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Federal Register / Vol. 86, No. 136 / Tuesday, July 20, 2021 / Proposed Rules owl while allowing for relatively small areas of critical habitat to be harvested over time. If the January Exclusions Rule enabled subsequent habitat removal on these lands that is inconsistent with the current NWFP and BLM RMPs, as suggested in the January Exclusions Rules identification of increased timber harvest as a benefit of exclusion, it would preclude the recovery of the northern spotted owl and result in the species eventual extinction.
In sum, substantial issues have been raised that our January Exclusions Rule would preclude the conservation of the northern spotted owl, a species we recently found warrants reclassifying as an endangered species in danger of extinction throughout its range 85 FR
81144, December 15, 2020. Upon review and reconsideration as described above, the Service now proposes to withdraw the January Exclusions Rule and return to the original August 11, 2020, proposed exclusion of 204,797
acres 82,879 hectares within 15
counties in Oregon as adjusted from 204,653 acres 82,820 hectares to correct a discrepancy in acreage calculations, as explained above under Previous Federal Actions. The proposed exclusion of these 204,797
acres is a scientifically sound application of the Services discretionary authority under section 4b2 of the Act. This exclusion, which is consistent with existing Federal land management plans and the recovery plan for the northern spotted owl FWS
2011, provides sufficient habitat conservation for long-term northern spotted owl recovery while also allowing carefully considered timber harvest and other activities to proceed on portions of these Federal lands.
Critical Habitat
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Background Critical habitat is defined in section 3
of the Act as:
1 The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features a Essential to the conservation of the species, and b Which may require special management considerations or protection; and 2 Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

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Our regulations at 50 CFR 424.02
define the geographical area occupied by the species as an area that may generally be delineated around species occurrences, as determined by the Secretary i.e., range. Such areas may include those areas used throughout all or part of the species life cycle, even if not used on a regular basis e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals. Our regulation at 50 CFR 424.02 also now defines the term habitat for the purposes of designating critical habitat only, as the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species. This new regulatory definition has a narrow scope and would only be relevant if we were considering designating areas that are outside of the geographical area occupied at the time of listing. We did not consider including areas outside the geographical area occupied at the time of listing in this proposed revised rule;
rather, we are proposing to exclude areas from it. Nonetheless, we have taken the opportunity provided by this proposed revision to review the existing designation for conformance with the new regulatory definition. All the areas within the designation of critical habitat are within the geographical area occupied at the time of listing and encompass forested areas with specific characteristics, described further below, which are the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of the species.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the
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destruction or adverse modification of critical habitat. The designation of critical habitat does not change land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation also does not allow the government or public to access private lands, nor does designation require implementation of restoration, recovery, or enhancement measures by non-Federal landowners.
When a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7a2 of the Act.
However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Acts definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features 1 which are essential to the conservation of the species and 2 which may require special management considerations or protection. For these areas, the Service identifies to the extent known, using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species such as space, food, cover, and protected habitat. In identifying those physical or biological features that occur in occupied areas, we focus on the specific features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Acts definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed,
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