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Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53207 These grants of land were respected as valid, to the same extent that the same grants would have been valid within the territories if the grants of land had remained within the limits of Mexico. The designation of critical habitat has no effect on non - Federal actions taken on private land (e.g., land grants), even if the private land is within the mapped boundary of designated critical habitat because we have not included State and private lands in this designation of critical habitat for the owl by definition. Critical habitat has possible effects on activities conducted by non - Federal entities only if they are conducting activities on Federal lands or that involves Federal funding, a Federal permit, or other Federal action (e.g., grazing permits). If such a Federal nexus exists, we will work with the applicant and the appropriate Federal agency to ensure that the project can be completed without jeopardizing the species or adversely modifying critical habitat. Therefore we do not believe that designation of critical habitat for the owl abrogates any treaty of the United States. (122) Comment: Many commenters were concerned that the designation of critical habitat would prohibit recreational and commercial activities from taking place. Our Response: As stated in the economic analysis and this final rule, we do not believe the designation of critical habitat will have significant adverse economic effects on any landowner above and beyond the effects of listing of the species. It is correct that projects forded, authorized, or carried out by Federal agencies, and that may affect critical habitat, must undergo consultation under section 7 of the Act. This provision includes commercial activities. However, as stated elsewhere in this final rule, we do not expect the result of those consultations to result in any restrictions that would not be required as a result of listing the owl as a threatened species. Designation of critical habitat does not preclude commercial projects or activities such as riparian restoration, fire prevention /management, or grazing if they do not cause an adverse modification of critical habitat. We will work with Federal agencies that are required to consult with us under section 7 of the Act to ensure that land management will not adversely modify critical habitat. (123) Comment: The Federal Highway Administration (FHA) requested that we exclude roadways and adjacent rights - of -way from the final designation because of economic impacts and delays. These areas typically provide poor or marginal habitat for the owl. Our Response: We did not exclude adjacent rights -of -way from the final designation, but note that existing roads, other paved areas, and areas that do not contain one or more primary constituent elements are not considered critical habitat. If adjacent lands meet the definition of protected or restricted habitat and contain primary constituent elements, then they would still be considered critical habitat. The additional administrative costs for consultation are included in the economic analysis. We do not anticipate delays associated with the FHA projects and the designation of critical habitat. Compliance with section 7 could range from simple concurrence, which is usually completed within 30 days, to formal consultation, which could take up to 135 days. Formal consultation would only be necessary if the action would have an adverse effect on the critical habitat. Designation of critical habitat in areas essential to the conservation of the owl is not likely to result in a regulatory burden substantially above that already in place due to the presence of the species. To streamline the regulatory process, the FHA may request section 7 consultation at a programmatic level for activities that would result in adverse effects to critical habitat. Adjacent rights -of -way contain habitat essential to the conservation of the owl if they contain one or more primary constituent elements. Therefore, we cannot justify excluding these particular areas from the designation. (124) Comment: Impacts to international migratory waterfowl treaties are not addressed by the Service in the economic analysis or environmental assessment. Our Response: We do not believe that the designation of critical habitat for the owl impacts internaltional migratory waterfowl treaties and consequently did not take these treaties into consideration when conducting our economic or environmental analyses. Further, the commenter did not provide any data for us to consider and did not adequately explain the rationale why international migratory waterfowl treaties would be affected by the critical habitat designation. Summary of Changes From the Proposed Rule Based upon our review of the public comments, the economic analysis, environmental assessment, issues addressed at the informational meeting and any new relevent information that may have become available since the publication of the proposal, we reevaluated our critical habitat proposal and made changes as appropriate. Other than minor clarifications and incorporation of additional information on the species' biology, this final rule differs from the proposal as follows: (1) We attempted to clarify the definitions and use of protected and restricted habitat and the attributes of primary constituent elements of critical habitat in this rule. (2) In the proposed rule we stated that all administratively reserved lands (i.e., lands that have been administratively withdrawn from commercial activities, such as wilderness or research natural areas) would be considered critical habitat and included "designated" wilderness areas. (3) We modified some of our critical habitat units based upon information submitted during the public comment period. Some critical habitat units have been removed from the designation because we determined, based on the best available information, that they did not contain areas essential to the conservation of the owl. The majority of refinements were conducted to remove, to the extent possible, those areas that did not contain protected or restricted habitat and primary constituent elements. (4) The boundary of Unit BR —W -7 in Arizona was discovered to be mapped incorrectly. We have changed the boundary for this unit and have verified the boundaries for all units to ensure that they are correct; (5) We excluded 157 WUI project areas and the Penasco WUI project area on FS lands in Arizona and New Mexico because the benefits of excluding these lands outweigh the benefits of their inclusion. (6) No Tribal lands are designated, including Canyon de Chelly and Navajo National Monument administered by the NPS, because the benefits of excluding the lands from the designation outweigh the benefits of their inclusion pursuant to section 4(b)(2) of the Act; (7) Fort Carson, Colorado, Fort Huachuca, Arizona, and the U.S. Naval Observatory Flagstaff Station, Arizona, are excluded because they have final'. INRMPs and are consistent with the 2004 National Defense Authorization Act (Pub. L. 108 -136, November 2003), Section 318, Military Readiness and Conservation of Protected Species which amended section 4(a)(3) of the Act; (8) Fort Wingate Army Depot, New _ Mexico, is excluded from the designation because it does not contain