9484 federal register /vol. 60, no. 33/friday, february 17, …€¦ · · 2018-03-17and proposed...

9484 Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD20

Endangered and Threatened Wildlifeand Plants; Proposed Special Rule forthe Conservation of the NorthernSpotted Owl on Non-Federal Lands

AGENCY: Fish and Wildlife Service,Interior.ACTION: Proposed Special Rule.

SUMMARY: The implementing regulationsfor threatened wildlife generallyincorporate the prohibitions of Section9 of the Endangered Species Act (Act)of 1973, as amended, for endangeredwildlife, except when a ‘‘special rule’’promulgated pursuant to Section 4(d) ofthe Act has been issued with respect toa particular threatened species. At thetime the northern spotted owl, Strixoccidentalis caurina, (spotted owl) waslisted as a threatened species in 1990,the Fish and Wildlife Service (Service)did not promulgate a special section4(d) rule and, therefore, all of thesection 9 prohibitions, including the‘‘take’’ prohibitions, became applicableto the species. Subsequent to the listingof the spotted owl, a Federal Late-Successional and Old-growth (LSOG)forest management strategy (Plan) wasdeveloped and then formally adoptedon April 13, 1994, in a Record ofDecision (ROD) that amended landmanagement plans for Federal forests innorthern California, Oregon, andWashington. Although this proposedrule refers to the Federal LSOG foreststrategy as the ‘‘Forest Plan’’, it is notedthat the strategy is not a stand-alonemanagement Plan but rather effected aseries of amendments to Forest Serviceand the Bureau of Land Managementplanning documents. In recognition ofthe significant contribution the Plandoes make toward spotted owlconservation and management, theService now proposes a special rule,pursuant to section 4(d) of the Act, toreplace the blanket prohibition againstincidental take of spotted owls with anarrower, more tailor-made set ofstandards that reduce prohibitionsapplicable to timber harvest and relatedactivities on specified non-Federalforest lands in Washington andCalifornia.DATES: Comments from all interestedparties must be received by May 18,1995.

The Service seeks comments from theinterested public, agencies, and interestgroups on this proposed special rule

and the potential environmental effectsof its implementation. A DraftEnvironmental Impact Statement (DEIS)is being developed to accompany thisproposed rule and will be publishedsoon after the proposed rule. The end ofthe comment period on this proposedrule will be extended to coincide withthe end of the public comment periodon the DEIS.ADDRESSES: Comments and materialsconcerning this proposed rule should besent to Mr. Michael J. Spear, RegionalDirector, Region 1, U.S. Fish andWildlife Service, 911 N.E. 11th Avenue,Portland, Oregon 97232–4181. Thecomplete file for this proposed rule willbe available for public inspection, byappointment during normal businesshours, at the above address.FOR FURTHER INFORMATION CONTACT: Mr.Curt Smitch, Assistant RegionalDirector, North Pacific Coast Ecosystem,3704 Griffin Lane SE, Suite 102,Olympia, Washington 98501 (206/534–9330); or Mr. Gerry Jackson, DeputyAssistant Regional Director, NorthPacific Coast Ecosystem, 911 N.E. 11thAvenue, Portland Oregon 97232–4181,(503/231–6159).

SUPPLEMENTARY INFORMATION:

AbstractThe implementing regulations for

threatened wildlife generallyincorporate the prohibitions of section 9of the Endangered Species Act (Act) of1973, as amended, for endangeredwildlife, except when a ‘‘special rule’’promulgated pursuant to Section 4(d) ofthe Act has been issued with respect toa particular threatened species. Whenthe northern spotted owl, Strixoccidentalis caurina, (spotted owl) waslisted as a threatened species in 1990,the Fish and Wildlife Service (Service)did not promulgate a special 4(d) rule.Therefore, all of the Section 9prohibitions for endangered specieswere made applicable to the spotted owlthroughout its range, including theprohibitions against ‘‘take’’ that apply toendangered species under the Act.

Subsequent to the listing of thespotted owl, a new Federal forestmanagement strategy was developedand proposed by the Forest EcosystemManagement Assessment Team(FEMAT), which was established byPresident Clinton following the April 2,1993, Forest Conference in Portland,Oregon. FEMAT was established todevelop options for the management ofFederal LSOG-forest ecosystems innorthern California, Oregon, andWashington within the range of thespotted owl. FEMAT outlined thoseoptions in the report, Forest Ecosystem

Management: An Ecological, Economic,and Social Assessment, which drewheavily upon previous scientific studiesconducted on the northern spotted owl.On July 1, 1993, the President identified‘‘Option 9’’ in the FEMAT Report as thepreferred alternative for managingFederal LSOG-forests in northernCalifornia, Oregon, and Washington.The proposed management scenariounder Option 9 of FEMAT established asystem of late-successional forest andriparian reserves that would, inconjunction with Administrativelywithdrawn and Congressionallyreserved areas, provide the foundationof protected ‘‘old growth’’ habitat thatwould benefit spotted owls, marbledmurrelets, salmon and many other oldgrowth associated species; adaptivemanagement areas (AMAs) andsurrounding ‘‘matrix’’ lands wouldconstitute the remaining forestmanagement designations on Federallands in the planning area. Futuretimber harvesting activities on Federallands within the range of the northernspotted owl were expected to occurprimarily in AMAs and Federal landsdetermined to constitute the ‘‘matrix.’’

A draft Supplemental EnvironmentalImpact Statement was issued in July1993 to assess the environmentalimpacts of the alternatives which wereset forth in the FEMAT Report. A finalSEIS was completed in February 1994,and a Record of Decision was signed onApril 13, 1994. This process culminatedin the formal administrative adoption ofAlternative 9 (a revised version ofOption 9 as it had been presented in theFEMAT Report), which has now becomeknown, simply, as the Forest Plan orPlan. This Plan provides a firmfoundation for the conservation needs ofthe spotted owl, especially in light ofthe net addition of approximately600,000 acres of Federal forest lands toprotected reserve status between itsoriginal formulation in the FEMATReport and the Record of Decision. OnDecember 21, 1994, Federal DistrictCourt Judge William L. Dwyer, issuedhis order upholding the adequacy of thePlan. Judge Dwyer said ‘‘The order nowentered,* * *, will mark the first timein several years that the owl-habitatforests will be managed by theresponsible agencies under a plan foundlawful by the courts. It will also markthe first time that the Forest Service andBLM have worked together to preserveecosystems common to theirjurisdictions.’’

Despite enhanced owl protectionunder the final Forest Plan, however,the Service believes that somesupplemental support from non-Federalforest lands remains necessary and

9485Federal Register / Vol. 60, No. 33 / Friday, February 17, 1995 / Proposed Rules

advisable for owl conservation incertain parts of the range of the owl.

Based upon the possibility that thepreferred alternative of FEMAT (Option9) would eventually be adopted, theService published a Notice of Intent(NOI) in the Federal Register (58 FR69132) on December 29, 1993, and sentout a mailer advising the public of itsintention to prepare an EnvironmentalImpact Statement (EIS) for a proposedspecial rule that would ease restrictionsfor the spotted owl on certain non-Federal forest lands. In response, theService received and evaluated morethan 8,500 public comments. Takingthese comments into consideration, andbased upon additional analyses, theService now proposes a special rule thatwould reduce the prohibition againstincidental take of spotted owls in thecourse of timber harvest and relatedactivities on specified non-Federalforest lands in Washington andCalifornia.

For reasons discussed in more detaillater, the Service is not includingOregon, at this time, within thegeographic scope of this proposedspecial rule. The Service is aware ofongoing efforts within Oregon betweenthe Governor’s office and large andsmall landowners to fashion an ‘‘OregonAlternative’’ to the Service’s proposedaction for the State, as set out in theDecember 29, 1993, NOI. The Service issupportive of this effort and willmaintain the regulatory status quo forspotted owls in Oregon in anticipationthat an ‘‘Oregon Alternative’’ approachto owl conservation will be developed.Thus, by excluding Oregon altogetherfrom this proposed special rule, theService retains for Oregon the originallevel of protection against take for theowl established when the species waslisted on June 26, 1990.

In assessing the conservation needs ofthe northern spotted owl on non-Federallands, the Service was particularlymindful of—(1) The level of protectionto be provided the owl under theFederal reserve and riparian buffersystems established under the ForestPlan, as well as the matrix and adaptivemanagement area prescriptions underthe Plan; (2) the range, location, andnumber of spotted owls on non-Federaland Federal lands; (3) recentlydeveloped State programs to regulateforest practices to benefit the spottedowl; and (4) emerging non-Federallandowner habitat management and owlconservation strategies such as HabitatConservation Plans and agreements toavoid the incidental take of owls.

This special rule proposes to replacethe currently applicable blanketprohibition against incidental take on

non-Federal lands throughout the owls’range with a more particularized set ofprohibitions for Washington andCalifornia. For the State of Washington,incidental take restrictions would berelaxed for approximately 5.24 millionacres of non-Federal land in coniferforests. While only a considerablysmaller acreage figure of non-Federalforest land is presently affected byincidental take prohibitions for thespotted owl, the fear of future owlrestrictions is a significant concern offorest landowners throughout the rangeof the spotted owl. This proposed rulewould ease incidental take restrictionson designated non-Federal lands bylimiting the incidental take prohibitionfor timber harvest activities to actionsthat fail to maintain the 70 acres ofsuitable owl habitat closest to a sitecenter for a spotted owl. By proposingthis action, the Service is not implyingthat incidental take cannot occur untilharvest activities approach and actuallyinvade an owl’s activity center. Rather,the Service is proposing that, in certainportions of the owl’s range, theincidental take of an owl will no longerbe a prohibited activity unless itinvolves harvest activities within anactivity center.

Current incidental take restrictionswould be retained for those spottedowls whose site centers are locatedwithin six designated zones or ‘‘SpecialEmphasis Areas’’ (SEAs) in the State ofWashington. The six SEAs include thewestern portion of the OlympicPeninsula, the Finney Block area, the I–90 Corridor, the Mineral Block area, theSiouxon Creek area and the ColumbiaGorge/White Salmon areas. These areaswere generally chosen to fill in gaps inprotection under the Forest Plan wherethe Federal land base alone appearscurrently to be inadequate to provide forthe conservation of the owl.

In addition, the Service proposes toimplement a ‘‘Local OptionConservation Planning’’ program inWashington to provide an opportunityfor additional relief from incidental takeprohibitions for non-Federallandowners who own between 80 and5,000 acres of forest lands within anSEA. The Local Option process isenvisioned to be the equivalent of a‘‘short form’’ Habitat Conservation Plan.The local option conservation planningprocess would not apply to those areaswhere the Service determines thatsuitable owl habitat (nesting, roosting orforaging habitat) on non-Federal landswithin SEAs can reasonably be expectedto provide important demographicsupport for Federal owl reserves. These‘‘Local Option’’ conservation planswould provide non-Federal landowners

with the flexibility to developalternative prescriptions or restrictionsfor their lands which could achieve alevel of protection comparable to theconservation objectives set forth for theowl in this rule.

For the State of California, thisproposed rule would recognize thesignificant conservation benefitsaccorded the northern spotted owlunder California law by easing theFederal prohibition against incidentaltake from timber harvest activities inmost of the Klamath province of thatState. The zone in which this wouldoccur would be called the KlamathProvince Relief Area. The incidentaltake prohibition for timber harvests inthis Relief Area would be limited toactions which fail to maintain the 70acres of suitable owl habitat closest toa site center for a spotted owl.Additional relief could be provided tonon-Federal landowners in fourpotential ‘‘California ConservationPlanning Areas’’ (CCPAs) referred to asthe California Coastal Area, HardwoodRegion, Wells Mountain-Bully Chooparea, and the California Cascadespursuant to the planning process underthe California Natural CommunitiesConservation Planning (NCCP) Act orthrough completion of a HabitatConservation Plan (HCP) under Section10(a)(1)(B) of the Act (Figure 1 to§ 17.41(c)).

Except for acreage actually locatedwithin owl activity centers, the Servicealso proposes that small landownerswho own no more than 80 acres of forestlands within a given SEA in Washingtonor one of the four potential CCPAs inCalifornia, as of the publication date ofthis proposed rule in the FederalRegister, would be relieved of thegeneral prohibition against incidentaltake. The only exception to thisproposal would be for any smalllandowner who owns any or all of the70 acres of forested lands closest to anowl site center. The incidental takerestriction would continue to applywithin such 70 acres.

The Service also proposes to providelandowners within SEAs in Washingtonor potential CCPAs in Californiaadditional flexibility for avoidingincidental take liability if their lands areintermingled with Federal matrix orAdaptive Management Area (AMA)lands. In such situations, non-Federallandowners would be provided thealternative option at their choosing ofadopting the final harvest prescriptionsdelineated for the surrounding Federalmatrix or AMA lands, in lieu ofmanagement practices which complywith current incidental take restrictions.The one exception to this policy would


be where the adoption of final matrix orAMA harvest prescriptions could resultin the incidental take of an owl whosesite center is located within a ForestPlan reserve or Congressionally reservedor Administratively withdrawn areas. Insuch a case, the incidental takerestrictions would continue to apply forat least two more years, pending reviewof the status of owls in affected reserveor withdrawn areas.

For Tribal forest lands in Washingtonand California, the Service proposes tolift the Federal prohibition against theincidental take of the spotted owl exceptfor harvest activities within theimmediate 70 acres around a site center.Timber harvests conducted inaccordance with Tribal resourceregulations would not be subjected toany additional Federal prohibitionsagainst incidental take of the owl.

Additionally, the Service proposes toinclude a ‘‘sunset’’ provision that wouldlift the incidental take restrictionswithin an SEA or CCPA once the owlconservation goals for that area areachieved. The Service also proposes toprovide a ‘‘safe harbor’’ of certainty forharvest activities within SEAs or CCPAswhere more than 40 percent suitableowl habitat would be retained afterharvest within an owl’s median annualhome range. In those instances wherethe ‘‘safe harbor’’ provision wouldapply, landowners would not be subjectto a take prohibition violation under anycircumstances should an incidental takeof an owl nevertheless occur despite thelandowner’s efforts to avoid take. The‘‘safe harbor’’ provision would notapply, however, to any timber harvestactivities within the closest 70 acres ofsuitable owl habitat surrounding an owlsite center regardless of the percentageof suitable owl habitat left within anowl’s median annual home range.

In addition, the proposal sets out anew approach to provide incentives tonon-Federal landowners to restore orenhance degraded spotted owl habitat,or to maintain existing suitable owlhabitat, without being penalized if theirconservation efforts subsequently attractspotted owls.

Definitions

As used in this proposed rule:‘‘Activity center’’ means the closest 70

acres of suitable habitat around the nesttree of a pair of owls or around theprimary roost of a non-nesting pair orterritorial single owl (see ‘‘site center’’).

‘‘Adaptive management area’’ meansthe ten landscape units that wereadopted in the April 13, 1994, Record ofDecision for development and testing oftechnical and social approaches to

achieving specific ecological, economic,and other social objectives.

‘‘Administratively withdrawn area’’means lands that are excluded fromplanned or programmed timber harvestunder current agency planningdocuments or the preferred alternativefor draft agency planning documents.

‘‘California Conservation PlanningArea (CCPA)’’ means areas in which theState of California Resources Agencycould conduct planning for spotted owlsunder the auspices of the CaliforniaNatural Communities ConservationPlanning Act (CNCCPA) of 1991.

‘‘Congressionally reserved area’’means those lands with Congressionaldesignations that preclude timberharvest, as well as other Federal landsnot administered by the Forest Serviceor Bureau of Land Management,including National Parks andMonuments, Wild and Scenic Rivers,National Wildlife Refuges, and militaryreservations.

‘‘Conservation’’ as defined in theEndangered Species Act generallymeans the use of all methods andprocedures that are necessary to bringany endangered or threatened species tothe point at which the measuresprovided pursuant to the Act are nolonger necessary.

‘‘Demographic support’’ refers to theeffects on a population from acombination of births and deaths suchthat the net result is a stable orincreasing population. For the spottedowl this would occur through provisionand maintenance of: (1) Both suitableand dispersal habitat to supportindividual owls; (2) small clusters orlarger groups of successfully breedingowls; and (3) the successful interactionand movement between individuals andpairs.

‘‘Dispersal’’ refers to movementsthrough all habitat types by: (1) juvenilespotted owls from the time they leavetheir natal area until they establish theirown territory; (2) non-territorial singlespotted owls; or (3) displaced adultssearching for new territories.

‘‘Dispersal habitat’’ means foreststands with adequate tree size,structure, and canopy closure toprovide—(1) cover for dispersing owlsfrom avian predators; and (2) foragingopportunities during dispersal events.

‘‘Federal reserve’’ or ‘‘Forest Planreserve’’ means those Federal landsdelineated in the April 13, 1994, Recordof Decision in which programmedtimber harvest is not allowed and isotherwise severely limited. There aretwo types of reserves—late-successionalreserves, which are designed to producecontiguous blocks of older forest stands,and riparian reserves, which consist of

protected strips along the banks ofrivers, streams, lakes, and wetlandswhich act as a buffer between thesewater bodies and areas where timberharvesting is allowed.

‘‘Habitat Conservation Plan’’ (HCP)means an agreement between the U.S.Fish and Wildlife Service and either aprivate entity, local or countygovernment or State under section10(a)(1)(B) of the Act that specifiesconservation measures that would beimplemented in exchange for a permitthat would allow the incidental take ofa listed species.

‘‘Home range’’ means the area aspotted owl uses and traverses in thecourse of normal activities in fulfillingits biological needs during the course ofits life span.

‘‘Incidental Take’’ means any takingotherwise prohibited, if such taking isincidental to, and not the purpose of,the carrying out of an otherwise lawfulactivity.

‘‘Matrix’’ means those Federal landsgenerally available for programmedtimber harvest which are outside of theCongressionally reserved andAdministratively withdrawn areas,Federal reserves and adaptivemanagement areas as delineated in theStandards and Guidelines adopted inthe April 13, 1994, Record of Decision.

‘‘Province’’ or ‘‘PhysiographicProvince’’ means one of twelvegeographic areas throughout the range ofthe northern spotted owl which havesimilar sets of biological and physicalcharacteristics and processes due toeffects of climate and geology whichresult in common patterns of soils andbroad-scale vegetative communities.

‘‘Record of Decision’’ means the April13, 1994, Record of Decision forAmendments to Forest Service andBureau of Land Management PlanningDocuments Within the Range of theNorthern Spotted Owl (USDA/USDI1994).

‘‘Site Center’’ means the actual nesttree of a pair of spotted owls or theprimary roost of a non-nesting pair orterritorial single owl.

‘‘Special Emphasis Area (SEA)’’means one of six specific areas in theState of Washington where the Servicehas determined that it would benecessary and advisable to continue toapply broad protection from incidentaltake to support conservation efforts forthe spotted owl.

‘‘Suitable Habitat’’ means those areaswith the vegetative structure andcomposition that generally have beenfound to support successful nesting,roosting, and foraging activities of aterritorial single or breeding pair ofspotted owls. Suitable habitat is


sometimes referred to as nesting,roosting, and foraging (NRF) habitat.

‘‘Take’’ means to harass, harm,pursue, hunt, shoot, wound, kill, trap,capture, or collect, or to attempt toengage in any such conduct with respectto a spotted owl.

‘‘Threatened Species’’ means a plantor wildlife species defined through theEndangered Species Act that is likely tobecome within the foreseeable future anendangered species throughout all or asignificant portion of its range.

‘‘Timber harvest and related activity’’means any activity that would result inthe removal or degradation of suitablehabitat.

Background

Regulatory History of the NorthernSpotted Owl

The Service listed the northernspotted owl as a threatened species onJune 26, 1990, because of the past andcontinued projected loss of suitablehabitat throughout its range (55 FR26114). This habitat loss has beencaused primarily by timber harvesting,but has been exacerbated by the effectsof catastrophic events such as fire,volcanic eruption, and wind storms.

The inadequacy of regulatorymechanisms existing in 1990 underState and Federal law also contributedto the decision to list the northernspotted owl as a threatened species.During the period immediately prior tolisting, when the status of the owl wasunder review, the annual Federal timberharvest in Oregon and Washingtonaveraged approximately 5 billion boardfeet per year. Much of that harvestcomprised suitable spotted owl habitat.Thus, Federal timber harvest policies atthat time contributed significantly to thedecline of the owl.

State protection for the owl in 1990was also inadequate. Since that time,California, Oregon and Washington haveall recognized the plight of the owl andhave adopted forest management rulesdesigned to protect this threatenedspecies. The degree of protectionaccorded the northern spotted owlcurrently varies under State law. Thenorthern spotted owl is listed underWashington law as an endangeredspecies, under Oregon law asthreatened, and under California law asa sensitive species.

On January 15, 1992, the Servicedesignated critical habitat for thenorthern spotted owl (57 FR 1796). Thecritical habitat designationencompassed 6.9 million acres ofFederal land in 190 critical habitat unitsin the States of California, Oregon, andWashington; non-Federal lands were not

included in the critical habitatdesignation. Of the total acreage thatwas designated, 20 percent is inCalifornia, 47 percent is in Oregon, and32 percent is in Washington.

Following the April 2, 1993, ForestConference in Portland, Oregon,President Clinton established a ForestEcosystem Management AssessmentTeam (FEMAT) to develop options forthe management of Federal LSOG-forestecosystems to provide habitat thatwould support stable populations ofspecies associated with late-successional forests, including thenorthern spotted owl. FEMATdeveloped ten options for themanagement of LSOG-forest ecosystemson Federal lands in California, Oregon,and Washington, which are outlined inthe Team’s report, ‘‘Forest EcosystemManagement: An Ecological, Economic,and Social Assessment’’ (USDA et al.1993). On July 1, 1993, the Presidentidentified Option 9 as the preferredalternative for amending the Federalagencies’ land management plans withrespect to LSOG forest habitat. Amodified version of Option 9 wasadopted in the April 13, 1994, Record ofDecision for Amendments to ForestService and Bureau of LandManagement Planning DocumentsWithin the Range of the NorthernSpotted Owl (ROD). It is based on asystem of late-successional reserves,riparian reserves, adaptive managementareas, and a matrix of Federal landsinterspersed with non-Federal lands.These designations complementedexisting Administratively withdrawnand Congressionally reserved lands.

The adoption of the Forest Plan wassubsequently upheld in Federal court.On December 21, 1994, Federal DistrictCourt Judge William L. Dwyer rejectedplaintiffs’ challenges and issued anorder upholding the President’s ForestPlan.

An underlying premise for thePresident’s selection of the Forest Planwas that Federal lands should carry adisproportionately heavier burden forproviding for the conservation of thenorthern spotted owl, enabling aneasing of restrictions on incidental takefor the owl on large areas of non-Federallands. President Clinton thus directedthe U.S. Fish and Wildlife Service toissue regulations pursuant to section4(d) of the Act looking to ease, whereappropriate, restrictions on theincidental take of spotted owls on non-Federal lands.

On December 29, 1993, the Servicepublished in the Federal Register aNotice of Intent (NOI) to prepare anEnvironmental Impact Statement insupport of a 4(d) rule for the spotted owl

(58 FR 69132). The NOI spelled outvarious alternative approaches for a 4(d)rule, including a preferred approach orproposed action. This provided apreliminary opportunity for publicinput prior to the actual publication ofthis proposed rule.

Summary of Public Comments onScoping Notice on 4(d) Rule

The Service received more than 8,500comments from the public on itsscoping notice for a section 4(d) rule EISfor the spotted owl. Most commentsreceived were in response to a January3, 1994, special mailer sent by theService to approximately 80,000recipients. The Service specificallyasked for suggestions on issues to beaddressed in the 4(d) rule. In general,the comments reinforced issues andconcerns identified in previousplanning efforts for the spotted owl.

In the scoping notice, the Servicesought comments on ten specific issues.The comments received are summarizedbelow, by issue:

(1) Biological, commercial, trade, orother relevant data on the distributionand abundance of the northern spottedowl on non-Federal lands in California,Washington and Oregon.

No new data or information wasprovided to the Service relative to thisissue.

(2) Biological, commercial, trade orother relevant data on the distributionand abundance of the northern spottedowl that identifies the effects of thealternatives for a section 4(d) rule on thenorthern spotted owl.

No new data or information wasprovided to the Service relative to thisissue.

(3) The scope of the issues that havebeen identified for the environmentalimpact statement on a proposed specialrule.

In addition to the issues identified inthe scoping notice, commentersidentified several additional issues forthe Service to consider. Severalcommenters objected to any provisionrequiring that 40 percent of suitablehabitat be retained within the medianannual home range circle of an owllocated within SEAs, and, because itmeans that 60 percent of suitable habitatwithin a home range may be lost,requested an explanation of thebiological basis for such a provision.They also requested that the Serviceconsider how habitat modification onnon-Federal land will affect owls onadjacent Federal lands.

Comments from non-Federallandowners requested that the Serviceconsider the possible economic benefitsof a variety of silvicultural regulations


to protect owl habitat. They also askedthat the Service evaluate whether theSEA concept fully takes into account thecontributions already provided by Stateagencies and those already in place onFederal lands, and whether theregulatory burden of the SEAs isdisproportionate to the benefits.

