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Federal Register / Vol. 69, No. 168/Tuesday, August 31, 2004/Rules and Regulations 53189 the agency consult with us under section 7 of the Act. For a project to affect critical habitat, it must affect the primary constituent elements, which are defined in the regulation section in this final rule. Our view is and has been that any Federal action that affects owl habitat as defined by the Recovery Plan should be considered a situation that "may affect" the owl and should undergo section 7 consultation (Service 1996). This is true whether or not critical habitat is designated, even when the particular project site within the larger geographical area occupied by the species is not known to be currently occupied by an individual owl (e.g., projects on the Carson National Forest). All areas designated as critical habitat are essential to the conservation of the species, so Federal actions affecting primary constituent elements of the owl should undergo consultation. As in the past, the Federal action agency will continue to make the determination as to whether their project may affect a species or designated critical habitat. (14) Comment: Many commenters expressed concern that the Recovery Plan is not being implemented, and that federally funded or authorized activities (i.e., logging, grazing, dam construction, etc.) within owl habitat are not consistent with recovery for the species and /or are not undergoing section 7 consultation for potential impacts to the owl. Our Response: We are not aware of instances where action agencies have not consulted with us on actions that may affect the species or its habitat. We have consulted with Federal agencies on numerous projects since we issued the Recovery Plan. The Recovery Plan recognizes, as do we, that agencies must make management decisions for multiple use objectives. Thus, agencies consult with us under section 7 when they propose actions that are both consistent and inconsistent with Recovery Plan recommendations (i.e., when they propose actions that may affect the species or critical habitat) (Service 1996). However, there have only been two consultations to date that have concluded that a proposed action is likely to jeopardize the continued existence of the owl (i.e., the November 25, 1996, biological opinion on the existing forest plans and the June 13, 1996, biological opinion on the releases of site specific information). (15) Comment: One commenter believes that the designation of critical habitat for the owl conflicts with the Federal Land Policy and Management Act of 1976, the Mining and Minerals Policy Act of 1970, the National Materials and Minerals Policy, Research, and Development Act of 1980, and other State and county policies and plans within the four States. Our Response: We read through the comments and information provided concerning the various acts and policies; however, the commenter failed to adequately explain the rationale for why they believe critical habitat designation conflicts with the above Federal laws and policies or other State and County policies and plans. We are unaware of any conflicts with the cited laws, policies, and plans. However, we do recognize that significant conservation can be achieved by implementing these laws, which may obviate the need to designate critical habitat, especially when these laws are providing such conservation benefits. (16) Comment: The FS and Bureau of Land Management (BLM) provided Geographic Information System (GIS) coverages and requested that we revise or exclude critical habitat units based upon lack of protected or restricted habitat and primary constituent elements. The suggested revisions are based upon digital elevation models, elevation, vegetation, owl surveys, and land management designations (i.e., wilderness study areas). There was an expressed concern that much of the area within the proposed critical habitat boundaries does not contain one or more primary constituent elements to meet the definition of critical habitat and should not be included. Our Response: We considered the information provided by the commenters and designated only those lands that were determined to be essential for the conservation of the owl (see "Summary of Changes From the Proposed Rule" section). Critical habitat is defined as the areas within the mapped boundaries. However, as described in the "Section 7 Consultation" section below, consultation would occur when the action agency determines that activities they sponsor, fund, or authorize may affect areas defined as protected or restricted habitat that contain one or more of the primary constituent elements. (17) Comment: Some commenters expressed concern that there are areas containing owls, but these were not within the critical habitat boundaries. Additional areas not identified in the proposed rule should be designated critical habitat. The Service should designate additional sites in Colorado, specifically Mesa Verde National Park, Boulder Mountain Parks, Red Rocks, Glenwood Canyon, and other deep, narrow canyon systems throughout the State. Our Response: The critical habitat designation did not include some areas that are known to have widely scattered owl sites, low population densities, and /or unknown or marginal habitat quality, which are not considered to be essential to this species' conservation. Section 3(5) of the Act state that, "Except in those certain circumstances * * * critical habitat shall not include the entire geographical area which can be ocupied by a species, rather only those areas essential for the conservation of the species. Additionally, section 4(b)(4) of the Act and the Administrative Procedure Act (5 U.S.C. 551 et seq.) requires that areas designated as critical habitat must first be proposed as such. Thus, we cannot make additions in this final rule to include areas that were not included in the proposed rule. Designation of such areas would require a new or revised proposal and subsequent final rule. (18) Comment: Why are areas included in the designation that are not presently occupied by the owl? Our Response: The areas designated are within the geographical area occupied by the species because the critical habitat designation is devised around the majority of known owl nesting sites. The designation includes both protected and restricted habitat, as defined in the Recovery Plan, and contains the primary constituent elements as identified herein. We consider protected areas to be occupied on a more permanent basis and restricted areas are considered to be temporally occupied. We have included these areas in the designation based on information contained within the Recovery Plan that finds them to be essential to the conservation of the species because they currently possess the essential habitat requirements for nesting, roosting, foraging, and dispersal. In section 3(5)(A) of the Act, critical habitat is defined as "(i) the specific areas within the geographical area occupied by the species on which are found those physical and biological features (I) essential to the conservation of the species and (11) which may require special management considerations or protection; and (ii) specific areas outside of the geographical area occupied by the species * * * [that] are essential to the conservation of the species ". Pursuant to the Act and our implementing regulations, we must determine whether the designation of critical habitat for a _ given species is prudent and determinable. If it is both, then we