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53192 Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations linear pipeline project crosses State, private, and FS lands and does not affect the species or critical habitat, consultation will not be required. If maintenance activities would affect primary constituent elements of critical habitat and there is a Federal nexus, then section 7 consultation will be necessary. (31) Comment: Several commenters questioned what the phrase, "may require special management considerations" means, and asked what kind of management activities might be implemented? Our Response: Critical habitat is defined in section 3(5)(A) of the Act as "(i) the specific areas within the geographical area occupied by the species, at the time it is listed * * * on which are found those physical or biological features (I) essential to the conservation of the species and (II) that may require special management considerations or protection* * *" While the Act or our implementing regulations do not define the phrase "may require special management or protection," we believe that in this final rule we have identified in general terms the types of special management and protection that the physical or biological features (i.e., primary constituent elements) for the owl may require (refer to Special Management Considerations or Protections section). Additionally, the Recovery Plan includes guidelines that we believe also address special mans ement considerations. (32 Comment: Maps and descriptions provided are vague and violate the Act and 50 CFR Sec. 424.12(c). Our Response: The maps published in the Federal Register are for illustration purposes only, and the amount of detail that can be provided on the maps published in the Federal Register is limited. While the legal descriptions published with the maps are specific and detailed to the areas being designated, we recognize that these descriptions may not be the most user - friendly. However, more detailed maps and GIS digital files of areas designated as critical habitat for the owl are available from the New Mexico Ecological Services Field Office (see ADDRESSES section). If additional clarification is necessary, please contact the New Mexico Ecological Services Field Office (see ADDRESSES section). (33) Comment: Additional public hearings were requested during the public comment period for the purpose of presenting information and receiving comments. Our Response: Earlier in this rule we discuss the extent by which we have attempted to engage the public in this rulemaking through public comment periods, public meetings, and news releases. More recently, on April 21, 2004, we held an informational meeting in Las Cruces, New Mexico. During this meeting, the Service and our contractors were present to answer participant's detailed questions. Due to the abbreviated timeframe to complete this final designation, we were not able to extend or reopen the public comment period or hold additional public hearings. However, due to our extensive efforts in attempting to involve the public in this rulemaking process, we believe that we have allowed for adequate opportunity for the public to provide information and comments to US. (34) Comment: The Salt River Project, Arizona, questioned the current Service policy of excluding areas from the proposed designation prior to the areas being proposed, when the Act's implementing regulations require that the Secretary shall, after proposing designation, consider exclusion of areas for economic or other relevant impacts (50 CFR 424.19). Our Response: The July 21, 2000 (65 FR 45336), proposed rule for the owl did not exclude any areas under section (4)(b)(2) of the Act. In our November 18, 2003 (68 FR 65020), notice reopening the comment period, we provided a preliminary 4(b)(2) analysis for tribal lands and indicated that we anticipated excluding tribal lands from the final designation based on our working relationship with the tribes and the fact that we had either received their owl management plans or would receive them shortly. However, this was only a preliminary analysis and no exclusions pursuant to section 4(b)(2) of the Act have been made until this final rule. (35) Comment: The Service's conclusion that some unoccupied areas are essential to the conservation of the owl is questionable given that implementing regulations indicate the unoccupied habitat should only be designated when occupied areas are not adequate to ensure the conservation of the species (50 CFR 424.12(e)). The Service did not make a formal finding that occupied areas would be inadequate. Our Response: Based on our analysis of the best available scientific and commercial data, we determined that all areas included in this designation are essential for the conservation of the species and within the geographical area occupied by the species (see response to comment 18 and "Criteria Used to Identify Critical Habitat" section below). Because the specific areas being designated are within the geographical area occupied by the species, we (i.e., the Secretary of Interior) are not required to make a separate determination as to whether the lands included in the designation are essential to the conservation of the owl. (36) Comment: The Service's definition of adverse modification of critical habitat in the proposed rule is inconsistent with the Sierra Club v. U.S. Fish and Wildlife Service (245 F.3d 434, U.S. Circuit Court of Appeals for the Fifth Circuit). Our Response: Recent appellate court decisions (i.e., Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434 (Fifth Circuit, March 15, 2001); Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 03- 35279, 2004 U.S. App. Lexis 16215 (Ninth Circuit, August 6, 2D04)), found our definition of adverse modification to be invalid. In response to these decisions, we are reviewing the regulatory definition of adverse modification in relation to the conservation of the species (See "Effects of Critical Habitat Designation" section). However, section 7 consultations for the owl and its critical habitat meet the standards articulated in these judicial decisions because guidelines for habitat management from the Recovery Plan for the owl are used to establish habitat management during section 7 consultations. (37) Comment: How will the Service determine when the owl is recovered? Nowhere in the proposed rule does the Service articulate when protections under the Act will no longer be necessary. Our Response: Critical habitat can assist in the recovery of a species, but does not achieve nor define what is needed for recovery. Recovery goals and criteria are defined by an operable plan. For example, the delisting criteria identified in the Recovery Plan (Service 1995) include: (1) The population in the three most populated Recovery Units (i.e., upper Gila Mountains, Basin and Range East and Basin and Range West) must be stable or increasing after 10 years of monitoring; (2) scientifically - valid habitat monitoring protocols are designed and implemented to assess: (a) Gross changes in habitat quantity across the range of the species, and (b) habitat modifications and trajectories within treated stands; and (3) a long -term management plan is in place to ensure appropriate management for the species and its habitat. When these criteria are satisfied, we will evaluate the subspecies to determine if delisting may be warranted. (38) Comment: The Service notes in the February 1, 2001, final rule that the 4.6 million acres (1.9 million hectares)