(4) The range of alternatives that havebeen identified for the environmentalimpact statement on a proposed specialrule.

A number of commenters providedsuggestions for additional alternativesfor Service consideration. Theseincluded requests to increase or relievethe prohibitions against incidental take,to consider the development of aprogram based entirely on voluntaryparticipation by forest land managers, tonot use SEAs and use only 70 acre owlcircles rangewide, and to provideincidental take protection only tolandowners who sell to domesticmarkets. Some commenters requestedthat the Service provide an alternativewith incentives for growing habitat, orto buy or exchange land instead ofpromulgating a section 4(d) rule.Another suggestion was to transplantspotted owls rather than use a specialrule to provide for connectivity, anddepend on Federal lands to provide theland base for connectivity.

Other suggested alternatives includedusing existing exceptions toprohibitions, such as the HCP process,in combination with a final recoveryplan for the owl; protecting previouslyproposed critical habitat on privatelands in addition to, or instead of, theSEAs; and applying the 50–11–40 ruleto SEAs in addition to, or instead of,retaining 40 percent of suitable habitatwithin a home range.

Modifications of the alternatives werealso suggested. Some examples includereplacing the SEAs in Washington withthe areas proposed to the WashingtonForest Practices Board in a report by theSpotted Owl Scientific Advisory Group(SAG report), to add an SEA forsouthwestern Washington, and toreduce or exclude the OlympicPeninsula SEA.

Comments specific to Californiaalternatives included requests toprovide a separate 4(d) rule forCalifornia; to apply the Washington/Oregon approach with SEAs toCalifornia; to repeal existing owl rulesand designate specific ‘‘no take’’ areas;and to maintain existing prohibitions oftake and adopt the California Board ofForestry’s new late-successional forestrules.

(5) Input on how suitable habitat forthe marbled murrelet should beidentified and how it should be

protected, and data on marbled murreletdistribution and abundance on non-Federal lands.

Numerous comments were receivedon the marbled murrelet, with moststating that it is inappropriate to includethe murrelet in the regulatory processfor the spotted owl because not enoughinformation about murrelets is availableat this time to attempt a regulatorydefinition of incidental take, and thatany rule for the murrelet should be doneseparately. One commenter stated thatthe Service should consider adopting aninterim 4(d) rule for marbled murreletsthat can be refined at a later datebecause they are associated with thesame forest ecosystem as the spottedowl, and that all suitable murrelethabitat should be addressed includingmarine habitat. Another suggested that,in identifying marbled murrelet habitat,the emphasis should be on a definitionthat recognizes large contiguous areas ofhabitat capable of supporting largenumbers of birds, and not on definingthe lowest possible quantity and standsize used.

(6) Input on the use of ‘‘local options’’to allow individuals to proposeadjustment to prohibitions against takeof northern spotted owls without goingthrough the normal habitat conservationplanning process.

The potential use of the local optionplan was responded to favorably bymany commenters. Most said that a‘‘local option’’ plan should be includedas an additional tool to protect owls andto provide landowner flexibility, andthat these should provide the same legalprotection as HCPs. Others stated thatthe rule should provide flexibility forapplying local options based on theexpertise and knowledge of Stateforestry associations, State governments,and forest landowners.

(7) Consideration of a smalllandowner exemption for non-commercial forest land of ten acres orless.

Many commenters addressed thisissue with the majority recommendingthat the Service carefully examine andexplain the rationale and biologicalbasis for such an exemption, andsuggesting that any provision to haveless restrictive measures for smalllandowners would unfairly shift theburden of responsibility to the largerlandowners. Others suggested that suchan exemption may tend to break largeownerships into smaller ownerships.Some expressed the view that whileappealing, it may set up an arbitrarydistinction between landowners basedon size, and that the 10 acre sizespecified in the scoping notice was toosmall to be meaningful.

(8) Boundaries of the SEAs in theproposed action, including the impactsand effects of alternative boundaries.

Few suggestions were receivedrelative to specific boundary changes.Many comments were receivedregarding the number of SEAs, thedesignation or lack of designation ofspecific SEAs, and the general use of theSEA concept. Among the commentsspecific to the boundaries was thesuggestion that the Mineral Block and I–90 Corridor SEAs should extend nofarther west than necessary to providereasonable connectivity between theFederal conservation areas to the northand south.

Regarding the Olympic PeninsulaSEA, comments included the assertionthat there should be no SEA on theOlympic Peninsula because Federallands should be relied on for owlconservation in this area. Anothersuggestion was that the Service movethe southern boundary of the proposedOlympic Peninsula SEA northward torun east and west from the southernboundary of the Olympia NationalForest. It was further suggested that onlythe State of Washington’s OlympicExperimental Forest be included in theSEA for the Olympic Peninsula, andthat this SEA be rescinded following theapproval of an HCP for the State Forest.

Many commenters were specificallyconcerned about the failure to designatethe White Salmon landscape as an SEAto provide demographic interchangebetween owls on the Yakima IndianReservation and Federal lands in theeastern Washington Cascades. Othercommenters noted that there is nodemonstrated need for an SEA in theWhite Salmon or Hood River areas.

Many commenters asked that theService provide the scientific basis fordetermining the configurations andboundaries of the SEAs. There werefurther suggestions that for SEAboundaries, the rule must specify therequirements of ‘‘owl shadows’’(restrictions on adjacent lands near anowl site center) both within and outsideof SEA’s. Some commenters stated thatthe Service should eliminate all SEAs asthey would provide further harvestrestrictions which would be undulyburdensome, and that they go beyondthe Act by mandating conservationmeasures on privately owned land.

(9) Possible mitigation measures, suchas multi-species Habitat ConservationPlans or conservation agreements thatprovide long-term enforceable andprotective land managementprescriptions for non-Federal lands.

Several commenters referenced theuse of the HCP process, requesting thatthe Service clarify the relationship


between HCPs and the 4(d) rule.Specifically, they asked, in the absenceof an SEA designation, what guaranteeswould there be that habitat will beprotected between the time the 4(d) rulegoes into effect (and relief is granted)and the time HCPs are completed. Therewas also concern expressed that theremay be a lack of incentives for otherlandowners to develop HCPs if there isno SEA designated. Others suggestedthe 4(d) rule state that it will not applyto lands covered by an approved HCP.Specific to California wererecommendations that the Serviceencourage the State to continue torecognize Federally approved HCPs as avalid means of complying withregulations the State adopts as a resultof the 4(d) process.

(10) Retention of Federal incidentaltake restrictions for Indian forest landsincluded within the boundary of anSEA.

Many comments were receivedregarding this issue, and most suggestedthat it may be inappropriate to imposeFederal take prohibitions on triballands. One commenter stated that inpromulgating the special rule, theService should direct attention to thespecial status of Indian tribal lands asdistinct and separate in treatment fromother non-Federal State and privatelands; the Service should adopt aspecial rule that exempts Indian forestlands from the prohibitions againstincidental take, including any that maybe in SEAs.

Some proponents of owl protectionstated that the Service should not lifttake prohibitions on tribal lands in theabsence of criteria to ensure that the owlis adequately protected by tribalmanagement practices. They noted thatprogress on the part of the tribes isvariable, and this should be evaluatedbefore lifting restrictions within SEAs.Others commented that the special ruleshould ensure that measures governingincidental take of the owl on Indianforest lands contribute to theconservation of the species.

In addition to the ten issues for whichthe Service requested input, commentswere received on numerous other issuesrelative to the proposed action. Threegeneral areas of interest were commonin the comments from non-industriallandowners—(1) the proposed section4(d) rule was a disincentive to growhabitat for spotted owls and to practicegood silviculture; (2) the proposed rulerepresented an unconstitutional takingof private property and that privatelandowners should be compensated;and (3) the proposed 4(d) rule places anunfair burden on non-Federal lands and

actually provides little relief to privatelands.

Comments from industriallandowners included a request for ‘‘safeharbor’’ from prosecution if therequirements of the 4(d) rule were metand more that 40 percent suitablehabitat was left within an owl circleafter harvest; and the suggestion that the4(d) rule assist in addressing the issueof access across Federal lands to non-Federal lands. Concern also wasexpressed about potential conflict withanti-trust laws when implementing,among several landowners, therequirement that 40 percent suitablehabitat be left within a home rangecircle, and some asked that an anti-trustexemption be provided for multiplelandowners who have to deal withlandscape issues. One commenter alsoasserted that the creation of SEAs is ade facto designation of critical habitatthat must comply with the requirementsof § 4(B)(2). Several commenters statedthat there is no legal basis under the Actfor burdening private lands withrecovery of a threatened species, andthat the 4(d) rule was essentially arecovery mechanism being forced onprivate lands.

Proponents of spotted owl protectionalleged that the scientific basis for theproposed action is unclear, and it isparticularly unclear in how it relates tothe recovery standards and objectivesfor the owl. They suggested that anyspecial rule for the spotted owl must bepart of a coordinated recovery approachamong all Federal agencies withresponsibility for the owl. There werenumerous references to the SAG report,and that the special rule should providethe level of protection as proposed inthe SAG report.

Several commenters asked that therule provide clearer definitions for‘‘take’’ and ‘‘suitable habitat.’’ Therewere requests for information on theland ownership within SEAs, thenumber of owls present, and theanticipated level of incidental take.Others also requested informationregarding the specific acreage of Stateand private lands off limits to harvestunder the proposed action. There alsowere questions about how the rulewould describe and determine the 70acres to be protected around activespotted owl nests outside of SEAs.

After reviewing these publiccomments, as well as other owlmanagement strategies and analyses, theService now proposes this special rulein response to the President’s directiveto review the blanket set of incidentaltake prohibitions for the northernspotted owl that has been in effect sincethe listing. In particular, this proposed

rule would relax incidental takerestrictions for the owl for timberharvests for certain non-Federal lands inWashington and northern California.This proposed special rule excludesOregon, however, and does not proposeany changes in the regulatoryprohibitions to protect the owl whichare currently applicable within thatState. In March and December 1994, theService received letters from the OregonCongressional Delegation requestingthat further work on a 4(d) rule forOregon be suspended to provide anopportunity for consensus to emergeamong State officials and privatelandowners on a strategy for theconservation of the spotted owl.Recognizing the benefits that such aconsensus approach offers, the Serviceagreed in May 1994, to suspend furtherwork on a federally developed 4(d)special rule proposal for Oregon inorder to encourage the development ofa ‘‘stakeholder’’ based ‘‘OregonAlternative’’.

The Governor’s office in Oregon hastaken the lead in working cooperativelywith non-Federal landowners throughthe Oregon Forest Industries Council,Oregon Small Woodlands Association,Northwest Forestry Association,Douglas County, and others to developan alternative owl conservation strategy.The Service is supportive of thisapproach and is willing to review andconsider any State conservationproposal which results from thisprocess.

Under the existing regulatorystructure implementing section 4(d) ofthe Endangered Species Act, eachsection 4(d) ‘‘special rule’’ for athreatened species must contain all ofthe applicable prohibitions andexceptions for that species throughoutits range (50 CFR 17.31(c)). Thus, in thepast, Oregon would have been includedin this proposed 4(d) rule, even if onlyto preserve the current regulatory statusquo protecting the spotted owl inOregon.

In reviewing the request for exclusionfrom Oregon, the Service has assessedwhether it would be advantageous toadopt a new approach for dealing withspecial rule situations in the future byauthorizing the revision of a listing of athreatened species through thesubsequent publication of a special rulethat covers only part of, but not all of,the range of the species. Under thisapproach, the general prohibitions andexceptions applicable to threatenedspecies not covered by special ruleswould continue to apply in that part ofthe range of the species not includedunder the provisions of a subsequentspecial rule. After consideration of the


relevant factors on this matter, theService has decided to adopt this newapproach for special rules and issimultaneously proposing additionaltechnical amendments to 50 CFR 17.11and 50 CFR 1731(c) to accomplish thischange.

In the specific case of the northernspotted owl, the owl was originallylisted as threatened without a specialrule, and is subject to the same generalprohibitions and exceptions which areapplicable to endangered speciespursuant to the current provisions of 50CFR 17.31(a). These generalprohibitions include a rangewideprohibition against the incidental takeor harm of an owl. These prohibitionsapply throughout the owl’s range,including the State of Oregon. TheService now proposes a section 4(d)special rule for the owl that applies onlyto the States of Washington andCalifornia. Because the proposal for aspecial rule only encompassesWashington and California, under itscurrent formulation owls in Oregonwould remain fully protected againstincidental take or harm under theprohibitions established for the owlwhen it was originally listed. Aspreviously noted, the Service ispresently proposing the requisitetechnical changes to 50 CFR 17.11 and50 CFR 17.31(c), as discussed above, toallow for the issuance of a special rulethat applies to only part of the range ofa threatened species like the spottedowl, while retaining the originalprotective prohibitions for theremainder of the species’ range inOregon.

If a new ‘‘Oregon Alternative’’proposal for the owl is subsequentlydeveloped which is found to beconsistent with the requirements of theAct, the Service will initiate an analysisof the new proposal under the NationalEnvironmental Policy Act and initiateappropriate regulatory proceedings atthat time.

Section 4(d) of the Endangered SpeciesAct

The scope and authority for thisproposed rule stems from section 4(d) ofthe Act, which grants the Secretary ofthe Interior broad administrativediscretion to promulgate regulationsthat he deems to be necessary andadvisable to meet the conservationobjectives for a threatened species. Thesection also confers authority to theSecretary to apply to a threatenedspecies any or all of the prohibitionsagainst take that the Act makesexpressly applicable to endangeredspecies. The pertinent parts of section4(d) provide:

* * * Whenever any species is listedas a threatened species pursuant tosubsection (C) of this section, theSecretary shall issue such regulations ashe deems necessary and advisable toprovide for the conservation of suchspecies. The Secretary may byregulation prohibit with respect to anythreatened species any act prohibitedunder section 9(a)(1) . . . with respectto endangered species.* * *

As applied, this provision empowersthe Service to promulgate a special rulewhich adopts species-specific protectiveregulations upon listing a species asthreatened. Such a special rule mayinclude imposition of the section 9(a)prohibition against ‘‘take,’’ in some orall of its particular manifestations, andin all or a portion of the species’ range,as well as other protective measures.While Congress expressly mandatedcertain protections for endangeredspecies by statute (the section 9(a)(1)prohibitions), it intended to provide theService with flexibility in determiningwhat protections are necessary andadvisable for threatened species. Section4(d) is that grant of rulemakingauthority, and it provides the Secretarywith broad discretion to adoptregulations for the conservation ofthreatened species.

In many circumstances the Servicedeclines to issue a special rule for athreatened species at the time it islisted, often because the Service doesnot have sufficiently specific knowledgeor the resources necessary to develop atailor-made rule. In this event, thegeneral threatened species regulations at50 CFR 17.31 come into effect, whichprovide for automatic application tothreatened species of the prohibitionsthe Act itself makes applicable toendangered species. These ‘‘blanket’’prohibitions act as a ‘‘safety net’’ forthreatened species until such time asthe Service determines that it isappropriate to issue a special rule forthe species.

This latter course has been followedwith respect to the northern spottedowl. When the species was listed asthreatened in June of 1990, the Servicedid not promulgate a species-specificspecial take rule under Rule 4(d), andthus the blanket prohibitions weretriggered into effect. The Service nowhas determined that it is appropriate toissue a special rule tailor-made for thisspecies, based on the Service’s moreparticularized knowledge about therespective conservation needs of the owlacross the various portions of its range,and the change in LSOG-forestmanagement occasioned by adoption ofthe Forest Plan. Because this proposedrule does not involve regulated take,

e.g., authorization of private predatorcontrol or sport seasons, the provisionsof section 3(3) regarding examination ofpopulation pressures are not invoked.

The adoption of the Forest Plan—acomprehensive, interagency strategy formanagement of Federal-LSOG forests inthe owl’s range designating nearly 7.5million acres as late-successionalreserves—is the major predicate for theService’s proposal of this special rulefor the owl. Upon issuing the BiologicalOpinion on the Forest Plan, the Servicestated that the plan ‘‘will accomplish orexceed the standards expected for theFederal contribution to recovery of thenorthern spotted owl and assurance ofadequate habitat for its reproductionand dispersal.’’ Thus, the Forest Plan isthe primary foundation block for owlrecovery. This proposed rule wouldcomplement the Forest Plan andprovide for the conservation of the owlby retaining taking prohibitions on non-Federal lands in a manner designed tobuild on the protections the Forest Planhas provided. Further, the Service hasconcluded that the owl takeprohibitions that would no longer applyunder this proposed rule are no longereither necessary or advisable to providefor the conservation of the owl,especially in light of the Forest Plan’sadoption.

In addition, as has been the case inother section 4(d) regulations, theproposed rule ultimately wouldpromote overall owl recovery efforts inother ways. For example, with respect toa 4(d) rule issued for the threatenedpopulation of gray wolves (Canis lupus)in Minnesota, the Service determinedthat a government-implementeddepredation control program thatincludes the possibility of lethal controlmeasures would alleviate a source ofpublic hostility to the wolf and would,therefore, be protective of the species(see 50 CFR 17.40(d)). For the Louisianablack bear (Ursus americanus luteolus),the Service promulgated a regulationunder section 4(d) that authorized theunintentional take of bear incidental tonormal forest practices so long assuitable habitat diversity for the bearwas maintained (see 50 CFR 17.40(i); 56FR 588, 593). As another instance, theService has proposed to authorize thetake of the threatened coastal Californiagnatcatcher (Polioptila californicacalifornica) incidental to land useactivities conducted in accordance witha State of California-sponsored NaturalCommunity Conservation Plan (58 FR16758). In the case of the northernspotted owl, the Service is coordinatingapplicability of the take prohibitionwith the comprehensive managementstrategy in the Forest Plan and the


initiation of a comprehensive campaignto encourage Habitat ConservationPlanning in key portions of the owl’srange.

Generally, incidental take couldinvolve either the harm or harassment ofa spotted owl. The harassment of thenorthern spotted owl would occurthrough disturbance of active nestingpairs or territorial single owls within anactivity center; harm would result fromsignificant owl habitat removal aroundand beyond spotted owl site centers.

Incidental Take of Spotted Owls:‘‘Harassment’’

Timber harvest and related activitiesthat disturb the breeding and nestingfunctions of spotted owls within activitycenters during the breeding season canbe considered incidental harassment ofindividual spotted owls. Incidentalharassment may include activities thatcould result in disturbance of nestingspotted owls or the abandonment ofeggs, nestlings, or fledgling spottedowls. More specifically, incidentalharassment of spotted owls generallycan include harvest activities that occurwithin the closest 70 acres of suitablehabitat surrounding a site center duringthe owl’s reproductive period. (Thereproductive period generally isbetween March 1 and September 30 ofeach year. These dates may be modifiedwhere credible scientific informationestablishes a different time period for agiven area.) Actions with the potentialto disturb nesting spotted owls include,but are not limited to, harvest relatedactivities such as felling, bucking, andyarding; road construction; and blasting.

A study by Miller (1989) examinedthe area used by fledgling spotted owljuveniles in Oregon. Radio-telemetrydata showed that the average amount ofnesting, roosting, and foraging habitatused by fledgling spotted owls prior todispersal was approximately 70 acres insize. Under existing conditions in manyareas, these activity centers are seldomevenly distributed around a nest tree.Mortality rates for juvenile spotted owlsare significantly higher than for adults(Forsman et al. 1984, Gutierrez et al.1985, Miller 1989). Studies of juveniledispersal in Oregon and Californiaindicated that few of the juvenilespotted owls survived to reproduce(Miller 1989, Gutierrez et al. 1985).These research studies all reported veryhigh mortality during pre-dispersal.

Based on this and other information,the Service believes that themaintenance of the closest 70 acres ofexisting suitable (nesting, roosting, andforaging) habitat surrounding the nesttree will contribute to a secure core areaand is crucial to maximize fledgling

success and to provide a partial bufferagainst disturbance around the sitecenter. To avoid harassment, residentspotted owls are considered to benesting unless surveys conductedduring the breeding season indicate thatnot to be the case.

Incidental Take of Spotted Owls:‘‘Harm’’

To successfully reproduce andmaintain populations, studies havesuggested spotted owls requiresubstantial quantities of suitable(nesting, roosting, and foraging) habitatarrayed around their site centers.

A number of radio-telemetry studieshave described the quantity andcharacteristics of habitat used byspotted owls. Studies by Hayes et al.(1989) found a strong positiverelationship between the abundance ofspotted owls and the percentage of olderforests in the study area. A similaranalysis was performed on datacollected by Bart and Forsman (1992).The results showed that the number ofspotted owls per square mile, pairs ofowls per square mile, young per squaremile, and young per pair increased withincreasing amounts of older forestwithin the study area. Productivity(number of young fledged per pair)increased significantly with increasingamounts of older forest. Productivity inareas with greater than 60 percent olderforest was approximately three timeshigher than productivity in areas withless than 20 percent older forest.

Documentation in the 1990 StatusReview of the Northern Spotted Owl(USDI 1990a) indicates that productivityper pair is lowest in areas with smallamounts of older forest. This stronglysuggests that, even if some spotted owlspersist in such areas, there is reason tobelieve they are not reproducing andsurviving at replacement levels.

The above research findings havesupported the determination in the pastthat reduced quantities of suitablehabitat are likely to result in lowerspotted owl abundance and productivityrates. It has also been suggested that asignificant reduction of nesting,roosting, and foraging habitat within themedian annual home range of a spottedowl pair or resident single creates amuch higher risk of adverse effects thatactually kill or injure owls bysignificantly impairing essentialbehavioral patterns, including breeding,feeding, and/or sheltering. These are theprimary elements of effects thatultimately can cause harm to, and theincidental take of, spotted owls.

Recognizing the need to assist thepublic in avoiding the incidental take oflisted species, the Fish and Wildlife

Service and the National MarineFisheries Service (NMFS) issued a jointpolicy statement on July 1, 1994,committing the agencies to provide asmuch guidance and assistance to thegeneral public as possible so as to avoidliability under the ESA for incidentaltakings (59 FR 34272, 1994). The policystatement also committed the agenciesto designate in future listing packages akey contact person within either theService or NMFS, as appropriate, toanswer incidental take questions fromthe general public.

In the particular case of the spottedowl, the Service has encouraged thepublic to conduct owl surveys ofproperty proposed for harvest ordevelopment, as a primary means ofavoiding harassment or harm to an owl.The Service has recommended that suchsurveys be conducted according to aMarch 17, 1992, Service-endorsedsurvey protocol (USFWS 1992),available upon request from the FWSEcological Services State Offices listedbelow:Sacramento Field Office, U.S. Fish and

Wildlife Service, 2800 Cottage Way,Suite E–1803, Sacramento, California95825, 916–978–4866, Attn: FieldSupervisor

Oregon State Office, U.S. Fish andWildlife Service, 2600 S.E. 98thAvenue, Suite 100, Portland, Oregon97266, 503–231–6179, Attn: FieldSupervisor

Washington State Office, U.S. Fish andWildlife Service, 3704 Griffin LaneS.E., Suite 102, Olympia, Washington98501–2192, 206–753–9440, Attn:Field Supervisor

Biology of the Northern Spotted OwlThe spotted owl is a long-lived bird

that has a high degree of nest-sitefidelity within an established territory.This proposed rule incorporates, byreference, recent documents addressingthe biology and ecology of the spottedowl, its habitat, and associatedmanagement strategies in Washington,Oregon, and California, including: thefinal rules listing the spotted owl asthreatened and designating its criticalhabitat; the Interagency ScientificCommittee (ISC) report (Thomas et al.1990); the Scientific Analysis Teamreport (Thomas et al. 1993); the finaldraft Recovery Plan for the NorthernSpotted Owl (USDI 1992); the ForestEcosystem Management AssessmentTeam (FEMAT) report (USDA et al.1993); the supporting documents for theForest Plan (USDA/USDI 1994 a and b);and the Contribution of Federal andNon-Federal Habitat to Persistence ofthe Northern Spotted Owl on theOlympic Peninsula, Washington


(Holthausen et al. 1994). The proposedrule also considered the WashingtonSpotted Owl Scientific Advisory Groupreports (Hanson et al. 1993 andBuchanan et al. 1994).

The range of the spotted owl has beendivided into 12 physiographic provinces(USDA/USDI 1994a): the Eastern andWestern Cascades, Western Lowlands,and Olympic Peninsula Provinces inWashington; the Eastern and WesternCascades, Coast Range, WillametteValley, and Klamath Provinces inOregon; and the Klamath, Coast, andCascades Provinces in California. TheKlamath province was divided into twosubprovinces by State—the OregonKlamath Province and the CaliforniaKlamath Province—even though the twoprovinces are part of the samegeographic area (Figure 4 to § 17.41(c)).

Habitat CharacteristicsNorthern spotted owls generally have

large home ranges and use large tractsof land containing significant acreage ofolder forest to meet their biologicalneeds. The median annual home rangesize of a northern spotted owl, whichvaries in size from province to province,is approximated by a circle centered onan owl site center. Estimated medianannual home range sizes represent thearea used by half of the spotted owlpairs or resident singles studied to datewithin each province to meet theirannual life history needs.

