large bridges over river
and stream crossings that allow safe passage for bears, we have
developed and implemented plans to further improve the permeability of
that roadway for bears. The current critical habitat boundary crosses
both of the subject roadways (in addition to many others), and we
believe that it fully reflects our planning and conservation efforts and is consistent with these commenters' requests.
(30) Comment: One commenter stated that a single corridor or series
of habitat linkages through the Mississippi River Delta and the ARB may not be adequate for Louisiana black bear conservation.
Our Response: We determined that designating all Louisiana black
bear breeding habitat, including corridors that link those habitats,
would be sufficient to ensure the conservation of this subspecies.
Currently, all Louisiana black bear breeding populations occur along
the Atchafalaya and Lower Mississippi River Alluvial Valleys, as
reflected in our critical habitat boundary and delineation of
corridors. We concur with this commenter's general position that a
single habitat linkage would be insufficient for Louisiana black bear
conservation purposes. For that reason, we delineated corridors to
provide sufficient width to incorporate numerous potential travel and
habitat linkages (e.g., small forested patches and riparian zones along
streams, sloughs, and bayous) between each of the existing breeding populations.
(31) Comment: One commenter recommended modifications to the
Louisiana Black Bear Recovery Plan including revisions to estimated
population increases and home range sizes based on Taylor's (1971)
estimate for the Upper ARB population. The commenter also suggested
several specific changes to our critical habitat boundary in the context of that Plan.
Our Response: Louisiana black bear population and home range sizes
were determined on a populationspecific basis from the most recent
available scientific studies (Anderson 1997, p. 37; Beausoliel 1999,
pp. 51, 57, 60; Boerson et al. 2003, p. 203; Marchinton 1995, p. 31;
Pelton and Van Manen 1997, p. 38; Triant et al. 2004, p. 653; Wagner
1995, p. 12; Weaver 1999, p. 70). We will consider recommended
modifications to the Louisiana Black Bear Recovery Plan when it is
updated. We assume that the commenter intends for us to address
critical habitat suggestions in this final rule rather than in a
revised recovery plan. Accordingly, recommendations related
specifically to critical habitat are addressed throughout the Public Comments section of this document.
(32) Comment: Two commenters expressed concern about the effects of
global climate change and resultant sea level rise on the longterm
viability of the Lower ARB population and of the corridor that connects
the Lower and Upper ARB populations of Louisiana black bear.
Our Response: Our critical habitat designation includes the
hardwood forests on three south Louisiana salt domes (i.e., Avery
Island, Weeks Island, and Belle Isle). The elevations of those domes
far exceed the surrounding landscape, with a maximum elevation [[Page 10357]]
found on Avery Island at 152 feet (ft) (46 meters (m)) above sea level.
Within Critical Habitat Unit 3, we have also included hardwood forests
that are floodprotected by levees and pumps to provide a suitable
travel and habitat linkage to higherelevation habitats to the north.
Within this unit, we have designated a relatively large corridor that
is, to the best of our mapping capabilities, comprised of habitat
containing the PCEs. We used the best available science (described in
detail in the Methods section of this document) to delineate that
corridor in a manner that would facilitate bear movement between the
Lower ARB and higherelevation habitats of the Upper ARB population. We
will continue our negotiations with the Louisiana Department of
Transportation and Development (LDOTD) and FHWA regarding highway
crossings for bears on Hwy. 90 along the subject corridor (previously
described in detail). We will also continue our participation in the
development of a largescale habitat restoration and protection plan to
address both habitat issues and highwayassociated limitations on bear
conservation in the Lower ARB, which will ensure that the subject
corridor can fully support dispersal from expanding bear populations
and the northward migration of bears that may leave coastal habitats
rendered unsuitable by sea level rise. We believe that delineating this
critical habitat boundary to include higherelevation salt dome
forests, floodprotected forests, and a corridor that provides
northward dispersal opportunities, in conjunction with our continued
efforts to resolve highwayassociated limitations to bear dispersal
(including our participation in landscapelevel habitat restoration and
protection planning), is sufficient to address conservation challenges for the Louisiana black bear.
(33) Comment: One commenter recommended that we designate critical
habitat in all areas that support breeding populations and that we include habitat linkages between those populations.
Our Response: We concur and appreciate this validation of our
critical habitat designation strategy, which is to include all areas
that contain features essential to the conservation of the Louisiana
black bear. We have determined that such areas include breeding habitat
with connecting corridors, and, in accordance with this recommendation, we have included all such areas in our designation.
