2013-02-05_REVISION - M1985043

• Permit No: M1985043
• IBM Index Class Name: REVISION
• Doc Date: 2/5/2013
• Doc Name: FEDERAL REGISTER - HIGHLIGHTED
• From: OPERATOR
• To: DRMS
• Email Name: TC1
• Media Type: D
• Archive: No

Federal Register / Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53205
(105) Comment: Current owl
stipulations attached to Federal oil and
gas leases and other permitted activities
prohibit activities between March 31
and August 31 each year. The proposed
critical habitat designation is part of the
growing list of barriers to Federal land
access for the energy industry and will
effectively prohibit oil and gas reserves
from being recovered. Proposed critical
habitat in Utah should be excluded from
the final designation because of the
"other relevant impact" to our Nation's
domestic energy production, and the
resulting effects to our economy and
National Security.
Our Response: As detailed in our
economic analysis, since the listing of
the owl, there have been 2 formal and
34 informal consultations with five
Federal agencies. Based upon these and
other data analyzed in our economic
analysis and environmental assessment,
we conclude that this rule is not
expected to significantly affect energy
supplies, distribution, or use (see also
"Executive Order 13211" section
below).
We have a very good consultation
history for the owl; thus, we can
describe the kinds of actions that have
undergone consultations. Within the
proposed critical habitat designation in
New Mexico, there was only one
informal consultation (the Department
of Energy) in 1994 and no formal
consultation; within Utah, there were 34
informal and 2 formal consultations.
Since the owl was federally listed, none
of the projects related to oil and gas
production have been stopped, delayed,
or altered in a significant way resulting
from section 7 consultation. Using the
economic analysis and our consultation
history, we find that impacts to our
"Nation's domestic energy production"
resulting from the designation of critical
habitat will not be significant and
should have no effect on National
Security.
(106) Comment: The Coalition of
Arizona and New Mexico Counties
suggests that all FS lands suitable for
timber harvest and all Federal lands
identified as having high risk for
catastrophic wildfire be excluded from
designated critical habitat.
Our Response: We recognize the risk
of catastrophic wildfire to areas within
the WUI and have excluded 157 project
areas that were included in a
programmatic consultation completed
by the Region 3 of the FS and the
Penasco WUI project area that we
evaluated under a separate opinion (see
"Exclusions Under Section 4(b)(2)"
section below). Projects covered by the
programmatic consultation and the
separate opinion for the Penasco project
area were determined by the FS as areas
"at imminent risk of catastrophic
wildfire" (Service 2001 and Service
2002). We are designating protected and
restricted habitat based upon
information in the Recovery Plan
(Service 1995), which would include
"lands suitable for timber harvest"
because these areas are essential to the
conservation of the owl.
In 1996, the 11 National Forest Plans
in the Southwestern Region of the FS
were amended to add specific standards
and guidelines for the owl, grazing, and
other management prescriptions (Forest
Plan Amendments) (FS 1995, 1996b).
Standards and guidelines are the
bounds and constraints within which all
FS management activities are to be
carried out in achieving Forest Plan
objectives (FS 1996b, p. 87). The
language and intent of the Forest Plan
Amendments were to incorporate the
recommendations of the Recovery Plan
(Service 1995) to provide primary
direction for site - specific project design
(FS 1995) (i.e., the Forest Plan
Amendments are applied through
project level environmental analysis and
decisions). It is important to note that
the FS indicated the designation of
critical habitat within protected or
restricted habitat is not likely to result
in a regulatory burden substantially
above that already in place because they
are already managing for the habitat by
following their Forest Plan
Amendments (K. Menasco, USDA FS,
pers. comm., 2003).
Issue 4: Tribal Issues
(107) Comment: Why are Tribal lands
included in the proposed designation?
Our Response: In our proposal to
designate critical habitat, we found that
lands of the Mescalero Apache, San
Carlos Apache, and Navajo Nation likely
met the definition of critical habitat
with respect to the owl, and portions of
those lands were proposed as critical
habitat. However, we worked with the
tribes in developing measures adequate
to conserve owls on Tribal lands. The
Mescalero Apache Tribe, San Carlos
Apache Tribe, and Navajo Nation
completed management plans for the
owl that are generally consistent with
the Recovery Plan. We have excluded
all Tribal lands from final critical
habtiat for the owl because the benefits
of their exclusion outweigh the benefits
of including these lands within the
designation (see "Exclusions Under
Section 4(b)(2)" section).
(108) Comment: The Mescalero
Apache Tribe believes the Service did
not adequately consider how the
designation of critical habitat on Tribal
lands will benefit the owl or how the
designation will impact the Mescalero
Apache Reservation,
Our Response: We did not include the
Mescalero Apache or other Tribal lands
in the final designation of critical
habitat for the owl.
(109) Comment: The San Carlos
Apache Tribe owl management plan is
not an adequate basis for the Service to
exclude their lands from designated
critical habitat.
Our Response: We have determined
that the conservation measures and
benefits provided the owl and it habitat
by the San Carlos Apache Tribe's
managment plan, along with the
cooperative partnership between the
Tribe and the Service provide sufficient
justification for excluding the Tribal
lands from the final designation of
critical habitat for the owl (See
Exclusions Under Section 4(b)(2)
section below).
(110) Comment: The Service's
exclusion of the White Mountain
Apache, Jicarilla Apache, and portions
of the San Carlos Apache (Malay Gap)
Tribal lands is not legally sound, given
that Center for Biological Diversity v.
Norton dismissed the Service's
conclusions that additional special
management is not required if adequate
management or protection is currently
in place.
Our Response: The White Mountain
Apache, Jicarilla Apache, and portions
of the San Carlos Apache (Malay Gap)
lands are not included within the
current designation because they were
not proposed as critical habitat for the
owl (65 FR 45336). We find these lands
are not essential to the conservation of
the species.
(111) Comment: The Service's section
4(b)(2) analysis considers the potential
adverse impact of designating critical
habitat on working relationships;
however, such impacts should not take
precedence over all other considerations
(i.e., the benefits of including areas
within the designation). Where an area
is essential to the conservation of the
species, adverse impacts should be
considered, but should not be the sole
reason for excluding the area.
Our Response: We agree. That is why
we are required to balance the benefits
of including an area in a critical habitat
designation against the benefits of
excluding an area from that designation
(see "Exclusions Under Section 4(b)(2)"
section).
(112) Comment: Did the Service: (1)
Receive an unredacted version of the
San Carlos Apache owl plan; (2) has the
Tribal council or the Service approved _
the plan; and (3) for what time period
is the plan effective?