Home range sizes were estimated byanalyzing radio-telemetry home rangedata from studies conducted on theannual movements of spotted owl pairs,referenced in the 1990 Status Review(1990a) and the Interagency ScientificCommittee report (Thomas et al. 1990).

Based on studies of owl habitatpreferences, including habitat structureand use and prey preference throughoutthe range of the owl, spotted owl habitatconsists of four components: (1)Nesting, (2) roosting, (3) foraging, and(4) dispersal. Although this habitat isvariable over the range of the spottedowl, some general attributes arecommon to the owl’s life-historyrequirements throughout its range. Theage of a forest is not as important fordetermining habitat suitability for thenorthern spotted owl as the structureand composition of the forest. Northerninterior forests typically may require150 to 200 years to attain the attributesof nesting and roosting habitat;however, characteristics of nesting androosting habitat are sometimes found inyounger forests, usually those withsignificant remnant trees from earlierlate-successional stands.

The attributes of superior nesting androosting habitat typically include a

moderate to high canopy closure (60 to80 percent closure); a multi-layered,multi-species canopy with largeoverstory trees; a high incidence of largetrees with various deformities (e.g., largecavities, broken tops, mistletoeinfections, and debris accumulations);large accumulations of fallen trees andother debris; and sufficient open spacebelow the canopy for owls to fly(Thomas, et al. 1990).

Spotted owls use a wider array offorest types for foraging, including moreopen and fragmented habitat. Habitatthat meets the spotted owl’s need fornesting and roosting also providesforaging habitat. However, some habitatthat supports foraging may beinadequate for nesting and roosting. Inmuch of the species’ northern range,large, dense forests are also chosen asforaging habitat, probably because theyprovide relatively high densities offavored prey, the northern flyingsquirrel (Glaucomys sabrinus), as wellas cover from predators. Because muchof the flying squirrel’s diet is fungalmaterial, old decadent forests providesuperior foraging habitat for owls. Insouthern, lower-elevation portions ofthe owl’s range, the species often foragesalong the edges of dense forests and inmore open forests, preying on thedusky-footed woodrat (Neotomafuscipes).

In general terms, suitable habitatmeans those areas with the vegetativestructure and composition necessary toprovide for successful nesting, roostingand foraging activities sufficient tosupport a territorial single or breedingpair of spotted owls. Suitable habitat issometime referred to as nesting, roostingand foraging (NRF) habitat.

Although habitat that allows spottedowls to disperse may be unsuitable fornesting, roosting, or foraging, it providesan important linkage among blocks ofnesting habitat both locally and over therange of the northern spotted owl. Thislinkage is essential to the conservationof the spotted owl. Dispersal habitat, ata minimum, consists of forest standswith adequate tree size and canopyclosure to provide some degree ofprotection to spotted owls from avianpredators and to allow the owls toforage at least occasionally.

Suitable and dispersal habitat vary byprovince and are described separatelyunder the discussion of each provincein the following section.

Discussion of Spotted Owl Provinces byState

As previously noted, the range of thenorthern spotted owl has beensubdivided into 12 separate provinces(Figure 4 to § 17.41(c)). For purposes of

this rule, the Klamath province has beendivided into two provinces by State—the California Klamath province and theOregon Klamath province—even thoughthe two provinces are part of the samegeographic area. In California, the threeprovinces are the California Cascades,California Klamath, and CaliforniaCoast. The Oregon Coast Ranges,Willamette Valley, Oregon Klamath,Western Oregon Cascades, and EasternOregon Cascades constitute the fiveprovinces of Oregon. The fourWashington provinces are the EasternWashington Cascades, WesternWashington Cascades, WesternWashington Lowlands, and the OlympicPeninsula. Only the seven provinces inWashington and California are thesubject of incidental take prohibitionmodifications under this proposed ruleand will therefore be discussed in moredetail below.

Washington

1. Washington Olympic PeninsulaProvince

The Washington Olympic Peninsulaprovince is bordered by the PacificOcean on the west, the Straits of Juan deFuca on the north, Hood Canal on theeast, and State Highway 12 to the south(Figure 4 to § 17.41(c)). Of the threemillion acres in the province,approximately 51 percent are in Federalownership. The central portion of theprovince is high, mountainous terrain,surrounded by lower elevation forestthat provides habitat for the spottedowl. Almost all Federal lands on thePeninsula have either been designatedas a late successional or riparianreserves under the Forest Plan or havebeen Congressionally withdrawn fromtimber harvest; only 8,400 acres ofFederal forest land on the Peninsula areavailable for programmed timberharvest. In general, the province isdemographically isolated from otherparts of the owl’s range. Naturalcatastrophic events such as windstormsand wildfires are threats that have thecapability of destroying thousands ofacres of habitat.

The recent report by Holthausen et al.concluded that ‘‘* * * it is likely, butnot assured, that a stable population ofowls would be maintained * * *’’ onFederal lands in the Olympic PeninsulaProvince. However, the report also notesit would be ‘‘unlikely’’ that owls wouldpersist on ‘‘* * * the western coastalstrip of the National Park, * * *’’ ifnon-Federal habitat on the western sideof the Peninsula were excluded fromcurrent Federal protection for owls. Thereport went on to explain that ‘‘theretention of non-Federal habitat in the


western portion of the peninsula wasparticularly significant and provided fora larger area of core habitat on Federalland in model analyses. In addition, theretention of this habitat would likelyincrease the chances of maintaining apopulation on the coastal strip of theOlympic National Park.’’ Whencomparing the relative value of an SEAon the western side of the Peninsulawith a possible SEA on the northernside of the Peninsula, the report notedthat the western SEA ‘‘made a muchgreater contribution to owl numbers andoccupancy rates than did the northernSEA * * *. Mean numbers of pairs overthe 100-year simulation was as largewith the western SEA alone as withboth SEAs.’’ Thus, non-Federal lands onthe northern portion of the Peninsulawere not viewed as having anyappreciable capability of making asignificant contribution to the long-termconservation of the spotted owl on theOlympic Peninsula.

Finally, the report stated that attemptsto maintain a ‘‘habitat connection acrosssouthwestern Washington * * * wouldhave little effect on the status of the owlpopulation on the Peninsula if thatpopulation was stable or nearly stable.’’In other words, recent analysis suggeststhat the likelihood of addressing pastconcerns about the need to connect theOlympic Peninsula owl population tosouthwestern Washington owls in orderto maintain a viable population is verylow, given current conditions,especially when relying on theapplication of incidental takeprohibitions. According to Holthausen,et. al, ‘‘* * * the populations of owlson the Peninsula is sufficiently large toavoid any short to mid-term loss ofgenetic variation, * * *’’ Except for thewestern portion of the Peninsula wherenon-Federal lands are still important,the major problem for owls on thePeninsula is the past loss of suitablehabitat on Federal lands.

a. NRF Habitat. NRF habitat on theOlympic Peninsula consists, as a generalmatter, of coniferous or mixedconiferous/hardwood forest withmultiple canopy layers; multiple largeoverstory conifers greater than 20 inchesin diameter at breast height (dbh); andtotal canopy closure among dominant,co-dominant and understory trees ofgreater than 60 percent.

b. Dispersal Habitat. Dispersal habitaton the Olympic Peninsula consists, as ageneral matter, of coniferous or mixedconiferous/hardwood forest withsmaller dominant trees or lower canopyclosure than NRF habitat; multiplecanopy layers of multiple largeoverstory conifers greater than 10 inchesdbh; and a total canopy closure among

dominant, co-dominant and understorytrees of greater than 60 percent.

2. Western Washington LowlandsProvince

This province consists of thelowlands outside of the OlympicProvince that extend east from thePacific Ocean to the western foothills ofthe Washington Cascades (Figure 4 to§ 17.41(c)). The Canadian border formsthe northern boundary and theColumbia River the southern boundaryof the province. Forest lands in thenorth and central portions of theprovince along Puget Sound have beenconverted to agricultural, industrial andurban areas. The southwestern portionis dominated by commercial treefarming. Of the 6.5 million acres withinthis province, only one percent is underFederal management.

a. NRF Habitat. NRF habitat in theWestern Washington Lowlands consists,as a general matter, of coniferous ormixed coniferous/hardwood forest withmultiple canopy layers; multiple largeoverstory conifers greater than 20 inchesdbh; and total canopy closure amongdominant, co-dominant and understorytrees of greater than 60 percent.

b. Dispersal Habitat. Dispersal habitatin the Western Washington Lowlandsconsists, as a general matter, ofconiferous or mixed coniferous/hardwood forest with smaller dominanttrees or lower canopy closure than NRFhabitat; multiple canopy layers ofmultiple large overstory conifers greaterthan 10 inches dbh; and a total canopyclosure among dominant, co-dominantand understory trees of greater than 60percent.

Spotted owls in this province haveextremely low population levels due toisolation of populations within theprovince and limited nesting, roosting,and foraging habitat. The limitedamount of habitat in this province alsocontributes to the demographic isolationof the Olympic Peninsula Province. Asnoted previously in the discussion onthe Olympic Peninsula, however, therecent study by Holthausen et al.suggested that even substantialconservation efforts in SouthwestWashington would be unlikely to makeany meaningful contribution tomaintaining a stable, long-termpopulation of owls on the OlympicPeninsula. Thus, while SouthwestWashington is important as part of thehistoric range of the owl, the continuedapplication of blanket incidental takeprohibitions to the exceptionally limitedsuitable habitat that still exists theremakes any contribution to owls on theOlympic Peninsula minimal at best.

Currently, the Service is attempting toaddress these conservation opportunitylimitations through a creative newapproach which targets thedevelopment of comprehensive multi-species Habitat Conservation Plans withseveral of the large landowners in thisprovince. The Service has premised thiscooperative approach, as opposed todesignating this area as a SpecialEmphasis Area, on the positivecommitments it has received from majorlandowners in this region to negotiatecomprehensive HCPs. In addition, oneof the landowners has entered into a‘‘take avoidance’’ agreement whileworking on their HCP. The takeavoidance agreement insures that noowls will be lost as the result of timberharvest during the period in which theHCP is being developed.

3. Western Washington CascadesProvince

The Western Washington Cascadesprovince occupies the land west of theCascades crest, from the Columbia Rivernorth to the Canadian Border and westto the Western Washington Lowlandprovince (Figure 4 to § 17.41(c)). Thisprovince contains about 6.1 millionacres of land, of which approximately61 percent is in Federal ownership.Most of the non-federal lands occuralong the western edge of the provinceand along the major mountain passes incheckerboard ownership with Federallands.

a. NRF Habitat. NRF habitat in theWestern Washington Cascades Provinceconsists, as a general matter, ofconiferous or mixed coniferous/hardwood forest with multiple canopylayers; multiple large overstory conifersgreater than 20 inches dbh; and totalcanopy closure among dominant, co-dominant and understory trees ofgreater than 60 percent.

b. Dispersal Habitat. Dispersal habitatin the Western Washington CascadesProvince consists, as a general matter, ofconiferous or mixed coniferous/hardwood forest with smaller dominanttrees or lower canopy closure than NRFhabitat; multiple canopy layers ofmultiple large overstory conifers greaterthan 10 inches dbh; and a total canopyclosure among dominant, co-dominantand understory trees of greater than 60percent.

A Habitat Conservation Plan (HCP)was recently approved by the Fish andWildlife Service to cover Murray PacificCorporation lands in Lewis County inthis Province. The permit for this 100-year Habitat Conservation Plan for thenorthern spotted owl was signed onSeptember 24, 1993, for the MurrayPacific Corporation, a Tacoma,


Washington, based timber company.The plan provides for the developmentand maintenance of dispersal habitat forthe spotted owl that is well distributedover the 54,610 acres of the company’sland, while allowing limited taking ofspotted owls that is incidental to thecompany’s timber harvest activities.

The Murray Pacific planning area issituated between the Mineral Block (anisolated block of Forest Service land)and the main portion of the GiffordPinchot National Forest, that is locatedimmediately south of Mt. RainierNational Park. The Mineral Block hasbeen designated as a late-successionalFederal reserve under the Forest Plan.The management of Murray Pacificproperty will promote the opportunityfor the dispersal of spotted owls to andfrom this isolated reserve, providing alink with the Cascade Mountainspopulation. The Mineral Block alsohosts the most westerly extension ofspotted owls in the Cascade Mountains.

General threats to the spotted owl inthis province include low populationlevels, limited habitat in the northernportion of the province, declininghabitat, and dispersal problems in areasof limited Federal ownership.

4. Eastern Washington CascadesProvince

This province lies east of the crest ofthe Cascades Mountains from theColumbia River north to the CanadianBorder (Figure 4 to § 17.41(c)). Theprovince extends east to where suitablespotted owl habitat naturally diminishesand drier pine forests become prevalent.Approximately 62 percent of theprovince’s 5.7 million acres is inFederal ownership.

a. NRF Habitat. NRF habitat in theEastern Washington Cascades Provinceconsists, as a general matter, ofconiferous forest with stands thatcontain greater than 20 percent fir(Douglas fir, grand fir) and/or hemlocktrees; multiple canopy layers of multiplelarge overstory conifers greater than 12inches dbh; and a canopy closure amongdominant, co-dominant and understorytrees of greater than 50 percent.

b. Dispersal Habitat. Dispersal habitatin the Eastern Washington CascadesProvince consists, as a general matter, ofconiferous forest with stands thatcontain greater than 20 percent fir treeswith smaller dominant trees or lowercanopy closure than NRF habitatmultiple canopy layers of multiple largeoverstory conifers of greater than 11inches dbh; and total canopy closureamong dominant, co-dominant andunderstory trees of greater than 50percent.

Threats to the spotted owl in thisprovince include natural fragmentationof spotted owl habitat by geologicalfeatures; loss of spotted owl habitat fromwildfires; loss of habitat from timberharvest activities; and low spotted owlpopulations in some areas of theprovince.

California

1. California Coastal Province

Extending from the Oregon bordersouth to San Francisco Bay, thisprovince lies west of the Six Rivers andMendocino National Forests (Figure 4 to§ 17.41(c)). It consists of approximately5.6 million acres, of which about 87percent is in non-Federal ownership.Timber management is the primary landuse on about 2 million acres, and isconcentrated in the heavily-forestedredwood zone located within 20 milesof the Pacific Ocean coastline. In themore inland and southerly portions ofthe province, owl habitat is largelyconfined to the lower portions ofdrainages and is naturally fragmentedby grasslands, hardwoods, andchaparral, as well as by agricultural andurban areas.

a. NRF Habitat. NRF habitat in theCalifornia Coastal Province consists, asa general matter, of coniferous or mixedconiferous/hardwood forests withmultiple canopy layers; multipleoverstory conifers greater than 16 inchesdbh; and total canopy closure amongdominant, co-dominant, and understorytrees of greater than 60 percent. Somenest sites may occur in stands of smallertrees or with a lower canopy closure;however, such sites are not typical.

b. Dispersal Habitat. Dispersal habitatin the California Coastal Provinceconsists, as a general matter, ofconiferous or mixed coniferous/hardwood forests, with smallerdominant trees or lower canopy closurethan in NRF habitat; multiple canopylayers, with multiple large overstoryconifers greater than 10 inches dbh; atotal canopy closure among dominant,co-dominant; and understory trees ofgreater than 40 percent.

This province is unique in that itsupports several hundred pairs ofspotted owls (over 1⁄3 of the State’spopulation) within managed second-growth timber stands. Factors thatappear to contribute to the suitability ofthese second-growth stands include therapid growth of trees in the coastalenvironment, the prevalence ofhardwood understories, and thewidespread occurrence of a favored preyspecies, the dusky-footed woodrat. Theprimary threat to the spotted owl in thisregion is habitat alteration, but, due to

the spotted owl’s widespreaddistribution, the predominance ofselection harvest methods, the rapidregrowth of habitat, and effective andcomprehensive State wildlifeconservation and forest practiceregulations, threats are considered lowto moderate in this portion of thespotted owl’s range.

Because Federal lands in thisprovince are limited, they play a smallrole in spotted owl conservation in thisprovince. Significant non-Federalcontributions to conservation are inplace or under development in this area.In addition to efforts by the state,described in more detail later, severallarge timber companies in the coastalprovince have made substantialinvestments in information-gatheringand planning for spotted owlconservation. The Simpson TimberCompany has completed a HabitatConservation Plan and received asection 10(a) permit for the incidentaltake of a limited number of spotted owlson its 380,000-acre property. Pursuantto this plan, Simpson Timber has setaside 40,000 acres of suitable owlhabitat for at least ten years, isconducting research on habitatcharacteristics, and has banded over 600spotted owls.

2. California Klamath ProvinceThis province lies to the east of the

California Coastal province, and iscontiguous with the Oregon Klamathprovince (Figure 4 to § 17.41(c)). TheCalifornia Klamath province consists ofapproximately 6.2 million acres, ofwhich about 76 percent is in Federalownership. The U.S. Forest Service isthe primary land manager. About 25percent of the Forest Service lands inthe province are believed to be currentlysuitable for nesting, roosting, andforaging by the spotted owl.

a. NRF Habitat. NRF habitat in theCalifornia Klamath Province consists, asa general matter, of coniferous or mixedconiferous/hardwood forests withmultiple canopy layers; multipleoverstory conifers greater than 16 inchesdbh; and total canopy closure amongdominant, co-dominant, and understorytrees of greater than 60 percent. Somenest sites may occur in stands of smallertrees or with a lower canopy closure;however, such sites are not typical.

b. Dispersal Habitat. Dispersal habitatin the California Klamath Provinceconsists, as a general matter, ofconiferous or mixed coniferous/hardwood forests, with smallerdominant trees or lower canopy closurethan in NRF habitat; multiple canopylayers, with multiple large overstoryconifers greater than 10 inches dbh; a


total canopy closure among dominant,co-dominant; and understory trees ofgreater than 40 percent.

In many areas of the province, spottedowl habitat is naturally fragmented bychaparral, stands of deciduoushardwoods, and low-elevationvegetation types. In portions of the area,suppression of fire over the last centurymay have encouraged development ofmixed-conifer habitat suitable forspotted owls. However, during the sameperiod, timber harvest has removedsubstantial amounts of suitable habitat.Owl populations throughout theprovince were believed to be decliningdue to habitat loss at the time of listing,and data suggest that populations maywell be continuing to decline in theprovince’s only demographic study area(Franklin et al. 1992). In the southernportion of the province, especially onthe Mendocino National Forest, spottedowls and nesting, roosting, and foraginghabitat are more scattered than innorthern areas due to both naturalconditions and recent harvest. However,despite extensive habitat fragmentationin some areas during the last twodecades, spotted owl populationsappear to remain distributed throughoutmost parts of the province.

Until the listing of the spotted owl,continued habitat alteration due toclear-cutting was a primary threat to thespecies in this province. The mostimportant threat to habitat at the presenttime is wildfire. In the past six years,large fires have destroyed or degradedsubstantial quantities of owl habitat onthe Klamath, Shasta-Trinity, andMendocino National Forests.

The Hoopa Valley Indian Reservationoccupies about 88,000 acres along thewestern margin of this province. TheHoopa Tribe has conducted forestryoperations under section 7 consultationconducted between the Bureau of IndianAffairs and the Service, and is preparinga comprehensive integrated resourcemanagement plan for forestry andwildlife on their lands. The Tribe is alsodeveloping a Geographic InformationSystem (GIS) data base to integratespotted owl conservation into its timbermanagement program. The maintenanceof adequate dispersal condition in thisarea would improve the intra-provincialconnectivity and dispersal betweenFederal reserves.

3. California Cascades ProvinceThis province lies east of the

California Klamath province. It consistsof approximately 2.5 million acres, ofwhich about 46 percent is in Federalownership (Figure 3 to § 17.41(c)).Checkerboard Federal and non-Federalownership patterns predominate. Due to

the relatively dry climate and thehistory of recurrent wildfires in thisprovince, spotted owl habitat isnaturally fragmented by chaparral andstands of deciduous hardwoods. As isthe case in the California KlamathProvince, the suppression of wildfireover the last century may haveencouraged development of mixed-conifer habitat suitable for spotted owls.However, timber harvest has removedsubstantial amounts of suitable habitat.Existing spotted owl sites are widelyscattered, and the potential for dispersalacross the province appears to belimited. This province provides thedemographic and genetic linkagebetween the northern spotted owl andthe California spotted owl of the SierraNevada range.

a. NRF Habitat. NRF habitat in theCalifornia Cascades Province consists,as a general matter, of coniferous ormixed coniferous/hardwood forestswith multiple canopy layers; multipleoverstory conifers greater than 16 inchesdbh; and total canopy closure amongdominant, co-dominant, and understorytrees of greater than 60 percent. Somenest sites may occur in stands of smallertrees or with a lower canopy closure;however, such sites are not typical.

b. Dispersal Habitat. Dispersal habitatin the California Cascades Provinceconsists, as a general matter, ofconiferous or mixed coniferous/hardwood forests, with smallerdominant trees or lower canopy closurethan in NRF habitat; multiple canopylayers, with multiple large overstoryconifers greater than 10 inches dbh; atotal canopy closure among dominant,co-dominant; and understory trees ofgreater than 40 percent.

Currently, threats in this provinceinclude low population numbers,difficulty in providing for interactingpopulation clusters, and fragmenteddispersal habitat. Catastrophic wildfireis also an important threat to habitat. In1992, a 70,000-acre fire in ShastaCounty substantially reduced thelikelihood of contact between thenorthern spotted owl and the Californiaspotted owl for the next several decades.

Northern Spotted Owl Populations onNon-Federal Lands

Due primarily to historic timberharvest patterns, approximately 75percent of the known rangewidepopulation of spotted owls is centeredon Federal lands. Owl site centers onnon-Federal lands are usually found inremnant stands of older forest, or inyounger forests that have had time toregenerate following harvest. Inaddition, adjacent forested non-Federallands can provide foraging and dispersal

habitat for owls whose site centers areon Federal lands.

As of July 1, 1994, there were 5,431known locations, or site centers, ofnorthern spotted owl pairs or residentsingle owls in Washington, Oregon, andCalifornia (located between 1989 and1993)—851 sites (16 percent) inWashington, 2,893 (53 percent) inOregon, and 1,687 (31 percent) inCalifornia. In Washington and Oregon,owl site centers on non-Federal landsare typically widely scattered.Currently, 1,319 or 24 percent of knownowl site centers are located on non-Federal lands—140 in Washington, 342in Oregon, and 837 in California. Ofthose in California, 631 or 75 percent ofthe site centers located on non-Federallands are located in the California CoastProvince, where owls are relativelycommon in second-growth timberstands. Site centers in the interiorprovinces of California are typicallyscattered. In addition to the site centerslocated on non-Federal lands inWashington, Oregon, and California,preliminary analyses indicate that thereare 151 site centers in Washington, 810centers in Oregon, and 204 centers inCalifornia, located on Federal lands thatare dependent upon some percentage ofsuitable owl habitat on adjacent non-Federal lands to support the owls.

Non-Federal lands in certain portionsof the owl’s range are still necessary tosupport and supplement the Federallands-based owl conservation strategy.While the type of support needed variesdepending on local conditions, the threegeneral types of conservation supportneeded within specially designatedareas are:

(1) Habitat on non-Federal lands nearFederal reserves where existing owlpopulations are low to providedemographic support for owlpopulations. Areas that are needed toprovide demographic support forFederal reserves include, inWashington: the western portion of theOlympic Peninsula Province andportions of the Eastern and WesternCascade provinces; and in California:the Cascades Province and the southernportion of the Klamath Province;

(2) Dispersal habitat between Federalreserves, where Federal lands may notbe distributed to prevent isolation ofpopulations, or between non-Federalownerships where the distance betweenreserves is not great. Where distancesare large, scattered breeding sites maybe important to improve connectionbetween populations. Areas that canprovide valuable dispersal habitat onnon-Federal lands include, inWashington—the western portion of theOlympic Peninsula Province and


portions of the Eastern and WesternCascade Provinces; and in California—the Coast and Cascades Provinces andsmall portions of the Klamath Province;and

(3) Suitable habitat for breedingpopulations in areas where Federalownership is limited. In these areas,functioning spotted owl populations aredesired to maintain a widely distributedpopulation of owls. Areas where non-Federal owl populations are believed toplay an important role in this regardinclude, in Washington—the westernportion of the Olympic PeninsulaProvince; and, in California—the Coastand Cascades Provinces.

Recent Conservation Programs andStrategies for the Northern Spotted Owl

Non-Federal Management Efforts

To varying degrees, the laws,regulations, and policies of California,Oregon, and Washington provideprotection and contribute to theconservation of the spotted owl. Each ofthe three states is a cooperator with theSecretary of the Interior under section 6of the Act and each State hascooperative agreements with the Serviceto carry out conservation activities forlisted and candidate species of plantsand animals. Under these agreements,the States work cooperatively with theService on endangered and threatenedspecies conservation projects and areeligible for cost-share grant money fromthe Service to carry out State-directedspecies research and conservationactivities. Since the spotted owl wasFederally listed, Washington, Oregon,and California have recognized theFederal status of the spotted owl andhave adopted forest management rulesoffering various levels of protection forthe species. In addition, numerouschanges have been made to State forestpractices rules in the last few years inresponse to the needs of decliningspecies like the spotted owl, themarbled murrelet, and various runs ofsalmon. Relevant authorities andprograms existing in the States ofWashington and California are alsobriefly described below.