(34) Comment: One commenter stated that we are proposing to
designate critical habitat on too small a portion of the Louisiana
black bear's present range and that we should be allowed to designate
critical habitat beyond areas where the subspecies is currently secure.
Our Response: We are unsure what the commenter means by the term ``where populations are secure.'' However, for inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time of listing must contain the physical and biological features that are essential to the conservation of the species and that may require special management consideration or protection. Under the Act, we can designate critical habitat in areas outside of the geographical area occupied by the species at the time it is listed only when (1) the inclusion of specific areas occupied at the time of listing defined by the essential physical and biological features are not sufficient to conserve the species; and (2) we determine that those areas are essential for the conservation of the species.
As stated above, current breeding habitat was paramount in this
designation, and was based on known locations and home ranges of
reproductive females. We are also designating corridors linking those
core breeding areas based on the best available science (primarily
telemetry studies) and extensive landscapelevel habitat analyses,
which are described in the Methods section of our previous proposal
(May 6, 2008, 73 FR 25354, pp. 25359) and in this final rule. We
determined that those areas are sufficient for the conservation of this subspecies.
(35) Comment: One commenter recommended that we reconsider our
reduction of the 1993 Louisiana black bear critical habitat
determination and our exclusion of the eastern portion of the ARB.
Our Response: We withdrew our 1993 proposal to designate Louisiana
black bear critical habitat (58 FR 63560) concurrently with the
publication of our new proposal in 2008 (73 FR 25354). In that latter
proposal, we explained that the withdrawal was not only to comply with
a court order, but to consider the significant amount of new
information available on this subspecies and its habitat since the
initial proposal published over 15 years ago. At the time of the
initial critical habitat proposal, the resultant boundary was based on
information (both biological and geographical) that was limited and
primarily unpublished and anecdotal in nature. The current critical
habitat boundary is based on numerous published studies including those
by Anderson (1997), Beausoliel (1999), Benson (2005), Boerson et al.
(2003), Hightower et al. (2002), Marchinton (1995), Pelton and Van
Manen (1997), Stinson (1996), Triant et al. (2004), Van Why (2003),
Wagner (1995), and Weaver (1999). Those studies have provided new
insight into Louisiana black bear biology and ecology that was not
available for our 1993 proposal. Therefore, to use the 1993 critical
habitat boundary as a basis for our current designation would not be
incorporating the best available scientific and commercial information.
Our current boundary includes portions, but not all, of the areas
proposed in 1993; it also includes additional areas beyond those that
were initially proposed. This is an entirely new designation, developed
independently of the 1993 proposal, and it is based on sound scientific
findings that were unavailable in 1993. We followed these same
principles in our delineation of the boundary through the ARB. We also
employed new elevation data and digital mapping technologies (described
in detail in the ``Criteria Used to Designate Critical Habitat''
section of this document) to determine areas within the ARB that are
most likely to facilitate bear movement between the Upper and Lower ARB
populations. Our boundary through the ARB does not include all possible
areas that a bear could travel. It includes lands that, based on recent
scientific findings and the latest mapping technologies, contain the features essential for the conservation of the subspecies.
(36) Comment: One commenter recommended that we designate critical
habitat in Mississippi, due to recently documented evidence of
reproduction, and in Texas, due to reported sightings and the area's
position within the historic range of the Louisiana black bear.
Our Response: As described in our response to Comment 20, we have determined that Mississippi does not support breeding populations of the Louisiana black bear. (The ``Criteria Used to Designate Critical Habitat'' section provides additional details regarding the classification of breeding habitat.)
We acknowledge that Louisiana black bear sightings have been
reported throughout Louisiana and in portions of its neighboring States
including eastern Texas. As previously explained, such sightings are
not always evidence of a resident population or of an important (or
even suitable) travel corridor that would warrant designation as
critical habitat. Since its listing as a threatened subspecies in 1992, there has been no
[[Page 10358]]
documented evidence of Louisiana black bear reproduction in Texas.
(37) Comment: Two commenters specifically requested that lands 500
ft (152 m) from the top of the top bank of the Tensas River and lands
within 1,000 ft (305 m) of the landside toe of the Mississippi River
mainline levees be excluded because of future maintenance requirements.
Our Response: The commenters did not provide sufficient information
for us to evaluate the benefits of exclusion of those areas. Therefore,
based on analysis, the protection provided to those lands is not
significantly different from that provided via critical habitat under
section 7 of the Act (i.e., protection from adverse modification or
destruction). Therefore, we have not excluded those lands from critical habitat designation for the Louisiana black bear.
