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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules
southern Oregon where the bulk of the additional areas were excluded in the January Exclusions Rule. Successful dispersal of northern spotted owls is essential to maintaining genetic and demographic connections among populations across the range of the species FWS 2020, p. 24. Some subunits that were designated to provide this support were reduced in the January Exclusions Rule by over 50
to 90 percent. If these exclusions were implemented, these subunits would no longer provide the demographic support for which they were designated. Again, as described above, the Service anticipates and plans for a relatively small amount of human-caused and natural disturbance in these units, meted out over space and time in a manner that supports recovery over the long term. The January Exclusions Rule could lead to timber harvest that would greatly accelerate those impacts well beyond what was anticipated in the recovery plan for the northern spotted owl FWS 2011 and various land management plans.
The January Exclusions Rule also overstates the conservation value of non-designated habitat for the owl on protected Federal lands such as national parks and designated wilderness areas.
These Federal lands are generally protected from proposed Federal activities that would result in significant removal of suitable owl habitat, and so they may provide areas that can serve as refugia for northern spotted owls. These protected areas, however, are relatively small and widely dispersed across the range of the owl. They are disjunct from one another and cannot be relied on to sustain the species unless they are part of and connected to a wider reserve network as provided by the 2012 critical habitat designation 77 FR 71876. As discussed above, that network would be greatly diminished and fragmented by the January Exclusions Rule if implemented.
Third, under section 4b2 of the Act, the Secretary cannot exclude areas from critical habitat if he or she finds, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. The January Exclusions Rule relied upon a determination by the Secretary that the exclusions will not result in the extinction of the northern spotted owl based in part on a narrow interpretation of this requirement. In a memorandum to the Secretary FWS 2021a, the Director suggested that the phrase in the Act will result in extinction requires the extinction outcome to be
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immediately determinative and proximal. However, critical habitat designations serve to identify those specific areas that are essential to the conservation of a species;
conservation under the Act means improving the status of the listed species to the point at which the protections of the Act are no longer necessary, i.e., the species is recovered.
Species listed as threatened or endangered species are by definition likely to be in danger of extinction or already in danger of extinction, and our listing action affirms that they are likely to become extinct unless affirmatively conserved. While the language of section 4b2 uses the phrase will result in extinction, we interpret that language within the context of the purpose of critical habitat designations and the purpose of the Actsuch that exclusions under section 4b2 that are reasonably certain to lead to the eventual extinction of the species are prohibited, not just exclusions that are immediate and directly caused by the exclusion.
A determination of immediate proximal extinction as a result of a critical habitat exclusion under section 4b2 may be possible for the rarest and most imperiled of species, but it is less likely to be determined for many listed species, especially those that are long-lived or thinly dispersed over large geographic ranges. The northern spotted owl is both: Individual northern spotted owls can live up to 20 years, and they are widely distributed at low densities across three States. For example, if the bulk of the northern spotted owls habitat were to be removed except for the portion that exists in national parks, one could reasonably conclude the subspecies would not go extinct immediately, say within 1 to 5 years.
Individual northern spotted owls remaining in those parks scattered across the range might persist for one or a few generations that is, greater than 20 years. However, the subspecies is still likely to go extinct in this scenario.
Basic conservation biology principles and metapopulation dynamics predict that those remnant and now isolated northern spotted owl subpopulations would likely die off without regular genetic and demographic interaction with northern spotted owls from neighboring subpopulations.
Forces working against the persistence of these isolated subpopulations include genetic inbreeding and catastrophic stochastic events such as wildfire. Therefore, it is a reasonable scientific conclusion that the subspecies would go extinct under such conditions, but this extinction
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process will occur over decades as these forces manifest themselves and as longlived individuals die off. The extinction would not occur immediately, as it might with rarer and more short-lived species, but eventual extinction is still a scientifically predictable outcome with a high likelihood of certainty. The Act requires us to use the best available science when applying the discretion afforded in section 4b2, and this includes making a reasonable and defensible scientific interpretation of extinction risk that is relevant to the species under consideration. In this current proposal, we correct the previous misapplication of section 4b2 extinction risk, which could not meet the Acts purpose of conserving listed species and the ecosystems on which they depend.
Further, the January Exclusions Rule did not consider that a reduction in habitat conservation, in concert with the impacts from the barred owl, will exacerbate and accelerate the risk of extinction as discussed in our recent 12month finding and supporting documentation that the species is in decline and warrants reclassification as endangered 85 FR 81144that is, that the species is in danger of extinction throughout all or a significant portion of its range. The species has experienced rapid population declines and potential extirpation in Washington and parts of Oregon, is functionally extinct in British Columbia, and continues to exhibit similar declines in other parts of the range. Northern spotted owls are declining at a rate of 5.3 percent across their range and populations in Oregon and Washington have declined by over 50 percent, with some declining by more than 75 percent, since 1995
Franklin et al. 2021. Franklin et al.
2021, p. 18 emphasizes the importance of maintaining northern spotted owl habitat, regardless of occupancy, in light of competition from barred owls to provide areas for recolonization and connectivity for dispersing northern spotted owls. The January Exclusions Rule, if implemented, would work at cross purposes with this recommendation.
Specifically, much of the areas excluded by the January Exclusions Rule are allocated by USFS and BLM as Late-Successional Reserves and managed for late-successional forestdependent species, such as the northern spotted owl, in accordance with the Northwest Forest Plan NWFP USFS
and BLM 1994a, USFS and BLM 1994b and the BLM RMPs BLM 2016a, BLM
2016b. The NWFP and the BLM RMPs provide adequate landscape-scale conservation for the northern spotted
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