California

California has adopted the mostprotective forest managementregulations for the spotted owl in thePacific Northwest. The State has alsobeen in the forefront of efforts toapproach forest management from anecosystem perspective.

Pursuant to the California ForestPractice Act, the California Board ofForestry establishes regulations underTitle 14 of the California Code of

Regulations governing timber harvest onprivate and State lands (14 CFR § 895,898, 919, 939). Registered ProfessionalForesters licensed by the Board mustsubmit Timber Harvest Plans (THP) tothe California Department of Forestryand Fire Protection for review andapproval. The California Department ofFish and Game is also responsible forreviewing THPs. THPs may be deniedon a number of grounds, includingpotential take of Federally or State listedthreatened or endangered species.

Following the Federal listing of thenorthern spotted owl, the Board ofForestry implemented no-take rulesusing standards based on biologicaladvice from the Service. Thesestandards include maintenance of over1,300 acres of suitable owl habitatwithin 1.3 miles of every spotted owlsite center and 500 acres within 0.7miles. The rules instituted a specialreview process for all proposed privatetimber harvest to ensure that incidentaltake would not occur. The processencouraged surveys for spotted owls inTHP areas according to a Service-endorsed protocol (USFWS 1992). TheBoard’s no-take rules have maintainedoptions for future management byproviding protection for habitat aroundevery known spotted owl site center,and have resulted in greatly increasedknowledge of the species’ numbers anddistribution. Other Forest PracticeRules, including riparian buffers andlimitations on clear-cut size, mayprovide additional contributions to themaintenance of spotted owl habitat innorthern California. These include the40-acre limitation on clear-cut size,limits on adjacency of clear-cuts, andprotection of riparian buffers.

The Board of Forestry (Board) alsorecently adopted rules establishingregulatory incentives for large-acreagelandowners who develop sustainedyield plans (SYPs). The SYP rules mayprovide considerable benefit to spottedowls, because ownerships operatingunder these rules must maintainspecified portions of each watershed intimber stands of large size classes forseveral decades, thus providing spottedowl habitat components throughout thelandscape.

The Department of Fish and Gameand Department of Forestry and FireProtection jointly maintain aninteragency data base of Federal andnon-Federal spotted owl locations. TheForest Practice Rules require that allinformation on spotted owl sites that isgenerated during timber harvestplanning be submitted to this data base,and relevant data are made available toall parties planning timber harvest orother activities. Thus, the data base is a

functional tool in protection of thespecies.

Following the listing of the northernspotted owl, the California Board ofForestry directed the Department ofForestry and Fire Protection to preparea Habitat Conservation Plan (HCP) andsection 10(a)(1)(B) incidental takepermit application to address all privatetimber harvest regulated by the Board.Following a three-year planning effortby that Department and a number ofcooperators from agencies, industry, andenvironmental groups, the Board tabledconsideration of the draft HabitatConservation Plan because significantissues remained unresolved, mostnotably the funding mechanism. Thedraft plan nevertheless represented asignificant cooperative commitment toresolve conservation issues by the Stateand other concerned parties and manyof the biological elements of the draftHCP may have future application.

WashingtonThe spotted owl is listed under

Washington law as an endangeredspecies. The Washington Department ofNatural Resources has the responsibilityfor regulating timber harvest activitieson non-Federal lands under theauthority of the Washington State ForestPractices Act (76.09 RCW) and itsimplementing regulations (WAC222.08–222.50). These regulations arepromulgated by the Forest PracticesBoard.

Recent regulations (WAC222.16.080(1)(h) have required forestpractices on the 500 acres of suitablehabitat surrounding the site center ofknown spotted owls to be reviewedunder the State Environmental PolicyAct, WAC 222.16.080(1)(h). In practice,this rule has led landowners to avoidapplying for permits for forest practiceswithin the 500-acre area. This regulationexpired on February 9, 1994, and hasbeen extended pending approval of afinal rule. The Forest Practices Boardhas established a Scientific AdvisoryGroup to recommend the scientific basisfor a new rule to replace the currentrule. No other forest practices regulationexpressly addresses the protection ofspotted owl habitat from timber harvestactivities. However, the Departmentnotifies individual landowners when aproposed forest practice occurs withinthe median annual home range of aknown spotted owl pair or residentsingle, and advises the landowner tocontact the Service. In addition, severalother regulations contribute habitatbenefitting spotted owls, includingregulations requiring riparian zoneprotection, wetlands protection, andretention of wildlife reserve trees.


Riparian management zoneregulations require the minimumretention of 25-foot wide buffers alongthe sides of fish-bearing streams with avarying ratio of trees to be retained per1,000 feet of stream within the buffers,based on stream location, width andbottom composition.

Wetland management regulationsrequire the establishment of a zonesurrounding non-forested wetlandswhich varies in width from a minimumof 25 to 50 feet depending on the sizeand category of the wetland. Theregulations also require the retention ofa minimum number of trees (75) peracre and that a percentage of those treesmeet minimum size classifications (sixinches dbh) depending on the type ofwetland. Of this total, 25 trees are to bemore than 12 inches dbh, and five ofthem are to be more than 20 inches dbh,where they exist.

Clear-cut size and green-upregulations limit the maximum size ofclear-cut harvest units to 120 acres,unless a State environmental Policy Actreview is undertaken that could boostthe potential size of the harvest to 240acres. The perimeter of harvest unitsmust meet minimum standqualifications to maintain age classdiversity adjacent to the harvest unitbefore harvest may proceed.

Wildlife reserve tree regulationsrequire the retention of three snags(minimum of 12 inches dbh), two greenrecruitment trees (minimum 10 inchesdbh), and two down logs (minimum 12inches diameter at the small end).

Besides regulating forest practices inWashington, the Department of NaturalResources (WDNR) administersapproximately five million acres of Statelands, 2.1 million acres of which areforested and managed in trust forvarious beneficiaries. The WDNR hasavoided the take of spotted owls on itslands and has begun preparation of anHCP under section 10(a)(1)(B) of the Actfor all State lands in the range of theowl. The WDNR is also developing aconservation strategy for the spotted owlthat would be applied to theCongressionally mandated 264,000-acreState Experimental Forest on theOlympic Peninsula.

Apart from these efforts by Stategovernment, various private efforts areunderway to conserve spotted owls,including the development of, orcommitment to, HCPs and ‘‘no take’’agreements by several major landownersin the State. In addition, the YakimaIndian Nation is developing aconservation strategy for the spotted owlwhile continuing to follow its previousinterim spotted owl strategy andselective timber harvest regime.

Past Federal Management Strategies

Prior to its listing as a threatenedspecies, many different approaches tonorthern spotted owl management andresearch were undertaken by Federaland State resource agencies, forexample, designation of ‘‘spotted owlhabitat areas’’ or ‘‘SOHAs.’’ Each ofthese approaches fulfilled differentconservation objectives for the northernspotted owl. The conservation objectiveof the earliest attempts at spotted owlmanagement, which began in the mid-1970s, was to temporarily protect sitesthat supported individual pairs ofspotted owls. In the 1980s, managementstrategies were based on conservationobjectives that tried to avoid land useconflicts while managing spotted owlsand late-successional forest habitat;these management strategies weregenerally inadequate. A completediscussion of the history andchronology of past spotted owlmanagement attempts can be found inThomas et al. (1990).

Recent (post-listing) Federal northernspotted owl management strategies havebeen based on the establishment of asystem of large, dispersed Federal landreserves, with conservation objectivessomewhat different from earlierstrategies. These management strategieswere designed to meet the followingconservation objectives—(1) providehabitat to sustain approximately 20 ormore breeding pairs of spotted owls oneach Federal reserve; (2) decrease thechance of catastrophic loss ofpopulations in reserves; (3) lower therisk of losing spotted owls from areserve due to a single catastrophicevent; and (4) ensure that adequatehabitat existed between the reserves fordispersal of owls throughout its range.To fulfill these objectives, thesemanagement strategies proposedestablishing a reserve network ofFederal lands based on blocks of late-successional habitat of sufficient sizeand proximity to each other to maintainviable populations of the spotted owlthroughout its range. Assessments ofthese strategies have generallyrecognized that, in certain areas of thenorthern spotted owl’s range, Federallands are not, by themselves, adequateto support the full recovery of the owlalthough they could provide a majorcontribution toward the owl’sconservation in other parts of its range(USDI 1992).

To meet their conservation objectives,these management strategies generallyestablished Federal reserves designed tosustain at least 20 pairs of spotted owlswhere conditions allowed. Thesestrategies assumed that any smaller late-

successional Federal reserves should beplaced closer together to increase theprobability of successful spotted owldispersal between the reserves. Inaddition, plans provided dispersalhabitat sufficient to support movementsbetween blocks. For this reserve design,successful dispersal would accomplishtwo objectives—it would help preventgenetic isolation in individual owlpopulations and it would allow spottedowls to naturally recolonize importantareas that have few or no spotted owlspresent. By allowing spotted owls todisperse between a series of discretereserves, this reserve design couldmaintain a spotted owl population overa large area even if a single reserve waslost to catastrophe.

By way of example, the InteragencyScientific Committee (ISC) developed aconservation strategy based onmanaging large, well-distributed Federalblocks of suitable spotted owl habitatthat were sufficiently connected tomaintain a stable and well-distributedpopulation of spotted owls throughouttheir range (Thomas et al. 1990). TheISC did not integrate non-Federal landsinto its conservation strategy. Toprovide dispersal habitat between thesereserves, the ISC recommended a ‘‘50–11–40 rule’’ where 50 percent of Federalforest habitat (based on quarter-townships) would be managed to retaindominant or co-dominant trees with anaverage of 11 inches dbh and provide aminimum 40 percent canopy closure.Canopy closure refers to the degree towhich the crowns (tops) of trees obscurethe sky when viewed from below. The‘‘50–11–40’’ rule was set forth as onemethod of providing for dispersalhabitat on Federal forest lands; otherprescriptions have been and can bedeveloped which provide comparabledispersal conditions, e.g., MurrayPacific HCP dispersal prescription.

The Federal Forest PlanThe range of the spotted owl includes

approximately 24,518,000 acres ofFederal lands of which 20,577,000 acresare forested. The Forest Plan representsa management strategy for FederalLSOG-forests in the coastal westernstates of California, Oregon, andWashington that provides habitat tosupport the persistence of welldistributed populations of species thatare associated with late-successionalforests, including the northern spottedowl.

The Forest Plan established a networkof reserves totalling over 11.5 millionacres of Federal land in northernCalifornia, Oregon, and Washington.That total includes 7.43 million acres oflate-successional reserves, 2.63 million


acres of riparian reserves, and 1.48million acres of administrativelywithdrawn areas. This acreage is inaddition to 7.32 million acres ofCongressionally reserved lands.

The late-successional reservescurrently provide 3.2 million acres ofsuitable habitat for the spotted owl. Theinterim riparian reserve provide anadditional 0.74 million acres of suitablehabitat and the administrativelywithdrawn areas provide an additional0.31 million acres of this habitat.

Late-successional reserves areexpected to provide the primarycontribution to the recovery of thespotted owl by maintaining largeclusters of spotted owls and spotted owlhabitat throughout a significant portionof the range of the species. The reservesare expected to increase in value forspotted owl recovery as young forestedstands grow into suitable habitat andincrease their capacity to supportadditional numbers of stable spottedowl pairs.

Programmed timber harvestoperations are not allowed in late-successional reserves under the ForestPlan. However, carefully controlledthinning activities are allowed in anystand of one of these reserves less than80 years of age. Salvage operations alsowould be allowed on these reserves inareas where catastrophic loss exceededten acres. In both cases, harvestproposals must be reviewed by aninteragency oversight group to ensuresound ecosystem management.

No programmed timber harvest isallowed in riparian reserves under theForest Plan and Federal agencies arerequired to minimize the effects ofroads, cattle grazing, and miningactivities in these areas. These riparianreserves are eventually expected toprovide a considerable amount of late-successional forest, because theycurrently represent approximately 31percent of the lands that wouldotherwise be designated as Matrix.Based on current information (USDA etal. 1993), approximately .74 millionacres (28 percent) of the 2.63 millionacres in riparian reserves currentlyprovide suitable nesting, roosting, andforaging habitat for spotted owls and1.42 million (54 percent) of the riparianreserves provide suitable dispersalhabitat for spotted owls.

The Forest Plan places 1.5 millionacres of Federal land in 10 special‘‘Adaptive Management Areas (AMAs).’’Management activities in these AMAswould emphasize innovative forestrytechniques with the goal of speedingattainment of late-successionalcharacteristics and on restoringwatersheds. These activities are

expected to benefit northern spotted owlmanagement in the long-term, butwould not be expected to contributesubstantially to owl conservation needsin the short-term. Suitable habitat forthe northern spotted owl representsapproximately 0.37 million acres of thelands that have been designated asAMAs.

Programmed timber harvests also areallowed on approximately four millionacres of Federal forests designated as theMatrix under the Forest Plan. The Plandiffers from previously proposedstrategies in that the 50–11–40 rule doesnot apply to Matrix areas between late-successional and other Federal forestreserves. The Plan concluded that theneed for spotted owl dispersal habitatcould be met with the combination ofreserves as proposed, plus additionalMatrix prescriptions.

In Washington and Oregon, the Planrequires leaving 15 percent of the trees(‘‘green tree retention’’) in all harvestunits on AMAs and matrix areas outsideof the Coast Ranges and Bureau of LandManagement lands in southern Oregon.The Plan encourages these trees to beleft in small clumps with theexpectation that they, along with theriparian reserves, would contribute tothe creation of dispersal habitat. TheForest Plan adopted this prescription toimprove the future condition of theseforests. These prescriptions couldultimately be adjusted as a result ofwatershed analysis and other planningactivities related to the implementationof the Forest Plan.

In California, the Forest Planincorporates the Matrix prescriptionscontained in the draft National Forestland management plans. Theseprescriptions are designed to maintaindispersal habitat in a variety of timbertypes.

The FEMAT report (p. IV–43 and p.IV–153) stated that implementation ofOption 9 (which served as the basis forthe Forest Plan) would result in aprojected future likelihood of 83 percentthat spotted owl ‘‘habitat is of sufficientquality, distribution, and abundance toallow the species population to stabilizein well distributed areas of Federallands,’’ and a projected futurelikelihood of only 18 percent that‘‘habitat is of sufficient quality,distribution, and abundance to allowthe species population to stabilize, butwith some significant gaps in thehistoric species distribution on Federalland. These gaps cause some limitationin interactions among localpopulations.’’ Moreover,implementation of Option 9 was ratedby FEMAT as resulting in a zerolikelihood that ‘‘habitat only allows

continued species existence in refugia,with strong limitations on interactionsamong local populations’’, and a similarzero likelihood that implementation ofthe option would result in ‘‘speciesextirpation from Federal lands’’.

These probability judgments reflectthe contributions to conservationexpected to be provided by theimplementation of the Forest Plan onFederal lands. They indicate a highlikelihood that, over the long-term, theForest Plan will provide conditions onFederal lands that would contributesignificantly to the conservation andrecovery needs of the spotted owl. Thisassessment is consistent with theFederal policy to provide thepredominant protection for spotted owlson Federal lands and it is within thiscontext that the Service proposes tomodify the incidental take prohibitionsfor certain non-Federal lands.

General Approach Used to DevelopThis Special Rule

The goal of this proposed rule was toidentify non-Federal lands that are nolonger either necessary or advisable tothe conservation of the spotted owlgiven the contributions of the ForestPlan the likely possibility of numerouslarge scale, multi-species HabitatConservation Plans, and other measuresand practices in effect. In reviewing thealternatives identified in the NOI, theService evaluated the contributions tothe conservation of the owl provided bythe Forest Plan, past Federal owlconservation strategies, existing Stateforest practices regulations, tribalconservation and private timbermanagement plans, as well as publiccomments provided in response to theNOI.

The Service considered variousfactors in identifying areas of non-Federal land where relief could beprovided and other areas whereincidental take restrictions should bemaintained at this time. The Servicefirst considered the conservationbenefits that the Federal Forest Planprovided the owl for a given area. Thesebenefits were then compared andcontrasted with the conservation goalsfor the area originally established underthe Final Draft Recovery Plan for thenorthern spotted owl. The Servicefocused particularly on Forest Planimpacts affecting the conservation ofowl habitat and owl numbers, as well asthe size and location of Federal reserves.It then identified certain areas of non-Federal land which were still importantfor owl conservation and what theconservation goals should be for suchareas. The Service gave particular careand attention to the non-Federal lands


which were noted as important in theReport of the Forest EcosystemManagement Assessment Team(FEMAT), IV 150–151. In identifyingboundaries for such areas, the Serviceconsidered, among other things, currentowl population status on non-Federallands, the need for owl populationsupport within adjacent Federalreserves, and the need for connectivitybetween such reserves. The Service alsoattempted to exclude wherever possiblelarge areas of non-Federal land withlittle or no owl habitat.

The Forest Plan is a habitat basedconservation strategy that would anchorand secure millions of acres of Federalland across the range of the spotted owl,an unprecedented commitment ofFederal resources towards theconservation of the owl. Given thatcommitment to a habitat based strategyand the scope of the Forest Plan, theService no longer believes that it isessential to the conservation of thespotted owl to continue to prohibit theincidental take of the owl on all non-Federal land located within the range ofthe owl. The Service also believes thatthe combination of Federal and non-Federal habitat based strategies for thespotted owl contained in this proposedrule, the Forest Plan and multi-speciesHabitat Conservation Plans will, overtime, further the conservation of thespecies and its recovery.

When developing objectives forregulatory relief for non-Federal landswhich were consistent with the ForestPlan, the Service evaluated pastbiological information and hasconcluded that it is still important toretain the closest 70 acres of suitableowl habitat surrounding site centerregardless of whether the center is in anarea of proposed relief or not. TheService also believes that the substantialloss of suitable habitat within theestimated median annual home range ofan owl is likely to result in inadequatenesting, juvenile development, andadult dispersal and survival, and willsignificantly increase the likelihood ofactual harm to, and incidental take of,an owl.

As the riparian reserve, matrix,adaptive management areas, and late-successional reserve managementcriteria of the Forest Plan areimplemented, along with therequirements of underlying State lawand other provisions proposed in thisrule for owl protection, dispersal andconnectivity conditions for the species’survival should improve over timethroughout its range. For this reason, theService has chosen not to include in thisproposed rule mandatory dispersalprescriptions such as the 50–11–40 rule

which was designed originally togenerate dispersal habitat conditions forFederal lands only.

For those areas where satisfactorydispersal conditions likely are notpresent, the Service believes that suchconditions can be achieved over timethrough other means such as fullprotection against incidental take, largescale Habitat Conservation Planning(HCPs), Local Option ConservationPlans, or voluntary conservationcontributions by non-Federallandowners. Recognizing the limitationson Federal authority to mandate thedevelopment of dispersal habitat inthese areas, this proposed rule wouldencourage non-Federal landowners tomanage their lands in ways that aremore consistent with the conservationof the spotted owl. In some areas itwould remove the disincentivesassociated with maintaining suitablespotted owl habitat, and, would bringmore certainty to future planning fortimber management as well as for owlconservation activities.

Upon consideration of all of the abovefactors, the following summarizes theprovisions of this 4(d) rule:

Regulatory Provisions Common to BothWashington and California

Some protective measures for the owlwould be identical for both the State ofWashington and California. Theprohibition on killing or injuring ofspotted owls would not be relieved inany part of the owl’s range by thisproposed rule. Similarly, timberharvesting of the closest 70 acres ofsuitable owl habitat surrounding a sitecenter would remain prohibitedthroughout Washington and California,unless the site has been determined tobe abandoned.

In addition, the Service would retainfor an additional two years, theprohibition against incidental take asapplied to owls which are dependentupon non-Federal lands and whose sitecenters are located within FederalForest Plan Reserves or Congressionallyreserved or Administratively withdrawnareas which are outside of SpecialEmphasis Areas or are on the westernportion of the Olympic Peninsula inWashington, or are located on FederalForest Plan reserves or Congressionallyreserved or Administratively withdrawnareas within the Klamath Province inCalifornia. At the end of this period, theService will review any newinformation or data involving the statusof such owls and their habitats in theaffected areas, including the results ofany completed watershed analysis andother planning efforts under the FederalForest Plan. In particular, the Service

would assess on a local area-by-areabasis whether the continuation of theincidental take prohibition on affected,adjacent non-Federal lands was stillnecessary and advisable for achievingthe conservation goals of the Forest Planfor that area. The Service would then liftthe incidental take restrictions wherewarranted and require the protection ofonly the closest 70 acres of suitablehabitat surrounding an affected sitecenter.

Relief From Current Incidental TakeProvisions in Washington

A total of approximately 10.6 millionacres of non-Federal land in the rangeof the spotted owl in Washington (theWashington Lowlands Province,portions of the Western and EasternCascades Provinces and portions of theOlympic Peninsula Province) would beexcluded from the boundaries ofproposed Special Emphasis Areas(SEAs) and be exempted from the futureapplication of current incidental takerestrictions for the northern spotted owl.Of this land base outside SEAs, 8.3million acres have some sort of forestcover of which 5.24 million acres are inconifer cover. Actually, only a smallpercentage of these lands are currentlyaffected by present incidental takeprohibitions for owls. Absent thisproposed rule, however, much of thisremaining land could potentially beaffected should a spotted owl relocate toany adjacent suitable owl habitat atsome point in the future. Approximately1.7 million acres of non-Federal landswould be left inside of SEAs. Of thisacreage figure, 1.3 million acres of non-Federal land is in conifer forest andwould remain subject to the incidentaltake prohibitions for any owl foundpresent in this area. In fact, only aportion of this acreage inside SEAs iscurrently affected by the presence ofowls. Of the approximately 510,000acres of non-Federal forestland whichare today under incidental takerestrictions for known owl sites, no lessthan 325,000 acres or almost 60 percentwould be relieved from such restrictionsas a result of this rule.

Of the 140 spotted owl site centers onnon-Federal lands in Washington, 84 arein the six proposed SEAs and wouldretain current incidental take protection.Fifty-six spotted owl site centers areoutside SEAs on non-Federal lands andwould be released from currentincidental take prohibitions. There arean additional 121 site centers on Federallands within the proposed SEA’s, ofwhich 68 may be dependent on non-Federal lands. There are also 83 sitecenters on Federal lands outside theSEAs that may be dependent on non-


Federal lands. Of the 83 site centersoutside of SEAs, 71 site centers arelocated within either a Federal ForestPlan Reserve or a Congressionallyreserved or Administratively withdrawnarea. The Olympic Peninsula contains41 of these sites with the remaining 30sites located outside of SEAs in the restof the State.

Activities Outside of Designated SEAsThe Service proposes to reduce the

current prohibition against theincidental taking of owls for those non-Federal lands which are located outsideof SEAs proposed in Washington. Inareas outside of SEAs, a non-Federallandowner would only be required toretain the closest 70 acres of suitableowl habitat surrounding an owl sitecenter. Legal and administrativeboundaries were used wherever possibleto assist in refining identified SEAboundaries. As noted above, the Serviceestimates that approximately 10.6million acres of non-Federal land inWashington lie outside of SEAs, ofwhich 5.24 million acres are forestedwith conifers. These would be theprimary areas receiving relief under thisrule for Washington. In these areas, theincidental take of owls would not beprohibited as long as timber harvestactivities did not take place within theclosest 70 acres of suitable owl habitatimmediately surrounding an owl sitecenter.

As noted previously, the abovereduction to 70-acres would not beapplicable for non-Federal landsaffected by any owl site center which islocated within a Forest Plan reserve orCongressionally reserved orAdministratively withdrawn area whichis outside of an SEA. The Serviceintends to reassess the importance ofthese sites within the next two years asadditional data and planninginformation is developed under theForest Plan. The one region inWashington where this two-yearretention of prohibitions would not beapplied outside of an SEA would be onportions of the Olympic Peninsula. Onthe northern, eastern, and southernparts of the Peninsula, non-Federallandowners would only be required topreserve the closest 70 acres of suitablehabitat surrounding a site centerregardless of whether the site center islocated within a Federal reserve orwithdrawn area. The Service believesthat the recent Reanalysis Team Reportfor the Olympic Peninsula (Holthausen,et al., 1994) addresses the issue of thecontribution that such non-Federal areasprovide toward achieving the goal ofrecovery of the owls on the Peninsula.Under these circumstances, the Service

does not believe that it is essential thatexisting incidental take restrictions beretained for an additional two years forthese three areas on the Peninsula.

Designation of Special Emphasis Areas

The six areas discussed below (Figure5 to § 17.41(c)) would be designated asSEAs within Washington:

(a) Columbia River Gorge/WhiteSalmon (Figure 6 to § 17.41(c)).

