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53190 Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations
<br />conduct a focused analysis to determine
<br />and delineate the specific areas, within
<br />the geographical area occupied by the
<br />species that contain the physical and
<br />biological features essential to the
<br />conservation of the species. Once these
<br />areas are defined, a determination is
<br />then made as to whether additional
<br />specific areas outside of the
<br />geographical area occupied by the
<br />species are required for the conservation
<br />of the species. In conducting our
<br />analyses, we use the best scientific and
<br />commercial data available. Our analyses
<br />take into consideration specific
<br />parameters including (1) space for
<br />individual and population growth and
<br />normal behavior, (2) food, water, air,
<br />light, minerals or other nutritional or
<br />physiological requirements; (3) cover or
<br />shelter; (4) sites for breeding,
<br />reproductions, rearing of offspring,
<br />germination or seed dispersal; and (5)
<br />habitats that are protected from
<br />disturbance or are representative of the
<br />historical or ecological distribution of
<br />the species (50 CFR 424.12(b)).
<br />Consequently, we do take into
<br />consideration all available information
<br />concerning a species, its habitat,
<br />ecology, and threats and conduct an
<br />analysis to determine which specific
<br />areas are essential to its conservation.
<br />This final designation of critical habitat
<br />for the owl has been developed using
<br />the approach discussed above and
<br />constitutes our best assessment of the
<br />areas essential to its conservation.
<br />(19) Comment: If land has dual
<br />ownership of private and Federal, is it
<br />critical habitat? The land in question is
<br />under private ownership and the
<br />mineral rights are owned by the BLM.
<br />Our Response: The surface ownership
<br />is what would contain the primary
<br />constituent elements of critical habitat.
<br />Because the surface ownership is
<br />private and we are not including private
<br />land in this designation (see "Criteria
<br />for Identifying Critical Habitat Units"
<br />section below for further explaination),
<br />we would not consider the lands to be
<br />designated critical habitat. However, if a
<br />Federal agency (e.g., BLM) funds,
<br />authorizes, or carries out an action (e.g.,
<br />mineral extraction) that may affect the
<br />owl or its habitat, the Act requires that
<br />the agency consult with us under
<br />section 7 of the Act. This is required
<br />whether or not critical habitat is
<br />designated for a listed species.
<br />(20) Comment: Fort Carson, Colorado,
<br />provided information during the
<br />comment period that indicated the owl
<br />is not known to nest on the military
<br />installation and the species is a rare
<br />winter visitor. Protected or restricted
<br />habitat is also not known to exist on
<br />Fort Carson. In 2003, the Service
<br />reviewed and approved Fort Carson's
<br />final Integrated Natural Resources
<br />Management Plan (114RMP) that
<br />includes specific guidelines and
<br />protection measures for the owl. The
<br />INRMP includes measures to provide
<br />year -round containment and
<br />suppression of wildland fire and the
<br />establishment of a protective buffer zone
<br />around each roost tree. Other comments
<br />indicated that owls frequently use Fort
<br />Carson in the winter and the installation
<br />is an important winter foraging and
<br />roosting area.
<br />Our Response: Fort Carson completed
<br />their final INRMP on April 8, 2003,
<br />which includes specific guidelines for
<br />protection and management for the owl.
<br />Thus, we are excluding this area from
<br />the final designation of critical habiat
<br />for the owl pursuant to section 4(a)(3) of
<br />the Act.
<br />(21) Comment: How will the
<br />exclusion of certain lands (e.g., State,
<br />private .Tribal) affect recovery and
<br />delisting of the owl?
<br />Our Response: In accordance with
<br />section 3(5)(A)(i) of the Act and
<br />regulations at 50 CFR 424.12, we are
<br />required to base critical habitat
<br />designation on the best scientific and
<br />commercial data available and to
<br />consider those physical and biological
<br />features (primary constituent elements)
<br />that are essential to conservation of the
<br />species and that may require special
<br />management considerations or
<br />protection. We designated critical
<br />habitat for those lands we determined
<br />are essential to conservation of the owl.
<br />exclusion of State, private, and Tribal
<br />lands in the designation of critical
<br />habitat for the owl will not affect the
<br />recovery and future delisting of theme
<br />species Whethef or not a spec; s has
<br />designated a tical habttp it€ is
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<br />the continued existence of the species.
<br />Moreover, our environmental
<br />assessment of this designation pursuant
<br />to NEPA found that our existing policy
<br />requires consultation on actions in
<br />suitable habitat outside of PACs
<br />regardless of critical habitat designation.
<br />In practice, critical habitat designation
<br />is unlikely to trigger section 7
<br />consultations that would not occur in its
<br />absence. This is because Federal
<br />agencies are following the Recovery
<br />Plan and consulting with us on impacts
<br />to both protected and restricted habitat.
<br />(22) Comment: The areas proposed as
<br />critical habitat in Colorado make up 4.2
<br />percent of the total proposed critical
<br />habitat. Much of the areas proposed in
<br />Colorado do not contain the primary
<br />constituent elements for critical habitat
<br />for the owl. It is difficult to understand
<br />how the small amount of habitat
<br />proposed in Colorado is essential for the
<br />survival and recovery of the owl. The
<br />current tree stocking levels, species
<br />composition, and stand structure of
<br />areas proposed as critical habitat in
<br />Colorado do not currently, nor are they
<br />likely to, meet the definition of
<br />restricted "threshold" habitat as defined
<br />in the Recovery Plan.
<br />Our Response: We carefully reviewed
<br />and considered the information
<br />provided by the commenter concerning
<br />this issue. We agree that not all of the
<br />land within the critical habitat
<br />boundaries in Colorado or elsewhere
<br />supports protected or restricted habitat.
<br />To the extent possible, we attempted to
<br />exclude from final critical habitat those
<br />area that did not support the primary
<br />constituent elements for the owl or
<br />protected or restricted habtiat. However,
<br />we may not have been able to exclude
<br />all such areas from the final designation.
<br />Federal actions limited to these areas
<br />would not be reviewed under section 7,
<br />unless they affect the species and/or the
<br />primary constituent elements in
<br />adjacent critical habitat.
<br />(23) Comment: The statement that
<br />continued grazing in upland habitat will
<br />not adversely affect or modify critical
<br />habitat is unsubstantiated and is counter
<br />to FS information that suggests grazing
<br />may affect owl prey and increase the
<br />susceptibility of owl habitat to fire.
<br />Our Response: Although the effects of
<br />livestock and wild ungulate grazing on
<br />the habitat of owl prey species is a
<br />complex issue, there exists some
<br />knowledge regarding the effects of
<br />grazing and small mammals frequently
<br />consumed by owls and plant
<br />communities inhabited by the owl's
<br />prey (Ward and Block 1995; Ward
<br />2001). The Recovery Plan summarizes
<br />the effects of grazing to owls in four
<br />broad categories: (1) Altered prey
<br />availability; (2) altered susceptibility to
<br />fire; (3) degradation of riparian plant
<br />communities; and (4) impaired ability of
<br />plant communities to develop into owl
<br />habitat. In general, predicting the
<br />magnitude of grazing effects on owls
<br />and their habitats requires a better
<br />understanding of the relationship
<br />between owl habitat and grazing
<br />(Service 1995a). Nevertheless, grazing in
<br />
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