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53188 Federal Register/Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations comment period, we have made revisions to the areas designated as critical habitat, which are reflected in this final rule (see "Summary of Changes From the Proposed Rule" section). We are not aware of any reliable information that is currently available to us that was not considered in this designation process. This final determination constitutes our best assessment of areas needed for the conservation of the species. Much remains to be learned about this species; should credible, new information become available which contradicts this designation, we will reevaluate our analysis and, if appropriate, propose to modify this critical habitat designation, depending on available funding and staffing. We must make this determination on the basis of the information available at this time, and we may not delay our decision until more information about the species and its habitat are available (Southwest Center for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000)). Finally, we are also in the process of revising the current Recovery Plan. The Recovery Team anticipates that the revised Recovery Plan will be available during late 2005 (S. Rinkevich, Service, pers. comm., 2004). The revision will likely include much of the same guidance as the current Recovery Plan, but will also include recent information to further assist land managers in reducing the threats to the owl. (10) Comment: In Colorado, the owl has been found only in canyon habitats and on rocky outcrops. We suggest that narrow, steep - walled canyons (greater than 40 percent slopes) or prominent rocky outcrops less than 9,500 feet (2,896 meters) in elevation be considered constituent elements for critical habitat in Colorado. Much of the area currently proposed as critical habitat does not contain such habitats and does not contribute to the conservation of the species. Pinyon - juniper habitat in Colorado is used by owls for roosting, foraging, and wintering. The final designation should include these areas, especially on Fort Carson. Our Response: Designated critical habitat for the owl in Colorado already encompasses the commenter's suggestion. For example, protected habitat includes areas with slopes greater than 40 percent. Additionally, one of the primary constituent elements for canyon habitat includes canyon walls containing crevices, ledges, or caves. The critical habitat in Colorado is essential for the conservation of the species because it provides landscape connectivity within and among critical habitat units. The designation only includes lands within protected or restricted areas and includes mixed conifer, pine -oak, and riparian habitat types as they are defined in the Recovery Plan (Service 1995). As noted above, we could not enlarge the final designation to add pinyon - juniper habitat that was not included in the proposed rule. Pinyon - juniper habitat falls within other forest and woodland types in the Recovery Plan (Service 1995). It should be noted that the Recovery Plan does not provide specific management guidelines for other forest and woodland types. However, the lack of specific guidelines does not imply that we regard these types as unimportant for the recovery of the owl. These areas would continue to be subject to section 7 consultation requirements if they are used by owls and a project has the potential to affect the species or its habitat. (11) Comment: The "Utah" owls are a sub - species with unique genetic variations that may require different habitat and other life requirements. Our Response: The Service recognizes that owls use both canyon and forest habitats. This is why the primary constituent elements are provided for both forests and canyons. However, we are not aware of any information in the scientific literature or provided by biologists researching the owl to indicate that owls in Utah are genetically different from Strix occidentalis lucida. (12) Comment: The Carson National Forest contains high - elevation areas within proposed critical habitat that are not occupied by the owl. These areas should be refined or excluded from the designation. Our Response: Based upon the most recent PAC information, we have refined the final designation to exclude all of the proposed critical habitat units that are not essential to the conservation of the species. This included a large portion of the Carson National Forest where owl surveys have been conducted through 400,000 acres (161,874 hectares) since 1988 and have yet to find an owl outside of the Jicarilla Ranger District (FS 2004). We are designating two critical habitat units on the Jicarilla Ranger District based upon public comments and the best scientific and commercial information. Nevertheless, these two critical habitat units contain WUI project areas that are not included in the designation, because these project areas are specifically excluded due to human health and safety concerns from the imminent risk of catastrophic wildfire (see "Exclusions Under Section 4(b)(2)" and "Regulation Promulgation" sections). This designation of critical habitat does not mean that habitat outside the designation is unimportant or may not be required for recovery. For example, we recognize that the Carson National Forest is part of the southern Rocky Mountains, New Mexico Recovery Unit (RU) and contains protected and restricted habitat. Although many hypotheses have been suggested as to why the majority of this National Forest is apparently unoccupied (e.g., high elevation, climatic conditions, etc.), we are unable to draw firm conclusions. A great deal of effort has been expended by owl biologists to survey potential habitat in this area and have only documented owls on the Jicarilla Ranger District. Other historic owl records have been difficult to verify, and are currently considered by the FS and others to be "questionable" (FS 2004). The most serious threat to the owl in this portion of its range is wildfire, which would be unaffected by a designation of critical habitat (Service 1995). Consequently, we cannot conclude that, outside of the two units we are designating as critical habitat, the remaining proposed critical habitat on the Carson is essential to the conservation of the owl because we have not found PACs in these areas. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1) and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard and the section 9 take prohibition, as determined on the basis of the best available information at the time of the action. Issue 2: Procedural and Legal Compliance (13) Comment: The designation of critical habitat will place an additional burden on land management agencies above and beyond what the listing of the species would require. The number of section 7 consultations will increase; large areas where no owls are known to occur will now be subject to section 7 consultation and will result in a waste of time and money by the affected agencies. Many Federal agencies have been making a "no effect" call within unoccupied suitable habitat. Now, with critical habitat there will be "may effect" determinations, and section 7 consultation will be required if any of the constituent elements are present. Our Response: If a Federal agency funds, authorizes, or carries out an action that may affect either the owl or its critical habitat, the Act requires that