The Columbia River Gorge portion ofthis SEA is in the southern portion ofthe Washington Cascades province,north of the Columbia River and west ofthe Cascade crest. Non-Federal landslink owls and owl habitat betweenFederal reserves in the WashingtonCascades and Oregon Cascades alongthe Columbia River Gorge, therebycontributing to the objectives of theForest Plan.

The White Salmon portion of thisSEA is bordered by the Yakima IndianReservation to the northeast, Federallands and the Cascade crest to the westand the Columbia River to the south.The White Salmon area was notincluded within the ‘‘Proposed Action’’for the December 29, 1993, NOI (58 FR69132), but was included within‘‘Alternative C’’ of that NOI. As a resultof public comments received inresponse to the NOI, however, andrecent analysis of spotted owl habitat inWashington (Hanson, et al. 1993), theService has concluded that theinclusion of the White Salmon area aspart of this SEA is warranted. Thesenon-Federal lands are an important linkto the owl population found on theYakima Indian Reservation to owlpopulations in Federal reserves to thesouthwest. This portion of the SEAwould provide a route around high-elevation terrain on Federal lands,through lower-elevation forests on non-Federal lands to provide that neededlink. It also widens the zone ofprotection for the Cascades along theColumbia River.

This combined SEA contains 37,000acres of Federal land and 262,000 acresof non-Federal lands. Sixteen owl sitecenters are on non-Federal lands and 3site centers are on Federal land withinthis SEA, with one site activity centeron Federal lands which relies to somedegree upon adjacent non-Federal lands.The conservation goals for thiscombined SEA are to maintainconnections between provinces and theowl population on the Yakima IndianReservation, and to providedemographic support to the owlpopulation in the Federal reserves.

(b) Siouxon Creek (Figure 7 to§ 17.41(c)).

This SEA is located along Swift CreekReservoir and the Upper Lewis River,south of the Mt. St. Helens NationalMonument. As with the White SalmonSEA, this area was not included withinthe ‘‘Proposed Action’’ for the December29, 1993, NOI (58 FR 69132), but wasincluded within ‘‘Alternative C’’ of theNOI. Because of the public commentsreceived in response to the NOI andfurther analysis of spotted owl habitat inWashington (Hanson, et al. 1993), theService has determined that theinclusion of the Siouxon Creek SEA inthe 4(d) Rule is warranted. This SEAcontains seven owl site centers, five onnon-Federal land and two on Federalland, and includes approximately44,000 acres of non-Federal land and1,000 acres of Federal land. Owls onthese non-Federal lands are needed tosupply demographic support to owlpopulations on adjacent Federalreserves and dispersal habitat is neededto provide connectivity through theLewis River Valley between thereserves.

(c) Mineral Block (Figure 8 to§ 17.41(c)).

This SEA surrounds a block ofFederal land (Mineral Block) that hasbeen designated as a Federal reserveunder the Forest Plan. The MineralBlock is about 12 miles west of the mainpart of the Gifford Pinchot NationalForest. It is too small to support apopulation of 20 owl pairs. Owl sitecenters on adjacent non-Federal landswould support this population and toprovide a link to the Gifford PinchotNational Forest.

This SEA contains 39,000 acres ofFederal land and 259,000 acres of non-Federal lands. Twelve owl site centersare on non-Federal lands in the SEA; 17centers are located on Federal lands ofwhich five rely to some degree uponadjacent non-Federal lands. Theconservation goals for this SEA are toprovide demographic support for theowl population in the Federal reserve.

(d) I–90 Corridor (Figure 9 to§ 17.41(c)).

This SEA is north and south ofInterstate-90 (I–90) between North Bendand Ellensburg, Washington. This areais in checkerboard, intermingled Federaland non-Federal ownership, a portion ofwhich is included in the SnoqualmiePass AMA under the Forest Plan. Thisgeneral area has been repeatedlyidentified as being important to theconservation of the owl to maintain aconnectivity link between the northernand southern portions of theWashington Cascades (Thomas et al.,1990 and Hanson et al. 1993). Existinghabitat for spotted owls is locally sparseand highly fragmented.


Non-Federal lands in this SEA wouldsupport the efforts of the Forest Plan byproviding dispersal habitat (and somenesting, roosting and foraging habitat)for owl populations that are on thenorth and south sides of I–90, andbetween Federal reserves and the AMA.Owls that are on non-Federal landwould provide valuable demographicsupport of owl populations in adjacentFederal reserves that are low innumbers. Federal reserves that are incheckerboard ownership are also inneed of demographic support for owlsbecause of their fragmented ownershippattern and degraded habitat conditions.

This SEA contains 383,000 acres ofFederal land and 400,000 acres of non-Federal lands. Twenty-nine owl sitecenters are on non-Federal lands in thisSEA; 78 site centers are located onFederal lands of which 53 rely to somedegree upon adjacent non-Federal lands.Conservation goals for this SEA includedemographic support for adjacent late-successional reserves and connectivitybetween reserves. Changes to the easternboundaries of this SEA from the NOI inthis proposal were made to betterpromote dispersal success of owlslocated within the eastern portion ofthis SEA.

(e) Finney Block (Figure 10 to§ 17.41(c)).

This SEA includes the non-Federallands that surround the Finney BlockAMA on the Mt. Baker-SnoqualmieNational Forest. This SEA would linkowl populations in Federal reserveswith the owl population in the AMA.Owls located on non-Federal lands inthis SEA also would bolster the owlpopulations in the Federal reserves andthe AMA. These actions wouldsupplement the Federal efforts underthe Forest Plan by contributing to thestabilization of owl populations withinthis portion of the species range.

This SEA contains 196,000 acres ofFederal land and 266,000 acres of non-Federal lands. Two owl site centers areon non-Federal land in this SEA; 21centers are located on Federal lands ofwhich seven rely to some degree uponadjacent non-Federal lands.Conservation goals for this SEA includedemographic support for the AMA andFederal reserves and connectivitybetween Federal reserves.

(f) Hoh/Clearwater (OlympicPeninsula) (Figure 11 to § 17.41(c)).

Upon consideration of a recentreanalysis of owl persistence on theOlympic Peninsula (Holthausen et al.1994) and other data and information,the Service has decided to alter itsapproach to the Olympic Peninsulafrom that set out in the NOI inDecember of 1993. The Service now

proposes to significantly scale back thesize of the SEA for the Peninsula and torelieve incidental take restrictions forspotted owls for the remainder of thePeninsula. Of the Federal lands on theOlympic Peninsula, only 8,400 acres ofsuitable owl habitat are available fortimber harvest under the Federal ForestPlan.

There has been long standing concernabout the viability and persistence ofspotted owls on the Olympic Peninsula.A recent reanalysis of the contributionof Federal and non-Federal habitat topersistence of the northern spotted owlon the Olympic Peninsula (Holthausenet al. 1994) concluded that there were155 known owl pairs on the OlympicPeninsula and estimated a totalpopulation of between 282 and 321pairs. These estimates are substantiallyhigher than earlier reported estimates.

The Hoh/Clearwater SEAencompassing the western portion of thePeninsula contains about 1,000 acres ofFederal lands and 471,000 acres of non-Federal lands. Twenty owl site centersare located on non-Federal lands in thisSEA. Conservation goals for this SEAare to maintain demographic support forFederal reserves, maintain a well-distributed population, and provideconnectivity within the province andbetween late-successional reserves.Changes in this SEA from the NOI weremade to support the Federal effort inthis province by drawing upon theresources of the remaining non-Federalconcentration of owls and owl habitaton the western side of the Peninsula.The reanalysis report assessed therelative value of the Hoh/ClearwaterSEA boundaries as proposed by theService and did not compare or contrastalternative SEA boundaryconfigurations for the western side ofthe Peninsula.

Although recommendations wereincluded in recent reports (USDI 1992,Hanson et al. 1993, Buchanan et al.1994) to retain incidental takerestrictions on non-Federal lands insouthwestern Washington, the Servicebelieves that current non-Federalconservation planning activities (e.g.,multi-species HCPs and no-take plans),new analyses (Holthausen et al. 1994),and other relevant factors support thedecision not to propose southwesternWashington as an SEA. The Servicereached this conclusion on SouthwestWashington for a variety of reasons.First, while Southwest Washingtonconstitutes an important part of thehistoric range of the spotted owl, therepresently are only a small number ofisolated owl pairs or resident singlesacross a vast expanse of marginal owlhabitat. The inclusion of this area in an

SEA would briefly protect home rangeareas for the few owls in the area, butonce those owls die or move away, theprotection for their home range areaswould fade away as well, resulting inthe eventual harvest of the areas.Moreover, while Southwest Washingtonpreviously had been assigned animportant conservation function forproviding connectivity with the isolatedpopulation of owls on the OlympicPeninsula in the Final Draft SpottedOwl Recovery Plan, recent reanalysis byHolthausen et al. indicates that thefeasibility of the area ever serving thisconnectivity function, especiallythrough application of incidental takeprohibitions, is very low.

Apart from considerations involvingthe Olympic Peninsula, the limitednumber of owls in southwestWashington and lack of present suitablehabitat provide further support to theService’s decision to take an innovativeapproach to owl conservation in thisarea. While the Service might be able toprevent someone from destroyingcertain areas of existing suitable owlhabitat where an owl is present, the Actcannot be used to force people to restoreor enhance owl habitat that has alreadybeen destroyed or degraded. Thus, mostlandowners in Southwest Washingtonhave little to no incentive at present todevelop habitat that is attractive to owls.

The acquisition of sufficient non-Federal land in Southwest Washingtonto establish a network of owlconservation reserves is not a feasiblealternative either. The Final DraftRecovery Plan for the Spotted Owlestimated that the cost of such a reservenetwork could range from $200 millionto $2 billion. Thus, neither landacquisition nor traditional enforcementpolicies are feasible catalysts for owlconservation in an area such as thiswhich has limited suitable owl habitat.

Recognizing the historic role thatSouthwest Washington played withinthe range of the owl, the Service isattempting to address these problems byaggressively moving forward with thedevelopment of multi-species HabitatConservation Plans with several of thelarge landowners in this province. Inaddition, one of the landowners hasentered into a ‘‘take avoidance’’agreement covering 100,000 acres whileworking on their HCP. The agreementensures that no owls will be taken as theresult of timber harvest during theperiod in which the HCP is beingdeveloped. Thus, innovative approachestowards conservation provide the onlyrealistic hope for facilitating long-termowl use and dispersal withinSouthwestern Washington.


Retention of Incidental TakeRestrictions for Activities Inside of SEAs

Subject to certain specifiedexceptions, the Service generally wouldretain existing incidental take protectionfor owls located within SEAs. TheService also would retain full incidentaltake protection for any owl whose sitecenter is located within and along theboundary of an SEA and is dependentupon adjacent non-Federal landslocated outside of the SEA to avoidharm. Thus, there are two categories ofnon-Federal lands which could remainsubject to existing incidental takerestrictions for an owl whose site centeris located within the boundary of anSEA—those adjacent non-Federal landslocated inside an SEA and thoseadjacent lands located outside of anSEA boundary but which are stillnecessary to provide sufficient suitableowl habitat so as to avoid the incidentaltake of an owl.

One modification that the Serviceproposes to make to existing incidentaltake restrictions within SEAs wouldinvolve non-Federal lands surroundedby or located in matrix and AMA areasdesignated under the Federal ForestPlan. The Service proposes to authorizesuch affected non-Federal landownersinvolved in harvest activities to applyeither the final managementprescriptions delineated for thesurrounding Federal Matrix/AMA land,as determined through the watershedanalysis or AMA planning processes, asappropriate, or such managementpractices which comply with thecurrent incidental take restrictions.

Application of either managementstrategy would absolve the affected non-Federal landowner from any liability forincidental take of an owl under the Act.This would result in the application ofmore uniform owl conservationstandards within a matrix or AMA arearegardless of land ownership.

The one exception to this policywould be where the adoption of matrixor AMA prescriptions could result inthe incidental take of an owl whose sitecenter is located within a Forest Planreserve or Congressionally reserved orAdministratively withdrawn area. Aswould be the case for similar sitecenters outside of SEAs, the incidentaltake restrictions would continue toapply for at least two more years for sitecenters within reserve or withdrawnareas. At the end of this period, theService will review any new data orinformation involving the status of suchowls and their habitats in the affectedareas, including the results of anycompleted watershed analysis and otherplanning efforts under the Forest Plan.

As noted previously in a discussion ofthis review process, the Service wouldassess on an area-by-area basis whetherthe continuation of the incidental takeprohibition on affected non-Federallands was still necessary and advisablefor achieving the conservation goals ofthe Forest Plan. The Service would liftthe incidental take restrictions wherewarranted and authorize the adoption ofthe final matrix or AMA prescriptions,at the discretion of the affected non-Federal landowner, as a means ofavoiding an unauthorized incidentaltake of an owl.

One limited exception that theService proposes to make to currentincidental take restrictions within SEAswould involve small landowners.Except for the closest 70 acres ofsuitable habitat around owl site centersthemselves, the Service proposes torelieve incidental take restrictions forsmall landowners who own, as of thedate of this proposed rulemaking, nomore than 80 acres of forestlands in agiven SEA in Washington. The Servicewould also extend this proposal to smalllandowners who are outside of, butadjacent to, an SEA and whose lands areaffected by the incidental takerestrictions for an owl whose site centeris located within the SEA. For theselandowners, the maximum ownershipfigure of 80 acres would be calculatedbased upon the amount of land theyowned inside an SEA and the amountof land outside the boundary of an SEAwhich was affected by currentincidental take restrictions for an owlinside an SEA.

The 80-acre figure for smalllandowners was selected after ananalysis of land ownership patterns andan accounting for the size and locationof lands covered by the Forest Plan,State forestlands, industrial forestlands,and known large ownerships of non-industrial forestlands. The Service alsoconsidered the fact that past ForestService studies have shown that only avery small fraction of small landownersown forested lands for the exclusivepurpose of economic return fromcommercial harvest. In addition, mostsmall landowners utilize selectiveharvest techniques or small clear cutswhich would generate only very minorand incremental effects on anyparticular owl. Despite their normalpractices, however, the smalllandowners of the Northwest haveresorted to ‘‘panic cutting’’ over theirfear of Federal restrictions to protectowls. It is this category of landowner, inparticular, who needs to be providedsufficient assurances of relief so theyrevert back to their past practices of lowimpact forestry.

Based on this analysis, the Serviceconcluded that relief from the incidentaltake prohibition for owls for landownerswith less than 80 acres of forestlandwithin, or adjacent to, SEAs would havea deminimis impact upon owlconservation across the State. Moreover,given various technology limitationsand the potential causation and burdenof proof problems associated withproving incidental take to an owl fromsmall scale land use activities of anyone particular small landowner, theService believes that there is a betterallocation of its limited law enforcementresources than to attempt to enforceincidental take restrictions on someoneowning 80 acres or less of forest land.

The Service also proposes a ‘‘LocalOption Conservation Plan’’ or LocalOption approach to provide small andmid-sized landowners with additionalflexibility in dealing with incidentaltake restrictions.

The prohibition against incidentaltake in SEAs indirectly assists inmaintaining pockets of suitable anddispersal habitat through the continuedprotection of suitable owl habitataround site centers. This prohibitionalso helps provide future stocks ofjuvenile spotted owls who would bemore likely to migrate between keyreserves. Since a primary need in manyof these connectors is the developmentand maintenance of spotted owldispersal habitat, the Serviceacknowledges that alternative meansmay be developed for achieving thatobjective. The use of the generalincidental take prohibition in SEAs inWashington is valuable when dealingwith a wide-ranging species like thenorthern spotted owl. Nevertheless, theService recognizes the value inproviding flexibility in a section 4(d)rule to allow for the modification ofsuch prohibitions to better reflect localecological conditions for a given area.Furthermore, in focusing on a singlespecies objective in Special EmphasisAreas, broader landscape, watershed, orecosystem conservation possibilitiesmay be foreclosed. One of the keylessons the Service has learned indealing with northern spotted owlissues over the years is that thevariability of habitats and silviculturalpractices is such that there might bemore than one approach for providingconservation benefits to the owl. Forthat reason, this rule proposes toestablish a Local Conservation PlanningOption.

The ‘‘Local Option’’ process would belimited to non-Federal landowners whoown, as of the date of this proposedrulemaking, between 80 and 5,000 acresof forestlands in an SEA in Washington.


This process could result in theauthorization for the incidental take ofan owl in exchange for an agreement togrow or maintain dispersal habitat. Thelocal option conservation planningprocess would not apply, however, tothose particular areas within a givenSEA where the continued maintenanceof suitable owl habitat on non-Federallands is determined to be necessary andadvisable in order to providedemographic support for adjacentFederal owl reserves.

There is no official acreagedesignation defining a large acreagelandowner that is common to the threeStates of Washington, Oregon andCalifornia. Definitions of small, mediumand large land ownerships vary andmore often differentiate between non-industrial or non-commercial privatelandowners. For purposes of variousState regulatory analyses, taxation oreconomic policies, and Associationmemberships, e.g. Washington FarmForestry Association, acreages rangingfrom 2,000 to 10,000 acres have beenused to differentiate between industrialand non-industrial landowners. Forexample, 5,000 acres is generally the foradjacent Federal owl reserves.

There is no official acreagedesignation defining a large acreagelandowner that is common to the threeStates of Washington, Oregon andCalifornia. Definitions of small, mediumand large land ownerships vary andmore often differentiate between non-industrial or non-commercial privatelandowners. For purposes of variousState regulatory analyses, taxation oreconomic policies, and Associationmemberships, e.g. Washington FarmForestry Association, acreages rangingfrom 2,000 to 10,000 acres have beenused to differentiate between industrialand non-industrial landowners. Forexample, 5,000 acres is generally themaximum acreage break-off point inOregon to distinguish a non-industrialforestland owner from an industrial one.Contracts with a mill will also qualifylandowners as industrial. Given therange of acreage figures that has beenutilized among the three States, theService believes that a 5,000 acre breakpoint is reasonable for purposes of this4(d) rule. Accordingly, landowners withless than 80 acres of forestland withinan SEA have been treated as smalllandowners within this rule and havebeen provided specific relief up front.Landowners with overall forestlandholdings greater than 80 acres and notmore than 5,000 acres within an SEAare considered to be medium sizedlandowners and may pursue the ‘‘LocalOption’’ process to seek greaterflexibility in addressing prohibitions an

incidental take. Finally, non-Federallandowners who have 5,000 or moreacres of forestlands within an SEA inWashington would only receive relieffrom incidental take prohibitions for thespotted owl by completing an HCP andobtaining a permit under Section10(a)(1)(B) of the Act.

The landowner-initiated Local Optionprocess must still provide for theprimary spotted owl conservationobjective specified for the SpecialEmphasis Area where the property islocated. The Service encouragesindividual and adjacent multiplelandowners to take advantage of thisoption cooperatively to achieve broaderecosystem conservation objectiveswhich could have these benefits:—multiple landowners could

collaborate to provide greatermanagement flexibility, more effectiveconservation benefits, and tominimize administrative costs;

—multiple species and habitats could beconsidered, potentially reducing theneed to list declining species oranticipating requirements of futurelistings;

—land management treatments couldbecome more consistent from Federalto non-Federal lands, particularly incheckerboard areas; and

—landowners could exercise additionalflexibility to plan their forestryoperations so as to best reflectlocalized environmental conditionswithin a Special Emphasis Area.This proposed rule would provide

non-Federal landowners in Washington,in cooperation with the appropriateState agencies, the option of developingcooperative local conservation plans fortimber harvests in areas of up to 5,000acres within SEAs where the incidentaltake prohibition for the northern spottedowl would not be relieved by thisproposed rule. These cooperative planscould provide non-Federal landownerswith the opportunity to developalternative management strategies orprescriptions for addressing theconservation needs of the owl.

The Local Option ConservationPlanning process is designed toencourage creative approaches to theconservation of the spotted owl bybuilding flexibility into the regulatoryprocess. Such efforts encouragecoordinated management of listedspecies, like the northern spotted owland the marbled murrelet. If a LocalOption Plan is approved by the Servicein consultation with the appropriateState wildlife agency, the prohibitionagainst take of northern spotted owlsincidental to timber harvests may bemodified, to some degree, as specified

in the Plan. The Service will revieweach proposed Local Option Plancooperatively with the affected Statewildlife agency to ensure that theconservation objectives for the owl inthe affected area will not be precludedand that the proposal is complementaryto the Federal Forest Plan.

Under the local option process of thisproposed rule, the primary focus wouldbe on the spotted owl, although theremight be opportunities for conservingother associated plant and animalspecies. Approval of a local optionconservation plan would be anexpedited process (compared to the HCPpermit mechanism) throughincorporation of specific conservationcriteria and guidance provided by thisproposed rule.

A non-Federal landowner or local orState government may submit anapplication to the Service for approvalof a proposed local option plan. Ifrequested, the Service would providefurther guidance for the development ofa local option plan for a particular area.However, the applicant is responsibleultimately for the preparation of a localoption plan proposal. The Service willbe responsible for ensuring the plan’scompliance with the NationalEnvironmental Policy Act. AppropriateState of Washington agencies may electto participate with the Service in thereview of local option plan proposals forareas within the State. In addition, if theState’s regulations are consistent withthis rule, a local option plan proposalcould be certified through a State reviewprocess.

In determining the criteria forapproval of a local option plan, theService has considered the informationand approval requirements set forth at50 CFR 17.32(b) for a section 10 HCPpermit. Those requirements have beenfurther streamlined for local optionplanning and have been tailored to meetthe specific conservation needs of thespotted owl.

Service approval of a local optionconservation plan will be based onconsideration of the informationrequired to be submitted with anapplication for approval of a plan.Applications for approval of a localoption conservation plan must besubmitted to the Field Supervisor of theFish and Wildlife Service office inOlympia, Washington.

One additional proposed provisionaffecting timber harvest activities withinan SEA involves the recognition andestablishment of a ‘‘safe harbor’’ fromowl incidental take liability where morethan 40 percent suitable habitatremains, post-harvest, within an owl’smedian annual home range. Although


some studies have suggested that ratesof owl reproduction and survival maybe affected to some degree at a percentof suitable habitat above 40 percent, thebenefits of timber management certaintyand the problem of enforcementdifficulties tied to issues of causationnevertheless warrant a ‘‘safe harbor’’approach. Thus, in those instanceswhere more than 40 percent suitableowl habitat remains within an owl’smedian annual home range afterharvest, a landowner would not beliable for prosecution should theincidental take of an owl neverthelessoccur despite their best efforts to avoidtake.

Relief From Current Incidental TakeProvisions in California

This proposed rule contains a shift inapproach for California which hasevolved since the publication of the NOIin December of 1993. The December 29,1993, NOI did not specify any particulararea in California where incidental takeprohibitions would be relaxed, butinstead stated the Service’s intent todefer to California law to provide for theconservation of the spotted owl. Inanticipation of that possibility, theCalifornia Board of Forestry considereda May 1994 proposal from the CaliforniaResources Agency that would haverequired maintenance of suitable owlhabitat as a portion of every watershed.The timber industry regarded theproposal as too restrictive, andregulatory agencies believed it would betoo expensive to administer, so, theBoard of Forestry tabled the proposal.

To provide a possible resolution ofthis impasse, the Service proposes anew structure in this proposed rule asit applies to California which isconsistent with the Service’s originalunderlying biological assumptions forthe owl in that State, as set forth in theDecember 29, 1993, NOI. The Serviceproposes to provide some immediaterelief from incidental take in most of theCalifornia Klamath Province and forsmall landowners in the remainder ofnorthern California within the range ofthe northern spotted owl. To encourageadditional comprehensive conservationplanning for the spotted owl and otherspecies which is available under theCalifornia Natural CommunitiesConservation Planning program (NCCP),additional relief for four other areas ofnorthern California (the CaliforniaCascades, Coastal, Hardwood, and WellsMountain-Bully Choop Regions) (Figure1 to § 17.41(c)) would be availablecontingent upon the successfulcompletion of a NCCP initiative forspotted owls which is complementaryto, or not consistent with the owl

conservation goals of the Federal ForestPlan as applied in that State. The actualscope and extent of relief for these fourareas would be one of the primaryissues to be addressed through theNCCP process. These four areas arecalled potential ‘‘CaliforniaConservation Planning Areas’’ (CCPAs)for purposes of this proposed rule.

Relief From Current Incidental TakeRestrictions Inside The KlamathProvince Relief Area

The proposed rule would result in areduction of the prohibition againstincidental taking of owls for non-Federal lands within most of theKlamath Province in a zone called theKlamath Province Relief Area (Figure 1to § 17.41(c)). There are 105 spotted owlsite centers located on non-Federal landwithin the Klamath Province ReliefCenter. An additional 117 site centersare on Federal land within the ReliefArea which are dependent to somedegree upon adjacent non-Federal lands.Within the area of relief, a landownerwould only be required to retain theclosest 70 acres of suitable owl habitatsurrounding a site center. Thus, theincidental take of the spotted owl wouldnot be prohibited for timber harvestactivities outside those 70 acres. Suchrelief would not be provided throughoutthe entire Klamath Province however. Inparticular, it would not be provided inthose areas that overlap with theboundaries of potential CCPAs,including the Wells Mountain-BullyChoop and the Hardwood Region Areasof the Klamath Province (Figure 1 to§ 17.41(c)). Relief would also not beprovided for those owls in the KlamathProvince Relief Area whose site centersare located on Federal Forest Planreserves or Congressionally reserved orAdministratively withdrawn areas andare dependent upon adjacent non-Federal lands. As noted previously in adiscussion of similar site centers in theState of Washington, the Service willreassess the need for such continuedprotection over the next two years andwill provide additional relief wherewarranted at the end of this assessment.

