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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules subsequent designation of areas as critical habitat; the stability of local economies and protection of the local custom and culture of counties; the presumption that exclusions would increase timber harvest and result in longer cycles between harvest, that timber harvest designs would benefit the northern spotted owl, and that the increased harvest would reduce the risk of wildfire; and that northern spotted owls may use areas that have been harvested if some forest structure was retained. The public did not have an opportunity to review or comment on these new rationales.
Additionally, the January Exclusions Rule excluded all of the Oregon and California Railroad Revested Lands O&C lands managed by BLM and USFS. The O&C lands were revested to the Federal Government under the Chamberlin-Ferris Act of 1916 39 Stat.
218. The Oregon and California Revested Lands Sustained Yield Management Act of 1937 Pub. L. 75
405 O&C Act addresses the management of O&C lands. The January Exclusions Rule failed to reconcile a change in our prior findings that areas designated on lands managed under the O&C Act were essential to the conservation of the species. The Service previously concluded in our 2012
critical habitat rule 77 FR 71876 that the O&C lands and other lands managed as matrix lands for timber production significantly contribute to the conservation of the northern spotted owl, that recovery of the owl cannot be attained without the O&C lands, and that our modeling showed that not including some of these O&C lands in the critical habitat network resulted in a significant increase in the risk of extinction.
In response to our March 1, 2021, rule 86 FR 11892 extending the effective date of the January Exclusions Rule, some commenters stated that we provided sufficient notice and an opportunity for the public to be aware of the potential for the expansion of the exclusions from the proposed to final rules. Industry groups asserted that the August 11, 2020, proposed revised critical habitat rule 85 FR 48487 made clear that additional exclusions were being considered, in part, based on our request for information on additional exclusions we should consider AFRC
2021, pp. 56. In contrast, many other commenters objected to a lack of notice and opportunity to comment on the significant changes. These included comments from the newly impacted State fish and wildlife agencies Washington Department of Fish and Wildlife 2021, California Department of
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Fish and Wildlife 2021. In order to ensure a robust opportunity for public input on the changes, we are erring on the side of transparency. If we were proposing to implement the January Exclusions Rule, we would open a public comment period on that rule and consider that feedback before deciding to implement the rule. Based on our review, however, we are now proposing to withdraw the January Exclusions Rule, prior to its implementation, due to a number of concerns that the exclusions would be inconsistent with the conservation purposes of the Act as we summarize below.
First, the large additional exclusions made in the January Exclusions Rule were premised on inaccurate assumptions about the status of the owl and its habitat needs particularly in relation to barred owls. The large additional exclusions were based in part on an assumption that barred owl control is the fundamental driver of northern spotted owl recovery, when in fact the best scientific data indicate that protecting late-successional habitat also remains critical for the conservation of the spotted owl as well FWS 2020, p.
83.
In addition, in concluding that the exclusions of the January Exclusions Rule will not result in the extinction of the northern spotted owl a finding necessary for any section 4b2
exclusions the January Exclusions Rule relied, in part, upon a large-scale barred owl removal program that is not yet in place. The Service is in the process of developing a barred owl management strategy, but it is premature to conclude that a barred owl management plan will be implemented. Considerable economic, logistical, social, and legal issues must be addressed prior to implementation of such a strategy.
Since completion of the recovery plan for the northern spotted owl FWS
2011, the Service has worked closely with Federal and State land managers to minimize or avoid impacts to extant spotted owls due to timber harvest, while at the same time carrying out the barred owl removal experiment Wiens et al. 2021 and initiating development of a barred owl management program.
This approach has allowed for some timber harvest to proceed under State and Federal land management plans e.g., BLMs 2016 Resource Management Plans in western Oregon BLM RMPs while minimizing impacts to long-term spotted owl recovery prospects.
Potential timber harvest on the critical habitat that would be excluded in the January Exclusions Rule would far exceed the level of impact to spotted owls that the Service anticipated in
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those land management plans. Thus, it is premature to rely solely on an anticipated barred owl management program to offset the potential loss of millions of acres of spotted owl critical habitat over time or to conclude it would not result in the extinction of the subspecies.
Second, the January Exclusions Rule undermined the biological redundancy of the critical habitat network by excluding large areas of critical habitat across the designation and did not address the ability of the remaining units and subunits to function in that network. The 2012 critical habitat designation 77 FR 71876 provided for biological redundancy in northern spotted owl populations and habitat by maintaining sufficient habitat on a landscape level in areas prone to frequent natural disturbances, such as the drier, fire-prone regions of its range Noss et al. 2006, p. 484; Thomas et al.
2006, p. 285; Kennedy and Wimberly 2009, p. 565.
In the development of habitat conservation networks generally, the intent of spatial redundancy is to increase the likelihood that the network and populations can sustain habitat losses by inclusion of multiple populations unlikely to be affected by a single disturbance event. This redundancy is essential to the conservation of the northern spotted owl because disturbance events such as fire can potentially remove large areas of habitat with negative consequences for northern spotted owls. This redundancy can also allow for a relatively small amount of human-caused disturbance such as timber harvest without jeopardizing the species or adversely modifying its critical habitat, provided that disturbance is carefully planned and evaluated within the appropriate temporal and spatial context such as projects consistent with BLMs 2016
RMPs. The modeling and evaluation process used by the Service in our 2012
final critical habitat rule 77 FR 71876
addresses spatial redundancy at two scales: By 1 making critical habitat subunits large enough to support multiple groups of owl sites; and 2
distributing multiple critical habitat subunits within a single geographic region. This approach was particularly the case in the fire-prone Klamath and Eastern Cascades portions of the range.
This increased habitat redundancy also provides for the conservation of northern spotted owls as they face growing competition from barred owls.
The exclusions in the January Exclusions Rule also failed to consider the needs for connectivity between critical habitat units, particularly in
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