Draft Environmental Assessment Designation of Critical Habitat for the Northern Spotted Owl Prepared by the U.S. Fish and Wildlife Service Region 1 Portland, Oregon June 2012 1 1.0 INTRODUCTION The U.S. Fish and Wildlife Service (Service) is proposing to revise the designated critical habitat for the northern spotted owl (Strix occidentalis caurina) (spotted owl), under the Endangered Species Act of 1973, as amended (ESA). The northern spotted owl was originally listed as threatened under the ESA because of loss of its older forest habitat and a declining population (55 FR 26114, June 26, 1990). More recently, competition with barred owls (Strix varia) has emerged as a significant additional threat to spotted owl conservation (USFWS, 2011a). Under section 3(5)(A) of the ESA, critical habitat designation identifies specific areas within the geographical area occupied by the northern spotted owl at the time it is listed that contain the physical or biological features essential to the conservation of the species and that may require special management considerations or protection. Critical habitat may also include areas outside of the geographical area occupied at the time of listing, upon a determination that such areas are essential to the conservation of the species. The current designation of critical habitat was published August 13, 2008 (73 FR 47325) and comprises 5,312, 300 acres (ac)). The Service is currently under a court order to revise critical habitat by November 15, 2012 (see Section 1.1 Purpose of and Need for Proposed Action). Outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not think there is a requirement to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., in connection with designating critical habitat under the ESA for the reasons outlined in a notice published in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit in a challenge to the first rulemaking designating critical habitat for the northern spotted owl. Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995). Nevertheless, the Service decided, as a matter of discretion and not as a legal requirement, to prepare an environmental assessment on this designation prior to making a final decision. This draft Environmental Assessment (draft EA) presents the purpose of and need for revising critical habitat designation, the proposed action and alternatives, and an evaluation of the direct, indirect, and cumulative effects of the alternatives pursuant to the NEPA of 1969 as implemented by the Council on Environmental Quality (CEQ) regulations (40 CFR 1500, et seq.) and according to the U.S. Department of the Interior (USDI) NEPA procedures (43 CFR 46). The final Environmental Assessment will be used by the Service in deciding whether critical habitat will be designated as proposed, if the Proposed Action requires refinement, or if further analyses are needed through preparation of an Environmental Impact Statement (EIS). 2 1.1 Purpose of and Need for the Proposed Action To help distinguish between the purpose and need, we consider the need of the action as the underlying problem or opportunity we (the Service) must address. The purposes are the means by which we are trying to address the underlying need for the action. The need for this action is to designate critical habitat for the threatened northern spotted owl by November 15, 2012, in accordance with a court order in Carpenters’ Industrial Council (CIC) v. Salazar, Civil Action No. 08-1409 (EGS) (D.D.C. Oct. 12, 2010). One of the purposes of this action is to designate critical habitat in accordance with the ESA and its implementing regulations, which include the following: (1) Section 3(5)(A). This section defines critical habitat as, “the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection. Section 3(5)(A) goes on to define critical habitat as, “specific areas outside the geographical area occupied by the species at the time is listed in accordance with the provisions of section 4 of this Act, upon determination by the Secretary that such areas are essential for the conservation of the species.” Our regulations also state that the Secretary shall designate areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species (50 C.F.R. 424.12(e)). (2) Section 4(b)(2). This section of the ESA states that designation of, and revisions to, critical habitat will be made, “on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” Section 4(b)(2) of the ESA also allows the Secretary of Interior to exclude an area from critical habitat designation if he determines, “the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, 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.” (3) Section 4(1)(3)(B). This section of the ESA states that the Secretary, “shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an integrated natural resources management plan prepared under section 101 of the Sikes 3 Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation.” Within the context of these statutory and regulatory requirements, our purpose is to also designate critical habitat in a way that will achieve the greatest relative conservation and recovery goals for the northern spotted owl but simultaneously minimize effects to other land and resource uses by using an efficient network design. That is, to maximize conservation value to the species while minimizing human use conflicts. 1.2 Previous Federal Actions The northern spotted owl was listed as a threatened species on June 26, 1990 (55 FR 26114). On January 15, 1992, we published a final rule designating 6,887,000 ac of Federal lands in Washington, Oregon, and California as critical habitat for the northern spotted owl (57 FR 1796). Publication of this designation was in compliance with a court order in Northern Spotted Owl v. Lujan, 758 F.Supp. 621 (W.D.Wash. 1991). On January 13, 2003, we entered into a settlement agreement with the American Forest Resources Council, Western Council of Industrial Workers, Swanson Group Inc., and Rough & Ready Lumber Company, to, among other things, consider potential revisions to critical habitat for the northern spotted owl. Western Council of Industrial Workers (WCIW) v. Secretary of the Interior, Civ. No. 02-6100-AA (D. Or.). In compliance with the settlement agreement, as amended, we published a final revised rule, which is the current critical habitat designation, on August 13, 2008 (73 FR 47325). The 2008 recovery plan for the northern spotted owl, announced on May 21, 2008 (73 FR 29471), formed the basis for the existing designation of critical habitat, which comprises 5,312,300 ac. Both the 2008 critical habitat designation and the 2008 recovery plan were challenged in court. Carpenters’ Industrial Council (CIC) v. Salazar, 734 F. Supp. 2d 126 (D.D.C. 2010). In addition, on December 15, 2008, the Inspector General of the Department of the Interior issued a report entitled ‘‘Investigative Report of The Endangered Species Act and the Conflict between Science and Policy,’’ which concluded that the integrity of the agency decision-making process for the spotted owl recovery plan was potentially jeopardized by improper political influence. As a result, the Federal Government filed a motion in the CIC lawsuit for remand of the 2008 recovery plan and the critical habitat designation that was based on that recovery plan. On September 1, 2010, the Court issued an opinion remanding the 2008 recovery plan to us for issuance of a revised plan. The notice of availability of the final Revised Recovery Plan for the Northern Spotted Owl (hereafter referred to as Revised Recovery Plan) was published in the Federal Register on July 1, 2011 (76 FR 38575). On October 12, 2010, the Court remanded the 4 2008 critical habitat designation and adopted the Service’s proposed schedule to issue a final revised critical habitat rule by November 15, 2012. The Service published the proposed rule for revised critical habitat for the northern spotted owl (proposed revised rule) on March 8, 2012 (77 FR 14062). The Service identified and proposed to designate as critical habitat approximately 13,962,449 ac in 11 units and 63 subunits in California, Oregon, and Washington. In addition, however, the ESA provides the Secretary with the discretion to exclude areas from the final designation after taking into consideration economic impacts, impacts on national security, and any other relevant impacts of specifying any particular area as critical habitat. The alternatives presented in this draft EA are based upon several possible options considered in the proposed rule (labeled “Possible Outcomes” in the rule (77 FR 14067) based on potential exclusions of: (1) private and State lands with active conservation agreements; (2) State Parks and Congressionally reserved natural areas; and (3) all State and private lands.