Endangered and Threatened Wildlife and Plants; California Spotted Owl; Endangered Status for the Coastal-Southern California Distinct Population Segment and Threatened Status With Section 4(d) Rule for the Sierra Nevada Distinct Population Segment, 11600-11639 [2023-03526]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R8–ES–2022–0166;
FF09E21000 FXES1111090FEDR 234]
RIN 1018–BG64
Endangered and Threatened Wildlife
and Plants; California Spotted Owl;
Endangered Status for the CoastalSouthern California Distinct Population
Segment and Threatened Status With
Section 4(d) Rule for the Sierra Nevada
Distinct Population Segment
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
list two distinct population segments
(DPSs) of the California spotted owl
(Strix occidentalis occidentalis), a bird
species from California and Nevada,
under the Endangered Species Act of
1973, as amended (Act). This
determination also serves as our 12month finding on a petition to list the
California spotted owl. After a review of
the best available scientific and
commercial information, we find that
listing the Coastal-Southern California
DPS as endangered is warranted, and
that listing the Sierra Nevada DPS as
threatened is warranted. Accordingly,
we propose to list the Coastal-Southern
California DPS as an endangered species
under the Act and the Sierra Nevada
DPS as a threatened species with a rule
issued under section 4(d) of the Act
(‘‘4(d) rule’’). If we finalize this rule as
proposed, it will add these two DPSs to
the List of Endangered and Threatened
Wildlife and extend the Act’s
protections to them.
DATES: We will accept comments
received or postmarked on or before
April 24, 2023. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
eastern time on the closing date. We
must receive requests for a public
hearing, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by April 10, 2023.
ADDRESSES:
Written comments: You may submit
comments by one of the following
methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R8–ES–2022–0166, which is
the docket number for this rulemaking.
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SUMMARY:
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Then, click on the Search button. On the
resulting page, in the panel on the left
side of the screen, under the Document
Type heading, check the Proposed Rule
box to locate this document. You may
submit a comment by clicking on
‘‘Comment.’’
(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R8–ES–2022–0166, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Availability of supporting materials:
Supporting materials, such as the
species status assessment report, are
available at https://www.regulations.gov
under Docket No. FWS–R8–ES–2022–
0166.
FOR FURTHER INFORMATION CONTACT:
Michael Fris, Field Supervisor,
Sacramento Fish and Wildlife Office,
2800 Cottage Way, Sacramento, CA
95825; telephone 916–414–6700.
Individuals in the United States who are
deaf, deafblind, hard of hearing, or have
a speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under
the Act, a species warrants listing if it
meets the definition of an endangered
species (in danger of extinction
throughout all or a significant portion of
its range) or a threatened species (likely
to become endangered within the
foreseeable future throughout all or a
significant portion of its range). If we
determine that a species warrants
listing, we must list the species
promptly and designate the species’
critical habitat to the maximum extent
prudent and determinable. We have
determined that the Sierra Nevada DPS
of the California spotted owl meets the
definition of a threatened species, and
the Coastal-Southern California DPS of
the California spotted owl meets the
definition of an endangered species;
therefore, we are proposing to list them
as such. Listing a species as an
endangered or threatened species can be
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completed only by issuing a rule
through the Administrative Procedure
Act rulemaking process (5 U.S.C. 551 et
seq.).
What this document does. We
propose the listing of the Sierra Nevada
DPS of the California spotted owl as a
threatened species with a rule under
section 4(d) of the Act and the CoastalSouthern California DPS of the
California spotted owl as an endangered
species under the Act.
The basis for our action. Under the
Act, we may determine that a species is
an endangered or threatened species
because of any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence.
We have determined that both the
Sierra Nevada population and the
coastal-southern California population
of the California spotted owl are discrete
and significant under our DPS policy
and are, therefore, listable entities under
the Act. The Sierra Nevada DPS is found
in the Sierra Nevada Mountain Ranges
and foothills in California and western
Nevada. The Coastal-Southern
California DPS is found in the Coast,
Transverse, and Peninsular Ranges of
California. These two DPSs together
represent the entirety of the California
spotted owl’s range.
The Sierra Nevada DPS of the
California spotted owl is currently being
impacted by high-severity fire, tree
mortality, drought, and barred owls.
This DPS still has resiliency throughout
its range, and some areas remain in
stable condition; however, we expect
the magnitude of impacts from highseverity fire, tree mortality, drought,
climate change, and other threats to
increase into the future. Because the
Sierra Nevada DPS is likely to become
in danger of extinction within the
foreseeable future, we propose to list it
as threatened.
The Coastal-Southern California DPS
has low resiliency, redundancy, and
representation. The entirety of the range
of this DPS is at extremely high risk of
fire, and available habitat is fragmented.
All areas of the Coastal-Southern
California DPS are currently declining,
and the DPS faces additional threats
from tree mortality and drought.
Because the Coastal-Southern California
DPS is currently in danger of extinction,
we propose to list it as endangered.
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Information Requested
We intend that any final action
resulting from this proposed rule will be
based on the best scientific and
commercial data available and be as
accurate and as effective as possible.
Therefore, we request comments or
information from other governmental
agencies, Native American Tribes, the
scientific community, industry, or any
other interested parties concerning this
proposed rule.
We particularly seek comments
concerning:
(1) The species’ biology, range, and
population trends, including:
(a) Biological or ecological
requirements of the species, including
habitat requirements for feeding,
breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range,
including distribution patterns and the
locations of any additional populations
of this species;
(d) Historical and current population
levels, and current and projected trends;
and
(e) Past and ongoing conservation
measures for the species, its habitat, or
both.
(2) Factors that may affect the
continued existence of the species,
which may include habitat modification
or destruction, overutilization, disease,
predation, the inadequacy of existing
regulatory mechanisms, or other natural
or manmade factors.
(3) Biological, commercial trade, or
other relevant data concerning any
threats (or lack thereof) to this species
and existing regulations that may be
addressing those threats.
(4) Additional information concerning
the historical and current status of this
species.
(5) Information on regulations that
may be necessary and advisable to
provide for the conservation of the
Sierra Nevada DPS of the California
spotted owl and that we can consider in
developing a 4(d) rule for the species. In
particular, information concerning the
extent to which we should include any
of the section 9 prohibitions in the 4(d)
rule or whether we should consider any
additional exceptions from the
prohibitions in the 4(d) rule.
(6) Whether we should include in our
4(d) rule for the Sierra Nevada DPS the
provision at 50 CFR 17.7 for raptors in
captivity.
(7) Which areas may be appropriate as
critical habitat for the species and why
areas should or should not be proposed
for designation as critical habitat in the
future, including whether there are
threats to the species from human
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activity that would be expected to
increase due to the designation and
whether that increase in threat would
outweigh the benefit of designation such
that the designation of critical habitat
may not be prudent.
(8) Specific information on:
(a) The amount and distribution of
habitat for the Sierra Nevada DPS and
the Coastal-Southern California DPS of
the California spotted owl which should
be considered for proposed critical
habitat;
(b) What may constitute the physical
or biological features essential to the
conservation of the species within the
geographical range currently occupied
by the species;
(c) Where these features are currently
found;
(d) Whether any of these features may
require special management
considerations or protection;
(e) What areas are currently occupied
and contain features essential to the
conservation of the species that should
be included in the designation and why;
and
(f) What unoccupied areas may be
essential for the conservation of the
species and why.
Please include sufficient information,
such as scientific journal articles or
other publications, to allow us to verify
any scientific or commercial
information you include.
Please note that submissions merely
stating support for, or opposition to, the
action under consideration without
providing supporting information,
although noted, do not provide
substantial information necessary to
support a determination. Section
4(b)(1)(A) of the Act (16 U.S.C.
1533(b)(1)(A)) directs that
determinations as to whether any
species is an endangered or a threatened
species must be made solely on the
basis of the best scientific and
commercial data available.
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in
ADDRESSES. We request that you send
comments only by the methods
described in ADDRESSES.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
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Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov.
Because we will consider all
comments and information we receive
during the comment period, our final
determinations may differ from this
proposal. Based on the new information
we receive (and any comments on that
new information), we may conclude that
the Coastal-Southern California DPS is
threatened instead of endangered, or
that the Sierra Nevada DPS is
endangered instead of threatened, or we
may conclude that neither DPS warrants
listing as either an endangered species
or a threatened species. In addition, we
may change the parameters of the
prohibitions or the exceptions to those
prohibitions in the 4(d) rule for the
Sierra Nevada DPS if we conclude it is
appropriate in light of comments and
new information received. For example,
we may expand the incidental-take
prohibitions or the exceptions to those
prohibitions in the 4(d) rule for the
Sierra Nevada DPS to include
prohibiting additional activities if we
conclude that those additional activities
are not compatible with conservation of
the DPS. Conversely, we may establish
additional exceptions to the incidentaltake prohibitions in the final rule if we
conclude that the activities would
facilitate or are compatible with the
conservation and recovery of the DPS.
Public Hearing
Section 4(b)(5) of the Act (16 U.S.C.
1533(b)(5)) provides for a public hearing
on this proposal, if requested. Requests
must be received by the date specified
in DATES. Such requests must be sent to
the address shown in FOR FURTHER
INFORMATION CONTACT. We will schedule
a public hearing on this proposal, if
requested, and announce the date, time,
and place of the hearing, as well as how
to obtain reasonable accommodations,
in the Federal Register and local
newspapers at least 15 days before the
hearing. We may hold the public
hearing in person or virtually via
webinar. We will announce any public
hearing on our website, in addition to
the Federal Register. The use of virtual
public hearings is consistent with our
regulations at 50 CFR 424.16(c)(3).
List of Abbreviations and Acronyms
We use many abbreviations and
acronyms in this proposed rule. For the
convenience of the reader, we define
some of them here:
ac = acres
BLM = Bureau of Land Management
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CAL FIRE = California Department of
Forestry and Fire Protection
CDWR = California Department of Water
Resources
CI = confidence interval
cm = centimeters
dbh = diameter at breast height
DPS = distinct population segment
ft = feet
HCP = habitat conservation plan
ha = hectares
in = inches
km = kilometers
IPCC = Intergovernmental Panel on Climate
Change
m = meters
mi = miles
MOU = memorandum of understanding
NPS = National Park Service
PAC = protected activity center
RCP = representative concentration pathway
SPI = Sierra Pacific Industries
SSA = species status assessment
USFS = U.S. Forest Service
Previous Federal Actions
For a detailed history of prior
petitions, listing actions, and litigation,
please see the 12-month finding
published on May 24, 2006 (71 FR
29886). Subsequent to that finding, we
were petitioned twice to list the
California spotted owl as endangered or
threatened and to designate its critical
habitat under the Act (16 U.S.C. 1531 et
seq.). The first petition was submitted in
December 2014, by the Wild Nature
Institute and John Muir Project of Earth
Island Institute, and the second in
August 2015, by Sierra Forest Legacy
and Defenders of Wildlife. On
September 18, 2015, we published a 90day finding that the petitions presented
substantial scientific or commercial
information indicating that listing may
be warranted for the California spotted
owl (80 FR 56423). On November 8,
2019, we published a 12-month finding
that listing the California spotted owl
was not warranted at that time (84 FR
60371).
In August 2020, Sierra Forest Legacy,
Defenders of Wildlife, and the Center for
Biological Diversity filed a complaint
challenging our 12-month not-warranted
finding. By stipulated settlement
agreement approved by the court on
November 30, 2021, we agreed to submit
to the Federal Register a new 12-month
finding for the California spotted owl on
or before February 15, 2023 (Sierra
Forest Legacy, et al. v. U.S. Fish and
Wildlife Service, et al., No. 5:20–cv–
05800–BLF (N.D. Cal.)). This document
serves as our 12-month finding and
completes our obligations under that
settlement agreement.
Peer Review
In 2022, a species status assessment
(SSA) team prepared an SSA report for
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the California spotted owl. The SSA
team was composed of Service
biologists, in consultation with other
species experts. The SSA report
represents a compilation of the best
scientific and commercial data available
concerning the status of the species,
including the impacts of past, present,
and future factors (both negative and
beneficial) affecting the species.
In accordance with our joint policy on
peer review published in the Federal
Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum
updating and clarifying the role of peer
review of listing actions under the Act,
we solicited independent scientific
review of the information contained in
the California spotted owl SSA report.
The Service sent the SSA report to four
independent peer reviewers and
received one response. Results of this
structured peer review process can be
found at https://www.regulations.gov. In
preparing this proposed rule, we
incorporated the results of these
reviews, as appropriate, into the SSA
report, which is the foundation for this
proposed rule.
Summary of Peer Reviewer Comments
We received comments from one peer
reviewer on the draft SSA report. We
reviewed all comments we received
from the peer reviewer for substantive
issues and new information regarding
the information contained in the SSA
report. The peer reviewer generally
provided additional references,
clarifications, and suggestions,
including further definitions of some of
the terms used. We updated the SSA
report based on the peer reviewer’s
comments, including changing the
approach to our scoring system for the
current and future habitat analyses,
clarifying specific points where
appropriate, and adding additional
details and suggested references where
needed. Peer reviewer comments are
addressed in the following summary
and were incorporated into the SSA
report as appropriate.
Comment 1: The peer reviewer stated
that there was not enough discussion in
the SSA report about how habitat factors
have been observed to impact owls,
particularly in regards to the existing
studies analyzing demographic trends of
California spotted owls. Further, the
peer reviewer stated that the SSA report
should discuss the methodology used in
the demography studies.
Our response: We acknowledge that
habitat factors and demographic factors
are interrelated, and that understanding
the relation between those two issues is
crucial. We discuss how habitat factors
influence demographic factors, and vice
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versa, in sections 3.1 and 3.2 of the SSA
report (Service 2022, pp. 14–24). We
have also incorporated all available
information on how the two are related.
Additionally, not all of the demographic
studies discuss the relationship between
vital rates or population trends and
habitat factors, but we incorporated the
information into the SSA report where
available.
Regarding the methodology used in
the demography studies, we added a
paragraph to the SSA report that
discusses different methodologies used
in the different types of population
studies available in the literature
(Service 2022, p. 24). We will provide
a list of all literature cited should any
readers wish to review those studies in
more detail, and we will provide any
studies not readily available on https://
www.regulations.gov.
Comment 2: The peer reviewer further
questioned the assumption in the SSA
report that high-quality habitat is
equivalent to population stability, or
vice versa.
Our response: While we recognize
that data are limited, the best available
scientific and commercial data,
including all available information on
habitat use and species needs for the
California spotted owl, concluded that
the relationship between high-quality
habitat and population stability is
sufficiently certain to rely upon for our
analysis of species viability.
Comment 3: While recognizing that
some protected activity center (PAC)
information is out of date, the peer
reviewer suggested adding the amount
of PAC area to the analysis units in
section 5.3 of the SSA report.
Our response: The detailed analysis
unit descriptions describe the current
condition of each unit. Because PAC
information does not provide insight on
the current condition of each analysis
unit, it would not be appropriate to
include in section 5.3 of the SSA report
(a PAC is a designation made by the
USFS to protect the best available 121
ha (300 ac) of habitat in as compact of
a unit as possible around a nest tree).
We do, however, incorporate
information from PACs throughout the
SSA report and this proposed rule to
understand the impact, breadth, and
distribution of threats across the
landscape.
Comment 4: The peer reviewer
questioned whether we should use the
same criteria to analyze conditions in
the Sierra Nevada and in coastal/
southern California.
Our response: In order to present a
standardized comparison across all
analysis units, we used the same scoring
criteria for the Sierra Nevada and
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coastal/southern California. However,
we recognize that California spotted
owls may use different-sized trees in the
coastal-southern California population
than in the Sierra Nevada population.
We presented a separate analysis
acknowledging this, and we included
the difference in tree sizes found in the
two geographic areas (Service 2022,
tables 9, 13, and 18).
I. Proposed Listing Determination
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Background
A thorough review of the taxonomy,
life history, and ecology of the
California spotted owl (Strix
occidentalis occidentalis) is presented
in the SSA report (version 2.0; Service
2022, pp. 8–14).
California spotted owls are mediumsized brown owls measuring 46.6–48.3
cm (18.3–19.0 in) with a mottled
appearance, round face, large pale
brown facial disks, dark brown eyes,
and a yellowish green bill (Verner et al.
1992, p. 55; Gutie´rrez et al. 2020,
‘‘Appearance’’ section). Females are
generally slightly larger than males
(Verner et al. 1992, p. 55).
The American Ornithological Society
(formerly the American Ornithologists’
Union (AOU)) currently recognizes
three distinct subspecies of spotted
owls: northern spotted owl (Strix
occidentalis caurina), California spotted
owl, and Mexican spotted owl (Strix
occidentalis lucida) (AOU 1957). Given
similarities between the subspecies of
spotted owls, the SSA report and this
proposed rule use available relevant
literature for both the northern spotted
owl and the Mexican spotted owl as
necessary and appropriate and clearly
identify when we refer to those entities.
The term ‘‘spotted owl’’ is used when
talking about Strix occidentalis as a
whole. Additionally, under the Act, the
term ‘‘species’’ includes any subspecies
of fish or wildlife or plants. For the
purposes of this proposed rule, we in
general use ‘‘species’’ to refer to the
California spotted owl rather than
‘‘subspecies.’’
There is some overlap in range
between northern spotted owls and the
California spotted owl, and
interbreeding between the two
subspecies occasionally occurs (Haig et
al. 2004, p. 690; Barrowclough et al.
2011, pp. 581, 583–586; Miller et al.
2017, pp. 6871, 6875–6877; Hanna et al.
2018, pp. 3947–3948, 3950–3951).
California spotted owls have the lowest
genetic diversity among the subspecies
compared to northern and Mexican
spotted owls, suggesting that the
California spotted owl is of more recent
origin than the other spotted owl
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subspecies or that populations of the
California spotted owl are much smaller
than the northern and Mexican spotted
owl populations (Barrowclough et al.
1999, pp. 919, 927; Haig et al. 2004, p.
683). Within the California spotted owl,
genetic differences between individuals
found in the Sierra Nevada and
individuals found in mountain ranges
throughout southern California suggest
limited interbreeding between these two
areas (Barrowclough et al. 2005, pp.
1113–1114; Hanna et al. 2018, pp. 3947–
3948, 3950). However, these genetic
studies are limited by sample size and
sampling locations. We are only aware
of one study that includes California
spotted owls from coastal California;
this study shows gene flow between
geographically adjacent spotted owl
samples, with some evidence of
asymmetrical gene flow between
California spotted owls in Carmel,
California (coastal California), and the
Sierra Nevada (Barrowclough et al.
2005, p. 1114).
California spotted owls are distributed
across habitat in California and Nevada
including the Sierra Nevada, coastal
California, and southern California. The
California spotted owl has also been
documented in the Sierra San Pedro
Martir mountains in Baja California
Norte, Mexico, with a few scattered
records of the spotted owl in Baja
California between 1887 and 1972
(Grinnell 1928, p. 242; Wilbur 1987, p.
170). However, many researchers now
question whether the species ever
actually occurred in Baja California
(Erickson in litt. 2022; Unitt in litt.
2022). There are only a few accounts of
the species, with none of those accounts
mentioning breeding or evidence of
breeding pairs. Therefore, we consider
the California spotted owl to be only a
rare visitor of Mexico, and do not
consider Baja California as its own
population.
California spotted owls are
continuously distributed throughout the
forests of the western side of the Sierra
Nevada from Shasta County south to the
Tehachapi Pass in Kern County
(Gutie´rrez et al. 2017, pp. 13–14). They
are sparsely distributed on the eastern
side of the Sierra Nevada into western
Nevada (GBBO 2012, p. Spp-47–4).
Outside of the Sierra Nevada, the
species’ range is not contiguous. Along
the California coast and into southern
California, the species is found in the
Coast, Transverse, and Peninsular
mountain ranges from Monterey County
in the north to San Diego County in the
south (Gutie´rrez et al. 2020,
‘‘Distribution’’ section). However, there
is a large break in the species’ range
around San Luis Obispo County, where
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the species is not known to occur. The
Tehachapi Pass between the Sierra
Nevada to the east and the Transverse
Range to the west represents a gap
between California spotted owls in the
Sierra Nevada and California spotted
owls in coastal and southern California
(Verner et al. 1992, p. 4). California
spotted owls are absent from the Santa
Cruz Mountains (part of the Coast
Range) in California, where suitable
habitat appears to be present (Gutie´rrez
et al. 2017, p. 240).
California spotted owls are currently
found throughout their known historical
range, although there is evidence of a
decrease in abundance in parts of the
range including both the Sierra Nevada
and southern California (Franklin et al.
2004, pp. 23–42; Tempel et al. 2014b,
pp. 90–94; Conner et al. 2016, pp. 7–18;
Hanna et al. 2018, pp. 3947–3949;
Tempel et al. 2022, p. 18). The majority
of California spotted owls are found in
mid-elevation, mixed-conifer forest on
the west slope of the Sierra Nevada
(Gutie´rrez et al. 2017, p. xviii).
California spotted owls are long-lived
(approximately 16–23 years) with high
adult survival and low reproductive
output (Seamans and Gutie´rrez 2007, p.
57; Gutie´rrez et al. 2020, ‘‘Demography
and Populations’’ section). Pairs exhibit
high territory fidelity (Gutie´rrez et al.
2020, ‘‘Sounds and Vocal Behavior’’ and
‘‘Behavior’’ sections). Territories—the
area actively defended by a breeding
pair—can overlap with neighboring
pairs and are smaller than home ranges
(Gutie´rrez et al. 2017, pp. xvi, 294).
Estimates of territory size have varied
from 203 ha (502 ac) to 813 ha (2,009
ac), with higher estimates in the
northern Sierra Nevada and lower
estimates in southern California
(Bingham and Noon 1997, p. 136;
Blakesley et al. 2005, p. 1556; Seamans
and Gutie´rrez 2007b, p. 568; Tempel et
al. 2014b, p. 2091). Higher quality
territories measured in adult survival,
territory colonization, and territory
extinction, tend to have a greater
proportion of higher canopy cover
(Tempel et al. 2014b, p. 2089; Gutie´rrez
et al. 2017, pp. 271–273). Home ranges,
or areas used by a pair to meet
requirements for survival and
reproduction, are about 400–1,200
hectares (ha) (1,000–3,000 acres (ac)) in
size (Gutie´rrez et al. 2017, p. xviii).
Home ranges are typically larger in the
northern portion of the range (>1,000 ha
(2,470 ac)) and smaller in the southern
portion of the range (<1,000 ha (2,470
ac)) due to differences in selected prey
species (Gutie´rrez et al. 2017, p. xviii).
Breeding season begins in midFebruary, and the juvenile dependency
period can last through mid-September;
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nesting generally starts earlier at lower
elevations (Gutie´rrez et al. 2020,
‘‘Breeding’’ section). During the
breeding season, California spotted owls
tend to spend the majority of their time
at activity centers of around 121 ha (299
ac) (Verner et al. 1992, p. 87; Berigan et
al. 2012, p. 299). Activity centers are the
areas where California spotted owls they
nest, roost, and forage (Verner et al.
1992, p. 87; Gutie´rrez et al. 2017, pp.
270–271). Spotted owls typically have
only one nest per breeding season, and
they rarely re-nest if the first nests fails
(Gutie´rrez et al. 2020, ‘‘Breeding’’
section). Females typically lay 1–3 eggs,
with survival of offspring into
adulthood highest when two young
fledge in comparison to singletons and
triplets (Peery and Gutie´rrez 2013, p.
132; Gutie´rrez et al. 2020, ‘‘Demography
and Populations’’ section). Although
difficult to estimate due to dispersal,
juvenile survival in California spotted
owls is low (Blakesley et al. 2001, p.
667; LaHaye et al. 2004, p. 1056).
Spotted owls always disperse from
their natal areas in the year they hatch.
Natal dispersal occurs during the fall,
after juveniles have reached adult
weight and parental care stops
(Gutie´rrez et al. 2020, ‘‘Breeding’’
section). Average juvenile dispersal in
southern California is 9.7–11.3 km (6–7
mi), and ranges from 3.2–37.0 km (2–23
mi) (LaHaye et al. 2001, p. 691). Larger
dispersal distances, up to 177 km (110
mi), have been documented in both
northern and Mexican subspecies
(Gutie´rrez and Carey 1985, p. 60; Ganey
et al. 1998, p. 206; Hollenbeck et al.
2018, p. 533). Adult California spotted
owls typically do not shift territories or
undergo breeding dispersal from an
established territory (Blakesley et al.
2006, p. 76; Zimmerman et al. 2007, p.
963; Gutie´rrez et al. 2011, p. 592);
however, some breeding dispersal
occurs in adults or pairs that have been
unsuccessful in mating or if habitat is
altered (Blakesley et al. 2006, p. 71).
Breeding only occurs once a pair is
formed and settled into a territory
(Gutie´rrez et al. 2017, p. 15). Pairs can
breed in consecutive years, but in
certain conditions may postpone
reproduction until temporarily poor
environmental conditions improve
(Stearns 1976, pp. 4, 15–26; Franklin et
al. 2000, p. 539; Gutie´rrez et al. 2017, p.
xvi). The number of young fledged
annually per territorial California
spotted owl female in several areas
within the Sierra Nevada ranged from
0.478–0.988 (Blakesley et al. 2010, pp.