The California Cascades, Coastal,Hardwood Region and Wells Mountain-Bully Choop CCPAs

California’s NCCP program (CaliforniaFish and Game Code 2800 et seq.) wasinitiated in 1991 to develop plans thatwould preserve biological diversity andreconcile development and wildlifeneeds on a local and regional level. It isdesigned to encourage public/privatesector cooperation, maintain localcontrol over land use decisions, andmeet the objectives of State and Federal

laws by preserving species andecosystems before they are on the vergeof extinction. Planning criteria andconservation strategies for certainspecies and communities are developedby scientific review panels.

The California Resources Agency hasindicated a willingness to considerinitiating an NCCP process for portionsof the range of the spotted owl. TheService would encourage the CaliforniaResources Agency to convene keystakeholders and regulatory agencies inan NCCP process for the CaliforniaCascades, Coastal, Hardwood and WellsMountain-Bully Choop areas of the State(Figures 2 and 3 to § 17.41(c)). TheService recognizes that the actualdesignation of any CCPA is adiscretionary administrative mattercontrolled by the California ResourcesAgency. Accordingly, this proposed rulewould recognize these four regions aspotential CCPA areas, serving as a‘‘place holder’’ in the 4(d) rule untilsuch time as an NCCP planning processis undertaken and completed. One goalof such a planning effort would be tofacilitate and encourage thedevelopment of ownership-wide orRegion-wide management plans andcriteria which adequately provide forthe conservation needs of the owl andwhich complement the owlconservation goals of the Federal ForestPlan. The actual content and scope ofsuch plans would be developed throughthe NCCP process itself. Ultimately, theplanning process must address, to thesatisfaction of the State regulatoryagencies and the Service, an appropriatebalance between providing somemeasure of regulatory relief whileachieving or maintaining theconservation goals for the spotted owlfor a particular region.

Under the NCCP approach, theincidental take of the spotted owl wouldnot be prohibited under the Act if takewere the result of activities conductedaccording to an approved CCPA plan.This would require the Service to firstdetermine, in consultation with theCalifornia Departments of Fish andGame and Forestry and Fire Protection,that the plan meets the overallrequirements of the Act and theconservation goals for the owl in thatarea and is complementary to theFederal Forest Plan. The process shouldalso consider the extent to which newBoard of Forestry Sustained Yield Plans(SYPs) could be used as a basis forincidental take authorization, providedthat such SYPs had been reviewed andapproved by the Service afterconsultation with appropriate Stateagencies. A joint State and FederalNational Environmental Policy Act/


California Environmental Quality Act(NEPA)/(CEQA) document could beprepared to review the environmentaleffects of each CCPA plan, includingany incidental take of owls.

Potential CCPA boundaries describedbelow were derived from earlierplanning efforts by the State (CDF 1992)and knowledge of current Federalconservation efforts. To the extent thatthe boundaries of these potential CCPAsare somewhat different from traditionalpast descriptions of spotted owlprovinces in California, they merelyrepresent sub-units of owl provinces.

The areas discussed below could bedesignated as CCPAs under theCalifornia NCCP Act for purposes ofnorthern spotted owl or possible multi-species conservation planning. Of the837 spotted owl site centers on non-Federal lands in California, 732 are inthe combined, proposed CCPAs. Thereare an additional 228 site centers onFederal lands within the proposedCCPAs, of which 87 rely to some degreeupon adjacent non-Federal lands.

(a) Coastal Area (Figure 2 to§ 17.41(c)).

Extending from the Oregon bordersouth to San Francisco Bay, this area iswest of the Six Rivers and MendocinoNational Forests. It consists ofapproximately 293,000 acres of Federalland, and 3.6 million acres of non-Federal land. Timber management is theprimary land use on about 2 millionacres and is concentrated in the heavilyforested redwood zone within 20 milesof the Pacific Ocean coastline. In themore inland and southerly portions ofthe area, spotted owl habitat is largelyconfined to the lower portions ofdrainages and is naturally fragmentedby grasslands, hardwoods, andchaparral.

The coastal area of northern Californiaplays an important role in theconservation of the species. It representsmore than 10 percent of the range of thespotted owl and has substantial owlpopulations in managed forests.Approximately 642 owl site centerslocated on non-Federal lands are knownin this area, virtually all of them are inmanaged second-growth timber stands;66 site centers are located on Federallands of which 30 rely to some degreeupon adjacent non-Federal lands.

Due to the owl’s widespreaddistribution, the predominance ofselective harvest methods, and the rapidregrowth of habitat, the degree of threatto the species in much of this areaappears to be relatively low. Accordingto analyses conducted by the CaliforniaResources Agency (Berbach et al. 1993),more than 75 percent of the quarter-townships in the three northern coastal

counties (Del Norte, Humboldt, andMendocino) meet or exceed thestandard for spotted owl dispersalhabitat described by the ISC (Thomas etal. 1990). Some degree of incidental takecould be accommodated whilemaintaining a well-distributed spottedowl population. The magnitude of suchincidental take, however, would be oneof the items to be addressed through theNCCP process.

Because Federal lands are limited,they play a small role in theconservation of the species in theCalifornia Coastal area. The Forest Planhas placed most of the existing late-successional forests in the BLM’sscattered parcels (a few thousand acres)into reserves, and Redwood NationalPark also provides late-successionalhabitat in the northern portion of thisarea. However, these limited Federalreserves cannot support enough spottedowls to provide for the conservation ofthe species in the coastal province.Therefore, non-Federal lands aregenerally very important to theconservation of the spotted owl.

Significant non-Federal conservationefforts are already in place or underdevelopment in the California Coastalarea. Several timber companies havemade substantial investments ininformation-gathering and planning forowl conservation. The Simpson TimberCompany has completed an HCP(Simpson 1992) and received a permitfor incidental take of a limited numberof spotted owls on its 380,000-acreproperty. Pursuant to the HCP, SimpsonTimber has set aside 40,000 acres for atleast 10 years, is conducting research onhabitat characteristics, and has bandedmore than 600 owls. The Pacific LumberCompany is conducting banding andradio-telemetry studies, and hascompleted a management plan for its200,000-acre property that maintainsowl habitat in every watershed andprotects all spotted owl nest sites fromtake. The Georgia-Pacific and Louisiana-Pacific Corporations have conductedbanding and radio-telemetry studies incooperation with the CDFG; analyses ofthese data are under way. Numeroussmaller-acreage landowners haveconducted surveys and provided data tothe State’s spotted owl database.

Planning a conservation strategy forspotted owls in the California Coastalarea is a complex task due to the largenumber of landowners (conservativelyestimated at 30,000 to 50,000 (CDF1992). Therefore, except for a smalllandowner exemption for peopleowning less than 80 acres of forestlandwithin a given CCPA and an additionaladjustment for non-Federal lands withinmatrix and AMA areas, the Service is

not proposing to remove the prohibitionof incidental take for this area at thistime, but will cooperate in anticipatedefforts by the California ResourcesAgency to utilize the NCCP process tofurther refine an acceptable owlconservation program for this area thataddresses the question of additionalrelief.

(b) Hardwood Region (Figure 2 to§ 17.41(c)).

In the southern portion of theCalifornia Coast Province and theCalifornia Klamath Province, suitablehabitat is scattered due to effects ofclimate, soils, and human development.This area, which includes much of Lake,Sonoma, Napa, and Marin Counties isdominated by hardwoods and wasdesignated as the HardwoodsSubprovince during the California HCPplanning effort (CDF 1992). It consists ofapproximately 755,000 acres of Federalland and 2.0 million acres of non-Federal land. Approximately 57 owl sitecenters located on non-Federal lands areknown in this area; 70 site centers arelocated on Federal land of which 9 relyto some degree upon non-Federal lands.In this area, spotted owls are widelyscattered and often isolated in smallpatches of habitat. Because the areacontains minimal Federal land,maintenance of the species’ currentrange would depend almost entirely onproviding for owls on non-Federallands.

(c) Wells Mountains—Bully Choop(Figure 3 to § 17.41(c)).

This area is in eastern Trinity Countysouth of the Salmon-Trinity AlpsWilderness, and, as identified in thedraft Recovery Plan, provides animportant link between the CaliforniaKlamath Province and the CaliforniaCascades Province. This area consists ofapproximately 116,000 acres of Federalland and 176,000 acres of non-Federallands, and is managed under Sierra-Pacific Industries’ no-take owlmanagement plan. Approximately 13owl site centers located on non-Federallands are known in this area; 7 sitecenters are located on Federal lands ofwhich all 7 rely to some degree uponadjacent non-Federal lands.Conservation goals include maintenanceof owl populations and dispersalhabitat.

(d) California Cascades (Figure 3 to§ 17.41(c)).

The California Cascades Province iseast of the California Klamath Province.It consists of approximately 1.3 millionacres of Federal land and 1.6 millionacres of non-Federal land. CheckerboardFederal/non-Federal ownership patternspredominate. Due to the relatively dryclimate and the history of recurrent


wildfires in this province, spotted owlhabitat is naturally fragmented bychaparral and stands of deciduoushardwoods. In portions of the province,exclusion of fire during the last centurymay have encouraged development ofmixed-conifer habitat suitable forspotted owls. However, during the sameperiod, timber harvest has removedsubstantial amounts of suitable habitat.Approximately 105 widely scattered sitecenters are known. Of these sites, 20 arecentered on non-Federal lands and 85are centered on Federal lands, of which46 rely to some degree upon adjacentnon-Federal lands. The potential fordispersal throughout the provinceappears to be limited. This provinceprovides the demographic and geneticlink between the northern spotted owland the California spotted owl (Strixoccidentalis occidentalis) of the SierraNevada range.

Currently, threats in this provinceinclude low population numbers, thedifficulty in providing for interactingpopulation clusters, and fragmenteddispersal habitat. Catastrophic wildfireis a significant threat to habitat. In 1992,a 70,000-acre fire in Shasta Countysubstantially reduced the likelihood ofcontact between the northern spottedowl and the California spotted owl forthe next several decades.

Due to the existing habitat conditionand the importance of the province inlinking the two subspecies, the entireprovince has been designated as an areaof concern by every spotted owlmanagement plan to date. The ForestPlan provides protection of habitat inthe home range of each northern spottedowl found in the province. The provincecontains the 172,000-acre GoosenestAMA on the Klamath National Forest.Sierra-Pacific Industries’ owlmanagement plan covers the majority ofthe extensive non-Federal checkerboardownership in the province. The primaryconservation needs for both Federal andnon-Federal lands are research onhabitat use by nesting and dispersingspotted owls, and providing habitat fora well-distributed population and

dispersal throughout the province.Because of the poor biological status ofthe owl in this province, theopportunity for large scale relief in thisarea is very limited at present. Shouldadditional data or information suggestthat the status of the owl has stabilizedor is improving, options for thisProvince would be reconsidered.

Other Related Provisions

As is the case in the State ofWashington, the proposed rule wouldalso include a ‘‘safe harbor’’ for anytimber harvest activity where more than40 percent suitable habitat remained,post harvest, within an owl’s medianannual home range. This provisionwould be relevant for harvest activitieswithin the four potential CCPAs.

The Service proposes to provideimmediate relief upon the effective dateof the final rule from owl incidental takerestrictions for small landowners inCalifornia. Such relief would beindependent of, and in advance of anyNatural Community ConservationPlanning (NCCP) process. Except withinthe 70-acre owl activity centersthemselves, the Service proposes torelieve small landowners who own nomore than 80 acres of forestland in agiven CCPA as of the date of publishingthis proposed rule in the FederalRegister, from the prohibition againstthe incidental take of owls. The 80acres/small landowner relief provisionwould remain in effect regardless ofwhether an NCCP process wasultimately successful in a given CCPA.The relief provision would beapplicable in all four potential CCPAs.It would be unnecessary in the KlamathProvince Relief Area, which is thesubject of a broader proposal to relaxincidental take restrictions.

The Service also proposes to modifyexisting incidental take restrictionswithin potential CCPAs that wouldinvolve non-Federal lands located amidmatrix or Adoptive Management Areas(AMA) designated under the FederalForest Plan. Where such non-Federallands are subject to incidental take

prohibitions for a given owl, the Serviceproposes to authorize the affected non-Federal landowners to apply either thefinal management prescriptions for thesurrounding Federal Matrix/AMA land,as determined through the watershedanalysis or AMA planning processes, asappropriate, or such managementpractices which comply with thecurrent incidental take restrictions.

Application of either managementstrategy would absolve the affected non-Federal landowner from any liability forincidental take of an owl under the Act,resulting in the application of moreuniform owl conservation standardswithin a matrix/AMA area regardless ofland ownership.

The one exception to this policywould be where the adoption of matrixor AMA prescriptions could result inthe incidental take of an owl whose sitecenter is located within a Forest Planreserve or Congressionally reserved orAdministratively withdrawn area. Insuch a case, the incidental takerestrictions would continue to apply forat least two more years. At the end ofthis period, the Service will review anynew data or information involving thestatus of such owls and their habitats inthe affected areas, including the resultsof any completed watershed analysisand other planning efforts under theForest Plan. As noted previously in adiscussion of this review process, theService would assess on an area-by-areabasis whether the continuation of theincidental take prohibition on affectednon-Federal lands was still necessaryand advisable for achieving the owlconservation goals of the Forest Plan.The Service would lift the incidentaltake restrictions where warranted andauthorize the adoption of the finalmatrix or AMA prescriptions, at thediscretion of the affected non-Federallandowner, as a means of avoiding anunauthorized incidental take of an owl.

Table 1 provides a summary of thevarious areas where incidental takerelief could be provided or prohibitionsretained in the two States affected bythis proposed rule.


TABLE 1

Landowner type Washington owl sites outsideSEAs

Washington owl sites insideSEAs

California owl sites insideKlamath relief area

California owl sites insideCCPAs

Less than 80acres.

Relief for all landowners ex-cept for 70-acre core.

Relief except for 70-acre core Relief for all landowners ex-cept for 70-acre core.

Relief except for 70-acrecore.

80–5,000 Acres Relief for all landowners ex-cept for 70-acre core orwhere current restrictionsare necessary to protectowls on a Federal reserveor withdrawn area (exceptfor Olympic Peninsula).

Matrix/AMA prescription op-tion. Additional relief con-tingent upon acceptableLocal Option Plan.

Relief for all landowners ex-cept for 70-acre core orwhere current restrictionsare necessary to protectowls on a Federal reserveor withdrawn area.

Matrix/AMA prescription op-tion. Additional relief con-tingent upon successfulcompletion of NCCP proc-ess.

More than 5,000Acres.

Relief for all landowners ex-cept for 70-acre core orwhere current restrictionsare necessary to protectowls on a Federal reserveor withdrawn area (exceptfor the Olympic Peninsula).

Matrix/AMA prescription op-tion. Additional relief con-tingent upon acceptableLocal Option Plan.

Relief for all landowners ex-cept for 70-acre core orwhere current restrictionsare necessary to protectowls on a Federal reserveor withdrawn area.

Matrix/AMA prescription op-tion. Additional relief con-tingent upon successfulcompletion of NCCP proc-ess.

Incidental Take on Tribal LandsFor Indian forest lands, as that term

is defined at 25 CFR 163.1, in Californiaand Washington, the proposed rulewould result in the reduction of thecurrent Federal prohibition against theincidental take of the spotted owl.Under this proposal, Tribes would berequired to maintain only the closest 70acres of suitable owl habitat around anowl site center. Any additionalrestrictions or prohibitions under Triballaw would continue to apply. TheService is proposing this approach inrecognition of the conservation benefitsprovided the northern spotted owlunder harvest methods practiced bymany Indian Nations, such as theYakima Indian Nation in Washington.Many tribal lands are already managedunder conservation strategies for theowl or are of little habitat value for thebird. Moreover, the Service notes thatthe Secretary’s trust responsibility forNative Americans provides him withadditional fiduciary factors to weigh inexercising his broad discretionaryauthority under Section 4(d) of the Act.

Sunset ProvisionThe Service proposes a process that

could result in the modification of theprohibitions of incidental take that areretained under this proposed ruleshould future biological information sowarrant in either California orWashington.

Under this sunset provision, theService would periodically evaluate theconservation goals for non-Federal landswithin SEAs or possible CCPAs andwould decide whether the conservationgoals for owls in those areas have beenaccomplished as a result of future HCPs,no-take agreements, or other affirmativeconservation activities. Should theService conclude that success has been

achieved in reaching the conservationneeds of the species within a given area,restrictions due to incidental takeprohibitions could be further modifiedor lifted, as information warrants.

Other Federal Mechanisms forPromoting the Conservation of theSpotted Owl

The listing of the spotted owl, thedesignation of its critical habitat, andthe application of Act regulations at 50CFR Part 17 have extended theprotection of the Act to this species.Under section 7 of the Act and theimplementing consultation regulationsat 50 CFR 402, individual project reviewoccurs through the consultation processfor those actions authorized, funded, orcarried out by Federal agencies that mayaffect a listed species like the spottedowl or its designated critical habitat.The Section 7 consultation process isdesigned to ensure that a proposedaction is not likely to jeopardize thecontinued existence of the species oradversely modify its critical habitat. Theconsultation process also requires theService to determine what level ofincidental take is likely to occur as aresult of that action. After completingthis determination, the Service issues anincidental take statement that isdesigned to minimize both the level andthe impact of take on listed species.

In 1982, Congress amended section10(a)(1)(B) of the Act to provide anadditional mechanism for encouragingnon-Federal support for theconservation of listed species. Morecommonly known as HabitatConservation Planning or HCPs, thismechanism authorizes the incidentaltake of a listed species in exchange fora commitment from a private developeror landowner for a long-term

conservation program for the affectedspecies.

Section 10(a)(1)(B) of the Act, requiresnon-Federal applicants to developHabitat Conservation Plans for listedspecies which would be incidentallytaken in the course of otherwise lawfulactivities, and to submit such plansalong with an application for anincidental take permit. Such plans candirect significant private sectorresources in support of the overallconservation of the affected species onnon-Federal lands. Three section10(a)(1)(B) incidental take permits forthe northern spotted owl have alreadybeen issued by the Service. A number ofother non-Federal entities are in theprocess of developing HCPs for thespotted owl. The section 10 HCPprocess will remain available to non-Federal landowners under the proposedrule and will provide an additionalalternative for adjusting the incidentaltake prohibitions set forth in thisproposed rule. The initiation of a majorand aggressive Habitat ConservationPlanning Program for non-Federalforestlands in the Pacific Northwest isan integral and crucial component of theAdministration’s overall owlconservation program. When combinedwith the conservation goals of theFederal Forest Plan and this proposedsection 4(d) rule, the Service’s HabitatConservation Planning initiativeprovides the third element for acomprehensive strategy for the owl.

Incentives for Restoring or EnhancingOwl Habitat

Prohibitions against the incidentaltake of the spotted owl have existedsince the species was Federally listed inJune of 1990. The Service believes thatmany landowners have felt threatenedby the current regulations which could


be viewed as a disincentive to enhance,restore, or maintain habitat in acondition that is suitable for owlnesting, roosting, foraging, or dispersal.The disincentive stems fromlandowners’ fears that owls mightestablish residence on, or move through,their property and impede their abilityto manage their timber resources. Thisdisincentive has had the effect ofincreasing timber harvest of currentlysuitable owl habitat and younger forestson non-Federal lands which are notpresently affected by the presence of anowl. With regard to younger forests inparticular, this concern or fear hasaccelerated harvest rotations in an effortto avoid the regrowth of habitat that isuseable by owls.

For those non-Federal lands whichare not currently affected by incidentaltake restrictions for spotted owls, theService proposes to provide a newincentive to landowners to voluntarilymanage their lands in a manner whichaids in owl conservation withoutincreased regulatory liability for thelandowner. In particular, the Servicedesires to encourage landowners torestore or enhance former owl habitatwhich has been previously altered andis of little current value to the owl. TheService is also interested in encouragingowners of current suitable owl habitat tomaintain that habitat and to foregopremature cutting as the only perceivedmeans of avoiding future incidental takerestrictions for the owl.

The Service would offer to workdirectly with a non-Federal landownerthrough a written conservation orcooperative agreement for the purposeof managing, restoring or enhancingforest habitat so as to contribute to thesurvival and recovery of the owl.Working with the affected landowner,the Service would first establish anenvironmental baseline for the propertyto confirm that no Endangered SpeciesAct-based spotted owl restrictionscurrently apply to the land. The Servicemight provide such other conservationadvice or assistance as is feasible andavailable. The agreement would be ofsufficient duration so as to enhance theconservation of the owl or to providesome benefit to the owl while stillallowing economic use of the propertyduring the term of the agreement.

At the end of the agreement, or at anytime thereafter, the landowner would befree to use his or her property as desiredwithout restrictions under the Act forthe spotted owl. This would be the caseeven if an owl established residence ordependency upon the property at somepoint during or after the terms of theagreement. During the life of theagreement, the landowner also would be

authorized to incidentally take anyspotted owl which was otherwise inaccordance with the use of the propertyunder the agreement.

The Service believes that anincentives program of this sort willencourage primarily the development ofdispersal habitat under restoration andenhancement agreements and will slowdown the harvest of suitable owl habitatunder habitat maintenance agreements.Under any of these approaches, there isa potential benefit for the spotted owl.Most owls using dispersal habitat arenot likely to remain dependent uponthat habitat as part of a resident pair oras a single. Instead, they are likely touse the area as a corridor for movingfrom one block of suitable habitat toanother. Under these circumstances, anyincidental take that might otherwiseoccur through land use activities on theproperty is likely to be inconsequentialor very limited in impact or duration.

In addition, the opportunity forsubsequent immunity from incidentaltake restrictions should provide anincentive to owners of suitable owlhabitat to forego panic cutting and toenter into habitat maintenanceagreements. By discouraging legal butpotentially unsustainable harvests now,and stretching the retention of suitableowl habitat for the life of a maintenanceagreement, the Service and thelandowner would keep such habitatavailable for owl use during thependency of the agreement.

Incidental Take of Other Listed SpeciesSeveral other Federally-listed species

occur in the late-successional and old-growth forests that provide habitat forthe spotted owl. The bald eagle(Haliaeetus leucocephalus), peregrinefalcon (Falco peregrinus), gray wolf,grizzly bear (Ursus arctos), and marbledmurrelet are known to occur on non-Federal lands in the range of the owl;the prohibition of take of these speciesincidental to timber harvest wouldremain in place.

The Service is concerned about theeffects of harvest activities on themarbled murrelet, particularly since therange of the spotted owl significantlyoverlaps the range of the murrelet. Someareas of relief under this proposed rulefor the spotted owl might also providehabitat that is occupied by the marbledmurrelet. Since the date of the originallisting of the murrelet, the Service hasbeen acquiring as much additional dataand information as possible to identifythe constituent elements of suitablemurrelet habitat, as well as to expand alandowner’s ability to determinewhether or not such habitat is occupied.Significant progress also has been made

in the development of a draft recoveryplan for the murrelet. The draft recoveryplan should be available for publiccomments in two to three months. Inorder to aid a landowner in determiningwhether a property is occupied bymurrelets, the Service encourageslandowners to contact one of the Fishand Wildlife Service’s three EcologicalServices State Offices noted previouslyin this document, and request guidanceor information on delineating suitablemurrelet habitat and conductingmurrelet surveys to determine presenceof murrelets on a given piece ofproperty. This will ensure thatlandowners who might receive relieffrom owl restrictions under thisproposed rule are aware of the latestdata on occupied habitat for murrelets.

The Service recognizes that additionalincidental take of spotted owls mayoccur in SEAs in Washington andCCPAs in California, as HCPs or otherlong-term conservation agreements, e.g.local option conservation plans, areimplemented and further take isauthorized. However, the Servicebelieves that the overall level ofincidental take is acceptable in light ofthe habitat-based conservation strategyin the Forest Plan and the fact that suchplans or agreements must satisfy theconservation requirements of the Act.The Service will review the effects ofthe proposed rule under a section 7consultation as part of the process tocomplete this proposed rule.

In Washington and California, theService believes that the relief fromprohibitions for non-Federallandowners outside of SEAs or CCPAsand for non-Federal landowners withholdings of less than 80 acres offorestland in a given SEA or CCPAwould not preclude the recovery of thespotted owl and will facilitate themaintenance of habitat conditions insome areas by removing disincentivesthat currently account for the prematurecutting of habitat.

In general, the contributions ofFederal, State, Tribal and private landmanagement and conservation effortsfor protection of the spotted owl andother species allow for reduction of theprohibitions on incidental take of theowl in many areas on non-Federallands. As a result of this proposed rule,landowners would have more certaintyabout the conditions under whichincidental take is likely to occur.Finally, the Service points to the long-term benefit to the owl of enhancedpublic support for the Act.

