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53194 Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations <br />and Reclamation Assn, 452 U.S. 264, <br />195 (1981); Lucas v. South Carolina <br />Coastal Council, 505 U.S. 1003, 1014 <br />(1992)). The Act does not automatically <br />restrict all uses of critical habitat, but <br />only imposes requirements under <br />section 7(a)(2) on Federal agency actions <br />that may result in destruction or adverse <br />modification of designated critical <br />habitat. This requirement does not <br />apply to private actions that do not need <br />Federal approvals, permits or funding. <br />Furthermore, as discussed above, if a <br />biological opinion concludes that a <br />proposed action is likely to result in <br />destruction or modification of critical <br />habitat, we are required to suggest <br />reasonable and prudent alternatives. In <br />addition, State and private lands are not <br />included in this designation by <br />definition. In accordance with Executive <br />Order 12630, we conclude that this <br />designation does not have significant <br />takings implications (see "Required <br />Determinations" section below). As <br />noted in our response to comment (88), <br />we have also considered and reviewed <br />information contained in our records, as <br />well as in the economic and <br />environmental analyses, as to whether <br />holders of grazing permits may be <br />impacted by the designation. At this <br />time, we are unaware of any instances <br />where grazing permit holders will be so <br />substantially impacted as to constitute a <br />"taking" of property under the 5th <br />Amendment. <br />(47) Comment: The Service did not <br />consider the indirect effect of critical <br />habitat designation on adjacent lands <br />that are not designated. For example, <br />designation might affect fire <br />suppression activities on nearby critical <br />habitat, which could increase the risk of <br />catastrophic wildfire on lands that are <br />not within the designation. <br />Our Response: We have a special <br />category of section 7 consultation, and <br />corresponding regulations (50 CFR <br />402.05) called "Emergency <br />Consultations." The consultation <br />process does not affect the ability of an <br />agency to respond to emergency events <br />such as suppression of wildfire. During <br />emergency events, our primary objective <br />is to provide recommendations for <br />minimizing adverse effects to listed <br />species without impeding response <br />efforts. Protecting human life and <br />property comes first every time. <br />Consequently, no constraints for <br />protection of listed species or their <br />critical habitat are ever recommended if <br />they place human lives or structures <br />(e.g., houses) in danger. We are <br />currently working with many of our <br />Federal partners to provide technical <br />assistance, coordination, and, in some <br />instances, section 7 consultation for <br />proactive projects to reduce the <br />potential for emergency events (e.g., <br />WUI fuels management). <br />Issue 3: National Environmental Policy <br />Act (NEPA) Compliance and Economic <br />Analysis <br />(48) Comment: Several commenters <br />questioned the adequacy of the <br />Environmental Assessment (EA) and <br />other aspects of our compliance with <br />NEPA. They believe the Service should <br />prepare an Environmental Impact <br />Statement (EIS) on this action. <br />Our Response: The commenters did <br />not provide sufficient rationale to <br />explain why they believed the EA was <br />inadequate and an EIS necessary. One of <br />the purposes of an environmental <br />assessment is to briefly provide <br />sufficient evidence and analysis for <br />determining whether to prepare an <br />environmental impact statement or a <br />finding of no significant impact (40 CFR <br />1508.9). An EIS is required only in <br />instances where a proposed Federal <br />action is expected to have a significant <br />impact on the human environment. In <br />order to determine whether designation <br />of critical habitat would have such an <br />effect, we prepared an EA of the effects <br />of the proposed designation. We made <br />the draft EA available for public <br />comment on March 26, 2004, and <br />published a notice of its availability in <br />the Federal Register (69 FR 15777). <br />Following consideration of public <br />comments, we prepared a final EA <br />which determined that the critical <br />habitat designation for the owl does not <br />constitute a major Federal action having <br />a significant impact on the human <br />environment. That determination is the <br />basis for our Finding of No Significant <br />Impact ( FONSI). Both the final EA and <br />FONSI are available for public review <br />(see ADDRESSES section). <br />(49) Comment: Sierra, Lincoln, Otero, <br />Counties, New Mexico, and the <br />Coalition of Arizona/New Mexico <br />Counties asked to be part of the NEPA <br />process and were concerned that the <br />Service would not have "important <br />information" to complete the <br />environmental assessment or economic <br />analysis. These parties believe that they <br />were not afforded the opportunity to <br />participate in the NEPA process as <br />required by the CEQ implementing <br />regulations (40 CFR 1501.6; 1508.5) or <br />the January 30, 2002, CEQ <br />Memorandum for the Heads of Federal <br />Agencies discussing cooperating <br />agencies and procedural requirements of <br />NEPA (CEQ Memorandum). We <br />received several requests to hold public <br />hearings to solicit comments on the <br />draft environmental assessment and <br />draft economic analysis. The Coalition <br />of Arizona and New Mexico counties <br />requested that a hearing be held close to <br />or in each affected member county. <br />Our Response: The CEQ regulations <br />require that Federal agencies <br />responsible for preparing NEPA <br />analyses and documentation do so "in <br />cooperation with State and local <br />governments" and other agencies with <br />jurisdiction by law or special expertise. <br />As detailed below, we attempted to <br />engage these parties in the NEPA <br />process, to meet the spirit and intent of <br />cooperating agency status. We believe <br />that the NEPA process was conducted <br />consistent with the CEQ implementing <br />regulations and the CEQ Memorandum. <br />For example, we held stakeholder <br />meetings on November 6 and 7, 2003, in <br />Albuquerque and Phoenix to solicit <br />relevant information for our analyses. <br />Moreover, on November 18, 2003, we <br />reopened the comment period on the <br />July 21, 2000, proposed rule to <br />designate critical habitat for the owl (68 <br />FR 65020). As such, we mailed a copy <br />of the Federal Register notice and a <br />letter describing our intent to conduct a <br />new NEPA analysis to all interested <br />parties, including the commenters. On <br />January 27, 2004, we responded to <br />requests from these parties by inviting <br />them to participate in the NEPA process <br />and providing contact information for <br />our NEPA and economic analysis <br />contractors, so that they could <br />communicate directly with them. The <br />Service and our contractors conducting <br />the economic analysis also contacted <br />Otero County, New Mexico, in February <br />2004, to request any socioeconomic or <br />other information. None of the parties <br />provided any data to the Service or our <br />contractors. <br />On March 26, 2004, we mailed copies <br />of the draft environmental assessment <br />and the draft economic analysis to these <br />parties requesting their expert review, <br />and providing an invitation to work <br />with each of the parties to address any <br />concerns or issues. We also invited <br />them to a public informational meeting <br />in Las Cruces, New Mexico, on April 20, <br />2004. This meeting provided an <br />opportunity for public input and <br />allowed the Service to answer any <br />questions concerning the proposed rule, <br />the draft environmental assessment, or <br />the draft economic analysis. The parties <br />did not provide any information to us, <br />did not attend the public informational <br />meeting, and did not contact us to <br />schedule any additional meetings or <br />provide information. <br />(50) Comment: The draft economic <br />analysis failed to adequately estimate <br />the potential economic impacts to <br />landowners regarding various forest <br />management and other activities. <br />