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Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53191 upland habitat has the potential to adversely impact the owl. It is also important to note that grazing usually does not occur within mixed conifer habitat because livestock generally remain within meadows or riparian areas. In this example, the primary constituent elements within mixed conifer habitat are not likely to be substantially or significantly affected by grazing. Thus, the impacts to nest/roost and other mixed conifer habitat within PACs will likely be insignificant and discountable. When grazing activities involve Federal funding, a Federal permit, or other Federal action, consultation is required when such activities have the potential to adversely affect the owl or its critical habitat. The consultation will analyze and determine to what degree the species is impacted by the proposed action. (24) Comment: What is being done by Federal agencies to minimize the impact from wild ungulates on owl habitat (e.g., elk grazing)? Our Response: The Federal agencies use their discretion when selecting specific management strategies and activities. Consequently, a variety of techniques could be applied to manage range condition targets. The specifics are beyond the scope of this designation. In general, allowable forage use guidance for given range conditions and management strategies are typically developed through site specific NEPA analysis for individual allotments, and must be consistent with the applicable FS's Forest Plan Resource, BLM's Resource Management Plan, or other Agencies' management direction at the time they are issued (e.g., FS see 36 CFR 219.10). Moreover, it is our understanding that the Federal action agency must consider the effect from all grazing activities (i.e., livestock and wild ungulates) when they authorize grazing permits and manage and protect long -term range conditions consistent with their own range management regulations. Nevertheless, it is the responsibility of State game and fish agencies to manage elk. As noted throughout this final rule, when a Federal agency funds, authorizes, or carries out an action that may affect either the owl or its critical habitat, the Act requires that the agency consult with us under section 7. (25) Comment: A premise for the proposed rule is that the Service was ordered by the court on March 13, 2000, to designate critical habitat by January 15, 2001. The court may not order critical habitat to be designated. Rather, the court may order the Service to make a decision on whether to designate critical habitat. The designation of critical habitat is an action that is ultimately discretionary, and the Service must apply the criteria in the Act and its regulations to decide whether to designate critical habitat, Thus, the Service should seek correction of that Court order and reconsider whether and to what extent critical habitat should be designated. Our Response: The March 2000 court decision ordered us to repropose critical habitat for the owl and then publish a new final designation. Because we had already previously proposed and finalized critical habtiat for the owl (60 FR 29914, June 6, 1995), we already determined that critical habitat pursuant to the Act and implementing regulations was both prudent and determinable. Thus, the court would be within its jurisdiction to order us to repropose and publish a new final rule. (26) Comment: Are lands within a National Park that are already protected, but proposed as wilderness areas, considered critical habitat? Our Response: Yes, we consider lands that are within critical habitat boundaries as critical habitat, regardless of whether they are currently designated as wilderness. (2 7) Comment: Military aircraft overflights and ballistic missile testing activities have no adverse effect on owl critical habitat. Our Response: We believe that low - level military aircraft overflights could potentially affect the owl. However, the designation of critical habitat will not impede the ability of military aircraft to conduct overflights nor to conduct ballistic missile testing activities. Activities such as these will not require additional section 7 consultation beyond compliance related to the species. To clarify, proposed low -level military aircraft overflights that could potentially affect the owl will be reviewed during the consultation process for the species listing as they have in the past. (28) Comment: Explain the rationale for excluding, by definition, State and private lands from the proposed designation there are documented,,,,,,,---,,,- nesting sites for the owl m Colorad located SHa -lea ed lands S a #and priva%lans should inclit�e;=t>z majority of owl locations are from Federal lands because no one is doing surveys on private and State lands. Our Response: Although we are aware of some owl locations on State and private lands, the majority of owl locations are from Federal and Tribal lands. Thus, we believe that owl conservation can best be achieved by management of Federal and Tribal lands, an pn e specs a ores not in a "`te and p "nvatelaa this designation of critical habitat for the owl. (29) Comment: Several commenters asked whether projects that have obtained a biological opinion pursuant to section 7 of the Act would be required to reinitiate consultation to address the designation of critical habitat. Will the FS have to reinitiate consultation on their Forest Plans when critical habitat is designated? Our Response: In the case of projects that have undergone section 7 consultation and where that consultation did not address potential destruction or adverse modification of critical habitat for the owl, reinitiation of section 7 consultation may be required. The only exception is the consultation covering the 157 WUI project areas and the Penasco WUI project area that are not included in the designation, because the lands covered by these projects are specifically excluded due to human health and safety concerns from the imminent risk of catastrophic wildfire (see Exclusions Under Section 4(b)(2) and Regulations sections). As described in the 4(b)(8) discussion below, we expect that projects that do not jeopardize the continued existence of the owl will not likely destroy or adversely modify its critical habitat and no additional modification to the project would be required because the projects will be evaluated under the guidelines set by the Recovery Plan for both jeopardy to the species and adverse modification of critical habitat. This has been the case for those projects where the FS has completed conferencing on critical habitat (see Effect of Critical Habitat Designation section below). (30) Comment: The El Paso Natural Gas Company questioned whether the designation of critical habitat will require consultation for routine maintenance and operations. For example, if a linear pipeline project crosses State, private, and FS lands, will consultation be required? Our Response: Federal agencies are already required to consult with us on activities with a Federal nexus (i.e., when a Federal agency is funding, permitting, or in some way authorizing a project) when their activities may affect the species. As discussed in response to Comment 29 above, and elsewhere in this rule, we do not anticipate additional requirements beyond those required by listing the owl as threatened. For routine maintenance and operations of public utilities or if a