1, 18).
In general, California spotted owls
nest in areas of mature, multistoried
forests with complex structure, larger
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trees, multi-layered high canopy cover,
and large amounts of coarse woody
debris, while areas with higher
heterogeneity of forest types and the
edges between them are important for
foraging (Gutie´rrez et al. 2017, p. xvii).
In the Sierra Nevada, a majority of
California spotted owls occur within
mid-elevation ponderosa pine (Pinus
ponderosa), mixed-conifer, white fir
(Abies concolor), and mixed-evergreen
forest types, with few occurring in the
lower elevation oak woodlands of the
western foothills (Gutie´rrez et al. 2017,
p. 109). In coastal and southern
California, California spotted owls are
found in riparian/hardwood forests and
woodlands, live oak/big cone fir forests,
and redwood/California laurel forests
(Gutie´rrez et al. 2017, p. xxvi). In
southern California, vegetation types
differ relative to the Sierra Nevada, and
what is considered a large tree in
southern California may not be
comparable to what is considered a
large tree in the Sierra Nevada.
However, California spotted owls in
southern California still select for
territories containing larger trees
(LaHaye et al. 1997, pp. 42, 47) and
predominantly closed canopy cover
(Smith et al. 2002, pp. 137, 142, 144).
California spotted owls can use a
variety of habitat types for nesting. At
higher elevations, the species primarily
uses conifers, and as elevations
decrease, they increasingly use
hardwoods (Gutie´rrez et al. 2020,
‘‘Habitat’’ section). Important
components of nesting habitat include
high canopy cover, larger trees, and high
habitat heterogeneity. For nest trees,
California spotted owls use a subset of
larger trees or snags, with the average
nest tree measuring 124 cm (49 in)
diameter at breast height (dbh) and 31
m (103 ft) tall in the Sierra Nevada
(Gutie´rrez et al. 2017, p. 50). In southern
California, California spotted owls use
cavity, broken-top, and platform nests
with different characteristics (LaHaye et
al. 1997, pp. 42, 47; Tanner 2022, pers.
comm.). In southern California,
California spotted owl use of platform or
old raptor nests is more common; thus,
owls with these types of nests were
observed using smaller trees than used
in other nest types (LaHaye et al. 1997,
p. 45). Within their nesting territory,
California spotted owls select for nest
sites farther away from the forest edge
(Phillips et al. 2010, p. 312). Overall,
California spotted owl occupancy,
colonization, adult survival, and
reproductive success are all positively
associated with an increasing amount of
structurally complex habitat on the
landscape (Franklin et al. 2000, p. 578;
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Blakesley et al. 2005, p. 1562; Tempel
et al. 2014a, pp. 2103–2104).
California spotted owls can also use a
variety of habitats to forage. California
spotted owls primarily prey upon a
variety of small to medium-sized
mammals, including, but not limited to,
flying squirrels, woodrats, and pocket
gophers, as well as birds, lizards, and
insects (Gutie´rrez et al. 2017, p. 28). In
the Sierra Nevada, above approximately
1,200 m (3,937 ft) in coniferous forests,
California spotted owls most commonly
consume Humboldt’s flying squirrels
(Glaucomys oregonensis) (Laymon 1988,
pp. 130–154; Verner et al. 1992, pp. 4,
65–69; Munton et al. 2002, pp. 99, 101–
104). Preferred habitat conditions of
Humboldt’s flying squirrels include
cool, moist, mature forest with abundant
standing and down snags where they
can forage on mostly fungi and lichens
(Cassola 2016, p. 3). In lower elevation
oak woodlands and riparian-deciduous
forests in the Sierra Nevada and
southern California, California spotted
owls select for woodrats (Neotoma spp.)
(Verner et al. 1992, pp. 4, 65, 68–69;
Smith et al. 1999, pp. 22, 24–28;
Munton et al. 2002, pp. 99, 101–104).
Due to this elevational gradient in prey
distribution, California spotted owls
select foraging sites characteristic of
flying squirrel habitats at higher
elevations and woodrat habitats at lower
elevations (Kramer et al. 2021b, pp. 12–
14). Some individuals have smaller
home ranges where woodrats are the
primary prey source, presumably
because woodrats have a higher caloric
gain per successful foraging event and
are found in higher densities than
northern flying squirrels (Zabel et al.
1995, pp. 433, 435–438). There is some
evidence that California spotted owl
diet may shift following wildfires. In
national parks in the Sierra Nevada that
have implemented longstanding fire
management efforts (i.e., prescribed fire
and managed wildfire), the California
spotted owl diet contains a higher
proportion of woodrats and pocket
gophers relative to flying squirrels
(Hobart et al. 2021, pp. 254, 256).
In regard to foraging habitat,
important components include the
presence of larger trees, high canopy
cover, and coarse woody debris.
California spotted owls tend to forage in
larger trees, likely due to the canopy
cover provided by larger trees and the
important resources such as shelter and
food that larger trees provide for prey
species (Laymon 1988, pp. 47, 71, 77,
100; Verner et al. 1992, pp. 9–10, 60, 88;
Moen and Gutie´rrez 1997, pp. 1281,
1284). However, California spotted owls
use medium-size trees (defined by the
authors as >25 cm dbh (9 in)) for
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foraging while avoiding areas
dominated by small trees (<25 cm dbh
(9 in)) (Kramer et al. 2021a, pp. 4, 6).
Coarse woody debris is also an
important habitat feature for California
spotted owls because it provides food,
shelter, and protection for prey species,
especially woodrats (Waters and Zabel
1995, pp. 861–862; Pyare and Longland
2002, pp. 1016–1017; Innes et al. 2007,
pp. 1523, 1526; Kelt et al. 2013, p.
1208). Heterogeneous forests, such as
those found on private lands, may
provide more habitat for California
spotted owls than was previously
understood (Atuo et al. 2019, p. 295), as
some privately owned study areas have
higher numbers of occupied sites than
adjacent USFS study areas (Roberts et
al. 2017, p. 113).
California spotted owl roosting habitat
is very similar to nesting habitat.
Specific components of roosting habitat
include multi-layered high canopy
cover and presence of large trees. It is
believed that such forests provide young
California spotted owls with protection
from predators and from high
temperatures. California spotted owls
have a low heat tolerance in comparison
to other bird species, beginning to show
heat stress at 30–34 degrees Celsius (°C)
(86–93 degrees Fahrenheit (°F)). The
cooler microclimates that multi-layered
high canopy cover provides are
important for both juveniles and adults
during warm summers (Weathers 1981,
pp. 358–359; Barrows 1981, pp. 303–
305; Weathers et al. 2001, pp. 678–679).
Presence of large trees is also important
for California spotted owl roosting, as
individuals tend to roost in large trees,
likely due to the canopy cover provided
by large trees and the resources they
provide for prey species (Laymon 1988,
pp. 47, 71, 77, 100; Verner et al. 1992,
pp. 9–10, 60, 88; Moen and Gutie´rrez
1997, pp. 1281–1284).
Within the SSA report and this
proposed rule, we define a population
as a group of interbreeding California
spotted owls that are more likely to
breed among that group than outside of
that group. We use information from
genetic studies and habitat features to
identify two California spotted owl
populations: one in the Sierra Nevada,
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and another in coastal and southern
California (hereafter referred to as the
coastal-southern California population).
In the western Sierra Nevada, habitat
is relatively continuous, without
significant gaps in distribution
(Gutie´rrez et al. 2017, p. xviii); however,
in the eastern Sierra Nevada, habitat is
more discontinuous with disjunct
patches (Dilts 2022, pp. 5–9). Despite
this fragmentation, California spotted
owls still have substantial gene flow
within the Sierra Nevada. However,
there is limited gene flow to coastal or
southern California, and large-scale
fragmentation of suitable habitat divides
the Sierra Nevada from this other
population (Barrowclough et al. 2005,
pp. 1114–1116). We are not aware of
specific information about individual
California spotted owls moving between
these two population areas.
In coastal and southern California, the
California spotted owl population
consists of subpopulations distributed
among discrete mountain ranges,
resulting in habitat ‘‘islands’’
surrounded by unsuitable habitat
(Verner et al. 1992, p. 187). Areas
between these habitat islands are
typically lowland desert scrub and
chaparral that is unsuitable for
California spotted owls, or substantially
modified by human-induced
development and fragmentation (Verner
et al. 1992, p. 187). Some of the
subpopulations are separated by
relatively narrow gaps, such as the gap
between the San Gabriel and San
Bernardino Mountains, while other gaps
are more significant, such as the gap
between the Northern and Southern
Santa Lucia Mountains. California
spotted owls in coastal and southern
California are less well-studied than
those in the Sierra Nevada, but there is
a notable lack of documented California
spotted owl movement between the
coastal and southern subpopulations,
and we are not aware of any dispersal
between them. This population is also
described in the literature as being a
presumed metapopulation (Verner et al.
1992, pp. 187–206; LaHaye et al. 1994,
entire; Gutie´rrez et al. 2017, p. 241)
despite the documented lack of
connectivity, even though dispersal
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11605
among populations is a defining
characteristic of a metapopulation (see
Hanski and Gilpin 1991 for more on
metapopulation theory). However,
spatial structure of a metapopulation
within and among subpopulations is
critical for metapopulation functioning,
and available evidence does not
document successful dispersal between
the San Bernardino, San Gabriel, and
San Jacinto Mountains, which are
adjacent mountain ranges, indicating
that if mixing does occur it is very rare
(LaHaye et al. 2001, entire; LaHaye et al.
2004, entire; Gutie´rrez et al. 2017, pp.
242, 250). Further, not all
subpopulations within the
metapopulation have equal likelihood of
‘‘blinking out’’ or being rescued/
recolonized by other subpopulations,
which are important components of
metapopulation theory (Gutie´rrez et al.
2017, pp. 241–242, 250). Within the
coastal-southern California population,
the subpopulation inhabiting the San
Bernardino and San Gabriel mountains
is the largest subpopulation and is the
subject of most ecological studies. The
persistence of this subpopulation has
been identified as important for
persistence of the coastal-southern
California population (Verner et al.
1992, pp. 197–206).
To conduct a more focused analysis of
how different portions of each of the
populations’ ranges contribute to that
population’s overall resiliency, we
further divided the Sierra Nevada and
southern California populations into
analysis units (see figure 1, below). We
chose analysis units roughly based on
public land management boundaries
because of varying demographic data
and management strategies across the
range. Dividing the population up into
analysis units based on land
management boundaries allows a better
assessment of the varying conditions
across the range. We identified a total of
15 analysis units: Lassen, Plumas,
Tahoe, Eldorado, Humboldt-Toiyabe,
Stanislaus, Yosemite, Sierra, SequoiaKings Canyon, Sequoia, Inyo, Las
Padres, Las Padres-Angeles, San
Bernardino, and Cleveland.
BILLING CODE 4333–15–P
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California Spotted Owl Analysis Units and Po ulations
NEVADA
yon
Inyo
I'
.. ..:'..
uoia
""~.-~--,--~~-,--.
Legend
CSORange
Counties
States
Coastal•Southem ·ca1lf'omla
N
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I
I
25
I
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Figure 1—Populations and Analysis
Units of the California Spotted Owl
(CSO)
BILLING CODE 4333–15–C
Distinct Population Segment Evaluation
Under the Act, the term ‘‘species’’
includes any subspecies of fish or
wildlife or plants, and any distinct
population segment of any species of
vertebrate fish or wildlife which
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interbreeds when mature (16 U.S.C.
1532(16)). To guide the implementation
of the DPS provisions of the Act, we and
the National Marine Fisheries Service
(National Oceanic and Atmospheric
Administration—Fisheries), published
the Policy Regarding the Recognition of
Distinct Vertebrate Population Segments
Under the Endangered Species Act (DPS
Policy) in the Federal Register on
February 7, 1996 (61 FR 4722). Under
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our DPS Policy, we use two elements to
assess whether a population segment
under consideration for listing may be
recognized as a DPS: (1) The population
segment’s discreteness from the
remainder of the species to which it
belongs, and (2) the significance of the
population segment to the species to
which it belongs. If we determine that
a population segment being considered
for listing is a DPS, then the population
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segment’s conservation status is
evaluated based on the five listing
factors established by the Act to
determine if listing it as either
endangered or threatened is warranted.
As discussed above in Previous
Federal Actions, we were petitioned to
list the California spotted owl
subspecies throughout its range. In
response to the petitions, we divided
the species into two populations and
our analysis covers the full range of the
species. Under the Act, we have the
authority to consider for listing any
species, subspecies, or, for vertebrates,
any distinct populations segment of
these taxa if there is sufficient
information to indicate that such action
may be warranted. Therefore, we
considered whether the two populations
of the California spotted owl (the Sierra
Nevada portion of the California spotted
owl’s range, and the coastal and
southern California portions of the
California spotted owl’s range) meet the
DPS criteria under the Act. These two
populations comprise the entirety of the
California spotted owl’s range (and thus
the entirety of the petitioned entity),
and we have determined that it is
appropriate to analyze them
individually under our DPS policy.
Discreteness
Under our DPS Policy, a population
segment of a vertebrate taxon may be
considered discrete if it satisfies either
of the following conditions: (1) It is
markedly separated from other
populations of the same taxon as a
consequence of physical, physiological,
ecological, or behavioral factors.
Quantitative measures of genetic or
morphological discontinuity may
provide evidence of this separation; or
(2) it is delimited by international
governmental boundaries within which
differences in control of exploitation,
management of habitat, conservation
status, or regulatory mechanisms exist
that are significant in light of section
4(a)(1)(D) of the Act.
We conclude the two segments satisfy
the ‘‘markedly separate’’ condition. The
Sierra Nevada part of the range is
separated from the coastal and southern
California parts of the range by largescale fragmentation of suitable habitat,
with the Tehachapi Pass in Kern County
identified as the dividing line between
these areas (Verner et al. 1992, p. 4;
Barrowclough et al. 2005, pp. 1114–
1116). The distance between suitable
habitat in the closest parts of the Sierra
Nevada and the Transverse Range of
southern California is only 40 km (25
mi). Although this distance is near the
known average dispersal of juvenile
California spotted owls, we are not
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aware of specific information about
individual California spotted owls
moving between the Sierra Nevada and
California spotted owl habitat in coastal
and southern California (Service 2022,
p. 18).
As discussed above in Background,
there are few genetic studies on the
California spotted owl. However,
existing analyses provide evidence that
gene flow between the two parts of the
range is limited and may have been
restricted to historical asymmetrical
gene flow from areas in the central
California coast to the Sierra Nevada
(Barrowclough et al. 2005, p. 1113),
although the study acknowledges that
more data are needed to inform this
conclusion. Our DPS policy notes that
we do not consider it appropriate to
require absolute reproductive isolation
as a prerequisite to recognizing a
distinct population segment. As the
policy states, this would be an
impracticably stringent standard, and
one that would not be satisfied even by
some recognized species that are known
to sustain a low frequency of
interbreeding with related species.
Therefore, because the two
populations are markedly separated
from each other, we have determined
that both the Sierra Nevada and the
coastal and southern California parts of
the range both individually meet the
condition for discreteness under our
DPS Policy.
Significance
Under our DPS Policy, once we have
determined that a population segment is
discrete, we consider its biological and
ecological significance to the larger
taxon to which it belongs. This
consideration may include, but is not
limited to: (1) Evidence of the
persistence of the discrete population
segment in an ecological setting that is
unusual or unique for the taxon, (2)
evidence that loss of the population
segment would result in a significant
gap in the range of the taxon, (3)
evidence that the population segment
represents the only surviving natural
occurrence of a taxon that may be more
abundant elsewhere as an introduced
population outside its historical range,
or (4) evidence that the discrete
population segment differs markedly
from other populations of the species in
its genetic characteristics.
For the California spotted owl, we
first considered evidence that loss of a
population segment would result in a
significant gap in the range of the taxon.
As discussed above, the southwestern
and northeastern parts of the range are
separated by approximately 40 km (25
mi). The loss of the coastal and southern
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California parts of the range would
result in the loss of the entire
southwestern part of the species’ range
and decrease species redundancy and
ecological and genetic representation,
thus decreasing the species’ ability to
withstand demographic and
environmental stochasticity. The loss of
the Sierra Nevada range would result in
the loss of 70 percent of the species’
range, also reducing the species’ ability
to withstand demographic and
environmental stochasticity. Therefore,
the loss of either part of the range would
result in a significant gap in the range
of the California spotted owl.
We then considered evidence whether
either of the discrete population
segments occur in an ecological setting
that is unusual or unique for the taxon.
In the Sierra Nevada, a majority of
California spotted owls occur within
mid-elevation mixed-conifer and mixedevergreen forest types, with few
occurring in the lower elevation oak
woodlands of the western foothills
(Gutie´rrez et al. 2017, p. 109). As
described above, in coastal and southern
California, California spotted owls are
found in riparian/hardwood forests and
woodlands, live oak/big cone fir forests,
and redwood/California laurel forests,
more so than the mixed-conifer
communities (Gutie´rrez et al. 2017, p.
xxvi). Use of these other communities is
specific and unique to owls in these
areas. What is considered a large tree in
southern California may not be
comparable to what is considered a
large tree in the Sierra Nevada.
California spotted owls use a subset of
larger trees or snags as their nest trees,
with the average nest tree measuring
124 cm (49 in) dbh and 31 m (103 ft)
tall in the Sierra Nevada (Gutie´rrez et al.
2017, p. 50). In southern California, use
of platform or old raptor nests is more
common; thus, owls with these types of
nests were observed using trees as small
as 33 cm (13 in) dbh (Tanner 2022, pers.
comm.) with mean values of 75.0 cm
(29.5 in) dbh (LaHaye et al. 1997, p. 45).
Therefore, we conclude that, for the two
populations of California spotted owls,
each persists in a unique ecological
setting for the species.
The evidence that a significant gap in
the range of the taxon would result from
the loss of either discrete population
segment meets the significance criterion
of the DPS Policy. Additionally, there is
evidence that the coastal and southern
California and the Sierra Nevada parts
of the range have persisted in a unique
ecological setting for the species.
Therefore, under the Service’s DPS
Policy, we find that the Sierra Nevada
and the coastal and southern California
parts of the California spotted owl’s
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range are significant to the taxon as a
whole.
Distinct Population Segment Conclusion
Our DPS Policy directs us to evaluate
the significance of a discrete population
in the context of its biological and
ecological significance to the remainder
of the species to which it belongs. Based
on an analysis of the best available
scientific and commercial data, we
conclude that both parts of the
California spotted owl’s range are
significant, because loss of either part
would result in a significant gap in the
range of the taxon, and because the
population segments represent evidence
that both parts of the range have
persisted in a unique ecological setting
for the species. Therefore, we conclude
that both the Sierra Nevada and the
coastal and southern California parts of
the California spotted owl’s range are
both discrete and significant under our
DPS Policy and are, therefore, uniquely
listable entities under the Act.
Based on our DPS Policy (61 FR 4722;
February 7, 1996), if a population
segment of a vertebrate species is both
discrete and significant relative to the
taxon as a whole (i.e., it is a distinct
population segment), its evaluation for
endangered or threatened status will be
based on the Act’s definition of those
terms and a review of the factors
enumerated in section 4(a) of the Act.
Having found that both parts of the
California spotted owl’s range meet the
definition of a distinct population
segment, we evaluate the status of both
the Sierra Nevada DPS and the CoastalSouthern California DPS of the
California spotted owl to determine
whether either meets the definition of
an endangered or threatened species
under the Act.
Regulatory and Analytical Framework
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Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533)
and the implementing regulations in
title 50 of the Code of Federal
Regulations set forth the procedures for
determining whether a species is an
endangered species or a threatened
species, issuing protective regulations
for threatened species, and designating
critical habitat for endangered and
threatened species. In 2019, jointly with
the National Marine Fisheries Service,
the Service issued a final rule that
revised the regulations in 50 CFR part
424 regarding how we add, remove, and
reclassify endangered and threatened
species and the criteria for designating
listed species’ critical habitat (84 FR
45020; August 27, 2019). On the same
day, the Service also issued final
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regulations that, for species listed as
threatened species after September 26,
2019, eliminated the Service’s general
protective regulations automatically
applying to threatened species the
prohibitions that section 9 of the Act
applies to endangered species (84 FR
44753; August 27, 2019).
The Act defines an ‘‘endangered
species’’ as a species that is in danger
of extinction throughout all or a
significant portion of its range, and a
‘‘threatened species’’ as a species that is
likely to become an endangered species
within the foreseeable future throughout
all or a significant portion of its range.
The Act requires that we determine
whether any species is an endangered
species or a threatened species because
of any of the following factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
These factors represent broad
categories of natural or human-caused
actions or conditions that could have an
effect on a species’ continued existence.
In evaluating these actions and
conditions, we look for those that may
have a negative effect on individuals of
the species, as well as other actions or
conditions that may ameliorate any
negative effects or may have positive
effects.
We use the term ‘‘threat’’ to refer in
general to actions or conditions that are
known to or are reasonably likely to
negatively affect individuals of a
species. The term ‘‘threat’’ includes
actions or conditions that have a direct
impact on individuals (direct impacts),
as well as those that affect individuals
through alteration of their habitat or
required resources (stressors). The term
‘‘threat’’ may encompass—either
together or separately—the source of the
action or condition or the action or
condition itself.
However, the mere identification of
any threat(s) does not necessarily mean
that the species meets the statutory
definition of an ‘‘endangered species’’ or
a ‘‘threatened species.’’ In determining
whether a species meets either
definition, we must evaluate all
identified threats by considering the
species’ expected response and the
effects of the threats—in light of those
actions and conditions that will
ameliorate the threats—on an
individual, population, and species
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level. We evaluate each threat and its
expected effects on the species, then
analyze the cumulative effect of all of
the threats on the species as a whole.
We also consider the cumulative effect
of the threats in light of those actions
and conditions that will have positive
effects on the species, such as any
existing regulatory mechanisms or
conservation efforts. The Secretary
determines whether the species meets
the definition of an ‘‘endangered
species’’ or a ‘‘threatened species’’ only
after conducting this cumulative
analysis and describing the expected
effect on the species now and in the
foreseeable future.
The Act does not define the term
‘‘foreseeable future,’’ which appears in
the statutory definition of ‘‘threatened
species.’’ Our implementing regulations
at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable
future on a case-by-case basis. The term
‘‘foreseeable future’’ extends only so far
into the future as we can reasonably
determine that both the future threats
and the species’ responses to those
threats are likely. In other words, the
foreseeable future is the period of time
in which we can make reliable
predictions. ‘‘Reliable’’ does not mean
‘‘certain’’; it means sufficient to provide
a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable
if it is reasonable to depend on it when
making decisions.
It is not always possible or necessary
to define the foreseeable future as a
particular number of years. Analysis of
the foreseeable future uses the best
scientific and commercial data available
and should consider the timeframes
applicable to the relevant threats and to
the species’ likely responses to those
threats in view of its life-history
characteristics. Data that are typically
relevant to assessing the species’
biological response include speciesspecific factors such as lifespan,
reproductive rates or productivity,
certain behaviors, and other
demographic factors.
Analytical Framework
The SSA report documents the results
of our comprehensive biological review
of the best scientific and commercial
data regarding the status of the species,
including an assessment of the potential
threats to the species. The SSA report
does not represent our decision on
whether the species should be proposed
for listing as an endangered or
threatened species under the Act.
However, it does provide the scientific
basis that informs our regulatory
decisions, which involve the further
application of standards within the Act
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and its implementing regulations and
policies.
To assess California spotted owl
viability, we used the three conservation
biology principles of resiliency,
redundancy, and representation (Shaffer
and Stein 2000, pp. 306–310). Briefly,
resiliency is the ability of the species to
withstand environmental and
demographic stochasticity (for example,
wet or dry, warm or cold years),
redundancy is the ability of the species
to withstand catastrophic events (for
example, droughts, large pollution
events), and representation is the ability
of the species to adapt to both near-term
and long-term changes in its physical
and biological environment (for
example, climate conditions,
pathogens). In general, species viability
will increase with increases in
resiliency, redundancy, and
representation (Smith et al. 2018, p.
306). Using these principles, we
identified the species’ ecological
requirements for survival and
reproduction at the individual,
population, and species levels, and
described the beneficial and risk factors
influencing the species’ viability.
The SSA process can be categorized
into three sequential stages. During the
first stage, we evaluated the individual
species’ life-history needs. The next
stage involved an assessment of the
historical and current condition of the
species’ demographics and habitat
characteristics, including an
explanation of how the species arrived
at its current condition. The final stage
of the SSA involved making predictions
about the species’ responses to positive
and negative environmental and
anthropogenic influences. Throughout
all of these stages, we used the best
available information to characterize
viability as the ability of a species to
sustain populations in the wild over
time. We use this information to inform
our regulatory decision.
The following is a summary of the key
results and conclusions from the SSA
report (Service 2022, entire); the full
SSA report can be found at Docket No.
FWS–R8–ES–2022–0166 on https://
www.regulations.gov.
Summary of Biological Status and
Threats
In this discussion, we review the
biological condition of the California
spotted owl and its resources, and the
threats that influence the species’
current and future condition, in order to
assess the species’ overall viability and
the risks to that viability.