(38) Comment: Numerous commenters, including both private and
governmental entities, expressed opposition to the designation of
critical habitat for the Louisiana black bear. Another commenter stated
that we had exaggerated potential habitat losses in making our
decision. He also stated his belief that the designation of critical
habitat for the Louisiana black bear was about compliance with the
courts and control over land resources and not based on science or the
needs of the bear. Other commenters questioned the need for critical habitat based on increased bear sightings and encounters.
Our Response: According to section 4(a)(3) of the Act, the Service is required to designate critical habitat for threatened and endangered species to the maximum extent prudent and determinable. As a result of a lawsuit filed by Harold Schoeffler and Louisiana Crawfish Producers West, we were issued a September 5, 2007, order from the U.S. District Court for the Western District of Louisiana to: (1) Withdraw the December 2, 1993, proposed rule and submit a new prudency determination and, if prudent, a new proposed critical habitat designation to the Federal Register by April 26, 2008; and (2) submit a final critical habitat determination, if prudent, to the Federal Register by February 26, 2009. As set forth in the proposed rule, in fulfilling the Court's order, we found that critical habitat was prudent and determinable and that designation was prudent (73 FR 25354).
Furthermore, section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions represent the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.
In preparing this final critical habitat designation for the
Louisiana black bear, we reviewed and considered comments from the
public and peer reviewers on the May 6, 2008, proposed designation of
critical habitat (73 FR 25354) and the November 12, 2008, draft
economic analysis (73 FR 66831). We also reviewed the most recent data
for land ownership and habitat types and reevaluated the information and data used in our previous proposal.
(39) Comment: One commenter pointed out that we listed WRP
enrollment as 55,000 ac (22,000 ha) while over 219,459 ac (88,811 ha)
of land in Louisiana have been enrolled in the WRP program.
Our Response: We agree that over 200,000 ac (81,000 ha) have been
enrolled in the WRP program Statewide. The 55,000 ac (22,000 ha) we
reference represent the approximate amount of land enrolled in the WRP within the proposed critical habitat boundary only.
(40) Comment: Two commenters expressed concern about potential
changes to the current forestry exemption (provided in the final rule
listing the Louisiana black bear as a threatened subspecies [57 FR
588]), and the impact on silvicultural activity resulting from Louisiana black bear critical habitat designation.
Our Response: We have not removed or modified the forestry
exemption as written in the final rule listing the Louisiana black bear
as a threatened subspecies (January 7, 1992, 57 FR 588). In our May 6,
2008, proposal to designate critical habitat, we specifically stated
that research supports our conclusion that normal silviculture (i.e.,
timber management that is consistent with the Louisiana Recommended
Forestry Best Management Practices) is compatible with Louisiana black
bear management; therefore, we did not propose any changes to that
special rule under section 4(d) of the Act (at 50 CFR 17.40[i]) as part
of this critical habitat designation. It should also be noted that,
consistent with that special rule, there have been no restrictions, nor
have there been any consultations under the Act, involving
silvicultural activity and potential impacts to Louisiana black bears in the 16 years that the subspecies has been listed.
(41) Comment: One commenter stated opposition to the exclusion of
lands enrolled under a permanent conservation easement in the WRP for
several reasons and stated that these lands should not be used as a
justification to curtail critical habitat boundaries. That commenter
stated that: (1) The proposal is not based on an honest balancing of
the positive and negative, and the Service acted illegally because it
never weighed the benefits of designation against the risks of
designation; (2) the Service cannot use exclusions to undermine
Congress' established purpose for designating critical habitat; (3)
excluding WRPs via 16 U.S.C. 1532(b)(4) is not appropriate and case law
would not support the outcome; (4) the Service presents little or no
evidence to support its conclusion that critical habitat designation is
a deterrent to WRP enrollment; (5) private landowners may not have
voluntarily enrolled into WRP without possible regulatory restrictions;
and (6) the Service failed to acknowledge that landowners receive an
incentive, in the form of financial support from the Federal
government, to enroll in this program. The commenter urged the Service
to include privately owned land held in conservation easements in our
critical habitat designation, as these lands are not afforded the same
level of protection as lands within a critical habitat designation.
Our Response: We have conducted a review and evaluation of the benefits of inclusion and the benefits of exclusion of lands enrolled in permanent easement under the WRP as critical habitat for the Louisiana black bear. We also prese
FOR FURTHER INFORMATION CONTACT
Jim Boggs, Field Supervisor, Lafayette Ecological Services Field Office (see ADDRESSES section). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 8008778339.