Public Comments SolicitedThe Service intends that any final

action resulting from this proposed rule


would be as accurate and as effective aspossible. Therefore, comments orsuggestions from the public, othergovernment agencies, the scientificcommunity, industry, or any otherinterested party concerning thisproposed rule are solicited. Inparticular, the Service seeks commentson:

(1) The distribution, abundance, andpopulation trends of spotted owls onnon-Federal lands in Washington andCalifornia as they would relate to theapproaches described in this proposedrule;

(2) The boundaries of the proposedSEAs or CCPAs identified forWashington and California andsuggestions for modification of theseboundaries. In order to better assessavailable data on the region, the Serviceparticularly would like to encouragepublic comment on the question ofwhether it is necessary and advisable forthe conservation of the spotted owl todesignate a Special Emphasis Area onthe western side of the OlympicPeninsula, and if so, whether thepresent proposed boundaries of theHoh/Clearwater Special Emphasis Areaare warranted or whether they should bereduced in size or significantlyreconfigured.

(3) The distribution and abundance ofspotted owl populations that are outsideof SEAs or CCPAs;

(4) The biological and economicimplications of applying the proposedrule in Washington and California;

(5) The applicability of the definitionsof suitable habitat and dispersal habitatfor the spotted owl, specific toprovinces if possible;

(6) The implications of the proposedrule on small-acreage (less than 80acres), medium-acreage (80 to 5,000acres), and large-acreage (more than5,000 acres) non-Federal landownersand comments on how these differentownerships are addressed in theproposed rule;

(7) The scope and effect of the ‘‘localoption’’ process for landowners whoown 80 to 5,000 acres in SEAs in theState of Washington;

(8) The biological or economicimplication of proposing a differentSEA/CCPA approach where non-Federalbuffers would be retained around anyowl site centers located on Federalreserves in designated areas, andwhether SEA/CCPA boundaries wouldchange as a result of applying this typeof approach; and

(9) Recommendations or comments onhow to implement the proposed HabitatEnhancement Agreement conservationprogram for the owl, particularly withregards to possible provisions of such

agreements, scope of duration of suchagreements and land use assurances toprivate landowners which would benecessary to encourage voluntaryparticipation.

Final promulgation of the proposedrule will take into consideration thecomments and any information receivedby the Service. Any information theService receives during the commentperiod may lead to a final rule thatdiffers from this proposed rule.

The Act provides for a public hearingon the proposed rule, if requested.Requests must be received within 45days of the date of publication of thisproposed rule. Such requests must bewritten and addressed to: RegionalDirector, Region 1, U.S. Fish & WildlifeService, 911 N.E. 11th Avenue,Portland, Oregon 97232–4181.

Section 7 ConsultationReview, pursuant to section 7 of the

Act, will be conducted prior to issuanceof a final rule to ensure that theproposed action will not jeopardize thecontinued existence of the spotted owlor any other listed species.

National Environmental Policy ActThe Fish and Wildlife Service is

complying with NEPA in implementingthe provisions of this proposed rule.The Service prepared an environmentalassessment on this proposal and hasdecided to engage in a more intensiveassessment of impacts through thepreparation of an environmental impactstatement (EIS). The Service ispreparing a draft EIS at this time. Thedraft EIS will be published andavailable for public review andcomment approximately 60 days afterpublication of this proposed rule. Theend of the public comment period forthe proposed rule will ultimately beextended to coincide with the end of thepublic comment period for the draft EIS.

Required DeterminationsThis proposed rule was reviewed

under Executive Order 12866. TheService has not yet made adetermination of the economic effects ofthe proposed rule on small entities asrequired under the RegulatoryFlexibility Act (5 U.S.C. 601 et seq.).Specific economic effects of theproposed action will be discussed in theeconomic analysis that is included inthe Environmental Impact Statement(EIS) for the proposed action. The EISwill be published and available forpublic comment at a later date. This ruledoes not require a Federalismassessment under Executive Order12612 because it would not have anysignificant federalism effects as

described in the order. The collection ofinformation contained in this proposedrule have been approved by the Officeof Management and Budget underU.S.C. 3501 et seq. and assignedclearance number 1018–0022. TheService has determined that thisproposed action qualifies for categoricalexclusion under the requirements ofExecutive Order 12630, ‘‘GovernmentActions and Interference withConstitutionally Protected PropertyRights’’, and preparation of a TakingsImplications Assessment is notrequired. Regulations that authorize takeof listed species, as is proposed in thisspecial rule, are designated ascategorical exclusions.

References Cited

Bart, J. and E.D. Forsman. 1992. Dependenceof northern spotted owls (Strixoccidentalis caurina) on old-growthforests in the western USA. BiologicalConservation 62:95–100.

Berbach, M., G.I. Gould, Jr., J. Stenback, H.Eng, and R. Marose. 1993. GIS analysisof northern spotted owl dispersal habitaton private lands in Del Norte, Humboldt,and Mendocino Counties, California.Trans. West. Sec. Wildl. Soc. Vol. 29.Sacramento, California.

Buchanan, J., Hanson, E., Hays, D., and L.Young, L. 1994. An evaluation of theWashington Forest Practices BoardWildlife Committee preferred alternativefor a spotted owl protection rule: a reportto the Washington Forest PracticesBoard. Washington Forest PracticesBoard Spotted Owl Advisory Group.Olympia, Washington.

Hanson, E., Hays, D., Hicks, L., Young, L.,and J. Buchanan. 1993. Spotted owlhabitat in Washington: a report to theWashington Forest Practices Board.Washington Forest Practices BoardSpotted Owl Advisory Group. Olympia,Washington.

Holthausen, R.S.; Raphael, M.G.; McKelvey,K.S.; Forsman, E.D.; Starkey, E.E.;Seaman, D.D. 1994. The Contribution ofFederal and Nonfederal Habitat toPersistence of the Northern Spotted Owlon the Olympic Peninsula, Washington.Report of the Reanalysis Team.

Murray Pacific Corp. 1993. Habitatconservation plan for the northernspotted owl on forestlands owned by theMurray Pacific Corporation, Lewis Co.,Washington.

Ralph, C.J., Nelson, S.K., Shaughnessy, M.M.,Miller, S.L.; Hamer, T.E. 1994. Methodsfor surveying marbled murrelets inforests; a protocol for land managementand research. Pacific Seabird Group,Technical paper #1, revised. USDAForest Service, Pacific SouthwestResearch Station, Arcata, California. 50p.

Simpson Timber Co. 1992. Habitatconservation plan for the northernspotted owl on the CaliforniaTimberlands of Simpson TimberCompany.


Thomas, J.W., E.D. Forsman, J.B. Lint, E.C.Meslow, B.R. Noon, and J. Verner. 1990.A conservation strategy for the northernspotted owl. Interagency ScientificCommittee to Address the Conservationof the Northern Spotted Owl, U.S.Department of Agriculture, ForestService, and U.S. Department of Interior,Bureau of Land Management, Fish andWildlife Service, National Park Service,Portland, Oregon.

Thomas, J.W., M.G. Raphael, R.G. Anthony,E.D. Forsman, A.G. Gunderson, R.S.Holthausen, B.G. Marcot, G.H. Reeves,J.R. Sedell, D.M. Solis. 1993. Viabilityassessments and managementconsiderations for species associatedwith late-successional and old-growthforests of the Pacific Northwest.Portland, Oregon. U.S. Department ofAgriculture, Forest Service.

Tuazon, R., DePree, J., Gaffin, J., Harris, R.,Johnson, R., Murray, G., Roush, L.,Whitlock, W., and R. Zwanziger. 1992.Northern spotted owl habitatconservation plan for private forestlandsin California. Draft prepared forCalifornia Board of Forestry.

USDA/USDI/NOAA/EPA. 1993. ForestEcosystem Management: An Ecological,Economic, and Social Assessment. AReport of the forest EcosystemManagement Assessment Team. July,1993. Portland, Oregon.

USDA/USDI. 1994a. Final supplementalenvironmental impact statement onmanagement of habitat for late-successional and old-growth forestrelated species within the range of thenorthern spotted owl. Portland, OR. 2vol.

USDA/USDI. 1994b. Record of decision foramendments to Forest Service andBureau of Land Management planningdocuments within the range of thenorthern spotted owl. Portland, OR:Forest Service, Bureau of LandManagement.

USDI. 1990. 1990 status review of thenorthern spotted owl. Fish and WildlifeService, Portland, Oregon.

USDI. 1992. Recovery plan for the northernspotted owl; final draft. Portland,Oregon: U.S. Department of Interior, 2vol.; December 1992.

USFWS. 1992. Protocol for surveyingproposed management activities thatmay impact northern spotted owls.March 17, 1992. Portland, Oregon.

Warm Springs Indian Reservation. 1993.Forest management implementation plan1992 through 2001. Warm Springs,Oregon.

Authors

The principal authors of thisproposed rule are Gerry Jackson, U.S.Fish and Wildlife Service, DeputyAssistant Regional Director, NorthPacific Coast Ecosystem, 911 N.E. 11thAvenue, Portland, Oregon 97232; CurtSmitch, U.S. Fish and Wildlife Service,Assistant Regional Director, NorthPacific Coast Ecosystem, 3704 Griffin

Lane SE, Suite 102, Olympia,Washington 98501; and Don Barry,Counselor to Assistant Secretary forFish, Wildlife and Parks, 1849 C StreetNW, Washington, DC 20240.

List of Subjects in 50 CFR Part 17Endangered and threatened species,

Exports, Imports, Reporting andrecordkeeping requirements, andTransportation.

Proposed Regulation PromulgationAccordingly, the Service hereby

proposes to amend part 17, subchapterB of chapter I, title 50 of the Code ofFederal Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–625, 100 Stat. 3500, unless otherwise noted.

§ 17.11 [Amended]2. Section 17.11(h), is amended by

revising the ‘‘special rules’’ column inthe table entry for ‘‘Owl, northernspotted’’ under BIRDS to read‘‘17.41(c)’’ instead of ‘‘NA’’.

3. Section 17.41 is amended byadding paragraph (c) to read as follows:

§ 17.41 Special rules—birds.

* * * * *(c) Northern spotted owl (Strix

occidentalis caurina).(1) Prohibitions. Except as provided in

this paragraph (c)(1) or by a permitissued under paragraph (c)(2) of thissection, the following prohibitionsapply to the northern spotted owl.

(i) Taking. Except as provided in thisparagraph (c)(1)(i), no person shall takea northern spotted owl in Washington orCalifornia.

(A) Taking pursuant to cooperativeagreements. Any employee or agent ofthe Fish and Wildlife Service (Service),or of a conservation agency of the Stateof Washington or State of California thatis carrying out a conservation programpursuant to the terms of a cooperativeagreement with the Service inaccordance with section 6(c) of theEndangered Species Act, who isdesignated by his/her agency for suchpurposes, may, when acting in thecourse of his/her official duties, take anorthern spotted owl covered by anapproved cooperative agreement tocarry out a conservation program underthe agreement in Washington orCalifornia.

(B) Taking by designated officials.Any employee or agent of the Service,National Park Service, Bureau of LandManagement, U.S. Forest Service,

Washington Department of Wildlife, orCalifornia Department of Fish andGame, who is designated by his/heragency for such purposes, may, whenacting in the course of his/her officialduties, take a northern spotted owl inWashington or California if such actionis necessary to:

(1) Aid a sick, injured or orphanedowl;

(2) Dispose of a dead owl; or(3) Salvage a dead owl which may be

useful for scientific study: Provided,that any taking pursuant to paragraph(c)(1)(i)(B) of this section must bereported in writing to the U.S. Fish andWildlife Service, Division of LawEnforcement, P.O. Box 19183,Washington, DC 20036, within 5 days.The specimen may only be retained,disposed of or salvaged in accordancewith directions from the Service.

(C) Incidental Take on Tribal Lands.On Indian forest lands in Washingtonand California, as defined in 25 CFR163.1, any person may, when acting inaccordance with tribal forestry rules andregulations, take a northern spotted owlincidental to timber harvest activity ifthe harvest does not destroy or degradethe 70 acres of nesting, roosting andforaging habitat closest to an owl sitecenter.

(D) Spotted Owl Habitat EnhancementAgreement. Any person who hasvoluntarily entered into a CooperativeHabitat Enhancement Agreement(Agreement) with the Service for thepurpose of restoring, enhancing ormaintaining forestland habitat to aid inthe conservation of the spotted owl may,pursuant to the terms of that Agreement,incidentally take spotted owls on thesubject lands either during or after theperiod when the Agreement is in effect:Provided, that such Agreements shallonly apply to parcels of land that arefree of all incidental take restrictions forthe spotted owl as of the date that suchAgreements enter into force and effect,and that such Agreements must be ofsufficient duration to aid in theconservation of the spotted owl.

(E) Incidental Take in State ofWashington. The provisions of thisparagraph (c)(1)(i)(E) shall apply to theincidental take of northern spotted owlsfrom timber harvest activity in the Stateof Washington.

(1) Outside Special Emphasis Areas(SEA). Any person may take a northernspotted owl incidental to timber harvestactivity outside an SEA if the harvestdoes not destroy or degrade the 70 acresof nesting, roosting and foraging habitatclosest to an owl site center: Provided,that such incidental take is notauthorized with regard to an owl whosesite center is located within and along


the boundary of an SEA; or a Federalreserve or Congressionally reserved orAdministratively withdrawn area whichis otherwise located off the OlympicPeninsula.

(2) Inside SEAs—Matrix and AdaptiveManagement Area authorization. Anyperson may take a northern spotted owlincidental to timber harvest activitywithin an SEA if the harvest is on non-Federal land surrounded by or locatedwithin Federal Matrix or AdaptiveManagement Area lands and complieswith the final Federal harvestprescriptions or restrictions adopted forsuch lands: Provided, that thisauthorization shall not apply to anynorthern spotted owl whose site centeris located within a Federal Reserve or aCongressionally reserved area orAdministratively withdrawn area.

(3) Inside SEAs—Small landowners.Any person who owns, on February 17,1995, no more than 80 acres offorestland within a given SEA, may takea northern spotted owl incidental totimber harvest activity within such 80acres if the harvest does not destroy ordegrade the 70 acres of nesting, roostingand foraging habitat closest to an owlsite center.

(4) Inside SEAs—Local optionconservation plans. (i) Authorization.Any person who owns on February 17,1995 more than 80 acres, but not morethan 5000 acres, of forestland in a givenSEA may take a northern spotted owlincidental to timber harvest activityconducted on such land in accordancewith a Local Option Conservation Planapproved by the Service.

(ii) Application. Each application fora Local Option Conservation Plan shallbe submitted to the Service’s StateSupervisor, U.S. Fish and WildlifeService, 3704 Griffin Lane SE, Suite 102,Olympia, Washington 98501, on anofficial application (Form 3–200)provided by the Service. Eachapplication must include, as anattachment, a plan that contains adescription of the area to be covered bythe proposed plan; the size of theaffected land ownership(s) and theintended duration of the plan; thenumber of affected spotted owls and thehabitat condition in the area to becovered by the proposed plan, if known;the extent to which the plan willcontribute to or be consistent with theowl conservation needs identified forthe SEA affected by the plan; the extentto which the incidental take of spottedowls resulting from timber activitiesunder the plan will be complementarywith the goals of the Federal Forest Planfor the affected area; the extent to whichthe land is adjacent to, or interspersedwithin, Federal Matrix or Adaptive

Management Area lands and adescription of the final managementprescriptions delineated for any suchlands, if known; the measures to betaken to minimize and mitigate theimpacts of incidental take of spottedowls; the impact of the plan on affectedwatershed(s); what commitments thelandowner(s) will provide to ensureimplementation or adequate funding forthe plan; what procedures will be usedto deal with any unforeseencircumstances which could result insignificant adverse effects to spottedowls in the affected area; any additionalmeasures the Service requires as beingnecessary or appropriate for the goals ofthe plan to be met, e.g., reporting andreview requirements; and, where theState has implemented regulations for alocal option conservation plan reviewprocess that complements or isconsistent with this proposed rule,whether the State has certified the plan.

(iii) Approval. After consideration ofthe information submitted with anapplication and received during apublic comment period, the Serviceshall approve a Local OptionConservation Plan if it finds that anyanticipated taking will be incidental; theapplicant will minimize and mitigatethe impact of such takings; the localoption conservation plan contributes toor is consistent with the conservationneeds of the northern spotted owl in theaffected SEA and will not result in theincidental take of a spotted owl deemedessential for providing demographicsupport for a Federal reserve establishedunder the Federal Forest Plan asnecessary to achieve conservationobjectives; the applicant will provideadequate assurances or funding for theimplementation of the local option plan;and the taking will not appreciablyreduce the likelihood of survival andrecovery of any listed species in thewild.

(5) Safe Harbor Authorization. Anyperson may take a northern spotted owlincidental to timber harvest activitywithin an SEA if the harvest does notdestroy or degrade the 70 acres ofnesting, roosting and foraging habitatclosest to an owl site center, and doesnot reduce, to less than 40 percent, theamount of nesting, roosting and foraginghabitat within the median annual homerange of the affected owl.

(6) Sunset provision. The Serviceshall periodically review and evaluatethe effectiveness of the conservationmeasures and program for the spottedowl for each SEA. If the reviewindicates that the conservation goals foran SEA have been effectively achieved,the Service shall propose regulations tomodify or withdraw the incidental take

prohibitions in this paragraph asappropriate with respect to such SEA.

(F) Incidental Take in State ofCalifornia. The provisions of thisparagraph (c)(1)(i)(F) shall apply to theincidental take of northern spotted owlsfrom timber harvest activity in the Stateof California.

(1) Klamath Province Relief Area. Anyperson may take a northern spotted owlincidental to timber harvest activity inthe Klamath Province Relief Area(Figure 1 to § 17.41(c)) if the harvestdoes not destroy or degrade the 70 acresof nesting, roosting and foraging habitatclosest to an owl site center: Provided,that such incidental take is notauthorized with regard to an owl whosesite center is located within and alongthe boundary of a Federal reserve or aCongressionally reserved orAdministratively withdrawn area.

(2) Potential California ConservationPlanning Areas. (i) Matrix and AdaptiveManagement Area authorization. Anyperson may take a northern spotted owlincidental to timber harvest activitywithin a potential CaliforniaConservation Planning Area (CCPA) ifthe harvest is on non-Federal landsurrounded by or located within FederalMatrix or Adaptive Management Arealands and complies with the finalFederal harvest prescriptions orrestrictions adopted for such lands:Provided, that this authorization shallnot apply to any northern spotted owlwhose site center is located within aFederal reserve or a Congressionallyreserved or Administratively withdrawnarea.

(ii) Small landowners. Any personwho owns, on February 17, 1995, nomore than 80 acres of forestland withina given potential CCPA may take anorthern spotted owl incidental totimber harvest activity within such 80acres if the harvest does not destroy ordegrade the 70 acres of nesting, roostingand foraging habitat closest to an owlsite center.

(iii) Natural CommunitiesConservation Plans. Any person maytake a northern spotted owl incidentalto timber harvest activity within apotential CCPA if the harvest isconducted in accordance with a NaturalCommunities Conservation Plan (Plan)for spotted owls prepared by the Stateof California and approved by theService. The Service shall approve anysuch Plan if it finds that the Plan isconsistent with achieving theconservation goals for the spotted owl inthe affected CCPA, is complementary tothe Federal Forest Plan and is consistentwith the criteria of section 10(a)(2) ofthe Endangered Species Act (16 USC1539(a)(2)).


(iv) Safe Harbor Authorization. Anyperson may take northern spotted owlsincidental to timber harvest activitywithin a potential CCPA if the harvestdoes not destroy or degrade the 70 acresof nesting, roosting and foraging habitatclosest to an owl site center, and doesnot reduce, to less than 40 percent, theamount of nesting, roosting and foraginghabitat within the median annual homerange of the affected owl.

(v) Sunset provision. The Service shallperiodically review and evaluate theeffectiveness of the conservationmeasures and program for the spottedowl established for each CCPA. If thereview indicates that the conservationgoals for a CCPA have been effectivelyachieved, the Service shall proposeregulations to modify or withdraw theincidental take prohibitions of thisparagraph, as appropriate, with respectto such CCPA.

(ii) Unlawfully taken owls. No personshall possess, sell, deliver, carry,transport, or ship, any northern spottedowl taken in violation of paragraph(c)(1)(i) of this section: Provided, thatFederal and State law enforcementofficers may possess, deliver, carry,transport or ship any endangeredwildlife taken in violation of the Act asnecessary in performing their officialduties.

(iii) Commercial transportation. Noperson shall deliver, receive, carry,transport, or ship in interstate or foreigncommerce in the course of a commercialactivity any northern spotted owl.

(iv) Sales. No person shall sell or offerfor sale in interstate or foreigncommerce any northern spotted owl.

(v) Importation or exportation. Noperson shall import into the UnitedStates, or export from the United States,any northern spotted owl.

(2) Permits. In accordance with theprovisions of § 17.32 of this Part,permits are available to authorizeotherwise prohibited activitiesinvolving the northern spotted owl inWashington and California.

(3) Definitions. As used in thisparagraph (c):

(i) Administratively withdrawn areameans lands that are excluded fromplanned or programmed timber harvestunder agency planning documents orthe preferred alternative for draft agencyplanning documents.

(ii) Adaptive management area meansthe 10 landscape units that wereadopted in the April 13, 1994 Record ofDecision for Amendments to U.S. ForestService and Bureau of LandManagement Planning Documentswithin the Range of the NorthernSpotted Owl (USDA/USDI 1994) fordevelopment and testing of technical

and social approaches to achievingspecific ecological, economic, and othersocial objectives.

(iii) Congressionally reserved areameans lands with Congressionaldesignations that preclude timberharvest, as well as other Federal landsnot administered by the Forest Serviceor Bureau of Land Management,including National Parks andMonuments, Wild and Scenic Rivers,National Wildlife Refuges, and militaryreservations.

(iv) Federal Forest Plan means theFederal forest management strategies,standards and guidelines adopted in theApril 13, 1994, Record of Decision forthe Final Supplemental EnvironmentalImpact Statement for 19 NationalForests and 7 Bureau of LandManagement Districts located within therange of the northern spotted owl.

(v) Federal Matrix Land means thoseFederal lands generally available forprogrammed timber harvest which areoutside of the Congressionally reservedand Administratively withdrawn areas,Federal reserves and AdaptiveManagement Areas as delineated in theStandards and Guidelines adopted inthe April 13, 1994, Record of Decision.

(vi) Federal Reserve means thoseFederal lands delineated in the April 13,1994, Record of Decision on whichprogrammed timber harvest is notallowed and is otherwise severelylimited. There are two types of reserves:late-successional reserves, which aredesigned to produce contiguous blocksof older forest stands; and riparianreserves, which consist of protectedstrips along the banks of rivers, streams,lakes, and wetlands that act as a bufferbetween these water bodies and areaswhere timber harvesting is allowed.

(vii) Home range means the area aspotted owl traverses in the course ofnormal activities in fulfilling itsbiological needs during the course of itslife span.

(viii) Nesting, roosting and foraginghabitat or suitable habitat means thoseareas with the following vegetativestructure and composition necessary toassure successful nesting, roosting, andforaging activities for a territorial singleor breeding pair of spotted owls:

(A) In the California provinces,suitable habitat consists, as a generalmatter, of coniferous or mixedconiferous/hardwood forests withmultiple canopy layers; multipleoverstory conifers greater than 16 inchesin diameter at breast height (dbh); andtotal canopy closure among dominant,co-dominant, and understory trees ofgreater than 60 percent;

(B) In the Western WashingtonLowlands province, the Western

Washington Cascades province, and theWashington Olympic Peninsulaprovince, suitable habitat consists, as ageneral matter, of coniferous or mixedconiferous/hardwood forests withmultiple canopy layers; multiple largeoverstory conifers greater than 20 inchesdbh, and total canopy closure amongdominant, co-dominant and understoryspecies of greater than 60 percent;

(C) In the Eastern WashingtonCascades province, suitable habitatconsists, as a general matter, ofconiferous forests with stands thatcontain greater than 20 percent fir(Douglas fir, Grand fir) and/or hemlocktrees; multiple canopy layers of multiplelarge overstory conifers greater than 12inches dbh; and total canopy closureamong dominant, co-dominant andunderstory species of greater than 50percent.

(ix) Northern spotted owl, spottedowl, or owl means any northern spottedowl (Strix occidentalis caurina), alive ordead, and any part, egg, nest, or productthereof.

(x) Person has the meaning providedin 16 USC 1532(13).