We note that the California spotted
owl SSA report discusses California
spotted owls at the individual,
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population, and species level. The SSA
does not make any analysis or
conclusions with regard to policy
decisions, such as DPS findings, and
does not include mention of the two
populations of the subspecies as DPSs.
Instead, the SSA report provides the
biological information that our
decisionmakers can then use to inform
those policy decisions. This proposed
rule and its supporting record contain
the policy decisions and rationale.
Throughout this Summary of Biological
Status and Threats discussion, we
discuss the coastal-southern California
population of California spotted owl,
which we identify as the CoastalSouthern California DPS, and the Sierra
Nevada population of California spotted
owl, which we identify as the Sierra
Nevada DPS.
California Spotted Owl Needs
Individual Needs
In this section, we assess the best
available information to identify the
specific habitat components needed to
support individual fitness at all life
stages for California spotted owls.
Individual owls must have adequate
nesting, foraging, and roosting habitat to
be successful. For the purpose of the
SSA report and this proposed rule, the
components of nesting, foraging, and
roosting habitat that we considered most
significant include canopy cover, larger
trees, and habitat heterogeneity. Habitat
heterogeneity is important to California
spotted owls as it provides protection
from predators and extreme weather
conditions, variable microclimates, and
habitat for different prey species.
We acknowledge that these habitat
components are not all-inclusive and
there may be other components of
nesting, foraging, and roosting habitat
that are not being considered (such as
prey). We also acknowledge that a
history of fire suppression in the
western United States, including
throughout the range of both the Sierra
Nevada DPS and the Coastal-Southern
California DPS, has caused many
ecological changes that are not fully
understood (Mallek et al. 2013, p. 2).
However, we chose to focus on habitat
components for which there are
available spatial data across the range of
the species. Further, prey is indirectly
considered in our analysis since the
primary California spotted owl prey
species also select for high canopy cover
and coarse woody debris (Waters and
Zabel 1995, p. 858), which are
considered here as components of
habitat heterogeneity. Populations of
California spotted owls require the same
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habitat components as individuals but
at larger scales.
Multi-layered, or complex, high
canopy cover is considered an
important resource for spotted owls
because it provides cool shaded
microclimates, camouflage and cover for
protection from predators and extreme
weather conditions, and habitat for prey
species (Forsman 1975, pp. 4, 90, 105;
Barrows 1981, p. 302; Forsman et al.
1984, p. 5). High canopy cover from tall
trees is associated with higher
probability of successful prey capture by
California spotted owls (Zulla et al.
2022, p. 8) and is an important predictor
for California spotted owl nesting
habitat (North et al. 2017, pp. 166, 172–
175). Multi-layered high canopy cover
around the nest tree and in territories is
an important factor associated with
California spotted owl reproductive
success (Hunsaker et al. 2002, pp. 693–
699; Blakesley et al. 2005, pp. 1554,
1558–1562). Areas with canopy cover
greater than 70 percent are considered
optimal for California spotted owl nest
sites and occupancy sharply declines
when canopy cover is less than 40
percent (Blakesley et al. 2005, p. 1559;
Seamans 2005, pp. iii, 90, 100; Seamans
and Gutie´rrez 2007b, pp. 566, 568;
Tempel et al. 2014a, pp. 2089, 2091,
2101; Tempel et al. 2016, pp. 747, 759).
Even in southern California where the
habitat is naturally more fragmented
with less canopy cover available,
California spotted owls still select for
areas with higher canopy cover relative
to what is available (Smith et al. 2002,
pp. 142–143). Further, California
spotted owls in Yosemite National Park
had territory centers with average values
of 40 percent canopy cover in burned
forests (Schofield et al. 2020, pp. 4–5).
The presence of large trees, defined as
trees that are greater than 61 cm (24 in)
dbh (Seamans and Gutie´rrez 2007b, pp.
566, 571–574; Tempel et al. 2014b, p.
2094; Jones et al. 2018, p. 344), is
important for California spotted owl
foraging, roosting, and nesting.
California spotted owls tend to forage
and roost in large trees, likely due to the
canopy cover provided by large trees
and the important resources such as
shelter and food that large trees provide
for prey species (Laymon 1988, pp. 47,
71, 77, 100; Verner et al. 1992, pp. 9–
10, 60, 88; Moen and Gutie´rrez 1997,
pp. 1281, 1284). The presence of tall
(>48 m (157 ft)) trees, and the canopy
cover they provide, is the best predictor
for California spotted owl occupancy,
and areas with a high density of large
trees are considered high-quality habitat
(Blakesley et al. 2005, pp. 1554, 1558–
1562; North et al. 2017, pp. 166, 171–
176). California spotted owls use a
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subset of large trees or snags as their
nest trees (LaHaye et al. 1997, pp. 42,
47; Blakesley et al. 2005, pp. 1554,
1558–1562; Gutie´rrez et al. 2017, p. 50),
and the nest tree itself is critical for
California spotted owl reproductive
success because it provides the space
and structure needed for nests, along
with protection from predators and
inclement weather. California spotted
owls do not build their own nests but
rely on larger trees that provide multilayered high canopy cover with open
cavities (created as a result of fallen
branches, woodpeckers, etc.), broken
tops, platforms, and old raptor nests
(Gutie´rrez et al. 2020, ‘‘Habitat’’ and
‘‘Breeding’’ sections). The nest tree
chosen within a territory is typically
one of the oldest and largest live or dead
trees within the nesting territory with
many defects like cracks, disease scars,
or decaying wood (Verner et al. 1992,
pp. 6, 60, 71; North et al. 2000, p. 797).
The preferential use of mature forests
with high canopy cover and large trees
is well-known for California spotted
owls (Gutie´rrez et al. 2017, p. iii).
However, there have been several recent
studies showing the importance of other
habitat types, habitat edges, and habitat
heterogeneity (Atuo et al. 2019; Hobart
et al. 2019; Kramer et al. 2021b; Zulla
et al. 2022; Wilkinson et al., in prep.).
California spotted owl occupancy,
colonization, adult survival, and
reproductive success are all positively
associated with the proportion of
structurally complex forests (Franklin et
al. 2000, p. 539; Blakesley et al. 2005,
p. 1562; Tempel et al. 2014b, p. 2089;
Tempel et al. 2016, p. 747). The
biological and physical components that
create habitat heterogeneity and
complex structure are areas of multilayered high canopy cover, large trees,
coarse woody debris, understory and
mid-story vegetation, patches of burned
habitat, riparian habitat, large diameter
standing dead trees (snags), and some
open areas within a California spotted
owl’s home range.
Coarse woody debris (fallen dead
trees and the remains of large branches
on the ground) is an important habitat
feature for California spotted owls
because it provides food, shelter, and
protection for California spotted owl
prey species, especially woodrats
(Waters and Zabel 1995, pp. 861–862;
Pyare and Longland 2002, pp. 1016–
1017; Innes et al. 2007, pp. 1523, 1526;
Kelt et al. 2013, p. 1208). Coarse woody
debris in areas of multi-layered high
canopy cover is conducive for fungal
growth, a food source for many
California spotted owl prey species
(Verner et al. 1992, pp. 71–72; Pyare and
Longland 2002, pp. 1016–1017). Rates of
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prey capture by California spotted owls
are observed to be higher in taller
multilayered forests, in areas with
higher vegetation heterogeneity, and
near forest-chapparal edges (Wilkinson
et al. in prep., p. 2). There are a variety
of habitats within a heterogeneous
landscape that California spotted owls
use and which may provide specific
resources. The size of a California
spotted owl’s home range increases as
the heterogeneity, or number of different
vegetation patches, increase (Williams
et al. 2011, p. 333); the hypothesis is
that there may be an optimal point of
habitat heterogeneity for California
spotted owls beyond which territory
quality declines (Williams et al. 2011, p.
333).
Population Needs
Populations of California spotted owls
must have adequate amounts of nesting,
foraging, and roosting habitat containing
the habitat components described above
in sufficient amounts and the
appropriate configuration on the
landscape to support a stable or
increasing growth rate. They also need
connectivity between territories and
home ranges. Populations meeting these
requirements are better able to
withstand stochastic events. In many
instances, however, data are insufficient
or completely lacking regarding a
population’s size and growth rate. In the
absence of such data, we examine other
characteristics that may serve as
surrogate indicators of general
population health and, subsequently,
resiliency. Essentially, an assessment of
the availability of a species’ identified
needs (suitable habitat, food, breeding
sites) may allow us to make
assumptions about the potential
resiliency of any given population.
However, unless there is a documented
positive correlation between the
availability of species’ needs and a
population’s known demographic
condition, the uncertainty regarding
such assumptions must be made clear.
In the SSA report, we describe the
demographic factors that are considered
important for California spotted owls,
including natal dispersal, survival,
fecundity, occupancy, and population
growth. We describe the importance of
each demographic factor to California
spotted owl persistence and how the
individual needs influence these factors.
There is little available information
about dispersal and dispersal habitat
between the defined California spotted
owl populations and analysis units
within the SSA report and this proposed
rule. Dispersal habitat is described for
northern spotted owl as 50 percent of
the forest matrix outside of activity
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centers in stands with an average of 28
cm (11 in) dbh and 40 percent canopy
closure (Thomas et al. 1990, p. 15). This
contrasts with dispersal for Mexican
spotted owls, which may move across
large areas of unforested habitat to
access suitable habitat on different
mountain ranges (Gutie´rrez et al. 1995,
p. 5; Gutie´rrez et al. 2017, p. 242). It is
unknown how far California spotted
owls will disperse across unsuitable
habitat to find a new territory, but adult
northern spotted owls have been found
to occasionally move long distances if
forced out of a territory (Forsman in litt.
2018, p. 22).
For dispersal to be successful, many
of the individual needs must be present
within the areas to which California
spotted owls disperse. Canopy cover,
large trees, and coarse woody debris all
must be available in sufficient amounts
and the appropriate configuration on the
landscape (habitat heterogeneity) for
juveniles or sub-adults to successfully
settle into a territory to begin breeding.
Survival for California spotted owls is
closely linked to population growth and
is important for maintaining population
resiliency (Seamans and Gutie´rrez
2007a, p. 57; Blakesley et al. 2010, p.
27). Adult California spotted owls have
high annual survival rates ranging from
0.796–0.814 in different study areas
within analysis units in southern
California (LaHaye et al. 2004, p. 1056;
Franklin et al. 2004, p. 22), and 0.811–
0.891 in study areas within analysis
units in the Sierra Nevada (Blakesley et
al. 2001, p. 671; Franklin et al. 2004, p.
22; Blakesley et al. 2010, p. 10; Tempel
et al. 2014a, p. 92). In comparison,
juvenile survival is difficult to estimate
due to dispersal, and has been found to
be low, ranging from 0.087–0.333 in
study areas within analysis units in the
Sierra Nevada (Blakesley et al. 2001, p.
671; Tempel et al. 2014a, p. 92), and
0.368 for southern California (LaHaye et
al. 2004, p. 1056). For northern spotted
owl, juveniles tend to have high
mortality during the dispersal phase
(Miller 1989, pp. 41–44; Forsman et al.
2002, p. 18).
All the individual needs discussed
above influence survival. For example,
survival is related to the amount of
forest dominated by medium to large
trees, high canopy cover, and habitat
complexity (Blakesley et al. 2005, p.
1554; Tempel et al. 2014b, pp. 2089,
2098; McGinn et al. 2022, p. 9). In
northern spotted owls, habitat
heterogeneity is correlated with higher
survival rates (Franklin et al. 2000, p.
539).
Fecundity is defined as the ability to
produce offspring and is measured by
the number of viable female offspring
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that an individual can produce over a
specific time period. Annual
reproductive output, measured by
presence or absence of offspring in a
nest, for female California spotted owls
in a demographic study in the Sierra
Nevada was found to range from 0.478–
0.988 (Blakesley et al. 2010, p. 1).
Reproduction throughout all the
demographic studies has ranged from no
reproduction within a study area to
nearly all birds reproducing in a study
area in a particular year (Franklin et al.
2004, pp. 32–33; Seamans and Gutie´rrez
2007a, p. 65; Blakesley et al. 2010, p. 17;
MacKenzie et al. 2012, p. 597; Tempel
et al. 2014a, p. 91; Stoelting et al. 2015,
p. 46). Fecundity, measured as female
young produced per female annually,
has been found to range from 0.284–
0.409 in the Sierra Nevada and to be
0.362 in southern California (Franklin et
al. 2004, pp. 11, 23).
Many of the individual needs
discussed above influence fecundity.
Reproductive output decreases as nonforest habitat increases within the area
around the nest, and nest success
increases as the presence of large
remnant trees within the nest stand
increases (Blakesley et al. 2005, p.
1554). Reproduction is positively
correlated to the foliage volume above
the nest tree (North et al. 2000, p. 797),
although habitat heterogeneity is also
important for reproduction (Franklin et
al. 2000, p. 539; Tempel et al. 2014b, p.
2089; McGinn et al. 2022, p. 9) and
foraging (Zulla et al. 2022, pp. 7–8).
Annual variation in weather also plays
a role in reproductive success (North et
al. 2000, p. 797; Seamans and Gutie´rrez
2007a, p. 57; MacKenzie et al. 2012, p.
597; Stoelting et al. 2015, p. 46). For
example, California spotted owls
experienced increased fecundity when a
dry breeding season followed a
previously wet year (LaHaye et al. 2004,
pp. 1056, 1062). Although survival of
breeding California spotted owls is an
important factor that is closely
connected to population growth,
reproductive output may be more
influential to population growth
because it varies more than adult
survival (Blakesley et al. 2001, p. 667;
Seamans and Gutie´rrez 2007a, p. 57).
In the SSA report and this proposed
rule, we define California spotted owl
occupancy as the stable (not transient)
presence of at least one adult within a
territory. California spotted owls select
and defend territories in which they
spend most of their life. California
spotted owl pairs will only reproduce
once they have established an occupied
territory. The measure of occupancy has
been found to be strongly correlated
with regional abundance of California
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spotted owls and can provide reliable
inferences on population trends
(Tempel and Gutie´rrez 2013, pp. 1093–
1093).
Many of the individual needs
discussed above need to be present in
order for California spotted owls to
occupy a territory. Occupancy is
generally higher and more consistent
with an increasing proportion of the
territory containing large trees and high
canopy cover (Blakesley et al. 2005, p.
1554; Seamans and Gutie´rrez 2007b, p.
572; Roberts et al. 2011, p. 610; Tempel
et al. 2014b, p. 2089; Gutie´rrez et al.
2017, p. vxii). As the proportion of
forest types that are not used for nesting
(smaller, similar-aged young trees)
increases, occupancy tends to decrease
(Blakesley et al. 2005, pp. 1554, 1560).
In the SSA report and this proposed
rule, we define California spotted owl
population growth as the change in the
number of individuals within a
particular study area, which correspond
to our analysis units. Population growth
is determined by the demographic
factors of survival, fecundity, and
occupancy, with fecundity likely the
most influential because it is more
variable (Blakesley et al. 2001, p. 667;
Seamans and Gutie´rrez 2007a, p. 57;
Seamans and Gutie´rrez 2007b, p. 566;
Blakesley et al. 2010, p. 27; Tempel and
Gutie´rrez 2013, pp. 1093–1094;
Gutie´rrez et al. 2017, p. 99). Population
growth is variable throughout study
areas in the Sierra Nevada DPS where
we have available information, with
documented declines ranging from ¥50
percent to ¥31 percent in some study
areas and a population increase of 25
percent in another (Tempel et al. 2014a,
pp. 86, 90–92; Conner et al. 2016, p. 15).
The only available demographic data for
the Coastal-Southern California DPS is
from the San Bernardino National
Forest. A population decline of ¥9
percent was observed from 1987–1998,
with more recent occupancy analyses
showing further declines in population
size (LaHaye et al. 2004, pp. 1056, 1064;
Tempel et al. 2022, p. 20, table 5). All
individual needs described above need
to be present for positive California
spotted owl population growth.
Species Needs
At the species level, we assess the
redundancy and representation of the
entire California spotted owl’s range to
better understand the viability of the
species. For the California spotted owl,
we evaluate redundancy by considering
the number of resilient populations
distributed across the species’ range.
Having resilient populations distributed
across the range increases the species’
ability to withstand catastrophic events.
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For this species, we evaluate
representation by considering the
distribution of populations across their
various ecological settings and whether
those populations are able to maintain
adequate amounts of genetic diversity.
Having a variety of ecological settings
that the species can occupy and a
breadth of genetic diversity increases
the species’ ability to withstand and
adapt to long-term environmental
changes.
Threats
Following are summary evaluations of
eight threats analyzed in the SSA report
for the California spotted owl: wildfire
(Factor A), tree mortality (Factor A),
drought (Factor A), climate change
(Factor A), fuels reduction and forest
management (Factor A), competition
and hybridization with barred owls
(Strix varia) (Factor E), rodenticides
(Factor E), and development (Factor A).
We also evaluate existing regulatory
mechanisms (Factor D) and ongoing
conservation measures.
In the SSA report, we also considered
four additional threats: Overutilization
due to recreational, educational, and
scientific use (Factor B); disease (Factor
C); predation (Factor C); and recreation
(Factor E). We concluded that, as
indicated by the best available scientific
and commercial information, these
threats are currently having little to no
impact on the California spotted owl
and thus the overall effect of these
threats now and into the future is
expected to be minimal. Therefore, we
will not present summary analyses of
those threats in this document, but we
considered them in the current and
future condition assessments in the SSA
report, and we will consider them in our
determination of the species’ status. For
full descriptions of all threats and how
they impact the species, please see the
SSA report (Service 2022, pp. 25–68).
For the purposes of this assessment,
we consider the foreseeable future to be
the amount of time on which we can
reasonably determine a likely threat’s
anticipated trajectory and the
anticipated response of the species to
those threats. For this proposed rule, we
consider the foreseeable future to be 40–
50 years. This time period represents
our best professional judgment of future
conditions related to climate change for
California, the California spotted owl’s
generation time, and the regeneration
time of medium to large trees.
Wildfire
Fire is a natural part of California
spotted owl habitat (Verner et al. 1992,
pp. 247–248) and is necessary for
maintaining heterogenous forests and
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overall habitat heterogeneity. Wildfire
and associated tree mortality can be
beneficial or detrimental for the
California spotted owl depending on
scale and severity. Fires with
predominantly low to moderate severity
burn patterns, with small patches of
high-severity fire scattered throughout
the fire perimeter, can increase habitat
heterogeneity, ultimately result in
higher prey densities, increase amounts
of forest edge for California spotted owl
foraging, and provide for unburned
refugia within the fire perimeter that
have higher tree survival and more
vegetative cover during the immediate
postfire years (Roberts et al. 2011, p.
610; Lee et al. 2012, p. 792; Bond et al.
2013, pp. 114, 122; Eyes et al. 2017, p.
384; Blomdahl et al. 2019, pp. 1046,
1048, 1049). There is also evidence to
suggest that more pyrodiverse (spatial or
temporal variability in fire effects; Jones
and Tingley 2021, p. 1) landscapes
support greater habitat heterogeneity,
which may promote greater biodiversity
(Steel et al. 2021, pp. 7–8; Stephens et
al. 2021, p. 5). For example, in areas
where woodrats are the primary prey
species, a juxtaposition of mature forests
and open canopy patches promotes
higher prey diversity and abundance,
and northern spotted owls preferentially
select for these areas (Zabel et al. 1995,
p. 433; Ward and Noon 1998, p. 79;
Franklin et al. 2000, p. 539; Zabel et al.
2003, p. 1027).
Although burned areas can reduce the
amount of canopy cover available,
California spotted owls forage on the
edge of and within areas that have been
burned at a range of severities (Bond et
al. 2009, p. 1116; Bond et al. 2016, p.
1290; Eyes et al. 2017, p. 375) although
typically avoiding larger areas of highseverity fire (Jones et al. 2016a, p. 304;
Eyes et al. 2017, p. 383). Thus, many
researchers advocate for the use of
ecologically beneficial fire to help
sustain California spotted owl habitat
and report that low to moderate severity
fire minimizes the effects of future highseverity wildfire (Stephens et al. 2019,
pp. 395–396; Stephens et al. 2020,
entire; Stephens et al. 2021, p. 5; Taylor
et al. 2022, p. 4).
In contrast, large-scale, high-severity
fires have a detrimental effect on both
the California spotted owl and its
habitat. Large-scale high-severity fire
(often referred to as a megafire) is
generally defined as over 10,000 ha
(24,711 ac) of area burned with 75–100
percent canopy mortality (Jones et al.
2016a, p. 300; Linley et al. 2022, pp. 6,
8). Megafires can degrade or destroy
California spotted owl habitat,
completely incinerating large trees and
canopy cover (Eyes 2014, p. ii; Roberts
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et al. 2015, pp. 112–115; Jones et al.
2016a, pp. 300–305). Habitat suitability
for northern spotted owls decreased
postfire and depended on fire severity
(higher fire severity resulted in greater
declines of habitat suitability) (Wan et
al. 2020, p. 7); thus, megafires have a
greater potential to alter the availability
of suitable habitat.
The loss of habitat from large-scale,
high-severity fires also results in direct
impacts to California spotted owl
individuals and populations. As
megafires alter the number of large trees
(including nest trees), multi-layered
high canopy cover, habitat
heterogeneity, and patch size, California
spotted owl dispersal, fecundity, and
occupancy are subsequently reduced. It
has been observed that large patches of
high-severity fire significantly reduce
colonization (dispersal), occupancy, and
habitat use across the California spotted
owl’s range (Eyes 2014, p. 42; Tempel et
al. 2014b, p. 2089; Jones et al. 2016a, pp.
300, 303–305; Eyes et al. 2017, pp. 381,
384; Jones et al. 2019, p. 26; Jones et al.
2020, entire; Schofield et al. 2020, pp.
5–6; Jones et al. 2021a, p. 5; Tempel et
al. 2022, p. 13) and for other subspecies
(Rockweit et al. 2017, entire; Lesmeister
et al. 2019, p. 13; Duchac et al. 2021, p.
12). Fires may cause direct mortality to
eggs and juveniles during the nesting
season, and fast-moving fires also have
the potential to cause direct mortality to
adult California spotted owl individuals
(Jones et al. 2016a, p. 305). No data are
available on how many California
spotted owls are killed annually by
direct impacts of large-scale, highseverity fire. Although most birds are
able to move to escape direct morality
from fires, smoke from fires can impact
birds by damaging their lungs
(Verstappen and Dorrestein 2005, p.
139). While many species have existed
with frequent fire over evolutionary
time, megafires and extreme smoke
events are novel influences that may act
as an additional selective pressure on
certain species (Nimmo et al. 2021, p.
5689). There is limited research on the
effects of wildfire smoke on wildlife in
general, but there is clear evidence that
smoke can have both acute and chronic
health impacts on a variety of taxa,
which may ultimately affect
demographic rates (Sanderfoot et al.
2021, p. 13).
As discussed above, high-severity fire
has negative effects on individual
California spotted owls and their
habitat, ranging from reduced
occupancy to direct mortality of
individuals. However, several
publications conclude that spotted owls
will continue to use areas burned at
high-severity and, therefore, there are no
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negative effects of high-severity fire for
California spotted owls (Lee and Bond
2015, entire; Hanson et al. 2018, entire;
Hanson et al. 2021, entire; Lee 2018,
entire). We have reviewed these
publications and acknowledge this
disagreement in the literature. However,
our review of all the best available
science, including those sources that
conclude no negative effects, has led us
to agree with the vast majority of
science, which concludes that overall
spotted owls avoid large patches of
high-severity fire and that high-severity
fire is increasing throughout California
and the western United States. For more
analysis on the conflicting results of
these studies and our analysis, please
see the SSA report (Service 2022, pp.
27–28).
Current conditions in the California
spotted owl’s range may contribute to
ongoing fire risk, and depending on the
portion of the range and the land
manager, fire management activities
may vary. Decades of fire suppression
have led to overall higher canopy cover
from small and medium trees, higher
dead biomass density, and more surface
fuels in forests of the western United
States (Verner et al. 1992, pp. 247–248;
Agee and Skinner 2005, p. 83). The
historical fire return interval for the
Sierra Nevada was around 11–16 years,
but fire suppression over the last 100
years has led to a change in fire
behavior of larger, more severe fires in
recent years (Safford and Stevens 2017,
pp. v–vi). The multi-layered high
canopy cover and biomass provide
important habitat for California spotted
owls but also tend to increase the
vulnerability of forests to high-severity
fire (Verner et al. 1992, pp. 251–258;
Agee and Skinner 2005, p. 83) in
present day fire-suppressed forests. The
higher fuel loads, particularly large,
dead wood (like snags and logs), tend to
burn at higher severity as densities
increase (Lydersen et al. 2019, p. 7). In
a recent megafire, dead biomass directly
contributed to the fire effects observed,
as areas with high amounts of dead
biomass pre-fire burned at high severity
(Stephens et al. 2022, p. 8).
On top of the higher fuel loads,
extended droughts and longer wildfire
seasons have led to larger and more
severe fires in the California spotted
owl’s range and throughout western
North America (Miller and Safford 2012,
p. 41; Mallek et al. 2013, p. 1; Nigro and
Molinari 2019, p. 20; Parks and
Abatzoglou 2020, p. 4; Safford et al.
