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53218 Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations of the projects resulted in a "may affect, not likely to adversely affect" determination, whereas 132 projects resulted in a "may affect, likely to adversely affect" determination for the owl. Although one project, the Rio Penasco H vegetation management project on the Sacramento Ranger District, Lincoln National Forest, was analyzed in the programmatic BO ( Penasco BO), the FS reinitiated this individual consultation because the project included additional actions that were not covered by the programmatic BO. The Penasco BO analyzed the effect of take of the owl from implementing an experimental management approach and rigorous monitoring program that will provide information useful for guiding future forest thinning projects and assessing potential impacts to owl habitat and prey. This project was recommended by the Recovery Plan and endorsed by the Recovery Team leader and other other Recovery Team members (Service 1995, 2002). We are also excluding the area covered by the Penasco BO. (1) Benefits of Inclusion The benefits of including the lands covered by these 157 project areas and the Penasco WUI project area in Arizona and New Mexico in critical habitat for the owl would result from the requirement under section 7 of the Act that Federal agencies consult with us to ensure that any proposed actions do not destroy or adversely modify critical habitat. As noted above, the programmatic BO and Penasco BO for these projects was finalized in 2001 and 2002, respectively, at which time we concluded that the proposed actions are not likely to jeopardize the continued existence of the owl. The programmatic BO and Penasco BO analyzed effects to owl habitat from the proposed activities to reduce the risk of catastrophic wildfire. One of the main sources of information in these consultations was the Recovery Plan, which is also one of the primary sources of information for this designation. Because we have an existing policy for both owls and critical habitat that identifies using the Recovery Plan for section 7 consultations, including these 157 WUI project areas and the Penasco WUI project area within the designation likely will not affect our resulting analyses. As fully described in the environmental assessment, our policy indicates that an action in critical habitat that affects primary constituent elements may affect critical habitat and, therefore, must be consulted upon. In general, if a proposed action is in compliance with the Recovery Plan, we consider the effects to be insignificant and discountable and not likely to adversely affect the species or its critical habitat (i.e., an informal consultation). Conversely, those activities not in compliance with the Recovery Plan are likely to adversely affect the species or its critical habitat (i.e., formal consultation). In this case, we have already completed formal consultation for these 157 WUI projects and the Penasco WUI project area using the definitions of owl habitat as identified in the Recovery Plan. If the 157 WUI project areas and the Penasco WUI project area were included within the designation, the FS would be required to reinitiate consultation, where we would analyze the potential impacts of the proposed projects on protected or restricted areas. Because a reinitiation of this consultation would use the same definitions of owl habitat (i.e., protected or restricted habitat), it is unlikely that this process would result in additional protections for the owl. Thus, we believe that a duplicative analysis would only result in potential delays for the implementation of these projects. It is important to note that if any of the 157 WUI projects are not consistent with programmatic BO or if the Penasco WUI project is not consistent with the BO covering this project area, due to a change in the proposed action, the FS would reiniate the consultation based on the listing of the owl. Critical habitat designation of these WUI project areas could potentially provide some benefit to the species. For example, the environmental assessment found that consultations may be more standardized with respect to analysis of impacts to primary constituent elements because the habitat -based guidelines of the Recovery Plan would be applied formally to key features of habitat. The environmental assessment also found that designation would add a monitoring component to the consultation process for cumulative impacts to habitat (i.e., similar to the section 7 rangewide take monitoring that currently occurs for the species). Nevertheless, we do not believe that these 157 WUI project areas and the Penasco WUI project area would receive these additional benefits from being included within the designation of critical habitat for the owl because standardized impacts to owl habitat have already been programmatically analyzed by comparing the proposed action to the habitat -based guidelines of the Recovery Plan. Further, the FS is currently required to have an annual monitoring and review of the individual and combined impact of each year's projects, including those implemented under the Penasco BO. We find sufficient regulatory and protective conservation measures in place from the current programmatic BO and Penaco BO. For these reasons, we find that little additional benefit through section 7 consultation would occur as a result of the overlap between current policy and existing information. In Sierra Club v. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001), the Fifth Circuit Court of Appeals stated that the identification of habitat essential to the conservation of the species can provide informational benefits to the public, State and local governments, scientific organizations, and Federal agencies. The court also noted that heightened public awareness of the plight of listed species and their habitats may facilitate conservation efforts. We agree with these findings; however, we believe that there would be little additional informational benefit gained from including these 157 WUI project areas or the Penasco WUI project area within the designation because they were included in the proposed rule and discussed in this final rule. Consequently, we believe that the informational benefits are already provided even though these projects are not designated as critical habitat. (2) Benefits of Exclusion As discussed in the "Background" section of this rule, the two primary reasons for listing the owl as threatened in 1993: (1) Historical alteration of its habitat as the result of timber management practices, specifically the use of even -aged silviculture, and the threat of these practices continuing; and (2) the danger of catastrophic wildfire. The Recovery Plan for the owl outlines management actions to remove recognized threats and recover the owl. We recognize that wildfires on National Forest lands in the southwestern region have increased in size and intensity over the last 15 years (FS 2004). According to the FS, an overwhelming majority of the areas identified in the programmatic BA occur in fire condition class 2 or 3, indicating moderate -to -high fire severity with severe consequences to the ecosystem and human life and property (FS 2001). Without treatment, the loss of endangered species habitat from catastrophic wildfire will likely be much greater and have more adverse affects. For example, the FS reported that approximately 45 owl PACs were significantly modified on FS lands by wildfire between 1996 and 2001 (FS 2001). We note that within the Upper Gila Mountains RU, high -to- moderate-