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.
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