2022, p. 12). In 2020 and 2021, more
than 1 million ha (2.4 million ac)
burned in California, resulting in more
area burned over these 2 years than in
the past 7 years of all California fires
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combined (Safford et al. 2022, p. 5). An
increase in high-severity fire changes
how fire interacts with important
habitat features for California spotted
owls. For example, fire often killed, but
left standing, trees that would
subsequently serve as locations for
California spotted owl nests. However,
large patches of high-severity fire burn
hotter and can end up entirely
consuming the features important to
California spotted owls. Between the
years of 2000 and 2014, 7 percent of
suitable California spotted owl nesting
habitat (a total of 85,046 ha (210,153 ac)
out of 1,166,560 ha (2,882,633 ac)) was
burned either partially at moderate
severity (typically 25–50 percent tree
basal area mortality) or entirely at high
severity (typically >75 percent tree basal
area mortality), causing ≥50 percent tree
basal area mortality and reducing
canopy cover to <25 percent (Stephens
et al. 2016, pp. 1, 9).
The size and severity of a fire
determines how much it will impact
California spotted owls at the
population level. If a high-severity fire
occurs in a large enough area, it can
eliminate entire territories or home
ranges of California spotted owls,
displacing individuals that may or may
not establish a new territory (Jones et al.
2016a, pp. 300–305). Site occupancy by
California spotted owls after wildfire
appears to be a function of the amount
of suitable habitat remaining after the
fire (Gutie´rrez et al. 2017, p. xxiii). If
habitat becomes unsuitable, it takes
decades for large trees to reestablish on
the landscape. Based on fire activity and
anticipated trends over the next 75
years, the cumulative amount of nesting
habitat burned at ≥50 percent tree basal
area mortality will exceed the total
existing habitat in the Sierra Nevada
(Stephens et al. 2016, pp. 1, 12). In other
words, the loss of suitable California
spotted owl habitat would exceed the
rate of new forest growing post-fire
(Stephens et al. 2016, pp. 11–13). Thus,
future habitat persistence for California
spotted owls is concerning given that
high-severity fire appears to be
increasing across all lands (both public
and private) occupied by California
spotted owls and throughout the
western United States (Parks and
Abatzoglou 2020, pp. 4–5). When
private lands are considered separately,
the odds of high severity fire occurring
on industrially managed forests and
adjacent lands were 1.8 and 1.4 times
higher, raising some concern over
California spotted owl persistence on
private lands (Levine et al. 2022, p. 4).
In the Sierra Nevada, the proportion
of high severity fire throughout the
California spotted owl’s range has
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dramatically increased in recent years.
The proportion of high-severity fire in
California montane forests in 2020 was
on average 43–76 percent higher than
the combined average between 1984 and
2008, and was three to six times higher
than the estimates of pre-Euroamerican
settlement (Safford et al. 2022, p. 17).
Between 1984–2019, 1,084,171 ha
(2,679,044 ac; 55.7 percent) burned
throughout the California spotted owl
range in the Sierra Nevada with 317,605
ha (784,820 ac; 46.6 percent) burned at
high severity (Keane in litt. 2022, p. 3).
In contrast, between 2020 and 2021,
862,625 ha (2,131,593 ac; 44.3 percent)
burned throughout the California
spotted owl’s range with almost 363,812
ha (899,000 ac; 53.4 percent) of that at
high severity (Keane in litt. 2022, p. 3).
This comparison illustrates how
megafires in 2020 and 2021 burned
more habitat at high severity in 2 years
than fires over the past three and a half
decades. In addition, between 1984 and
2021, 50 percent of California spotted
owl PAC acres have been impacted by
wildfire, with 56 percent of that total
burned in 2020 and 2021. Further, of the
56 percent that burned between 2020
and 2021, 65 percent burned at high
severity (Keane in litt. 2022, p. 5).
Because California spotted owls are
displaced from areas where the entire
PAC or majority of the PAC has burned
at high severity, it is unlikely the
species will continue to persist in these
areas until the habitat can recover,
which can take decades.
We conducted a fire severity analysis
within the entire California spotted
owl’s range; details of the methodology
used in this analysis are available in the
SSA report (Service 2022, pp. 29–30). Of
the California spotted owl’s range,
approximately 47 percent burned
between 1984 and 2021, with 15 percent
at high severity. Most of the area burned
at high severity occurred in 2020 and
2021, with 2 percent and 4 percent,
respectively (Service 2022, table 3).
Additionally, based on an existing
dataset from the California Department
of Forestry and Fire Protection of the
potential threat of future wildfire in
California, the majority of the California
spotted owl’s range occurs within the
very high wildfire threat category
(Service 2022, figure 8). Much of the
coastal-southern California population
of the California spotted owl falls within
the extreme fire risk. This dataset
contains fire information through 2014,
and so does not consider how the recent
fires from 2014 to 2021 affect future fire
threat. Overall, we expect that the
pattern of both area burned and wildfire
severity will continue or increase into
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the future due to the effects of climate
change.
Some regulatory mechanisms and
conservation measures can reduce the
potential severity or scale of wildfires.
Wildfire fuel reduction treatments, such
as prescribed fire and mechanical
thinning, can reduce the amount or
degree of spotted owl habitat loss from
a high-severity fire, and a balanced
approach to fuel reduction treatments
may ensure suitable California spotted
owl habitat is maintained (Jones et al.
2016a, p. 305; Service 2017, pp. 24–25;
Chiono et al. 2017, p. 1; Jones et al.
2021a, entire). The 2004 USFS Sierra
Nevada Forest Plan Amendment has a
goal of actively restoring fire-adapted
ecosystems by reducing unnaturally
dense conditions, and there are also
measures in place in the framework to
avoid disturbance within California
spotted owl PACs to the greatest extent
possible (USFS 2004, pp. 34–35). Fuel
reduction treatments are actively taking
place on USFS land, but special
considerations, including the timing of
treatments to avoid the breeding season
and the methods that are used, are
evaluated to avoid impacts to owls
within PACs. In 2017 and in 2020, an
MOU was signed by Sierra Pacific
Industries, California Department of
Forestry and Fire Protection, National
Fish and Wildlife Foundation, and the
USFS to coordinate on certain actions
that may contribute to forest fuel
reductions and California spotted owl
conservation. The purpose of the MOU
is to try to minimize the threat of largescale, high-severity fire while still
providing quality habitat for California
spotted owls. However, large-scale,
high-severity fire cannot be completely
addressed by regulatory mechanisms.
Fuel reduction treatments may not
prevent catastrophic damage in an
extreme fire event; however, when fire
is a part of the fuel reduction treatment,
future fire severity can be reduced and
more fire treatments should be included
to achieve fuels reduction goals,
including areas surrounding spotted owl
nests and riparian corridors (North et al.
2021, pp. 527, 529; Taylor et al. 2022,
p. 4).
High-severity fire is likely to continue
to be a threat into the future for
California spotted owls. Although some
individuals could be harmed or killed
by large fires, the primary impact of this
threat is habitat-based. These habitat
changes also affect demographic
parameters: following high severity
fires, colonization declines and territory
extinction increases, leading to overall
declines in occupancy (Tempel et al.
2022, pp. 13–16). Overall, large-scale,
high-severity fire is currently and will
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likely continue to be a threat throughout
the range of the California spotted owl,
including for both the Sierra Nevada
and the coastal-southern California
populations.
Tree Mortality
Widespread increases in tree
mortality have been occurring in
California due to drought, disease, and
bark beetles above historical levels of
mortality (van Mantgem et al. 2009, pp.
521–523; Asner et al. 2015, p. 249;
McIntyre et al. 2015, p. 1458; Preisler et
al. 2017, p. 166). When tree stand
densities are too high compared to
available resources (water, light,
nutrients), trees become stressed due to
competition for resources and thus are
more vulnerable to mortality (USFS
2017, p. 9). Large trees are often
especially prone to drought, disease,
and beetle-related mortality (Smith et al.
2005, p. 266; Mueller et al. 2005, p.
1085; Allen et al. 2010, p. 668; McIntyre
et al. 2015, p. 1458). Increased tree
mortality may be contributing to loss of
California spotted owl habitat (Gutie´rrez
et al. 2017, p. 137), but the magnitude
of the impacts on California spotted
owls is uncertain. Large-scale tree
mortality reduces the availability of
canopy cover and large trees, potentially
resulting in California spotted owl
population declines because of reduced
habitat available for dispersal and
occupancy. However, some tree
mortality events can have some positive
effects on California spotted owl habitat,
as these events contribute to habitat
heterogeneity and the availability of
coarse woody debris for prey species.
Between 2010 and 2016, an estimated
102 million trees died across about
3,106,367 ha (7,676,000 ac) throughout
California (Tree Mortality Task Force
2017, p. 2). By February 2019, total tree
mortality in California increased to an
estimated 147 million dead trees (Cal
Fire and USFS 2019, p. 1). The latest
estimate shows that between 2010 and
2021, the drought combined with
subsequent beetle attacks resulted in
approximately 173 million dead trees in
California with approximately 3.3
percent of the surveyed forest area in
2021 showing signs of elevated
mortality (USFS 2021, p. 5). The tree
mortality events are particularly severe
in the southern Sierra Nevada area.
Most of the tree mortality observed is
due to effects from the 2012–2016
drought, with less mortality occurring
from 2018–2021; however, another
drought period started in 2020 (USFS
2021, p. 5).
In 2015, the Governor of California
declared a state of emergency due to the
unprecedented number of dead and
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dying trees in the State. In response, the
California Tree Mortality Task Force,
which is now the Forest Mortality
Working Group within the California
Wildfire and Forest Resilience Task
Force, was created to coordinate
emergency protective actions and
monitor ongoing conditions. The group
collects and manages the tree mortality
data, provides recommendations to land
managers, presents grants for research
funding, and provides public outreach.
The task force will likely continue to
provide the services listed into the
future due to the ongoing and largescale nature of the tree mortality events
in California.
Regulatory mechanisms and
management actions could provide
some protection from the effects of tree
mortality. Efforts to restore historical
forest conditions and reduce stand
densities through fuels reduction
treatments (mechanical thinning,
prescribed fire, etc.) may indirectly
contribute to reducing future tree
mortality by reducing competition.
Further, the goal should be to eliminate
the excessive levels of tree mortality
currently being observed in the
landscape and not limit all tree
mortality, as tree mortality is a natural
part of the forest ecosystem and
ultimately creates features important to
California spotted owls (snags, tree
cavities). Tree mortality is likely to
continue throughout the range of the
California spotted owl due to predicted
increases in drought conditions that will
likely continue to weaken trees and
make them susceptible to bark beetles
and disease (Millar and Stephenson
2015, pp. 823–826; Young et al. 2017,
pp. 78, 85). Excessive tree mortality is
likely to continue to be a threat into the
future for the California spotted owl.
Drought
California has experienced extreme
drought conditions in 2007–2009 and
2012–2016 (Williams et al. 2015, pp.
6823–6824; CDWR 2021, p. 4), and as of
May 2022, a majority of the California
spotted owl’s range is considered in
severe to moderate drought (CDWR
2022, entire). Anthropogenic warming
likely contributed to more recent
drought anomalies and increases the
overall likelihood of extreme droughts
in California into the future (Williams et
al. 2015, pp. 6819, 6826; CDWR 2022,
entire).
Drought conditions can negatively
impact the California spotted owl’s
ecological needs. As described above,
drought conditions contribute to tree
mortality, which reduces canopy cover,
likely leading to a decline in occupancy.
Further, drought conditions likely
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reduce the availability of prey species
(Franklin et al. 2000, p. 589; Glenn et al.
2010, p. 2549; Glenn et al. 2011, p. 174).
Drought and hot temperatures in the
previous summer are linked to lower
reproductive success in California
spotted owls (LaHaye et al. 2004, p.
1066) and lower survival and
recruitment in northern spotted owls in
the next breeding season (Glenn et al.
2011, pp. 159, 174). Inversely, increases
in precipitation either before or after the
nesting season are linked to increased
survival and fecundity in all three
subspecies of spotted owls (Seamans et
al. 2002, p. 321; LaHaye et al. 2004, pp.
1056, 1064; Glenn et al. 2011, pp. 159,
174). Thus, drought likely negatively
impacts the California spotted owl’s
habitat components, and its
demographic needs of dispersal,
survival, fecundity, and occupancy. No
regulatory mechanisms or conservation
measures in place ameliorate the direct
impacts of drought. It is likely that
drought conditions will continue to be
a threat into the future across the
California spotted owl’s range and will
likely worsen due to the effects of
climate change.
Climate Change
Scientific measurements spanning
several decades demonstrate that
changes in climate are occurring and
that the rate of change has been faster
since the 1950s. There is strong
scientific support for projections that
warming will continue through the 21st
century, and that the magnitude and
rate of change will be influenced
substantially by the extent of
greenhouse gas emissions (Meehl et al.
2007, pp. 760–764, 797–811; Ganguly et
al. 2009, pp. 15555–15558; Prinn et al.
2011, pp. 527, 529; IPCC 2013, pp. 19–
23).
Projected changes in climate and
related impacts can vary substantially
across and within different regions of
the world (IPCC 2013, pp. 15–16).
Therefore, we used downscaled
projections from California’s Fourth
Climate Change Assessment, including
the following four regional assessments
that cover the California spotted owl’s
range: Sierra Nevada (Dettinger et al.
2018, entire), the Central Coast Region
(Langridge 2018, entire), Los Angeles
(Hall et al. 2018, entire), and San Diego
(Kalansky et al. 2018, entire). Ten global
climate models were used for all four
regional assessments, and each model
considered two different emissions
scenarios, one in which greenhouse gas
emissions continue to increase into the
next century (RCP 8.5) and one in which
greenhouse gas emissions stabilize by
mid-century and then decline to levels
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seen in the 1990s by the end of the
century (RCP 4.5) (Dettinger et al. 2018,
pp. 15, 17; Hall et al. 2018, p. 9;
Kalansky et al. 2018, p. 18; Langridge
2018, p. 12).
Under both emissions scenarios,
projected annual average temperatures
throughout the California spotted owl’s
range are projected to increase. The
largest increases under both emissions
scenarios and timeframes are projected
for the eastern portions of the Sierra
Nevada (Dettinger et al. 2018, p. 17,
figure 2.3). Projected changes will result
in greater temperatures than historically
experienced in the Sierra Nevada, and
this degree of temperature change will
likely result in a shift in the rain to
snow transition by 1,500–3,000 feet
(Dettinger et al. 2018, pp. 17, 20).
Projected temperature increases are
more pronounced in the inland portions
of the Central Coast Region, with the
ocean acting as a buffer for coastal areas
(Langridge 2018, p. 14, figure 4). In
addition, the average number of
extremely hot days (defined as days that
exceed the 98th percentile of observed,
historical (1961–1990) daily maximum
temperatures between April 1 and
October 31) are expected to increase
throughout the Central Coast Region
(Langridge 2018, pp. 14–15, table 4).
Regional assessments covering
southern California include the Los
Angeles and San Diego Regional
Assessments (Hall et al. 2018, entire;
Kalansky et al. 2018, entire). Projected
annual average maximum temperatures
throughout the Los Angeles Region
increase under both emissions scenarios
(Hall et al. 2018, p. 10, figure 2). For the
San Diego Region, projected annual
average maximum and minimum
temperatures also increase under both
emissions scenarios. Similar to the
Central Coast Region, these changes will
be more pronounced in the interior
portions of the Los Angeles and San
Diego Regions (Hall et al. 2018, p. 11,
figure 3).
In addition to temperature
projections, the regional assessments for
California’s Fourth Climate Change
Assessment also considered future
changes in precipitation, both the
amount and the timing. Within the
Sierra Nevada Region, changes in
precipitation are projected to be
relatively small and will vary depending
on the area. In general, average annual
precipitation in the southern portion of
the Sierra Nevada Region is projected to
stay similar or decrease by 5 percent,
regardless of emission scenario. In other
portions of the Sierra Nevada Region,
particularly along the eastern side, the
amount of precipitation is projected to
increase by up to 10 percent. In addition
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to projections showing the northern
portions of the range will receive more
precipitation than southern portions,
areas at higher elevations are also more
likely to receive an increase in
precipitation. Although the average
change in precipitation is projected to
be small, the models show there will be
an increase in extreme conditions with
more dry days overall interspersed with
higher intensity precipitation events,
when they do occur (Dettinger et al.
2018, p. 19). Further, in some areas
more precipitation will fall as rain
instead of snow, as the rain to snow
transition is projected to shift by 457–
914 m (1,500–3,000 ft) (Dettinger et al.
2018, pp. 17, 20).
Similar to the Sierra Nevada Region,
interannual variability within the
Central Coast Region is expected to
increase with more dry days overall, but
more precipitation when rain events do
occur (Langridge 2018, p. 16). In
southern California, the amount of
precipitation in the Los Angeles and
San Diego Regions is highly variable
(Hall et al. 2018, p. 12, figure 5;
Kalansky et al. 2018, p. 24). Similar to
other regions, projections for the Los
Angeles and San Diego Regions show an
increase in extreme conditions such as
high-intensity precipitation events,
known as atmospheric rivers, and severe
drought conditions (Hall et al. 2018, pp.
13–14, figure 6; Kalansky et al. 2018, pp.
24–25, figures 7 and 9).
Because the California spotted owl
has a wide geographic range and the
projected changes in climate vary across
the range, the effects those changes will
have on the species and its habitat will
vary. Future climate projections of
Sierra Nevada vegetation distribution
indicate that low- and mid-elevation
forests are vulnerable to conversion to
unsuitable habitat for California spotted
owls, such as shrublands and grasslands
(Gutie´rrez et al. 2017, p. 215). These
changes in climate may also include
potential shifts in forest communities
upslope, which would have impacts on
both the California spotted owl’s habitat
and prey habitat (Gutie´rrez et al. 2017,
pp. 132, 215, 288). This potential
upslope shift in suitable habitat may
mitigate some climate-induced habitat
threats over ecological time, although it
would require many decades for
suitable large nest trees to develop in
areas where they do not currently exist
(Gutie´rrez et al. 2017, p. 215). These
differences in net habitat loss versus net
habitat gained under future climate
scenarios will likely depend not only on
the rate of warming but also how
individual plant and prey species
respond (Seamans and Gutie´rrez 2007a,
p. 61).
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Changing climatic conditions may
have direct impacts on California
spotted owl physiology, survival,
reproduction, recruitment, or
population growth. The thermal neutral
zone (the range of temperatures
tolerated by a warm-blooded animal) for
California spotted owls is 18.2–35.2 °C
(64.8–95.4 °F) (Weathers et al. 2001, p.
682). Above this zone, California
spotted owls experience heat stress
(Weathers et al. 2001, p. 678). The
relatively low thermal neutral zone may
make California spotted owls more
susceptible to increased temperatures or
cause behavioral or habitat shifts to
cooler microclimates on the landscape.
Behaviorally, California spotted owls
can select cooler microclimates for
roosting, especially within warmer
forest stands (McGinn et al. in review,
p. 2). Changing climatic conditions may
also have indirect impacts including
changes in habitat and prey distribution,
abundance, and quality. California
spotted owls must be able to adjust to
the changing climate through behavioral
changes, spatial shifts, or adaptation in
order to persist. Under projected
warming conditions in the future, cooler
microclimate refugia are likely to be
critically important for the persistence
of California spotted owl individuals
and populations (McGinn et al. in
review, p. 3). It is likely that climate
change will reduce the quantity and
quality of California spotted owl habitat,
which would likely result in population
impacts, including a decrease in
dispersal, fecundity, and occupancy.
Both the habitat components and
demographic factors of California
spotted owls will likely be impacted by
climate change, but the full extent of
impacts climate change may have on
California spotted owls is poorly
understood (Wan et al. 2018, p. 690).
Climate modeling specific to the
central Sierra Nevada portion of the
California spotted owl’s range has
shown that maintaining high canopy
cover, especially at higher elevations,
will be important for California spotted
owls to persist into the future, as high
canopy cover helps maintain future
refugia for individuals to select for
cooler microclimates (Jones et al. 2016b,
entire). Under both a low climate
change prediction scenario (RCP 2.6)
and a high climate change scenario (RCP
8.5), California spotted owl occupancy
decreases in comparison to baseline
climate conditions (Jones et al. 2016b, p.
901). However, this model did not
consider projected increases in
frequency and size of high-severity fires
due to climate change, which would
likely result in more significant declines
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in occupancy than predicted by the
model (Jones et al. 2016b, p. 903).
Earlier modeling of spotted owl
response to projected climate changes
show that different subspecies and
populations of spotted owls are
anticipated to respond differently across
their ranges (Peery et al. 2011, p. 14).
The climate change projections
described above suggest increasing
interannual climate variability
throughout the range of the California
spotted owl. Interannual climate
variability is defined as when annual
weather patterns differ from historical
average climate, including prolonged
drought conditions, heavy rain
conditions, and higher or lower than
average temperatures. Interannual
climate variability has been shown to
have impacts on the survival and
reproductive success of California
spotted owls. Drought conditions and
hot temperatures during the summer
have been found to reduce fecundity in
California spotted owls during the next
breeding season (LaHaye et al. 2004, p.
1056). Increases in precipitation either
before or after the nesting season are
linked to increased survival and
fecundity, whereas increased
precipitation during the nesting season
reduces reproductive success (North et
al. 2000, p. 804; LaHaye et al. 2004, pp.
1056, 1064). It is hypothesized that
northern spotted owls exhibit a bethedging reproduction strategy and that
an absence of reproduction is linked to
environmental conditions (Franklin et
al. 2000, pp. 539, 576). California
spotted owls likely have a similar bethedging reproductive strategy (Stoelting
et al. 2015, p. 46; Gutie´rrez et al. 2017,
pp. 14–15). California spotted owls are
sensitive to warm temperatures and,
therefore, may be physiologically
sensitive to weather patterns with
increased temperatures (Weathers et al.
2001, p. 684). Temperature, either too
hot or too cold, may affect spotted owls
directly by increasing energy demands
(Gutie´rrez et al. 2017, p. 20). This
increase may have direct impacts on the
physiology of spotted owls or on
breeding if mates must bring more food
to the nest for the female to survive.
Increased interannual climate variability
due to climate change will likely impact
the California spotted owl throughout
its range, which would result in lower
fecundity.
Regulatory mechanisms and
management actions that are or could
potentially provide some protection
from the effects of climate change
include the Clean Air Act (42 U.S.C.
7401 et seq.) and the California Global
Warming Solutions Act. Both address
climate change by reducing greenhouse
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gas emissions within the United States
and California, respectively. There are
no regulatory mechanisms or
management actions that fully address
the effects of the climate change.
The effects of climate change will
continue to impact California spotted
owls into the future by exacerbating the
negative influencing factors described
above, especially extreme weather
events such as prolonged drought and
severe storms. The loss or reduction of
suitable habitat throughout the
California spotted owl’s range will
likely reduce the subspecies’
reproduction, occupancy, survival,
recruitment, and population growth.
Fuels Reduction and Forest
Management
Forest management has long been a
controversial topic regarding species
that require old growth forest habitat,
including the spotted owl (Gutie´rrez
2020, p. 337). With the increasing
frequency and extent of high-severity
fire in California in recent decades, fire
mitigation has become a key issue for
spotted owl management and
conservation. The goal of fuels
management is to reduce the buildup of
fuels in forests that contribute to these
large-scale, high-severity fires, which
can effectively mitigate subsequent fire
behavior and their effects, even under
extreme weather (Hessburg et al. 2021,
p. 7; Prichard et al. 2021, p. 9). The
long-term benefits of properly managed
fuel treatments for reducing the risk of
severe wildfire are likely to outweigh
the short-term negative impacts to
spotted owl habitat (Ager et al. 2007, pp.
54–55; Roloff et al. 2012, p. 7; Jones et
al. 2021b, pp. 4–5). These trade-offs are
complex and ultimately depend on the
extent that treatments have negative
impacts to owl habitat and the
magnitude of effects from subsequent
wildfires (Jones et al. 2021b, p. 2). Fuels
reductions and forest management
practices vary throughout the California
spotted owl’s range. Below, we discuss
clearcutting, mechanical thinning,
salvage logging, and prescribed fire, and
the positive and negative influences that
these practices can have on the species.
Clearcutting, sometimes referred to as
even-aged management, is defined as an
even-age regeneration or harvest method
that removes all trees in the stand,
producing a fully exposed microclimate
for the development of a new age class
in one entry (Gutie´rrez et al. 2017, p.
292). The natural range of variation for
forest gaps in the Sierra Nevada has
been found to range from 0.03–1.17 ha
(0.07–2.89 ac) (Safford and Stevens
2017, p. 140), and within the SSA report
and this proposed rule, clearcutting
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refers to complete removal greater than
the natural range of variation.
Clearcutting is a mostly historical
threat to California spotted owls,
although it still occurs in some areas of
the Sierra Nevada. By removing entire
stands of trees, clearcutting reduces the
amount of large trees, high canopy
cover, and coarse woody debris
available for California spotted owls.
Commercial timber harvest no longer
occurs within the California spotted
owl’s range on public lands in the
Coastal-Southern California DPS
(Gutie´rrez et al. 2017, p. 254).
Clearcutting also does not occur on
USFS lands on the eastern side of the
Sierra Nevada range (Boatner in litt.