(xi) Potential California ConservationPlanning Area (CCPA) means any of thefollowing four areas in the State ofCalifornia (Figure 1 to § 17.41(c)):

(A) California Coastal Area(Humboldt Meridian and Baseline)(Figure 2 to § 17.41(c)) Beginning at theintersection of the California-OregonState Line and the shoreline of thePacific Ocean, then east along theCalifornia-Oregon State Line, then southalong the east border of S33 T19NR01E,S04 T18NR01E, S09 T18NR01E, S16T18NR01E, S21 T18NR01E, S28T18NR01E, S33 T18NR01E, then westalong the south border of S33T18NR01E, then south along the eastborder of S05 T17NR01E, S06T17NR01E, then east along the northborder of S16 T17NR01E, then southalong the east border of S16 T17NR01E,S21 T17NR01E, S28 T17NR01E, S33T17NR01E, and S04 T16NR01E, theneast along the north border of S10T16NR01E, then south along the eastborder of S10 T16NR01E, S15T16NR01E, then east along the northborder of S23 T16NR01E, then southalong the east border of S23 T16NR01Eand S26 T16NR01E, then east along thenorth border of S36 T16NR01E, thensouth along the east border of S36T16NR01E, then east along the northborder of S06 T15NR02E, then southalong the east border of S06 T15NR02E,S07 T15NR02E, S18 T15NR02E, theneast along the north border of S20T15NR02E, S21 T15NR02E, S22T15NR02E, S23 T15NR02E, then northalong the west border of S13 T15NR02E,


S12 T15NR02E, then east along thenorth border of S12 T15NR02E, S07T15NR03E, S08 T15NR03E, then southalong the east border of S08 T15NR03E,S17 T15NR03E, then west along thesouth border of S17 T15NR03E, thensouth along the east border of S19T15NR03E, S30 T15NR03E, S31T15NR03E, then west along the southborder of S31 T15NR03E, then southalong the east border of T14NR02E,T13NR02, and T12NR02E, then eastalong the north border of T12NR03E,then south along the east border ofT12NR03E and T11NR03E, then eastalong the north border of S06T10NR04E, then south along the eastborder of S06 T10NR04E, S07T10NR04E, S18 T10NR04E, S19T10NR04E, S30 T10NR04E, S31T10NR04E, S06 T09NR04E, S07T09NR04E, S18 T09NR04E, thensouthwest along the north border of theHoopa Valley Indian Reservation, thensoutheast along the west border of theHoopa Valley Indian Reservation, thensouth along the east border of S17T07NR04E, S20 T07NR04E, S29T07NR04E, S32 T07NR04E, S05T06NR04E, S08 T06NR04E, S17T06NR04E, S20 T06NR04E, S29T06NR04E, S32 T06NR04E, then eastalong the north border of S04T05NR04E, then south along the eastborder of S04 T05NR04E, then eastalong the north border of S10T05NR04E, then south along the eastborder of S10 T05NR04E, S15T05NR04E, S22 T05NR04E, then eastalong the north border of S26T05NR04E, S25 T05NR04E, then southalong the east border of T05NR04E andT04NR04E, then east along the northborder of S31 T04NR05E, then southalong the east border of S31 T04NR05E,S06 T3NR05E, S07 T3NR05E, S18T3NR05E, then east along the northborder of S20 T03NR05E, S21T03NR05E, then south along the eastborder of S21 T3NR05E, S28 T3NR05E,S33 T3NR05E, S04 T02NR05E, S09T02NR05E, S16 T02NR05E, then eastalong the north border of S22T02NR05E, then south along the eastborder of S22 T02NR05E, then eastalong the north border of S26T02NR05E, S25 T02NR05E, then southalong the east border of T02NR05E, theneast along the north border ofT01NR06E, then south along the eastborder of S03 T01NR06E, S10T01NR06E, S15 T01NR06E, S22T01NR06E, then east along the northborder of S26 T01NR06E, then southalong the east border of S26 T01NR06E,then east along the north border of S36T01NR06e, S31 T01NR07E, then northalong the east border of S29 T01NR07E,

then east along the north border of S29T01NR07E, then south along the eastborder of S29 T01NR07E, S32T01NR07E, then west along the southborder of T01NR07E, then south alongthe east border of T01SR06E, then westalong the south border of S24T01SR06E, S23 T01SR06E, S22T01SR06E, S21 T01SR06E, S20T01SR06E, S19 T01SR06E, S24T01SR05E, S23 T01SR05E, then southalong the east border of S27 T01SR05E,S34 T01SR05E, then east along thenorth border of S02 T02SR05E, thensouth along the east border of S02T02SR05E, S11 T02SR05E, S14T02SR05E, then east along the northborder of S24 T02SR05E, then southalong the east border of T02SR05E, theneast along the north border of S31T02SR06E, then south along the eastborder of S31 T02SR06E, then east alongthe north border of S06 T03SR06E, S05T03SR06E, S04 T03SR06E, S03T03SR06E, S02 T03SR06E, S01T03SR06E, then south along the eastborder of T03SR06E, then west alongRuth Zenia Road, Alderpoint BluffRoad, Zenia Bluff Road, Alder PointRoad, then south along Harris Road, BellSprings Road, and U.S. Highway 101,then west along Sebatopol Road, BodegaHighway, and California Highway 1,then north along California Highway 1,then west along Salmon Creek, thennorth along the shoreline of the PacificOcean to the point of beginning.

(B) Hardwood Region (Mt DiabloMeridian and Baseline Except WhereTownship Designation Is Followed by *Which Indicates Humboldt Meridianand Baseline) (Figure 2 to § 17.41(c))Beginning at the Intersection of RuthZenia Road and the east border ofT03SR06E*, then south along the eastborder of T03SR06E*, then east alongthe north border of T04SR07E* andT04SR08E*, then south along the eastborder of T04SR08E* and T05SR08E*,/****Meridian Change/ then east alongthe north border of T05SR08E* andT25NR12W, then south along the eastborder of T25NR12W, then east alongthe north border of S18 T25NR11W, S17T25NR11W, S16 T25NR11W, then southalong the east border of S16 T25NR11W,S21 T25NR11W, then west along thesouth border of S21 T25NR11W, S20T25NR11W, then south along the eastborder of S30 T25NR11W, then westalong the south border of S30T25NR11W, then south along the eastborder of T25NR12W, S01 T24NR12W,and S12 T24NR12W, then east andsouth along the border of the TrinityNational Forest, then east along thenorth border of S32 T24NR11W, thensouth along the east border of S32

T24NR11W, then east along the northborder of S04 T23NR11W, then southalong the east border of S04 T23NR11W,S09 T23NR11W, S16 T23NR11W, theneast along the north border of S22T23NR11W, S23 T23NR11W, S24T23NR11W, S19 T23NR10W, then southalong the east border of S19 T23NR10W,S30 T23NR10W, S31 T23NR10W, theneast along California State Highway 162,then south along the eastern border ofthe East Cascades Province, then northalong the shoreline of the Pacific Ocean,then east along Salmon Creek, thensouth along California Highway 1, theneast along Bodega Highway andSebastopol Road, then north along U.S.Highway 101, Bell Springs Road, andHarris Road, then east along Alder PointRoad, Zenia Bluff Road, AlderpointBluff Road and Ruth Zenia Road to thepoint of beginning.

(C) Wells Mountain-Bully Choop Area(Mt. Diablo Meridian and Baseline)(Figure 3 to § 17.41(c))

Beginning at the northwest corner ofS04 T34NR11W, then east along thenorth border of T34NR11W, then southalong the east border of S03 T34NR11Wand S10 T34NR11W, then east along thenorth border of S14 T34NR11W, S13T34NR11W, S18 T34NR10W, then northalong the east border of S08 T34NR10W,then east along the north border of S08T34NR10W, then south along the eastborder of S08 T34NR10W, S17T34NR10W, S20 T34NR10W, S29T34NR10W, then east along the northborder of S33 T34NR10W, then southalong the east border of S33 T34NR10W,then east along the north border of S03T34NR10W, then north along the westborder of S35 T34NR10W, S26T34NR10W, S23 T34NR10W, then eastalong the north border of S23T34NR10W, then north along the westborder of S13 T34NR10W, then eastalong the north border of S13T34NR10W, S18 T34NR09W, S17T34NR09W, and S16 T34NR09W, thennorth along California Highway 3, theneast along the border of theWhiskeytown-Shasta-Trinity NationalRecreation Area, then south along theeast border of S03 T34NR09W, then eastalong the north border of S11T34NR09W, S12 T34NR09W, then southalong the east border of T34NR09W,then east along the north border of S19T34NR08W, S20 T34NR08W, then southalong the east border of S20 T34NR08W,S29 T34NR08W, S32 T34NR08W, thenwest along the south border of S32T34NR08W, then south along the eastborder of S06 T33NR08W, then eastalong the north border of S08T33NR08W and S09 T33NR08W, thennorth along the west border of S03T33NR08W, then east along the north


border of T33NR08W and T33NR07W,then south along Trinity MountainRoad, then east along CaliforniaHighway 299, then south along the eastborder of S26 T32NR06W, S35T32NR06W, S02 T31NR06W, then westalong the south border of the southeastof S02 T31NR06W, then south along theeast border of the northwest of S11T31NR06W, then west along the southborder of the northwest of S11T31NR06W and northeast S10 ofT31NR06W, then south along MuleTown Road, then west along theboundary of the Klamath Province, thennorth along the west border of thenortheast of S20 T30NR09W, then westalong the Shasta-Trinity County Line,then north along the west border ofT30NR09W, then east along the southborder of T31NR09W and T31NR10W,then south along the east border of S05T30NR10W, then east along the southborder of S05 T30NR10W, then northalong the west border of S05T30NR10W, then west along the southborder of T31NR10W, then north alongthe west border of T31NR10W andT32NR10W, then east along CaliforniaHighway 3, then west along CaliforniaHighway 299, then north along the westborder of S28 T34NR11W, S21T34NR11W, S16 T34NR11W, S09T34NR11W, S04 T34NR11W to thepoint of beginning.

(D) California Cascades, (Mt DiabloMeridian and Baseline) (Figure 3 to§ 17.41(c))

Beginning at the Intersection ofInterstate Highway 5 and the California-Oregon State Line, then east along theCalifornia-Oregon State Line, then southalong the Eastern Boundary of theCalifornia Cascades Province, thennorth along Mule Town Road, then eastalong the north border of the southeastof S10 T31NR06W and southwest of S11T31NR06W, then north along the westborder of the northeast of S11T31NR06W, then east along the northborder of the northeast of S11T31NR06W, then north along the westborder of S01 T31NR06W, S36T32NR06W, and S25 T32NR06W, thenwest along California Highway 299, thennorth along Trinity Mountain Road,then east along the south border ofT34NR07W and T34NR08W, then southalong the east border of S04 T33NR08W,then west along the south border of S04T33NR08W and S05 T33NR08W, thennorth along the west border of S05T33NR08W, then east along the northborder of S05 T33NR08W, then northalong the west border of S33T34NR08W, S28 T34NR08W, S21T34NR08W, then west along the southborder of S17 T34NR08W, S18T34NR08W, then north along the west

border of S18 T34NR08W and S07T34NR08W, then east along the southborder of S01 T34NR09W, S02T34NR09W, then north along the westborder of the S02 T34NR09W, then westalong the border of the Whiskeytown-Shasta-Trinity National Recreation Areathen south along California Highway 3,then west along the south border of S09T34NR09W, S08 T34NR09W, and S07T34NR09W, then north along the westborder of S07 T34NR09W, then eastalong the north border of S07T34NR09W, then north along the westborder of S05 T34NR09W, S32T35NR09W, then west along the southborder of S30 T35NR09W, then northalong the west border of T35NR09W,then east along the north border of S19T35NR09W, then north along the westborder of S17 T35NR09W, then eastalong the north border of S17T35NR09W, S16 T35NR09W, S15T35NR09W, then north along the westborder of S11 T35NR09W, then eastalong the north border of S11T35NR09W, then north along the westborder of S01 T35NR09W, then eastalong the north border of T35NR09Wand T35NR08W, then north along thewest border of S32 T36NR08W and S29T36NR08W, then east along the northborder of S29 T36NR08W, then northalong the west border of S21T36NR08W, S16 T36NR08W, S09T36NR08W, S04 T36NR08W, then eastalong the north border of T36NR08W,then north along the west border of S34T37NR08W, S27 T37NR08W, and S22T37NR08W, then west along the southborder of S16 T37NR08W, S17T37NR08W, then north along the westborder of S17 T37NR08W and S08T37NR08W, then east along the northborder of S08 T37NR08W, then northalong the west border of S04T37NR08W, then east along the northborder of T37NR08W, then north alongthe west border of S36 T38NR08W, theneast along the north border of S36T38NR08W, then north along the westborder of S30 T38NR07W, then westalong the south border of S24T38NR08W, then north along the westborder of S24 T38NR08W and S13T38NR08W, then east along the northborder of S13 T38NR08W, then northalong the west border of S07T38NR07W, then east along the northborder of S07 T38NR07W, S08T38NR07W, S09 T38NR07W, then northalong the west border of S03T38NR07W, S34 T39NR07W, S27T39NR07W, S22 T39NR07W, and S15T39NR07W, then west and north alongCalifornia Highway 3 and InterstateHighway 5 to the point of beginning.

(xii) Province or physiographicprovince means a geographic areahaving a similar set of biological andphysical characteristics and processesdue to effects of climate and geologywhich result in patterns of soils andbroad-scale plant communities. Habitatpatterns, wildlife distributions, andhistorical land use patterns may differsignificantly from those of adjacentprovinces. The seven northern spottedowl provinces in the States ofWashington and California are theOlympic Peninsula Province, theWestern Washington LowlandsProvince, the Western and EasternWashington Cascades Provinces, andthe California Coastal, Klamath andCascades Provinces (Figure 4 to§ 17.41(c)).

(xiii) Record of Decision (ROD) meansthe April 13, 1994, Record of Decisionfor Amendments to Forest Service andBureau of Land Management PlanningDocuments within the Range of theNorthern Spotted Owl (USDA/USDI1994).

(xiv) Special Emphasis Area (SEA)means any of the following six areas(Figure 5 to § 17.41(c)) in the State ofWashington (references are in relation tothe Willamette Meridian and baseline):

(A) Columbia River Gorge/WhiteSalmon (Figure 6 to § 17.41(c))

(1) Columbia River Gorge Segment(Figure 6 to § 17.41(c)) Beginning at thenorthwest corner of T03NR05E, theneast along the north border ofT03NR05E, T03NR06E, T03NR07E,T03NR07.5E, and T03NR08E, thensouth along the east border ofT03NR08E, then west along the northShore of the Columbia River, then northalong the west border of T01NR05E,T02NR05E, and T03NR05E to the Pointof Beginning.

(2) White Salmon Segment (Figure 6to § 17.41(c)) Beginning at the northwestcorner of T06NR10E, then east Alongthe north border of T06NR10E, thennorth along the west border ofT07NR11E, then east along the northborder of S19 T07NR11E, S20T07NR11E, S21 T07NR11E, then southalong the east border of S21 T07NR11E,S28 T07NR11E, then south along thewest border of the Yakama IndianReservation, then south along the eastborder of T05NR11E, T04NR11E, thensouthwest along Rattle Snake Creek,then south along the east border ofT04NR10E and T03NR10E, then westalong the north Shore of the ColumbiaRiver, then north along the west borderof T03NR09E, then east along the northborder of T03NR09E, then north alongthe west border of T04NR10E,T05NR10E, and T06NR10E to the pointof beginning.


(B) Siouxon Creek (Figure 7 to§ 17.41(c)) Beginning at the intersectionof the south border of S16 T06NR04Eand the Cowlitz-Clark County line, thennorth and east along the Cowlitz-ClarkCounty line, then south along the westborder of S31 T07NR05E, then eastalong the north border of the SW of NW,SE of NW, and SW of NE S31T07NR05E, then north along the westborder of the NE of NE S31 T07NR05E,then east along the Lewis River, thensouth along the east border of S30T07NR05E, then east along the northborder of S32 T07NR05E, then northalong the west border of the SE of SWS29 T07NR05E, then east along theLewis River, then south along the eastborder of the SW of SE S29 T07NR05E,then east along the north border of S32T07NR05E, then north along the westborder of S28 T07NR05E, then eastalong the north border of S28T07NR05E, then south along the eastborder of the NE of NE S28 T07NR05E,then west along the south border of theNE of NE S28 T07NR05E, then southalong the east border of the SW of NES28 T07NR05E, then east along thenorth border of the NE of SE S28T07NR05E, then south along the eastborder S28 T07NR05E, then east alongthe channel of Swift Reservoir and theLewis River, then south and west alongthe Gifford Pinchot National Forestboundary, then south along the Clark-Skamania County line, then west alongCanyon Creek, then north along the westborder of S03 T05NR04E and S34T06NR04E, then west along the southborder of NE of SE, NW of SE, and NEof SW S33 to 6NR04E, then north alongthe west border of the NE of SW S33T06NR04E, then east along the northborder of the NE of SW S33 T06NR04E,then north along the west border of theNE S33 T06NR04E and SE S28T06NR04E, then east along the northborder of the SE of S28 T06NR04E, thennorth along the west border of the SE ofNE and NE of NE S28 T06NR04E, theneast along the north border of S28T06NR04E, then north along the westborder S22 T06NR04E, then west alongthe south border of S16 T06NR04E tothe point of beginning.

(C) Mineral Block (Figure 8 to§ 17.41(c)) Beginning at the northwestcorner of T15NR03E, then east along thenorth border of T15NR03E, T15NR04E,T15NR05E and T15NR06E, then southalong the east border of T15NR06E andT14NR06E, then west along the southborder of T14NR06E, then south alongthe east border of T13NR06E andT12NR06E, then west along the southborder of S24, S23, S23, S21, S20, andS19 T12NR06E, then south along the

east border of S24 T12NR05E, then westalong the south border of S24, S23, S22,S21, S20, and S19 T12NR05E, thennorth along the west border ofT12NR05E, then northwest along U.S.Highway 12, then west along the TiltonRiver, then north along the west borderof T13NR03E, T14NR03E, andT15NR03E, to the point of beginning.

(D) I–90 Corridor (Figure 9 to§ 17.41(c)) Beginning at the northwestcorner of T22NR09E, then east along thenorth border of T22NR09E andT22NR10E, then north along the westborder of T22NR11E, then east along thenorth border of T22NR11E, then northalong the west border of T22NR12E,then east along the north border ofT22NR12E, T22NR13E, T22NR14E,T22NR15E, T22NR16E, and T22NR17E,then north along the west border of S34T23NR17E, S27 T23NR17E, S22T23NR17E, S15 T23NR17E, S10T23NR17E, S03 T23NR17E, then eastalong the north border of S03T23NR17E, then north along the westborder of S34 T24NR17E, S27T24NR17E, and S22 TNR17E, then eastalong the north border of S22T24NR17E, S23 T24NR17E, S24T24NR17E, S19 T24NR18E, S20T24NR18E, S21 T24NR18E, then southalong the east border of S21 T24NR18E,S28 T24NR18E, S33 T24NR18E, thenwest along the south border of S33T24NR18E, then south along the eastborder of S04 T23NR18E, S09T23NR18E, S16 T23NR18E, S21T23NR18E, S8 T23NR18E, S33T23NR18E, then east along the northborder of S04 T22NR18E, then southalong the east border of S04 T22NR18E,S09 T22NR18E, S16 T22NR18E, S21T22NR18E, S28 T22NR18E, S33T22NR18E, then west along the southborder of T22NR18E, T2NR17E, thensouth along the east border ofT21NR16E, then west along the southborder of T21NR16E, then south alongthe east border of T20NR16E, then westalong the south border of S13T20NR16E, S14 T20NR16E, S15T20NR16E, S16 T20NR16E, S17T20NR16E, S18 T20NR16E, then southalong the east border of T20NR15E,T19NR15E, then east along the northborder of T18NR15E, then south alongthe east border of T18NR15E,T17NR15E, then west along the southborder of T17NR15E, then north alongthe west border of T17NR15E,T18NR15E, then west along the southborder of T19NR15E, T19NR14E,T19NR13E, T19NR12E, T19NR11E,T19NR10E, T19NR09E, T19NR08E, thennorth along the west border ofT19NR08E, then east along the northborder of T19NR08E, then north along

the west border of T20NR09E,T21NR09E, and T22NR09E to the pointof beginning.

(E) Finney Block (Figure 10 to§ 17.41(c)) Beginning at the northwestcorner of T36NR07E, then east along thenorth border of T36NR07E, T36NR08Eand T36NR09E, then south along theeast border of T36NR09E, then eastalong the north border of T35NR10E andT35NR11E, then south along the eastborder of T35NR11E, then west alongthe south border of T35NR11E, thensouth along the east border ofT34NR10E, T33NR10E, T32NR10E, thenwest along the south border ofT32NR10E, T32NR09E, T32NR08E, andT32NR07E, then north along the westborder of S34 T32NR07E, then westalong the south border of the southeastof the northeast quarter of S34T32NR07E, then north along the westborder of the southeast of the northeastquarter of S34 T32NR07E, then westalong the south border of the northwestof the northeast quarter of S34T32NR07E, northeast quarter of thenorthwest quarter of S34 T32NR07E,northwest quarter of the northwestquarter of S34 T32NR07E, and northeastquarter of the northeast quarter of S32T32NR07E, then north along the westborder of the northwest quarter of thenorthwest quarter of S32 T32NR07E,then west along south border of S29T32NR07E, S30 T32NR07E, then southalong the east border of the northwest ofthe northeast quarter, the southwest ofthe northeast quarter, the northwest ofthe southeast quarter, and the southwestof the southeast quarter of S31 ofT32NR07E, then west along the southborder of T32NR07E, then north alongthe west border of T32NR07E,T33NR07E, T34NR07E, T35NR07E, andT36NR07E to the point of beginning.

(F) Hoh/Clearwater (OlympicPeninsula) (Figure 11 to § 17.41(c)) (1)Hoh/Clearwater—North.

Beginning at the Intersection of theOlympic National Park Boundary, andthe north border of T30NR15W, theneast along the north border ofT30NR15W, T30NR14W, T30NR13W,then south along the Olympic NationalForest Boundary, then east along thenorth border of the southwest quarter ofthe southwest quarter of S23T29NR13W, then south along the eastborder of the southwest quarter of thesouthwest quarter of S23 T29NR13W,then west along the south border of thesouthwest quarter of the southwestquarter of S23 T29NR13W, then southalong the east border S27 T29NR13W,then east along the north border of thesouthwest quarter of the southwestquarter of S26 T29NR13W, the southeastquarter of the southwest quarter of S26


T29NR13W, and the southwest quarterof the southeast quarter of S26T29NR13W, then south along the eastborder of the southwest quarter of thesoutheast quarter of S26 T29NR13W,then east along the north border of S35T29NR13W, then south along the eastborder of S35 T29NR13W, then eastalong the north border of the southwestquarter of the northwest quarter of S36T29NR13W, the southeast quarter of thenorthwest quarter of S36 T29NR13W,the southwest quarter of the northeastquarter of S36 T29NR13W, and thesoutheast quarter of the northeastquarter of S36 T29NR13W, then southalong the east border of T29NR13W andT28NR13W, then east along the northborder of T27NR12W, then south alongthe Olympic National Park Boundary,then west along the south border of S20T25NR10W and S19 T25NR10W, thensouth along the east border of S25T25NR11W and S36 T25NR11W, theneast along the north border ofT24NR11W, then south and west alongthe Olympic National Park Boundary,then west along the north border of theQuinalt Indian Reservation, then north

along the Olympic National ParkBoundary to the point of beginning.

(2) Hoh/Clearwater—South.Beginning at the Intersection of U.S.Highway 101 and the Queets River Roadin S34 T24N R12W, then north alongthe Queets River Road, then south alongthe east border of S34 T24NR12W, theneast along the Olympic National Forestboundary, then south along the eastborder of T24NR11W and S01T23NR11W, then east and south alongthe border of the Quinalt IndianReservation, then west along U.S.Highway 101 to the point of beginning.

(xv) Site center means the actual nesttree of a pair of spotted owls or theprimary roost for a non-nesting pair orterritorial single.

(xvi) Timber harvest activity orharvest means any activity whichresults in the harvest or felling of treescomprising the suitable habitat of anorthern spotted owl.

(4) Information Collection. Thecollection of information requirementscontained in § 17.41(c) have beenapproved by the Office of Managementand Budget under 44 U.S.C. 3501 et seq.and assigned clearance number 1018–

0022. This information is beingcollected to provide informationnecessary to evaluate permitapplications and make decisions,according to criteria established invarious Federal wildlife and plantconservation statutes and regulations,on the issuance or denial of permits.Response is required to obtain or retaina permit. Public burden for thiscollection of information is estimated tovary from 15 minutes to 4 hours perresponse, with an average of 1.028 hoursper response, including the time forreviewing instructions, searchingexisting data sources, gathering andmaintaining the data needed, andcompleting and reviewing the collectionof information. Send commentsregarding this burden or any otheraspect of this collection of information,including suggestions for reducing theburden, to the Service InformationCollection Clearance Office, MS–224ARLSQ, Fish and Wildlife Service,Washington, DC 20240 and the Office ofManagement and Budget, PaperworkReduction Project (1018–0022),Washington, DC 20503.BILLING CODE 4310–55–P


Dated: February 13, 1995.George T. Frampton, Jr.,Assistant Secretary for Fish and Wildlife andParks.[FR Doc. 95–3922 Filed 2–16–95; 8:45 am]BILLING CODE 4310–55–C