2022). Clearcutting still occurs on
private timber harvest lands but is
limited to 8.1-ha (20-ac) parcels by
California State forest practice rules
(California Code of Regulations (CCR),
title 14, article 3 (14 CCR 913 et seq.)).
Additionally, there must be at least
91.44 m (300 ft) of forested area between
clearcuts, and adjacent lands cannot be
cut for at least 5 years (14 CCR 913 et
seq.). Even with the reduction of
clearcutting in recent history, it will
take decades or centuries for large trees
to grow back from the past removal
practices; therefore, there are residual
effects that may be impacting California
spotted owl populations and the habitat
that is available (Jones et al. 2018, p. 1).
California spotted owls may use clearcut
habitat, likely for foraging activities, but
these areas are used significantly less
than high canopy cover and large tree
areas (Atuo et al. 2019, pp. 295, 301–
302).
Mechanical thinning is a forest
management strategy to thin trees either
in even or uneven-aged stands by
removing trees in rows, strips, or by
using fixed pacing intervals, usually
implemented to meet forest
management objectives. It can be done
for commercial harvest of trees or to
reduce fuel loads to decrease the
likelihood of large-scale, high-severity
fires (Gutie´rrez et al. 2017, p. 292).
Within the SSA report and this
proposed rule, we use ‘‘mechanical
thinning’’ to include both individual
tree selection (new age classes are
created in uneven-aged stands by
removing individual trees of all size
classes more or less uniformly
throughout the stand to achieve desired
stand structure) and group tree selection
(treatment involves salvage harvest in a
stand where small groups of trees are
harvested because of tree mortality due
to windstorm, wildfire, insects, disease,
or other animals).
Mechanical thinning is actively used
to manage forests occupied by California
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spotted owls and can have positive or
negative impacts on the California
spotted owl’s habitat and demographics
depending on the specific methods
used. The 2004 Sierra Nevada Forest
Plan Amendment promotes reducing,
using methods including mechanical
thinning, unnaturally dense forest
conditions on the landscape to reduce
the risk of large-scale, high-severity fire
(USFS 2004, pp. 34–35). Minimal area is
treated mechanically, especially when
compared to area burned by wildfire
(566,560 ha (1,400,000 ac) burned
between 2017–2020 versus 61,852 ha
(152,842 ac) previously treated; North et
al. 2021, p. 524). Treatments are located
to avoid California spotted owl activity
centers to the greatest extent possible
(USFS 2004, pp. 34–35), which often
leaves the PACs untreated and
potentially vulnerable to standreplacing fires (Stephens et al. 2019, p.
395). Further, strategic thinning can
promote forest resiliency, but removing
some large, fire-intolerant tree species
like fir and cedar may be necessary to
promote future resilience of forested
habitat (Stephens et al. 2020, entire;
North et al. 2021, p. 530).
Resilience of California spotted owl
habitat results from low stand densities,
which reduces competition and allows
trees to grow, so more intensive fuels
treatments (mechanical thinning and
prescribed fire) may be needed to
achieve historically lower levels of tree
densities (North et al. 2022, p. 6). When
conducted outside California spotted
owl activity centers, mechanical
thinning will likely reduce the amount
of damage the habitat may experience
due to high-severity fire while also
minimizing short-term habitat impacts
(Stephens et al. 2014, p. 904; Tempel et
al. 2015, p. 1; Chiono et al. 2017, p. 1).
Strategic mechanical thinning to reduce
fuel loads and reduce the risk of largescale, high-severity fire, while also
maintaining the necessary forest
structure components of large trees,
multi-layered high canopy cover, habitat
heterogeneity, and coarse woody debris,
will be important for California spotted
owl management into the future (Jones
et al. 2016a, p. 305; Tempel et al. 2016,
p. 305; Jones et al. 2019, p. 22).
Strategically placed landscape fuel
treatments can decrease future fire
severity while also increasing seedling
densities (Tubbesing et al. 2019, p. 54).
Many studies emphasize the importance
of scaling-up fuel reduction treatments
(mechanical thinning and prescribed
fire) and suggest an increased benefit of
treating within California spotted owl
territories for long-term persistence,
although positive effects would not be
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observed until mid-century and
treatments should still strive to
maintain large trees and high canopy
cover forest (Jones et al. 2021b, p. 3;
Safford et al. 2022, p. 17).
This fuels management technique has
little to no impact on occupancy if
carried out in a strategic way (for
example, maintaining some patches of
high canopy cover mixed with patches
of moderate canopy cover to provide for
the primary habitat of California spotted
owls and incorporating limited
operating periods that restrict activities
from occurring during the critical
nesting period) (Tempel et al. 2016, p.
747). However, mechanical thinning can
decrease California spotted owl
occupancy and is negatively correlated
with reproduction (Tempel et al. 2014a,
p. 2089; Stephens et al. 2014, p. 903;
Tempel et al. 2022, p. 19). Although one
study detected some negative effects of
fuels reduction treatments on California
spotted owls in southern California, the
authors suggested that occupancy
declines were small compared to the
potential negative effects of fire (Tempel
et al. 2022, p. 22). Similarly, there is
evidence of reduced foraging in fuel
treatment areas that have a moderate to
high proportion of forest gaps with little
to no canopy cover (Gallagher et al.
2018, pp. 487, 494–499). Forest thinning
has complex effects on both California
spotted owls and their mammalian prey
species. Thinning may have negative
short-term effects on prey species by
increasing the risk of predation by
removing above-ground cover and
reducing canopy connectivity, and
thinning may remove suitable nesting
substrates; however, there may be
positive effects in the long term (over
decades) by promoting growth of the
midstory layer of trees that is favorable
to certain mammalian prey species
(Wilson and Forsman 2013, p. 79).
Salvage logging is a practice where
damaged or dying trees are removed to
recover their economic value and
promote forest health (Gutie´rrez et al.
2017, p. 293; Jones et al. 2020, p. 11).
Salvage logging often occurs after
natural disturbances such as wildfires,
disease, and insect infestation
(Lindenmayer et al. 2008, p. 4). Post-fire
fuels treatment that includes the
removal of smaller trees and surface and
ladder fuels is not generally considered
a threat to California spotted owls
relative to the threat posed by megafires
(Jones et al. 2021b, p. 7). Negative
effects of salvage logging have been
documented for wildlife, vegetation,
and soils, but there is a paucity of
literature on the subject, which may
lead to inaccurate comparisons when
studies occur across varied geographic
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regions; nevertheless, the negative
effects may be mediated by altering
equipment, timing of operations, and
harvest prescriptions to leave more large
snags (Nemens et al. 2019, entire).
California spotted owls inhabit areas of
low-medium severity fire, patchy highseverity fire, and areas with dead trees;
therefore, salvage logging likely reduces
the amount of habitat available for
California spotted owls (Gutie´rrez et al.
2017, p. 276). Salvage logging can result
in short-term decreased vegetation
regrowth (Wagenbrenner et al. 2015, p.
176), which would likely impact prey
species for California spotted owls.
However, salvage logging does not
appear to make much difference in longterm vegetation regrowth, so salvage
logged areas have the potential to again
become suitable habitat after the
centuries it takes to establish large trees
in the area (Peterson and Dodson 2016,
p. 56). Salvage logging in certain
instances may also be necessary to
reduce future fire severity as high levels
of dead biomass are associated with
high-severity fire (Lydersen et al. 2019,
p. 7; Stephens et al. 2022, p. 8); salvage
logging may also be required for
restoration personnel to safely access an
impacted site for re-planting activities
(Sawyer in litt. 2022).
The California spotted owl’s response
to salvage logging appears to be at least
partly dependent on the characteristics
of the fire after which it occurs, which
can make it difficult to analyze these
relationships (detailed in Jones et al.
2019). For example, salvage logging that
occurs within a large, burned area is less
likely to negatively impact spotted owls
relative to salvage logging that occurs
within a smaller burned area (Jones et
al. 2020, p. 12). There is some evidence
that northern spotted owl (Clark et al.
2012, p. 15) and California spotted owl
occupancy decreases with salvage
logging (Lee et al. 2013, p. 1327; Lee and
Bond 2015, p. 228; Hanson and Chi
2021, p. 5), while other evidence
suggests that salvage logging has no
effect on California spotted owl
persistence or colonization (Jones et al.
2021b, p. 5). Salvage logging can be a
threat to California spotted owls when
their habitat components of large trees,
coarse woody debris, and habitat
heterogeneity are removed from the
landscape, resulting in a decrease in
occupancy at the population level. The
2004 Sierra Nevada Forest Plan
Amendment prohibits salvage harvest in
California spotted owl PACs unless a
biological evaluation determines that
the areas proposed for harvest have been
rendered unsuitable for the purpose
they were intended (i.e., California
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spotted owl habitat) by a catastrophic
stand-replacing event (USFS 2004, pp.
52–53).
Prescribed fire or cultural burning as
a tool for ecosystem management had
been used for millennia by Native
Americans; with the colonization of
North America, Europeans introduced a
culture of fire suppression onto the
landscape (Marks-Block et al. 2021, p.
3). Wildfire suppression is still the
dominant management practice over
prescribed or controlled burning across
much of western North America
(Stephens et al. 2019, p. 391). Between
2017 and 2020, approximately 49,000 ha
(120,000 ac) per year were treated with
prescribed burning across Federal, State,
and Tribal lands in California (Gabbert
2022, entire). The State of California
recently released a report outlining a
plan to increase the use of ‘‘beneficial
fire’’ to 162,000 ha (400,000 ac)
annually by 2025 (California Wildfire &
Forest Resilience Task Force 2022, p. 3).
Spotted owls can persist in low- and
moderate-severity fire areas with similar
probabilities to unburned landscapes
(Roberts et al. 2011, p. 617),
demonstrating their adaptation to a
natural fire regime (Verner et al. 1992,
pp. 247–248; Stephens et al. 2019, p.
394). However, studying the
relationship between spotted owls and
prescribed fire alone is difficult because
there are usually confounding factors of
past timber harvest or salvage logging
(Clark et al. 2012, p. 15). Prescribed
‘‘ecologically beneficial’’ fire is an
important tool for protecting nesting
and roosting habitat from catastrophic
fires and for maintaining diverse
California spotted owl habitat
throughout the landscape (Roberts et al.
2011, p. 617; Stephens et al. 2019, p.
394).
Fuels reductions and forest
management practices within the
California spotted owl’s range include
clearcutting, mechanical thinning,
salvage logging, and prescribed fire.
Depending on the method used and how
it is implemented, fuels reductions and
forest management practices can have
both positive and negative influences on
the species. The existing regulatory
mechanisms and conservation measures
do not completely ameliorate the
negative impacts of fuels reductions and
forest management practices to
California spotted owls; however, land
management direction, including the
Sierra Nevada Forest Plan Amendment,
includes protective standards and
guidelines that must be adhered to
while conducting management activities
in California spotted owl habitat.
Fuels reduction in some form is
necessary to ensure California spotted
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owl habitat persistence because longterm gains in habitat protection
outweigh the short-term negative effects,
especially when conservation measures
are implemented appropriately (Jones et
al. 2021a, p. 2; Jones et al. 2021b, entire;
North et al. 2022, entire; Safford et al.
2022, entire). Differences in forest
management may help explain why
California spotted owl populations
occurring in some mixed ownership
landscapes have higher occupancy,
density, and probability of reproduction
compared to public land (Roberts et al.
2017, p. 113; Hobart et al. 2019, p. 198;
SPI et al. 2022, pp. 9, 17). The need to
increase the pace and scale of fuels
reduction efforts is recognized across
agencies, and, recently, the Department
of the Interior announced funding
through the Bipartisan Infrastructure
Law (Infrastructure Investment and Jobs
Act, Pub. L. 117–58, 135 Stat. 429) to
increase fuels treatments across the
United States (DOI 2022, entire). The
USFS also identified preliminary
projects to address fuel reduction
projects through its wildfire crisis
landscape investments, and two projects
are expected in the near term within the
California spotted owl’s range that
include mechanical thinning and
prescribed fire (Tahoe National Forest
and the Stanislaus National Forest;
USFS 2022a, entire). Fuels reductions
and forest management practices will
likely continue to have varied effects on
California spotted owls throughout the
species’ range.
Competition and Hybridization With
Barred Owls
The barred owl is a closely related
species to the spotted owl, native to
eastern North America (Mazur and
James 2000, ‘‘Introduction’’ section).
Since the 1960s, the barred owl has
been extending its range westward, first
coming in contact with northern spotted
owls and more recently moving into the
California spotted owl’s range (Peterson
and Robins 2003, p. 1162; Livezey 2009,
p. 49; Keane et al. 2018, p. 5). Barred
owls were first detected in northwestern
California in 1982 (Evens and LeValley
1982, p. 890), the Sierra Nevada in 1991
(Dark et al. 1998, p. 53), and along the
coast as far south as Marin County in
California by 2002 (Jennings et al. 2011,
p. 105).
Barred owls and spotted owls have
similar habitat requirements, with old
forests representing high-quality habitat
for both, although barred owls use a
broad mix of forest types (Wiens et al.
2014, pp. 14, 32). Because barred owls
have more habitat flexibility than
spotted owls, there is potential for
barred owls to expand into spotted owl
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habitat through corridors of lower
quality habitat. For example, recent
barred owl sightings from Davis,
California (eBird 2022, entire), suggest
that barred owls could expand across
the Central Valley into California
spotted owl habitat from the west in
addition to the more likely pathway
through forests in the Sierra Nevada.
Although the California spotted owl’s
range has a gap between the Sierra
Nevada DPS and the Coastal-Southern
California DPS, barred owls may be able
to colonize the coastal-southern
California spotted owl’s range because
of the barred owl’s ability to use other
forest types. Detections of barred owls
in coastal forests in the Santa Cruz
Mountains in San Mateo County,
California, an area without known
occurrences of the California spotted
owl, suggests a pathway towards
connectivity to the coastal portion of the
California spotted owl’s range.
Barred owls are aggressively
outcompeting and displacing spotted
owls on the landscape (Wiens et al.
2014, p. 1; Gutie´rrez et al. 2017, p. xvi;
Long and Wolfe 2019, entire). Barred
owls are larger than spotted owls
(Gutie´rrez et al. 2007, pp. 185–186) and
behaviorally dominant (Van Lanen et al.
2011, pp. 2197–2198). Although diet
overlaps between the two species, with
both predominantly feeding on
nocturnal mammals, barred owls are
generalists that consume many more
prey species in comparison to spotted
owls (Wiens et al. 2014, pp. 24–25;
Kryshak et al. 2022, pp. 12–13).
Competition between the two species
results in negative effects to the
survival, productivity, and recruitment
of northern spotted owls (Dugger et al.
2016, pp. 69–91), and barred owls have
been described as demographically
superior to northern spotted owls
because they have higher survival
estimates and produced, on average, 4.4
times more young than northern spotted
owls over a 3-year period (Wiens et al.
2014, p. 28). The presence of barred
owls has caused lower detection rates
and occupancy probabilities in northern
spotted owls (Olson et al. 2005, p. 918;
Crozier et al. 2006, p. 760; Kroll et al.
2010, p. 1264; Yackulic et al. 2012, p.
1953; Yackulic et al. 2014, p. 265).
Although there is some evidence that
lower detection rates may be in part due
to northern spotted owls responding
less frequently in the presence of barred
owls (Crozier et al. 2006, p. 760), the
negative effects of barred owls on
spotted owls are clear.
Although there is no evidence of
barred owls wounding or killing
northern spotted owls (Wiens et al.
2014, p. 33), competition ultimately has
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population-level effects because of
impacts to occupancy and reproduction.
Additionally, barred owls can hybridize
with spotted owls (Gutie´rrez et al. 2017,
p. 211). There are likely broader impacts
on the ecosystem from the barred owl’s
range expansion, such as an imbalance
in predator/prey relationships, causing
even greater impacts to spotted owl
interspecific competition (Holm et al.
2016, p. 615). Because of the wide and
diverse diet of barred owls in
comparison to spotted owls, barred owls
will not be ecological replacements to
the spotted owls that they displace, and
this could have widespread ecological
impacts (Kryshak et al. 2022, pp. 15–
16).
Barred owl detections within the
California spotted owl’s range have
continued to increase. From 1989 to
2013, 51 barred owls and 27 barred owl/
spotted owl hybrids had been detected
in the Sierra Nevada (Gutie´rrez et al.
2017, p. xxv). By 2017, the number of
barred and barred owl/spotted owl
hybrid detections in the Sierra Nevada
increased to approximately 145 (Keane
et al. 2018, p. 7), with another 2.6-fold
increase between 2017 and 2018 (Wood
et al. 2020, p. 4). Even these seemingly
low numbers of barred owls in the
California spotted owl’s range are of
concern, given that in the northern
spotted owl’s range, replacement of
northern spotted owls began at a slow
rate in the early years of the expansion,
followed by a rapid rate of replacement
once the barred owl population reached
a critical mass (Forsman in litt. 2018, p.
1). As shown, over the last 10 years in
particular, barred owl detections
throughout the California spotted owl’s
range have increased at a higher rate
(Service 2022, figure 11).
Experimental barred owl removal
studies were first initiated and are
currently ongoing in the northern
spotted owl’s range (e.g., Diller et al.
2012, entire; Wiens et al. 2020, entire).
In Washington and Oregon, removals
successfully decreased site use by
barred owls and increased northern
spotted owl use within treatment areas
(Wiens et al. 2021, entire). Further,
successful barred owl removals can
result in competitive release for spotted
owls (Wiens et al. 2021, pp. 4–5)
(competitive release describes a
situation in which one of two similar
species competing for the same
resources is removed, allowing the
remaining species to use more of the
resources; this is generally considered
beneficial for the remaining species). In
another (smaller) example of barred owl
removals within the northern spotted
owl’s range, after nine barred owls were
removed from historical northern
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spotted owl sites, all sites were reoccupied by northern spotted owls
within a year of removal: four by the
original residents and five by new
residents (Diller et al. 2012, p. 405).
However, barred owls again replaced
the northern spotted owls at three sites
within 1–4 years of the northern spotted
owls reoccupying those territories
(Diller et al. 2012, p. 405). Overall,
evidence to date indicates some
measure of success for northern spotted
owls related to barred owl removal
efforts in at least some cases. However,
species experts caution that forest
conditions, densities of barred owls, and
numbers of spotted owls would all
factor into whether or not similar results
could be obtained in other areas (Wiens
et al. 2020, p. 1).
Experimental barred owl removal
studies have also recently been initiated
in the California spotted owl’s range,
specifically in the Sierra Nevada
(Hofstadter et al. 2022, entire). In 2017,
a California spotted owl conservation
assessment concluded that control
measures for barred owls in the
California spotted owl’s range were
likely to be more successful and cost
efficient while densities of barred owls
are still relatively low in the California
spotted owl’s range, and that if control
measures were not taken, barred owls
would most likely replace California
spotted owls on the landscape in the
future (though the timescale of this
replacement was uncertain) (Gutie´rrez
et al. 2017, pp. xxxi, xxv; see also Wood
et al. 2020, pp. 5–7). Within the
California spotted owl’s range, barred
owl removal experiments were initiated
in 2018, and have continued through
2022 (Hofstadter et al. 2022, entire).
Between 2018 and 2020, researchers
removed 76 owls (63 barred owls and 13
hybrids) from the Sierra Nevada,
decreasing barred owl occupancy by a
factor of 6.3 down to 0.03 (confidence
interval: 0.01–0.04). Experimental
removals were guided by passive
acoustic monitoring, which was also
used to measure the efficacy of
removals. Partnerships were crucial to
the regional-scale removal, with publicprivate partnerships allowing access to
92 percent of the California spotted
owl’s range in the Sierra Nevada,
including almost all known barred owls
in the area and minimizing refugia for
barred owls. California spotted owls
rapidly colonized territories where
barred owls were removed: 15 out of 27
territories were recolonized by
California spotted owls within 1 year of
barred owl removals, with successful
breeding documented in five of these
territories (Hofstadter et al. 2022, pp. 4–
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5). Early and effective experimental
removals of barred owls within the
California spotted owl’s range in the
Sierra Nevada has dampened the
urgency of this threat, but the potential
for continued and persistent expansion
into the range remains. Funding is
currently available to continue barred
owl removal experiments in the
California extent of the Sierra Nevada
through 2024 (Peery in litt. 2022).
However, continued barred owl
monitoring and experimental removal
would likely need to continue into the
future (Hofstadter et al. 2022, p. 6).
Management options are currently being
evaluated for potential future
implementation.
Regulatory mechanisms and
management actions that are providing
or could potentially provide some
protection from the effects of barred owl
expansion include management teams,
management plans, and habitat
conservation plans (HCPs) that
coordinate, fund, and implement the
experimental removals described above.
However, barred owls are a significant
threat to the persistence of California
spotted owls, and we expect the
magnitude of the threat to increase into
the foreseeable future, particularly if
management efforts are not continued.
Rodenticides
Exposure of nontarget wildlife to
anticoagulant rodenticides threatens
many species, including California
spotted owls, likely because of ingestion
of exposed prey animals, known as
secondary exposure (Gabriel et al. 2018,
p. 5; Franklin et al. 2018, p. 2).
Secondary exposure to anticoagulant
rodenticides in predators such as
raptors can be lethal, with higher levels
causing severe blood loss and internal
hemorrhaging that can result in organ
failure and death (Gomez et al. 2022, p.
147). Although this threat has potential
impacts to individuals, the loss of just
a few individuals may reduce survival
and the population growth rate because
the California spotted owl is a longlived species with low reproductive
rates. This threat would be particularly
detrimental if a parent were exposed
during the breeding season because
hatchlings and juveniles rely on
parental care to survive, so the loss of
just one parent would likely result in
the loss of offspring as well.
Rates of mortality in free-living wild
birds due to anticoagulant rodenticides
are often unknown due to the difficulty
of linking exposure to death and the
lack of understanding of toxicity
thresholds in different species (Gomez
et al. 2022, pp. 147–148).
Documentation of anticoagulant
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rodenticides in ovaries of female barred
owl suggests the possibility for in-utero
transfer to chicks (Hofstadter et al. 2021,
pp. 7–8). Sub-lethal effects of
anticoagulant rodenticides in other owl
species include reduced clutch size,
brood size, fledging success, slower
clotting time, residual transfer to eggs,
anemia, and impaired mobility;
however, these impacts have not yet
been documented in spotted owls
(Rattner et al. 2012, p. 832; Salim et al.
2014, p. 113; Gabriel et al. 2018, p. 7;
Gomez et al. 2022, p. 148).
Although there is little information
specific to California spotted owls
regarding the exposure rates and
resulting impacts of rodenticides,
available literature on other species
suggests the potential for widespread
exposure. Exposure of nontarget species
to anticoagulant rodenticides is
commonly associated with agricultural
or urban settings, but exposure in forest
settings in northern California is
detrimental to northern spotted owls
and barred owls (Gabriel et al. 2018, p.
5; Franklin et al. 2018, p. 2). Seven out
of 10 northern spotted owl carcasses
tested positive for anticoagulant
rodenticides, and 40 percent of 84
barred owls tested in the northern
spotted owl’s range had been exposed
(Gabriel et al. 2018, pp. 4–5). In another
study using barred owls as a proxy for
spotted owls, almost half of barred owls
sampled (n=40) and one northern
spotted owl sampled demonstrated
exposure to anticoagulant rodenticides
(Wiens et al. 2019, p. 4). High rates of
exposure were also demonstrated in
barred owls and barred owl/spotted owl
hybrids in California, with females
having higher rates of exposure than
males (Hofstadter et al. 2021, pp. 6–7).
Large amounts of rodenticides and other
pesticides have been found on USFS
land in the southern Sierra Nevada
(Thompson et al. 2013, pp. 95–99).
Approximately 85 percent of fisher
(Martes pennanti—a carnivorous
predator with similar habitat
requirements as California spotted owls)
carcasses tested in the Sierra National
Forest had been exposed to rodenticides
(Gabriel et al. 2012, pp. 1–14;
Thompson et al. 2013, pp. 91).
Anticoagulant rodenticide use has
increased throughout California with
increases in illegal marijuana
cultivation, as anticoagulant
rodenticides are used to control rodent
damage to the plants (Franklin et al.
2018, p. 1). A comparison of marijuana
cultivation site likelihood with northern
spotted owl suitable habitat found
almost 50 percent overlap between the
two (Wengert et al. 2021, p. 10).
Although the number of illegal
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marijuana growing operations within
the California spotted owl’s range is
unknown, considering the number of
illegal marijuana growing operations
found throughout the State, there are
likely thousands within the California
spotted owl’s range (Gabriel et al. 2012,
pp. 12–13; Thompson et al. 2013, pp.
95–99; Gabriel et al. 2018, p. 6).
In 2014, the California Department of
Pesticide Regulation restricted the
purchase, possession, and use of
anticoagulant rodenticides in the State
to purchase and use by a certified
pesticide applicator with a permit
issued by the county agricultural
commissioner in order to protect
wildlife; however, anticoagulant
rodenticides associated with illegal
marijuana grows are more likely the
source of contaminants. If illegal
marijuana grows are found, State law
enforcement will shut the operations
down, but there is currently no
standardized clean-up protocol and a
limited amount of funding to ensure
removal of all rodenticides. Recently
there has been an increased effort to
locate and shutdown illegal marijuana
grows on public lands in California
called Operation Forest Watch
(Department of Justice 2018, entire).
Overall, anticoagulant rodenticides are
likely affecting owls across their range,
and we expect this threat will continue
into the foreseeable future.
Development
Anthropogenic land use (including
both cultivation and development) in
California is expected to increase 28
percent by 2100 with a projected 3
percent decrease in overall forest land
cover (Sleeter et al. 2017, pp. 1068,
1075). Urbanization is projected to be a
primary driver of land use and land
cover change in California over this time
frame (Sleeter et al. 2017, p. 1076).
Urban development is a threat
throughout the range of California
spotted owls; however, the threat is
more substantial in the coastal and
southern California population (Sleeter
et al. 2017, p. 1081, figures 6 and 7). A
majority of California spotted owl
habitat occurs on public lands
(approximately 71 percent of total
range); therefore, this threat is primarily
limited to a small amount of private
lands.
Southern California faces high
development demands with specific
threats of wind farms and large
reservoirs impacting connectivity
within the California spotted owl’s
range (Gutie´rrez et al. 2017, pp. 253–
254). Loss of riparian areas due to water
diversion in southern California has
created barriers to dispersal among
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small populations (Gutie´rrez et al. 2017,
pp. 253–254). The southern California
area of the California spotted owl’s
range is fragmented, with low dispersal
between populations, so more
development could further exacerbate
fragmentation (LaHaye et al. 2001, p.
692; Barrowclough et al. 2005, p. 1116;
Gutie´rrez et al. 2017, pp. 253–254).
In the Sierra Nevada, low- to midelevation development is considered a
threat to the California spotted owl and
its habitat (Verner et al. 1992, pp. 264–
265). Low- and mid-elevation zones in
the Sierra Nevada continue to
experience human population growth,
which may increase the demand for
development. Fifty percent of known
California spotted owl sites on the west
slope of the Sierra Nevada are
considered wildland-urban interface
and may be vulnerable to further
development (Gutie´rrez et al. 2017, p.
207). The northern Sierra Nevada is
expected to have a higher level of forest
harvest compared to other parts of the
California spotted owl’s range (Sleeter et
al. 2017, p. 1081, figure 7). Overall,
development is likely affecting owls
across their range, and we expect this
threat will continue into the foreseeable
future.
Conservation Efforts and Regulatory
Mechanisms
Mechanisms and actions related to the
California spotted owl and its habitat
include State and Federal laws and
regulations, federal incidental take
permits, and forest management on
USFS lands. In this proposed rule, we
describe the key actions related to the
California spotted owl and its habitat.
For a full description of all conservation
efforts and regulatory mechanisms,
please see the SSA report (Service 2022,
pp. 57–66).
The USFS has been a part of ongoing
conservation efforts for California
spotted owls, including the 2004 Sierra
Nevada Forest Plan Amendment, which
includes USFS land in the Lassen,
Plumas, Tahoe, Humboldt-Toiyabe,
Eldorado, Stanislaus, Sierra, Inyo, and
Sequoia California spotted owl analysis
units, and the 2005 Southern California
National Forest Land Management
Plans, which includes the Los Padres,
Angeles, San Bernardino, and Cleveland
California spotted owl analysis units. In
2019, the Inyo National Forest
completed its own land management
plan, and revised forest plans for the
Sierra and Sequoia National Forests are
expected to be final in 2023 (Miller in
litt. 2022). Once these plans are
finalized, the Inyo, Sierra, Sequoia
National Forests will follow their
individual plans and no longer follow
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the 2004 Sierra Nevada Forest Plan
Amendment. All of these are regulatory
documents that provide conservation
measures for California spotted owls on
USFS lands (USFS 2004, entire; USFS
2005, entire; USFS 2019a, pp. 43–47;
USFS 2022b, pp. 59–68; USFS 2022c,
pp. 59–68). The main goals of these
conservation efforts include protection
and management of California spotted
owl activity centers and home range
core areas, increasing the frequency of
large trees on the landscape, and
increasing structural habitat diversity.
The goals relate to increasing the
condition of the species’ ecological
needs to increase resiliency and provide
conservation efforts related to the
threats of large-scale, high-severity fire;
clearcutting; mechanical thinning; and
salvage logging.
The 2004 and 2005 USFS land
management plans and the 2019 Inyo
National Forest and 2022 draft versions
of the Sierra and Sequoia National
Forest plans maintain the designation of
PACs for California spotted owls, which
encompass the best available 121 ha
(300 ac) of habitat in as compact of a
unit as possible around a nest tree
(USFS 2004, p. 37; USFS 2005, p. 109;
USFS 2019a, p. 43; USFS 2022b, p. 61;
USFS 2022c, pp. 61–62). There are
special considerations for any land
management activities or projects that
may take place within a PAC.
Depending on the plan, management
standards and guidelines include
conducting surveys during the planning
process of vegetation treatments where
appropriate (i.e., in areas of suitable
habitat for California spotted owls),
limiting activities to reducing surface
and ladder fuels through prescribed fire,
limiting mechanical treatments to only
allow fuel reduction treatments in some
wildland urban defense zones where
prescribed fire is not feasible,
identifying maximum size of canopy
gaps created within California spotted
owl territories, requiring a limited
operating period for when vegetation
treatments can occur, and limiting the
impacts a vegetation treatment can have
on a PAC per year (USFS 2004, pp. 50–
51, 54, 60–61; USFS 2005, pp. 7, 82–83;
USFS 2019a, pp. 43–47; USFS 2022b,
pp. 63–68; USFS 2022c, pp. 63–68).
In addition to protections, the 2004
Sierra Nevada Forest Plan Amendment
and the 2022 version of the Sierra and
Sequoia National Forest Plans outline
desired conditions for PACs and other
large habitat blocks within the home
range that include at least two tree
canopy layers, dominant and codominant trees with average diameters
of at least 61 cm (24 in) dbh, at least 60
percent to 70 percent canopy cover,
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some very large snags (greater than 114
cm (45 in) dbh), and snag and course
woody debris levels that are higher than
average (USFS 2004, pp. 37, 39–40;
USFS 2022b, pp. 60–61; USFS 2022c,
pp. 60–61). As discussed below, in
April 2019, the USFS finalized a new
California spotted owl conservation
strategy for the Sierra Nevada (USFS
2019b, entire). The intention of the
strategy is to be used for adaptive
management and to be incorporated into
future forest plan updates, although it is
not legally enforceable and does not
commit agency action or inaction.
As described above in ‘‘Fuels
Reduction and Forest Management,’’
there is disagreement about whether or
not measures in these plans, such as
mechanical thinning, are beneficial or
detrimental to California spotted owls,
and whether or not protections afforded
to PACs are sufficient to ameliorate
impacts to California spotted owls (John
Muir Project of Earth Island Institute
and The Wild Nature Institute 2014, pp.
70–71, 98, 108; Sierra Forest Legacy and
Defenders of Wildlife 2015, pp. 39–40).
However, a meta-analysis of California
spotted owl occupancy and forest
management practices indicated that
mechanical thinning treatments that
maintain canopy cover at 40 percent or
greater would not substantially reduce
California spotted owl occupancy,
although canopy cover at 50 percent or
above is more strongly correlated with
California spotted owl occupancy
(Tempel et al. 2016, pp. 761–762).
Forest management practices from the
2004 Sierra Nevada Framework
generally maintain at least 50 percent
canopy cover as well as large trees
within PACs, and in the 2005 Southern
California plan, 40–50 percent canopy
cover must be maintained. The 2019
Conservation Strategy also maintains a
minimum of 50 percent canopy cover
within PACs (USFS 2019b, p. 28).
Overall, PACs are designated to preserve
key habitat used by California spotted
owls, and some researchers have
concluded that PACs are a key
conservation tool that should continue
to be implemented (Berigan et al. 2012,
pp. 300, 303). In contrast, other research
has shown that PACs can be more
susceptible to the effects of highseverity fire due to the relatively larger
amounts of surface fuel (North et al.
2012, p. 395).
In April 2019, the USFS completed an
updated California spotted owl
conservation strategy for the Sierra
Nevada national forests (USFS 2019a,
entire). The updated strategy includes
new scientific understanding since the
2004 Sierra Nevada Forest Plan
Amendment and will be incorporated
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into national forest land management
plans as they are updated in the coming
years, in accordance with USFS
regulations in title 36 of the Code of
Federal Regulations (CFR) at part 219.
Until the revised national forest land
management plans can be completed,
the Pacific Southwest Region of the
USFS sent a letter of direction to the
Sierra Nevada national forests on April
19, 2019, to provide guidance on
implementing the new conservation
strategy in the interim (USFS 2019b,
entire). The new conservation strategy
gives direction for increased pace and
scale of ecological restoration to provide
more resilient habitat for California
spotted owls, while simultaneously
continuing to protect the most
important habitat attributes and areas
for California spotted owls.
The three main goals for the 2019
conservation strategy include: (1)
Maintain a well-distributed and stable
California spotted owl population across
the Sierra Nevada by minimizing
impacts from non-habitat threats (such
as barred owls and contaminants); (2)
promote and maintain well-distributed
California spotted owl habitat by
developing key habitat elements and
connectivity; and (3) promote California
spotted owl persistence by enhancing
habitat resilience to multiple
disturbances, considering climate
change. This increased habitat resilience
will lead to improved conditions on the
landscape and greater population
resiliency. The new strategy provides
adaptive management and metrics for
success in order to ensure the
conservation measures outlined in the
plan are beneficial to California spotted
owls.
In addition to the conservation
strategy, the USFS is planning to
implement a new monitoring plan using
acoustic recording units to cover the
Sierra Nevada portion of the California
spotted owl’s range. The goal is to use
the information from the new
monitoring plan to allow the USFS to
conduct a future California spotted owl
occupancy modeling effort to provide
information over a larger portion of the
California spotted owl’s range and allow
greater potential for inference on broadscale effects of restoration and
disturbance (USFS 2019c, pp. 14–15).
Elements of the strategy may entail
some short-term, localized reduction in
occupancy. These elements allow for
more forest management flexibility in
application of fuels reduction and other
landscape treatment projects as
compared to the 2004 Sierra Nevada
Forest Plan Amendment both within
PACs and on the landscape, as well as
more flexibility in the retirement of
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PACs when they are no longer occupied.
Additional flexibility in these landscape
treatments provides access to additional
tools to maintain and restore California
spotted owl habitat (USFS 2019a,
entire). We anticipate that the shortterm impacts that may occur for the
purpose of fuel reduction and forest
health will be outweighed by the longterm benefit as more sustainable and
dynamic habitat is developed through
active management (USFS 2019a, p. 2).
On August 30, 2017, an MOU
(hereafter referred to as the Fire MOU)
was signed by SPI, CAL FIRE, National
Fish and Wildlife Foundation, and the
USFS, which will impact all lands from
Lassen National Forest south through
Stanislaus National Forest. The purpose
of the Fire MOU is to document the
agreement between the parties to
coordinate on certain actions to reduce
the risk of large-scale, high-severity
wildfire through forest fuels reduction
to benefit California spotted owl
conservation. This MOU involves
establishing a strategic conservation
framework to help restore and protect
areas where California spotted owls are
threatened by habitat degradation due to
uncharacteristically extensive and
severe adverse fire effects. The Fire
MOU is designed for signatories to
engage in collaborative landscape-level
fuels and fire risk reduction treatments
to: (1) Minimize potential fire-related
impacts to California spotted owl
activity centers on Federal, State, and
private lands; and (2) better coordinate
implementation of fuels reduction work
on Federal, State, and private lands to
maximize the effectiveness of this work.
Sites for fuels treatment are selected to
minimize risk to known occupied
California spotted owl activity centers.
Measures associated with the Fire MOU
include fire management activities such
as increased mechanical thinning that
may benefit California spotted owls by
decreasing risk of large-scale, highseverity fire. If mechanical thinning is
planned with consideration of the
California spotted owl’s habitat needs,
there may be some negative impacts, but
these would be outweighed by reducing
the risk of large-scale, high-severity fire
in California spotted owl activity
centers (Jones et al. 2016a, p. 305;
Service 2017, pp. 24–25; Chiono et al.
2017, p. 1; Jones et al. 2021b, p. 6).
The USFS, SPI (a private corporation),
and CAL FIRE manage forest lands in
California that are frequently adjacent to
each other and have ongoing programs
to protect and enhance habitat for fish
and wildlife. On these lands, forest fuels
are managed to reduce fire risk and its
potential impacts on wildlife species.
Under State law, SPI has the authority
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to participate in fire suppression on its
own lands, while CAL FIRE, contract
counties, USFS, and other government
agencies have primary fire suppression
responsibility for all Federal, State, and
private wildlands in California. The
parties also have responsibilities and
interests in the inventory of their
respective lands for species recognized
as endangered, threatened, proposed as
endangered or threatened, candidate,
and sensitive species by the Federal or
State government. The parties also have
responsibility and interest in the
development of appropriate protection
measures for these species. Due to these
natural resource challenges, the Fire
MOU parties believe it is important to
establish a coordinated, multistakeholder agreement to help protect
and enhance forest resources.
Though the Fire MOU was initially
set to expire on December 2019, an
amendment was signed in April 2019 to
extend the terms of the MOU through
December 2024. In March 2020, a new
MOU that supersedes the 2017 MOU
and 2019 amendment was signed by the
same parties. An amendment to the
2020 Fire MOU was signed in
September 2020 to add a number of new
commercial forest landowners. The
terms of the 2020 MOU are effective
through December 2024. The Service is
actively engaged with the signatory
parties to discuss fuels reduction efforts
and associated monitoring.
Barred owls have expanded into
western North America over the past
several decades, first through the Pacific
Northwest and more recently into the
Sierra Nevada. The Service and the
USFS are funding researchers at the
University of Wisconsin-Madison to
carry out an ongoing barred owl removal
study. The project grant was signed in
August of 2018, and funding has been
secured from the Service and potentially
University of Wisconsin-Madison
through 2025 (Peery in litt. 2022). The
project addresses several key questions
related to the range expansion of barred
owls in the Sierra Nevada and will
inform the development of a
scientifically based barred owl
management plan. Specifically, this
project: (1) Assesses the current
distribution and density of barred owls;
(2) conducts experimental barred owl
removals; (3) tests for reductions in
barred owl site occupancy rates; (4)
quantifies spatiotemporal patterns of
barred owl recolonization; and (5)
characterizes barred owl dispersal into
and within the Sierra Nevada. This
project takes place primarily in the
northern and central Sierra Nevada,
including Lassen National Forest,
Lassen National Park, Plumas National
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Forest, Tahoe National Forest, Eldorado
National Forest, Yosemite National
Park, and Sequoia-Kings Canyon
National Park.
Additionally, on July 22, 2022, the
Service published in the Federal
Register (87 FR 43886) a notice of intent
to prepare an environmental impact
statement, initiating a 30-day public
scoping period seeking input on barred
owl management in the northern
spotted owl’s and California spotted
owl’s ranges. Preventative barred owl
management for California spotted owls
will likely be considered in the
environmental impact statement.
Northern spotted owls are the main
focus right now, but barred owls have
expanded into northern California into
the California spotted owl’s range and
are expected to continue to expand
without continued management.
Currently, two HCPs include the
California spotted owl. Habitat
conservation plans are planning
documents required as part of an
application for an incidental take
permit; they can apply to both listed
and non-listed species, including those
that are candidates or have been
proposed for listing. They describe the
anticipated effects of the proposed
taking; how those impacts will be
minimized or mitigated to the maximum
extent practicable; and how the HCP is
to be funded.
Sierra Pacific Industries is the largest
private forest land owner in California,
with approximately 744,621 ha
(1,840,000 ac) of timberland in northern
California (SPI 2021, p. 1). Sierra Pacific
Industries’ habitat conservation plan for
both the northern spotted owl and
California spotted owl covers all areas
on SPI-managed property where covered
activities will occur within the range of
the two spotted owl subspecies, which
is more than 607,028 ha (1,500,000 ac)
(SPI 2021, p. 2). Covered activities
under the HCP include timber
operations and other forest management
activities. Major activities associated
with the HCP include growing,
harvesting, and transporting timber;
timber stand regeneration and
improvements; road and landing
construction and maintenance; fuel
break construction and maintenance;
and monitoring and research (including
for spotted owls) (Service 2020, p. 8).
Implementation of the HCP is not
expected to result in direct injury or
mortality of California spotted owls due
to the implementation of conservation
measures that will be implemented
throughout the 50-year permit term.
These measures will support California
spotted owl species needs and address
threats currently affecting the species,
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including reducing the risk of
catastrophic fire and eradication of
illegal marijuana plantations (Service
2020, pp. 10–13).
In 2015, SPI began studying barred
owls via removal experiments. In 2018,
the study was revised to include the
following objectives: (1) assess the
genetic differentiation of barred owl
populations across northern and central
California, (2) analyze allele frequency
changes on the front of the range
expansion, (3) estimate the amount of
spotted owl-barred owl interbreeding
(admixture) in each population, and (4)
identify what barred owls are preying
on in California. These efforts are
ongoing, and SPI has committed to
continue these efforts during the term of
the permit, as feasible. Ongoing research
and monitoring efforts for California
spotted owls on SPI land have indicated
that some California spotted owl
populations in mixed-ownership
landscapes have higher occupancy,
density, and probability of reproduction
compared to California spotted owl
populations on public land (Roberts et
al. 2017, p. 113; Hobart et al. 2019, p.
198; SPI et al. 2022, pp. 9, 17).
The Western Riverside County
Multiple Species Habitat Conservation
Plan (MSHCP) is one of the largest
habitat conservation plans in the United
States, covering 202,343 ha (500,000 ac).
The California spotted owl is currently
listed as a ‘‘species not adequately
conserved’’ under the MSHCP until an
MOU is executed with the USFS that
addresses management of California
spotted owls on USFS lands. The
MSHCP plan area includes 21,901 ha
(54,119 ac) of modeled habitat for
California spotted owls. If the MOU
with the USFS is signed, the loss of
5,223 ha (12,905 ac) (24 percent) of this
modeled habitat is anticipated over the
75-year permit term. With the low
density of California spotted owls in the
plan area, loss of these 5,223 ha (12,905
ac) is not anticipated to result in direct
mortality of adult birds. However, loss
of foraging and nesting habitats to
development will cause California
spotted owls in impacted areas to
disperse in search of other habitats.
Thus, loss of breeding and foraging
habitat may impact overall population
numbers of California spotted owls
within the plan area over the long term
by reducing the number of areas suitable
for use as foraging and nesting sites
(Service 2004, p. 449). In order to offset
these impacts, the MSHCP will conserve
and manage 535 ha (1,321 ac) (2
percent) of modeled habitat for
California spotted owls within
additional reserve lands. In total, 16,679
ha (41,214 ac) (76 percent) of the
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modeled habitat for California spotted
owls will be included in the MSHCP
conservation area. If the MOU with the
USFS is signed, additional monitoring
and management would occur in habitat
for California spotted owls within USFS
lands included in the MSHCP
conservation area.
Combined Impacts of Threats
The threats discussed above not only
act independently, but also interact with
each other. It is important to assess the
relationship between threats because
there may be new or exacerbated
impacts that are not considered when a
threat is assessed alone. There are a vast
number of ways threats may be
interacting with each other, but the SSA
report and this proposed rule only focus
on what is currently most relevant to the
viability of the species.
For example, climate change
intensifies the threats of large-scale,
high-severity fire; drought; and tree
mortality, and it increases interannual
climate variability (Kadir et al. 2013, pp.
132, 137; Stephens et al. 2018, p. 77).
Development in wildland-urban
interfaces also increases the likelihood
of large-scale, high-severity fire (Mann
et al. 2016, pp. 14–18). An increase of
large-scale, high-severity fires with
changing climate conditions can lead to
accelerated, fire-facilitated conversion
of forest edge to non-forested habitat
(Parks et al. 2019, pp. 1, 7). The impacts
to the California spotted owl would
likely range from direct physiological
impacts to indirect habitat and prey
impacts. The loss of trees due to highseverity fire, drought, and tree mortality
would likely lead to increased salvage
logging on the landscape, further
reducing California spotted owl habitat.
Additionally, the expansion of barred
owls outcompeting California spotted
owls in combination with timber
harvest outside of PACs further worsens
the outlook for habitat availability.
Spotted owls living near the wildlandurban interface may be at a higher risk
for exposure to anticoagulant
rodenticides, as is the case for barred
owls and hybrids (Hofstadter et al. 2021,
p. 8).
Barred owls are moving south into the
California spotted owl’s range, so the
northern portion of the Sierra Nevada
DPS will likely experience a greater
magnitude of this threat, and earlier in
time. Tree mortality is more
concentrated in the Sierra Nevada DPS
than other parts of the landscape and
may experience more significant
impacts from this threat. The threat of
wildfire is of higher magnitude in the
Coastal-Southern California DPS.
Considering the temporal, spatial, and
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interactive components of all the threats
together is important for understanding
the viability of California spotted owls
throughout their range now and into the
future.
Current Condition
For our current condition analysis in
the SSA report and this proposed rule,
we considered the status of the two
populations of California spotted owls:
the Sierra Nevada population and the
coastal-southern California population.
As described above in Background, to
analyze these populations in more
detail, we further divided them into
analysis units; however, we recognize
that these units do not function
independently, and in areas where the
species’ distribution is continuous, like
the Sierra Nevada population, impacts
to one unit may result in impacts to an
adjacent unit. We assessed the condition
of all California spotted owls’ ecological
needs where information was available
for each analysis unit, including the
demographic factors of survival,
fecundity, occupancy, and population
growth, and habitat components of large
trees and canopy cover. In addition,
because high-severity fire has significant
effects on the condition of habitat
within an analysis unit, we also
incorporated results from our fire
analysis. For each population, we
present an overview of the available
information on ecological conditions
and threats across the entire population,
our analysis of the demographic factors
and habitat components within each
analysis unit to determine current
condition, and a summary assessing
population resiliency. In this proposed
rule, for each DPS, we then assess
California spotted owl redundancy and
representation under the current
condition analysis.
For detailed information on how we
determined all demographic and habitat
scores, total scores for each population
and analysis unit, and uncertainties
considered in the analysis, please see
the SSA report (Service 2022, pp. 70–
77).
Sierra Nevada DPS Current Resiliency
Resiliency is the ability of a species to
withstand stochastic events, the normal
year-to-year variations in both
environmental conditions and
demographic conditions (Redford et al.
2011, p. 40). Determined by the size and
growth rate of the populations
comprising the species, resiliency can
be evaluated to gauge the ability of a
species to weather the natural range of
favorable and unfavorable conditions.
Until recently, California spotted owls
and suitable habitat were relatively
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well-distributed in the Sierra Nevada
with few barriers to dispersal (Gutie´rrez
et al. 2017, p. 94): as of 2017, an
estimated 1.98 million ha (4.9 million
ac) of suitable habitat for California
spotted owls were available in the Sierra
Nevada, primarily on Federal lands
(Gutie´rrez et al. 2017, pp. xx, 123). Of
that land, 75 percent is managed by the
USFS, 7 percent is managed by the NPS,
and 18 percent is either privately owned
or managed by other government
agencies (Gutie´rrez et al. 2017, p. xx).
However, recent large, catastrophic fires
have reduced available habitat and have
likely created new barriers for California
spotted owl dispersal in this DPS. Other
barriers to dispersal include urban and
suburban development, large reservoirs,
physiographic features such as nonforested or unsuitable habitat or
vegetation communities, or lack of
riparian areas to act as corridors through
unsuitable extents (Gutie´rrez et al. 2017,
pp. 94–95, 253–254).
From our habitat analyses, we found
that the Sierra Nevada has higher
canopy cover and tree size values than
southern California (Service 2022, tables
5, 9, and 13). When comparing the
northern to the southern Sierra Nevada,
the north contains higher canopy cover,
which aligns with historical forest
structure data that tend to show more
dense forests in the northern Sierra
Nevada (Van Wagtendonk et al. 2006, p.
250), with the exception being on the
east side of the Sierra Nevada
(Humboldt-Toiyabe and Inyo analysis
units), which contains more open and
disjunct habitat than the west side.
Higher canopy cover combined with
higher precipitation levels tend to result
in lower tree mortality in the northern
Sierra Nevada, which may have helped
reduce the potential for megafires in the
northern Sierra Nevada in past years,
but climate change impacts of reduced
snowpack and increased temperatures
show that increased fire risk is also
occurring in the northern Sierra Nevada.
We also found that the two units mostly
composed of National Parks (Yosemite
and Sequoia-Kings Canyon) contain the
largest tree size percentages. Overall, the
overlap values between canopy cover
and large trees were low across all
analysis units (Service 2022, table 9).
The threats that are currently
impacting the Sierra Nevada population
include large-scale, high-severity fire;
tree mortality; drought; climate change;
various impacts from fuels reductions
and forest management; competition
with barred owls; and rodenticides.
These threats are not equivalent across
all analysis units within the Sierra
Nevada population (Service 2022, pp.
77–87). For example, competition with
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barred owls is more pronounced in the
northern part of this population than in
the southern portion, and the threat
from rodenticides is more pronounced
at the wildlife-urban interface. However,
some threats, like fire, are considered a
threat across the population, and there
is a general increasing trend in the
annual acreage and relative proportion
of high-severity fires in the Sierra
Nevada (Keane in litt. 2022, p. 3). In
2020–2021, the percent of habitat that
burned at high severity within
California spotted owl PACs in the
Sierra Nevada was almost twice as that
from 1993–2019; in 1993–2019, 44
percent of habitat burned, with 35
percent of that at high severity,
compared to 65 percent of fire being
high severity in 2020–2021 (Keane in
litt. 2022, p. 5).
We conducted a separate fire analysis
for the entire California spotted owl’s
range, which includes PACs as well as
additional acreage outside PACs
(Service 2022, pp. 29–30, appendix I).
Our fire analysis shows similar results,
with approximately 42 percent of the
California spotted owl’s range in the
Sierra Nevada burned between 1984 and
2021, with 7 percent and 12 percent of
that total from acreages burned in 2020
and 2021, respectively. Of the 42
percent of California spotted owl’s range
burned within the Sierra Nevada,
approximately 13 percent was burned at
high severity (Service 2022, appendix I).
In our supplemental analysis that
analyzes habitat and fire metrics along
an ecological boundary between the
northern and southern Sierra Nevada,
we found that both portions of the
Sierra Nevada burned at similar
amounts between 1984 and 2021
(Service 2022, appendix I). However,
the majority of burned acreage in the
northern Sierra Nevada occurred in
2021 (18 percent burned with 9 percent
at high severity compared to 5 percent
or less in all other years and 2 percent
or less at high severity from 1984 to
2021). In the southern Sierra Nevada, 11
percent burned in 2020 with 2 percent
at high severity in 2020 and 2021,
compared to 5 percent or less total
burned and 1 percent or less at high
severity from 1984 to 2021 (Service
2022, appendix I). These results suggest
higher levels of disturbance to the
species and increased recovery time for
habitat conditions to improve post-fire
because such a large acreage burned
over a relatively concentrated period of
time.
In addition to common threats acting
on all analysis units within this
population, there are also common
management actions taking place within
the Sierra Nevada population. For
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example, the USFS designates PACs
around known California spotted owl
nest trees, so analysis units containing
national forests (e.g., all Sierra Nevada
population analysis units except for
Yosemite and Sequoia-Kings Canyon)
include these protections. Further,
barred owl removal experiments in the
northern Sierra Nevada have so far been
successful in avoiding the catastrophic
impacts that could have occurred in the
absence of any management.
The current condition of analysis
units throughout the Sierra Nevada
population varies, with three analysis
units currently considered stable, five
declining, and three strongly declining
(Service 2022, table 12). All three of the
units ranked as strongly declining are
on the upper boundary of our scoring
system for the SSA report. Based on
these results, the overall condition of
the Sierra Nevada population is
declining and, therefore, has low
resiliency. However, though resiliency
has declined from historical conditions
and connectivity has decreased, the
Sierra Nevada population is still
distributed throughout its historical
range, and ongoing conservation
measures and regulatory mechanisms
are decreasing the magnitude of threats.
Therefore, the Sierra Nevada population
maintains the ability to withstand
stochastic events.
Sierra Nevada DPS Current Redundancy
To assess current redundancy of the
Sierra Nevada DPS, we consider the
ability of a species to withstand
catastrophic events, i.e., natural or
anthropogenic stochastic events that
would result in the loss of a substantial
component of the overall species
population. However, redundancy is not
simply a measure of the total number of
individuals or populations of a species,
but instead must also be evaluated in
the context of an assessment of
reasonably plausible catastrophic
events. For example, when we consider
the redundancy of an entity comprised
of a single population that is very large
and widely distributed, it could have a
high ability to withstand a catastrophic
event that would only affect a small
percentage of the overall population.
Therefore, our characterization of the
Sierra Nevada DPS’s redundancy takes
into consideration both an assessment of
the size and distribution of its
population, and an evaluation of the
kinds and likelihood of reasonably
plausible catastrophic events to which
the species could be exposed.
Of the two populations throughout
the species’ range, the Sierra Nevada
population that makes up the Sierra
Nevada DPS covers the most area and is
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the largest population. Catastrophic
events that could impact California
spotted owls include very large, highseverity wildfire; extreme drought;
extreme weather events; and prolonged
and persistent competition and
displacement due to barred owl
expansion. Overall, current California
spotted owl redundancy has declined
from historical condition, which risks
making the species more vulnerable to
extirpations from catastrophic events.
However, the Sierra Nevada DPS is
large, contiguous, and still distributed
throughout its historical range, meaning
it is more able to recover from events
such large, catastrophic wildfires.
Sierra Nevada DPS Current
Representation
In this proposed rule, to assess
current representation, which is the
California spotted owl’s current ability
to adapt to change, we considered the
ecological setting and genetic diversity
in the Sierra Nevada DPS. In the Sierra
Nevada population, a majority of
California spotted owls occur within
mid-elevation ponderosa pine, mixedconifer, white fir, and mixed-evergreen
forest types, with few California spotted
owls occurring in the lower elevation
oak woodlands of the western foothills
(Gutie´rrez et al. 2017, p. xix). Further,
California spotted owls in the northern
portion of the Sierra Nevadas tend to
have larger home range sizes than
California spotted owls in the southern
portion of the mountain range (Gutie´rrez
et al. 2017, p. xviii). Within the Sierra
Nevada, the northern portion of the
range experiences more precipitation
and lower mean temperatures than the
southern portion of the range (Climate
Engine 2017, unpaginated). The
diversity in habitat and climate between
and within the areas for which we have
data suggests that the species has some
flexibility to adapt to changing
environmental conditions.
Of the three spotted owl subspecies
(northern, California, and Mexican),
California spotted owls have the lowest
genetic diversity when measured by
unique haplotypes (Barrowclough et al.
1999, pp. 919, 927; Haig et al. 2004, p.
683). This suggests that California
spotted owls have lower genetic
representation in general than either of
the other two subspecies. However,
whether the observed level of genetic
diversity indicates low representation is
unclear. Because the California spotted
owl has persisted throughout much of
its historical range for an extended
period of time, the relatively low genetic
diversity may be an historical artifact
rather than an indication of concern for
representation. Within the California
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spotted owl subspecies, genetic
differences are found between California
spotted owls found in the Sierra Nevada
and those found in coastal-southern
California; this provides some degree of
genetic representation at the subspecies
level, although not enough for each
population to be considered a separate
subspecies (Barrowclough et al. 1999, p.
927; Gutie´rrez et al. 2017, p. 101; Hanna
et al. 2018, pp. 3946–3947, 3949).
Whole-genome data indicate that there
is greater genetic difference between
California spotted owls (in the northern
and southern extent of the subspecies’
range) than there is between northern
spotted owls and California spotted
owls in the northern portion of the
range; this is consistent with isolationby-distance (geographic differences
increase with geographic scale) (Hanna
et al. 2018, pp. 3946–3947). The genetic
differences observed between
populations, as well as the habitat and
climate differences, may represent a
moderate degree of adaptation and thus
moderate representation at the
subspecies level.
Though the Sierra Nevada DPS has
lower representation than the
subspecies as a whole, the California
spotted owl continues to inhabit
different ecological settings throughout
the Sierra Nevada. The overall condition
of the DPS has declined, which has
likely resulted in reduced genetic
diversity. Therefore, current California
spotted owl representation in the Sierra
Nevada DPS has declined from
historical condition, suggesting that the
ability for the taxon to adapt to change
is decreased.
Coastal-Southern California DPS
Current Resiliency
Habitat within the Coastal-Southern
DPS is considered to be naturally
fragmented, with little dispersal
occurring between subpopulations due
to discontinuous mountain ranges
(Gutie´rrez et al. 2017, pp. 93–95). This
natural fragmentation has been further
fragmented by development/habitat loss
in the greater southern California area.
Specific information about habitat and
demographic conditions, when
available, is incorporated below for each
of our southern California analysis
units. The available evidence does not
document successful dispersal between
the San Bernardino, San Gabriel, and
San Jacinto Mountains, which are
adjacent mountain ranges, indicating
that if dispersal does occur within this
population, it is very rare (LaHaye et al.
2001, entire; LaHaye et al. 2004, entire;
Gutie´rrez et al. 2017, pp. 242, 250).
As previously discussed, within this
population, occupancy data are only
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available for the San Bernardino
Mountains. The San Bernardino
Mountains have historically contained
the largest number of California spotted
owls, suggesting that information
extrapolated from this area would lead
to a too optimistic view for the overall
population (Gutie´rrez et al. 2017, p.
242). Data from one recent study
showed higher occupancy in the San
Bernardino Mountains than the San
Jacinto and San Gabriel Mountains, and
the authors suggest that other parts of
southern California may also have
experienced greater declines than this
area (Tempel et al. 2022, pp. 20–21).
As mentioned for the Sierra Nevada
population, our habitat analyses found
that habitat values for large trees and
canopy cover were lower in southern
California than in the Sierra Nevada
(Service 2022, tables 5, 9, and 13).
Overlap between canopy cover and large
trees was also low (Service 2022, table
13). In southern California, high canopy
cover is positively associated with
California spotted owl reproductive
output, but large trees appeared to be
more important than high canopy cover
(Tempel et al. 2022, p. 22) and are also
important for occupancy. Our analysis
found large tree values for southern
California are low, which may indicate
lower habitat quality in this analysis
unit. For this population, we conducted
an additional analysis identifying the
percentage of small trees within the
overall population that could
potentially support platform or stick
nests (Service 2022, table 14). We found
that 14 percent of the coastal-southern
California analysis units contain these
small trees compared to an overall value
of 1 percent for large trees only trees
larger than 61 cm dbh are considered.
When looking at the combined total of
small trees and large trees, 16 percent of
southern California contains potential
trees that could support the California
spotted owl’s ecological needs (Service
2022, table 14).
The threats that are likely currently
impacting this population include largescale, high-severity fire; tree mortality;
drought; climate change; various
impacts from fuels reductions and forest
management; and rodenticides.
Competition with barred owls is not yet
considered a current threat within this
population. Impacts from these threats
may not be equally distributed across
the population and are not equivalent to
the ways that these threats impact the
Sierra Nevada population. For example,
what might be considered a stochastic
event (in this case, an event that
removes one or a few individuals from
the population) in the Sierra Nevada
population could instead be considered
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catastrophic if it were to occur in the
coastal-southern California population
because of the lower number of
California spotted owls within this
population. Our fire analysis shows that
60 percent of the California spotted
owl’s range in southern California
burned between 1984 and 2021, 17
percent at high severity, with 6 percent
of the total area burned in 2020 and 1
percent at high severity that year. There
were no fires in 2021 within the range
of this population. Typically, 4 percent
or less of habitat within this population
burned per year, with 1 percent or less
burning at high severity, although some
years burned at higher percentages
(2003 at 6 percent with 3 percent high
severity, and 2007 at 8 percent with 4
percent high severity; Service 2022,
appendix I). In addition to common
threats acting on all analysis units
within this population, there are also
common management actions taking
place throughout the analysis units
comprising the coastal-southern
California population. For example,
analysis units containing national
forests include PACs around known
California spotted owl nest trees.
The current condition of analysis
units within the Coastal-Southern
California DPS is that two analysis units
are strongly declining and two units are
declining (Service 2022, table 17). Based
on these results and our scoring of
habitat conditions and available
demographic information (Service 2022,
table 18), the overall condition of the
Coastal-Southern California DPS is
strongly declining and, therefore, has
very low resiliency.
Coastal-Southern California DPS
Current Redundancy
As with the Sierra Nevada DPS, our
characterization of redundancy for the
Coastal-Southern California DPS takes
into consideration both an assessment of
the size and distribution of its
population, and an evaluation of the
kinds and likelihood of reasonably
plausible catastrophic events to which
the species could be exposed.
As with the Sierra Nevada DPS,
catastrophic events that could impact
the Coastal-Southern California DPS
include very large, high-severity
wildfire; extreme drought; extreme
weather events; and prolonged and
persistent competition and
displacement due to barred owl
expansion. The population that makes
up the Coastal-Southern California DPS
is highly fragmented with gaps between
occupied areas. In areas where
demographic data are available (the San
Bernardino analysis unit), declines have
accelerated over the last 30 years, and
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as stated above, information
extrapolated from a study area that
historically contained the largest
number of California spotted owls could
lead to an overly optimistic view for
other areas of the coastal-southern
California population (Gutie´rrez et al.
2017, p. 242). Overall, current California
spotted owl redundancy in this DPS has
declined from historical condition,
making the species more vulnerable to
extirpations and potentially extinction
from catastrophic events.
Coastal-Southern California DPS
Current Representation
To assess current representation,
which is the California spotted owl’s
current ability to adapt to change, we
considered the ecological setting and
genetic diversity among the two
California spotted owl populations. In
coastal and southern California,
California spotted owls are found in
riparian/hardwood forests and
woodlands, live oak/big cone fir forests,
and redwood/California laurel forests
(Gutie´rrez et al. 2017, p. xxvi).
California spotted owls use stick nests
more frequently in southern California
compared to in the Sierra Nevada.
Further, California spotted owls in the
northern portion of the range tend to
have larger home range sizes than
California spotted owls in the southern
portion of the range (Gutie´rrez et al.
2017, p. xviii). The climate of the
Coastal-Southern California DPS is more
arid than that of the Sierra Nevada
(Climate Engine 2017, unpaginated).
In regard to genetic diversity, in the
Coastal-Southern California DPS, the
population has become highly
fragmented, which likely has resulted in
reduced genetic diversity. The increased
fragmentation has reduced the amount
of available habitat in throughout the
coastal-southern California population.
Therefore, current California spotted
owl representation in the coastalsouthern California population has
declined from historical condition,
suggesting that the ability for the DPS to
adapt to change is decreased.
Future Condition
For our future condition analysis, we
forecast the response of the Sierra
Nevada DPS of the California spotted
owl to two plausible future scenarios.
These two scenarios represent the
extremes of a range of future changes in
environmental conditions and success
of implemented conservation efforts.
The future scenarios project the
influences to viability discussed above
in Current Condition into the future and
consider the impacts those influences
would potentially have on California
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spotted owl viability. We apply the
concepts of resiliency, redundancy, and
representation to the future scenarios to
describe the future viability of
California spotted owls in the Sierra
Nevada DPS.
For this analysis, we describe two
future scenarios and assess future
resiliency for the Sierra Nevada DPS.
Scenario 1 assesses future viability with
an increase in the trend and magnitude
of threats with implemented
management efforts having mixed
success. Scenario 2 assesses the viability
of the species if the trend and
magnitude of threats were to continue at
the current trajectory into the future
with implemented management efforts
being fully successful. A full
comparison of the assumptions made for
each scenario is available in the SSA
report (Service 2022, table 19). Using
two scenarios representing the extremes
of plausible future projections for the
species allows us to consider the full
range of future possibilities for
predicting the future viability of the
Sierra Nevada DPS and incorporates any
uncertainty regarding the impact of
future environmental conditions and the
success of implemented conservation
efforts. For the SSA report and this
proposed rule, we assessed future
conditions at approximately 40–50
years. For a detailed description of our
methods and assumptions for each
future scenario, as well as more details
on how the impacts of threats would
differ under each scenario, please see
the SSA report (Service 2022, pp. 97–
100).
In the SSA report, we also applied our
two future scenarios to the population
of California spotted owls that makes up
the Coastal-Southern California DPS.
Because we determined that the current
condition of the Coastal-Southern
California DPS is consistent with an
endangered species (see Status of the
Coastal-Southern California DPS of the
California Spotted Owl Throughout All
of Its Range, below), we are not
presenting the results of the future
scenarios in this proposed rule. Please
refer to the SSA report (Service 2022,
pp. 100–125) for the full analysis of
future scenarios.
Scenario 1
Scenario 1 considers viability of the
Sierra Nevada DPS if some of the
significant threats were to increase in
magnitude into the future and future
management efforts have mixed success
in addressing those threats. Under this
scenario, climate change models under
RCP 8.5 project temperature increases of
4.5–6 °F, depending on the portion of
the range. Increases in temperatures will
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likely increase extreme weather events,
including heat waves and drought
conditions (Kadir et al. 2013, pp. 38,
48). With increased drought conditions,
tree mortality and large-scale, highseverity fire are likely to increase in
frequency and size, especially if fuel
loads in forests are not decreased
(Westerling and Bryant 2008, pp. S244–
S248; Abatzoglou and Williams 2016,
pp. 11770, 11773; Young et al. 2017, p.
78). Extreme weather events or
significant changes in interannual
climate variability may have negative
impacts on the California spotted owl’s
survival and reproduction. Although
there are some protections in place for
California spotted owls on public lands,
timber harvest values can vary year to
year. Therefore, it is possible that
increases in timber harvest targets may
reduce California spotted owl habitat
that is available now or that may be
available in the future for California
spotted owls to establish new territories
and disperse beyond the PACs.
Without continued ongoing
experimental removals, barred owls will
likely continue to expand their range
into California spotted owl habitat,
eventually reaching a point of
exponential increase and significantly
displacing and outcompeting California
spotted owls on the landscape (Keane et
al. 2018, pp. 8, 47). The timeline for
barred owl expansion and replacement
of California spotted owls on the
landscape is unknown; however,
because they were able to expand so
quickly within the northern spotted
owl’s range, under future scenario 1 we
assume barred owls would move
beyond the Sierra Nevada and continue
to expand into southern California. This
expansion could be due to current
experimental removal efforts becoming
less successful over time (i.e., decreased
experimental removal efforts) or the
barred owl being able to cross what was
thought to be unsuitable habitat, like the
Central Valley. Under scenario 1, it is
also possible that rodenticide use could
continue to increase in California due to
the legalization of marijuana in 2016.
There will likely continue to be an
increase in demand for marijuana,
which may increase illegal grow sites
using anticoagulant rodenticides in
California if the costs of buying land
and acquiring/maintaining permits to
legalize a grow operation are too high
(Soboroff and Koss 2017, entire;
Yakowicz 2018, entire; Harrison 2018,
entire). In regards to disease and
parasites, there is evidence that
changing climate conditions could
increase pathogen development and
occurrence (Harvell et al. 2002, p. 2158),
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creating a slight chance that disease and
parasites may become a more significant
issue in the future. Finally,
development may continue to encroach
upon California spotted owl habitat as
the California human population
continues to grow (California Economic
Forecast 2016, pp. xii–xiii, 233–236).
Under scenario 1, almost all analysis
units degrade in condition, with four
analysis units considered declining,
four strongly declining, and three that
will likely be extirpated (Service 2022,
tables 20 and 22). Two of the units that
will likely be extirpated under scenario
1 are currently small, peripheral units.
Based on these results, under scenario 1
the future overall condition of the Sierra
Nevada population will be strongly
declining (average overall future
condition score of 0.82). Therefore, the
Sierra Nevada population has very low
resiliency under future scenario 1.
Scenario 2
Scenario 2 considers a future where
the threats continue at the current
trajectory and ongoing management
efforts are successful at addressing those
threats. Under this scenario, climate
change models under RCP 4.5 project
temperature increases of 3.5–5 °F,
depending on the portion of the range.
Under future scenario 2, drought
conditions, tree mortality events, and
high-severity fire will likely continue at
the current trajectory. Currently, there
are research actions in place to
experimentally limit barred owl
expansion within study areas, which
have so far been successful and which
we project will continue to be
successful in limiting the barred owl’s
expansion under this scenario.
Protections would continue to stay in
place for California spotted owls on
public lands, and timber harvest would
remain at reduced levels on public
lands. Rodenticide use would either
remain the same or decrease due to
continued law enforcement activity
shutting down illegal marijuana grows.
Under scenario 2, the current rate of
human population growth will
continue, leading to steadily increasing
development, specifically in areas that
are not on public land.
As in future scenario 1, under future
scenario 2, large-scale, high-severity fire
will likely impact a majority of the
California spotted owl’s ecological
needs, with negative impacts to prey,
large trees, habitat heterogeneity, and
available nest trees, and there may be
some increase in California spotted owl
mortality. With a reduction in some of
the key habitat components due to largescale, high-severity fires, fecundity,
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11627
occupancy, and population growth will
likely decline under future scenario 2.
Under scenario 2, most analysis units
degrade in condition, but some maintain
their current condition. Overall, under
scenario 2, we project the Sierra Nevada
population will have four analysis units
declining, five strongly declining, and
two that will likely be extirpated
(Service 2022, table 24). Based on these
results, under scenario 2, the future
condition of the Sierra Nevada
population will be strongly declining,
but to a lesser degree than under
scenario 1. Therefore, the Sierra Nevada
DPS has very low resiliency under
future scenario 2.
Future Redundancy
Under future scenario 1, we anticipate
the population that makes up the Sierra
Nevada DPS would be less resilient
compared to current condition. The
California spotted owl will likely
maintain a wide distribution throughout
the Sierra Nevada; however, the
conditions of all analysis units within
the Sierra Nevada population are
declining, with over half the analysis
units projected to be strongly declining
or extirpated. Therefore, under scenario
1, redundancy would decline compared
to the current condition, as the species
would be less likely to be able to
withstand catastrophic events with only
one population with very low
resiliency.
Under future scenario 2, the Sierra
Nevada DPS would be less resilient
compared to the current condition. The
California spotted owl will likely
maintain a majority of its current
distribution throughout the Sierra
Nevada. Overall, the DPS would be less
likely to be able to withstand
catastrophic events, with its population
losing resiliency and a majority of
analysis units declining or strongly
declining with the potential to be
extirpated under scenario 2. For species
redundancy, the outcome of scenario 1
and scenario 2 are very similar after 40–
50 years. There are differences in how
quickly the population would decrease
in condition, the likelihood of the
impacts, and how many analysis units
within a population may actually
become extirpated. It is more likely that
redundancy would be reduced,
potentially from a catastrophic event,
under scenario 1.
Future Representation
Predictions for future scenario 1 are
that many of the habitat components
identified for California spotted owls
will likely have a limited ability to
withstand predicted changes and are
likely to further decline in condition in
E:\FR\FM\23FEP3.SGM
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11628
Federal Register / Vol. 88, No. 36 / Thursday, February 23, 2023 / Proposed Rules
the future. This would indirectly cause
a decrease in representation for the
Sierra Nevada DPS if the current degree
of diversity in habitat and climate
declines. Further, with continued
declines in occupancy, fecundity, and
survival, population growth will decline
and will likely further reduce genetic
diversity. Under scenario 1,
representation would decline compared
to current condition as the species
would have less flexibility to adapt to
changing environmental conditions.
Under Scenario 2, most analysis units
degrade in condition, but some maintain
their current condition. Overall, under
scenario 2 we project the Sierra Nevada
population will have seven analysis
units declining and four strongly
declining (Service 2022, table 24). Based
on these results, under scenario 2 the
future condition of the Sierra Nevada
population will be strongly declining
(average overall future condition score
of 1.9), but to a lesser degree than under
scenario 1. An overall future condition
score of 1.9 is at the very upper limit of
our scoring boundary for a strongly
declining population condition (Service
2022, tables 4 and 7). Therefore, the
Sierra Nevada population has very low
resiliency under future scenario 2, but it
is closer to the boundary of low
resiliency.
Table 1. Analysis Unit Current and
Future Condition Comparisons
(Changes From Current Condition in
Bold).
BILLING CODE 4333–15–P
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11629
CFR part 424) set forth the procedures
for determining whether a species meets
the definition of an endangered species
or a threatened species. The Act defines
an ‘‘endangered species’’ as a species in
danger of extinction throughout all or a
significant portion of its range, and a
‘‘threatened species’’ as a species likely
E:\FR\FM\23FEP3.SGM
Figure 2—Condition of California
Spotted Owl (CSO) Analysis Units
Under Current and Future Scenarios
Fmt 4701
Determination of California Spotted
Owl’s Status
Frm 00031
Section 4 of the Act (16 U.S.C. 1533)
and its implementing regulations (50
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18:21 Feb 22, 2023
BILLING CODE 4333–15–C
VerDate Sep<11>2014
Current Condition
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to become an endangered species within
the foreseeable future throughout all or
a significant portion of its range. The
Act requires that we determine whether
a species meets the definition of an
endangered species or a threatened
species because of any of the following
factors: (A) The present or threatened
destruction, modification, or
curtailment of its habitat or range; (B)
overutilization for commercial,
recreational, scientific, or educational
purposes; (C) disease or predation; (D)
the inadequacy of existing regulatory
mechanisms; or (E) other natural or
manmade factors affecting its continued
existence.
Status of the Sierra Nevada DPS of the
California Spotted Owl Throughout All
of Its Range
We have carefully assessed the best
scientific and commercial information
available regarding the past, present,
and future threats to the Sierra Nevada
DPS of the California spotted owl and
its habitat. In this proposed rule, we
present summary evaluations of eight
threats analyzed in the SSA report for
the California spotted owl: wildfire
(Factor A), tree mortality (Factor A),
drought (Factor A), climate change
(Factor A), fuels reduction and forest
management (Factor A), competition
and hybridization with barred owls
(Factor E), rodenticides (Factor E), and
development (Factor A), as well as the
combined effects of those threats. We
also evaluated existing regulatory
mechanisms (Factor D) and ongoing
conservation measures.
In the SSA, we also considered four
additional threats: Overutilization due
to recreational, educational, and
scientific use (Factor B); disease (Factor
C); predation (Factor C); and recreation
(Factor E). We concluded that, as
indicated by the best available scientific
and commercial information, these
threats are currently having little to no
impact on the California spotted owl,
and thus their overall effect now and
into the future is expected to be
minimal. However, we consider them in
this determination, because although
these minor threats may have low
impacts on their own, combined with
impacts of other threats, they could
further reduce the number of California
spotted owls. For full descriptions of all
threats and how they impact the
species, please see the SSA report
(Service 2022, pp. 25–68).
The California spotted owl needs an
adequate amount of nesting, foraging,
and roosting habitat to be successful,
and requires the components of canopy
cover, larger trees, and habitat
heterogeneity. Over the last several
VerDate Sep<11>2014
18:21 Feb 22, 2023
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decades, impacts from wildfire (Factor
A), tree mortality (Factor A), and some
forest management practices (Factor A),
particularly the historical effects of
clearcutting, have reduced the amount
of forest with these habitat needs.
Historical fire suppression has also
contributed to the current increase in
high-severity fire across the range of the
Sierra Nevada DPS of the California
spotted owl.
High-severity wildfire is one of the
most significant threats currently
affecting the California spotted owl and
its habitat, including the Sierra Nevada
DPS. The Sierra Nevada DPS occurs
within a very high wildfire threat
category. Approximately 47 percent of
the California spotted owl’s range
burned between 1984 and 2021, with 15
percent burned at high severity. Most of
the area burned at high severity
occurred in 2020 and 2021. In the Sierra
Nevada DPS specifically, over 1,000,000
ha (2,500,000 ac) burned between 1984–
2019, with 317,605 ha (784,820 ac)
burned at high severity (Keane in litt.
2022, p. 3). Areas burned at high fire
severity can take decades to recover.
Based on fire activity data from 2000
through 2014, the cumulative amount of
fire burned at high severity within the
next 75 years could exceed total existing
habitat in the Sierra Nevada, such that
the loss of suitable habitat may exceed
the rate of new habitat growing post-fire
(Stephens et al. 2016, pp. 1, 11–13).
Although important actions are being
taken by the USFS and its partners,
particularly through the recent Fire
MOUs to reduce the scope and
magnitude of wildfires, this magnitude
of the threat of wildfire is expected to
continue into the foreseeable future.
Under the current condition, 3 of the
11 Sierra Nevada analysis units are in
stable condition, 5 analysis units are
declining, and 3 analysis units are
strongly declining. Based on recent
demographic information and our
habitat analysis, we found the current
resiliency of the Sierra Nevada
population is very low. Overall, the
subspecies’ current redundancy has
decreased from historical condition.
Although the species is currently
distributed throughout its historical
range within the Sierra Nevada, the
condition of most analysis units is
currently declining, reducing the
species’ ability to withstand
catastrophic events. However, the
subspecies maintains suitable habitat
condition and retains habitat needs,
particularly throughout the Sierra
Nevada. Additionally, conservation
efforts and regulatory mechanisms are
decreasing the magnitude of effects from
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Sfmt 4702
threats, including experimental
removals of barred owls.
Effects from the threats described
above are anticipated to increase into
the foreseeable future, particularly
drought and climate change (Factor A).
Climate models project increased
temperatures and more frequent drought
in the Sierra Nevada DPS, with
temperature increases projected to
increase between 4–6 ßF in the next 40
years. Climate projections also forecast
snow moving to higher elevations, as
well as more extreme precipitation and
drought events. Overall increases in
drought will increase tree mortality and
the risk of high-severity fire. Invasions
by barred owls (Factor E) are projected
to continue into the foreseeable future
and may outpace experimental removal
efforts. In both our future scenarios,
analysis units within the range of the
Sierra Nevada DPS will be either
strongly declining or extirpated due to
the combined effects of all threats.
Overall, redundancy and representation
would decline as conditions degrade
throughout the range and population
resiliency declines, reducing the
species’ ability to withstand
catastrophic events and adapt to
changing environmental conditions.
After evaluating threats to the species
and assessing the cumulative effect of
the threats under the Act’s section
4(a)(1) factors, we find that the Sierra
Nevada DPS is facing threats associated
with high-severity fire, tree mortality,
drought and climate change,
rodenticides, and barred owls. Although
it is declining in some parts of the DPS,
the Sierra Nevada DPS currently retains
resiliency, redundancy, and
representation. Thus, it is not in danger
of extinction now throughout all of its
range. However, the threats of wildfire,
climate change, and barred owls are
anticipated to increase into the
foreseeable future, and even in the more
optimistic of the plausible future
scenarios, habitat is still projected to
severely decline, and we project that
many parts of the range may become
extirpated. Thus, after assessing the best
available information, we conclude that
the Sierra Nevada DPS is not currently
in danger of extinction but is likely to
become in danger of extinction within
the foreseeable future throughout all of
its range.
Status of the Sierra Nevada DPS of the
California Spotted Owl Throughout a
Significant Portion of Its Range
We evaluated the range of the Sierra
Nevada DPS of the California spotted
owl to determine if the DPS is in danger
of extinction now in any portion of its
range. The range can theoretically be
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divided into portions in an infinite
number of ways. We focused our
analysis on portions of the range that
may meet the definition of an
endangered species. For the Sierra
Nevada DPS, we considered whether the
threats or their effects on the DPS are
greater in any biologically meaningful
portion of the range than in other
portions such that the DPS is in danger
of extinction now in that portion.
The statutory difference between an
endangered species and a threatened
species is the timeframe in which the
species becomes in danger of extinction;
an endangered species is in danger of
extinction now while a threatened
species is not in danger of extinction
now but is likely to become so in the
foreseeable future. Thus, we reviewed
the best scientific and commercial data
available regarding the time horizon for
the threats that are driving the Sierra
Nevada DPS of the California spotted
owl to warrant listing as a threatened
species throughout all of its range. We
then considered whether these threats
or their effects are occurring (or may
imminently occur) in any portion of the
range with sufficient magnitude such
that the DPS is in danger of extinction
now in that portion of its range. We
examined the following threats: wildfire
(Factor A); tree mortality (Factor A);
drought (Factor A); climate change
(Factor A); fuels reduction and forest
management (Factor A); competition
and hybridization with barred owls
(Factor E); rodenticides (Factor E);
development (Factor A); overutilization
due to recreational, educational, and
scientific use (Factor B); disease (Factor
C); predation (Factor C); and recreation
(Factor E), as well as the combined
effects of those threats. We also
evaluated existing regulatory
mechanisms (Factor D) and ongoing
conservation measures.
We found a potential difference in
biological condition of the DPS in the
Humboldt-Toiyabe, Inyo, and Sequoia
analysis units (see figure 2, above),
where our habitat analysis indicated
that they are strongly declining in the
current condition.
Our habitat analysis found that the
Humboldt-Toiyabe unit has low
amounts of suitable habitat for the
California spotted owl, and 16 percent
of the unit has recently burned. The
Inyo unit is a small peripheral area with
no recent detections, and habitat is
considered degraded. The Sequoia unit
has lower values for large trees and
canopy cover than many other parts of
the Sierra Nevada DPS, and wildfires
have burned 60 percent of the unit
between 1984 and 2021. We have no
evidence that the magnitude of threats
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18:21 Feb 22, 2023
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is higher in this portion of the range.
However, the status of these units is
degraded compared to the remainder of
the DPS, and they may be in danger of
extinction.
We next considered whether or not
these three analysis units are significant
to the Sierra Nevada DPS. We asked
whether this portion of the range (i.e.,
the Humboldt-Toiyabe, Inyo, and
Sequoia analysis unit portions of the
Sierra Nevada DPS’s range) is
significant. The Service’s most recent
definition of ‘‘significant’’ within
agency policy guidance has been
invalidated by court order (see Desert
Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070–74
(N.D. Cal. 2018)). In undertaking this
analysis for the Sierra Nevada DPS, we
considered whether these three units
may be significant. Therefore, in light of
the court decision, for the purposes of
this analysis when considering whether
this portion is significant, we
considered whether the portion may (1)
occur in a unique habitat or ecoregion
for the species; (2) contain high-quality
or high-value habitat relative to the
remaining portions of the range, for the
species’ continued viability in light of
the existing threats; (3) contain habitat
that is essential to a specific life-history
function for the species and that is not
found in the other portions (for
example, the principal breeding ground
for the species); or (4) contain a large
geographic portion of the suitable
habitat relative to the remaining
portions of the range for the species.
Overall, the three units make up
approximately 14 percent of habitat in
the DPS. There are limited owl
detections in these areas, particularly in
the Inyo and Humboldt-Toiyabe
analysis units; thus, these areas are not
contributing significantly to the
resiliency of the Sierra Nevada
population. The habitat in all three
units is degraded. They also do not
contain any unique or unusual habitat
for the taxon, nor do they contain any
habitat essential to any life-history
functions that is not found in any other
portions. Therefore, these portions do
not meet the identified prongs for
significance, as outlined above.
We also analyzed the five analysis
units in the DPS that are currently in
declining condition. In our definition of
current condition, this means that these
analysis units are less likely to persist
for the next 40–50 years, but are not in
danger of extinction now. Limited
population data are available for these
analysis units. For the Lassen, Sierra,
Eldorado, and portions of the Plumas
unit, the most recent demography
studies found that California spotted
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11631
owls are declining under both
occupancy and mark-recapture models
(Tempel and Gutie´rrez 2013, pp. 1091–
1093; Tempel et al. 2014b, pp. 86, 90–
92, Conner et al. 2016, p. 15).
Reproductive output has varied in
Lassen, Plumas, and Sierra analysis
units, and has been declining in the
Eldorado unit (Franklin et al. 2004, p.
24; Blakesley et al. 2010, pp. 17–19),
Apparent adult survival remained high
in all units with demographic data
(Blakesley et al. 2010, pp. 12–19;
Conner et al. 2016, p. 11). Within the
Lassen, Plumas, and Sierra units, new
owls (sub-adults and territorial adults)
continued to be marked each year over
the course of the demography studies
(Conner et al. 2016, pp. 3, 7, table 1),
indicating recruitment of owls into
those areas through local reproduction
or dispersal from other areas.
Additionally, these units still maintain
suitable habitat and species needs such
as forest heterogeneity, tall trees, and
canopy cover. These five analysis units
overall retain contiguous suitable
habitat, allowing for dispersal between
areas. Because of this, these analysis
units can recover from stochastic and
catastrophic events, allowing this
portion of the population as a whole to
withstand threats and allowing potential
dispersal or recolonization from
surrounding analysis units. Thus, we
conclude that these areas are not
currently in danger of extinction.
Therefore, we determine that the
Sierra Nevada DPS is likely to become
in danger of extinction within the
foreseeable future throughout all of its
range. This does not conflict with the
courts’ holdings in Desert Survivors v.
U.S. Department of the Interior, 321 F.
Supp. 3d 1011, 1070–74 (N.D. Cal. 2018)
and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d 946, 959 (D.
Ariz. 2017) because, in reaching this
conclusion, we did not apply the
aspects of the Final Policy on
Interpretation of the Phrase ‘‘Significant
Portion of Its Range’’ in the Endangered
Species Act’s Definitions of
‘‘Endangered Species’’ and ‘‘Threatened
Species’’ (Final Policy; 79 FR 37578,
July 1, 2014), including the definition of
‘‘significant,’’ that those court decisions
held to be invalid.
Status of the Sierra Nevada DPS of the
California Spotted Owl
Our review of the best available
scientific and commercial information
indicates that the Sierra Nevada DPS
meets the Act’s definition of a
threatened species. Therefore, we
propose to list the Sierra Nevada DPS of
the California spotted owl as a
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threatened species in accordance with
sections 3(20) and 4(a)(1) of the Act.
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Status of the Coastal-Southern
California DPS of the California Spotted
Owl Throughout All of Its Range
We have carefully assessed the best
scientific and commercial information
available regarding the past, present,
and future threats to the CoastalSouthern California DPS of the
California spotted owl and its habitat. In
this proposed rule, we present summary
evaluations of eight threats analyzed in
the SSA report for the California spotted
owl: wildfire (Factor A), tree mortality
(Factor A), drought (Factor A), climate
change (Factor A), fuels reduction and
forest management (Factor A),
competition and hybridization with
barred owls (Factor E), rodenticides
(Factor E), and development (Factor A),
as well as the combined effects of those
threats. We also evaluated existing
regulatory mechanisms (Factor D) and
ongoing conservation measures.
In the SSA, we also considered four
additional threats: Overutilization due
to recreational, educational, and
scientific use (Factor B); disease (Factor
C); predation (Factor C); and recreation
(Factor E). We concluded that, as
indicated by the best available scientific
and commercial information, these
threats are currently having little to no
impact on the California spotted owl,
and thus their overall effect now and
into the future is expected to be
minimal. As with the Sierra Nevada
DPS, we now consider them in this
determination, because although these
minor threats may have low impacts on
their own, combined with impacts of
other threats, they could further reduce
the number of California spotted owls.
For full descriptions of all threats and
how they impact the species, please see
the SSA report (Service 2022, pp. 25–
68).
In the Coastal-Southern California
DPS, impacts from wildfire are at very
high magnitude, with all of the DPS
considered to be at extreme fire risk.
Our fire analysis shows that 60 percent
of the range of the Coastal-Southern
California DPS burned between 1984
and 2021, including 17 percent at high
severity. These high-severity fires in
particular are removing the California
spotted owl’s needs of canopy cover,
large trees, and habitat heterogeneity.
Given that habitat in the CoastalSouthern California DPS is already
fragmented and that there is limited
evidence of movement between habitat
patches, any habitat burned at high
severity is less likely to be able to
recover from high-severity fires.
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Development has further degraded
naturally fragmented habitat in the
Coastal-Southern California DPS, and
owls in this DPS are affected by ongoing
drought conditions and tree mortality.
In southern California, there are high
development demands with wind farms
and large reservoirs impacting
connectivity within the California
spotted owl’s range, and riparian areas
used by California spotted owls are
being lost to water diversion. These
threats are continuing to reduce the
California spotted owl’s needs of high
canopy cover and large trees, both of
which are already at low condition.
Barred owls are currently only having a
limited impact on this DPS.
Limited population data are available
for this part of the range, but in the San
Bernardino Mountains, occupancy of
territories has declined by half (Tempel
et al. 2022, pp. 16, 18). Additionally, we
were not able to find information about
California spotted owls dispersing
between mountain ranges in coastal or
southern California. The number of owls
in this part of the range is low.
Therefore, what might be considered a
stochastic event in the Sierra Nevada
DPS leading to the removal of one or a
few individuals from the population
could have a much higher impact if it
were to occur in the coastal-southern
California DPS. Additionally, due to the
highly developed nature of the areas
between suitable patches of habitat in
coastal and particularly southern
California, there is no record of owls
dispersing between occupied areas. All
four analysis units in this DPS are
currently declining.
After evaluating threats to the species
and assessing the cumulative effect of
the threats under the Act’s section
4(a)(1) factors, we find that threats
associated with wildfire, drought, and
tree mortality, as well as the current
impacts of climate change, have
degraded habitat in the CoastalSouthern California DPS of the
California spotted owl, such that most of
this part of the range could become
extirpated. These threats are impacting
the DPS now; thus, this DPS does not
meet the Act’s definition of a threatened
species. Due to the extreme risk of
wildfire, degraded habitat conditions,
no dispersal between subpopulations,
and very low population resiliency and
redundancy, we find that the CoastalSouthern California DPS meets the Act’s
definition of an endangered species.
Thus, after assessing the best available
information, we determine that CoastalSouthern California DPS of the
California spotted owl is in danger of
extinction throughout all of its range.
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Status of the Coastal-Southern
California DPS of the California Spotted
Owl Throughout a Significant Portion of
Its Range
Under the Act and our implementing
regulations, a species may warrant
listing if it is in danger of extinction or
likely to become so in the foreseeable
future throughout all or a significant
portion of its range. We have
determined that the Coastal-Southern
California DPS is in danger of extinction
throughout all of its range and
accordingly did not undertake an
analysis of any significant portion of its
range. Because the Coastal-Southern
California DPS warrants listing as
endangered throughout all of its range,
our determination does not conflict with
the decision in Center for Biological
Diversity v. Everson, 435 F. Supp. 3d 69
(D.D.C. 2020) (Everson), which vacated
the provision of the Final Policy (79 FR
37578, July 1, 2014) providing that if the
Services determine that a species is
threatened throughout all of its range,
the Services will not analyze whether
the species is endangered in a
significant portion of its range.
Status of the Coastal-Southern
California DPS of the California Spotted
Owl
Our review of the best available
scientific and commercial information
indicates that the Coastal-Southern DPS
of the California spotted owl meets the
Act’s definition of an endangered
species. Therefore, we propose to list
the Coastal-Southern California DPS as
an endangered species in accordance
with sections 3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to
species listed as endangered or
threatened species under the Act
include recognition as a listed species,
planning and implementation of
recovery actions, requirements for
Federal protection, and prohibitions
against certain practices. Recognition
through listing results in public
awareness, and conservation by Federal,
State, Tribal, and local agencies, private
organizations, and individuals. The Act
encourages cooperation with the States
and other countries and calls for
recovery actions to be carried out for
listed species. The protection required
by Federal agencies, including the
Service, and the prohibitions against
certain activities are discussed, in part,
below.
The primary purpose of the Act is the
conservation of endangered and
threatened species and the ecosystems
upon which they depend. The ultimate
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goal of such conservation efforts is the
recovery of these listed species, so that
they no longer need the protective
measures of the Act. Section 4(f) of the
Act calls for the Service to develop and
implement recovery plans for the
conservation of endangered and
threatened species. The goal of this
process is to restore listed species to a
point where they are secure, selfsustaining, and functioning components
of their ecosystems.
The recovery planning process begins
with development of a recovery outline
made available to the public soon after
a final listing determination. The
recovery outline guides the immediate
implementation of urgent recovery
actions while a recovery plan is being
developed. Recovery teams (composed
of species experts, Federal and State
agencies, nongovernmental
organizations, and stakeholders) may be
established to develop and implement
recovery plans. The recovery planning
process involves the identification of
actions that are necessary to halt and
reverse the species’ decline by
addressing the threats to its survival and
recovery. The recovery plan identifies
recovery criteria for review of when a
species may be ready for reclassification
from endangered to threatened
(‘‘downlisting’’) or removal from
protected status (‘‘delisting’’), and
methods for monitoring recovery
progress. Recovery plans also establish
a framework for agencies to coordinate
their recovery efforts and provide
estimates of the cost of implementing
recovery tasks. Revisions of the plan
may be done to address continuing or
new threats to the species, as new
substantive information becomes
available. The recovery outline, draft
recovery plan, final recovery plan, and
any revisions will be available on our
website as they are completed (https://
www.fws.gov/program/endangeredspecies), or from our Sacramento Fish
and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Implementation of recovery actions
generally requires the participation of a
broad range of partners, including other
Federal agencies, States, Tribes,
nongovernmental organizations,
businesses, and private landowners.
Examples of recovery actions include
habitat restoration (e.g., restoration of
native vegetation), research, captive
propagation and reintroduction, and
outreach and education. The recovery of
many listed species cannot be
accomplished solely on Federal lands
because their range may occur primarily
or solely on non-Federal lands. To
achieve recovery of these species
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requires cooperative conservation efforts
on private, State, and Tribal lands.
If these DPSs are listed, funding for
recovery actions will be available from
a variety of sources, including Federal
budgets, State programs, and cost-share
grants for non-Federal landowners, the
academic community, and
nongovernmental organizations. In
addition, pursuant to section 6 of the
Act, the States of California and Nevada
would be eligible for Federal funds to
implement management actions that
promote the protection or recovery of
the California spotted owl. Information
on our grant programs that are available
to aid species recovery can be found at:
https://www.fws.gov/service/financialassistance.
Although the Sierra Nevada DPS and
the Coastal-Southern California DPS of
the California spotted owl are only
proposed for listing under the Act at
this time, please let us know if you are
interested in participating in recovery
efforts for these DPSs. Additionally, we
invite you to submit any new
information on the California spotted
owl whenever it becomes available and
any information you may have for
recovery planning purposes (see FOR
FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires
Federal agencies to evaluate their
actions with respect to any species that
is proposed or listed as an endangered
or threatened species and with respect
to its critical habitat, if any is
designated. Regulations implementing
this interagency cooperation provision
of the Act are codified at 50 CFR part
402. Section 7(a)(4) of the Act requires
Federal agencies to confer with the
Service on any action that is likely to
jeopardize the continued existence of a
species proposed for listing or result in
destruction or adverse modification of
proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) of
the Act requires Federal agencies to
ensure that activities they authorize,
fund, or carry out are not likely to
jeopardize the continued existence of
the species or destroy or adversely
modify its critical habitat. If a Federal
action may affect a listed species or its
critical habitat, the responsible Federal
agency (action agency) must enter into
consultation with the Service.
Examples of actions that may be
subject to the section 7 processes are
land management or other landscapealtering activities on Federal lands
administered by the USFS, BLM, DOD,
NPS, and the Service, as well as actions
on State, Tribal, local, or private lands
that require a Federal permit (such as a
permit from the U.S. Army Corps of
Engineers under section 404 of the
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11633
Clean Water Act (33 U.S.C. 1251 et seq.)
or a permit from the Service under
section 10 of the Act) or that involve
some other Federal action (such as
funding from the Federal Highway
Administration, Federal Aviation
Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat—and actions
on State, Tribal, local, or private lands
that are not federally funded,
authorized, or carried out by a Federal
agency—do not require section 7
consultation. Examples of Federal
agency actions that may require
consultation for the California spotted
owl could include forest and fuels
management, land management
planning, habitat restoration, recreation
management, and road maintenance.
Given the difference in triggers for
conferencing and consultation, Federal
agencies should coordinate with the
local Service Field Office (see FOR
FURTHER INFORMATION CONTACT, above)
with any specific questions.
The Act and its implementing
regulations set forth a series of general
prohibitions and exceptions that apply
to endangered wildlife. The prohibitions
of section 9(a)(1) of the Act, codified at
50 CFR 17.21, make it illegal for any
person subject to the jurisdiction of the
United States to take (which includes
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect; or
to attempt any of these) endangered
wildlife within the United States or on
the high seas. In addition, it is unlawful
to import; export; deliver, receive, carry,
transport, or ship in interstate or foreign
commerce in the course of commercial
activity; or sell or offer for sale in
interstate or foreign commerce any
species listed as an endangered species.
It is also illegal to possess, sell, deliver,
carry, transport, or ship any such
wildlife that has been taken illegally.
Certain exceptions apply to employees
of the Service, the National Marine
Fisheries Service, other Federal land
management agencies, and State
conservation agencies.
We may issue permits to carry out
otherwise prohibited activities
involving endangered wildlife under
certain circumstances. Regulations
governing permits are codified at 50
CFR 17.22. With regard to endangered
wildlife, a permit may be issued for the
following purposes: for scientific
purposes, to enhance the propagation or
survival of the species, and for
incidental take in connection with
otherwise lawful activities. The statute
also contains certain exemptions from
the prohibitions, which are found in
sections 9 and 10 of the Act.
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It is our policy, as published in the
Federal Register on July 1, 1994 (59 FR
34272), to identify to the maximum
extent practicable at the time a species
is listed those activities that would or
would not constitute a violation of
section 9 of the Act. The intent of this
policy is to increase public awareness of
the effect of a proposed listing on
proposed and ongoing activities within
the range of the species proposed for
listing. For the Sierra Nevada DPS of the
California spotted owl, which we are
proposing to list as threatened, the
discussion below under II. Proposed
Rule Issued Under Section 4(d) of the
Act regarding protective regulations
under section 4(d) of the Act complies
with our policy.
We now discuss specific activities
related to the Coastal-Southern
California DPS, which we are proposing
to list as endangered. Based on the best
available information, the following
actions are unlikely to result in a
violation of section 9 of the Act, if these
activities are carried out in accordance
with existing regulations and permit
requirements; this list is not
comprehensive:
(1) Any actions that may affect the
Coastal-Southern California DPS of the
California spotted owl that are
authorized, funded, or carried out by a
Federal agency, when the action is
conducted in accordance with the
consultation requirements for listed
species pursuant to section 7 of the Act;
(2) Any action taken for scientific
research carried out under a recovery
permit issued by us pursuant to section
10(a)(1)(A) of the Act;
(3) Land actions or management
carried out under a habitat conservation
plan approved by us pursuant to section
10(a)(1)(B) of the Act; and
(4) Recreation activities that comply
with local rules and that do not result
in take of listed species, including
hiking and backpacking.
Based on the best available
information, the following activities
may potentially result in a violation of
section 9 of the Act if they are not
authorized in accordance with
applicable law; this list is not
comprehensive:
(1) Unauthorized modification of the
forest landscape within the range of the
Coastal-Southern California DPS; and
(2) Unauthorized use of first- and
second-generation anticoagulant
rodenticides within the range of the
Coastal-Southern California DPS.
Questions regarding whether specific
activities would constitute a violation of
section 9 of the Act in regards to the
Coastal-Southern California DPS of the
California spotted owl should be
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directed to the Sacramento Fish and
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
II. Proposed Rule Issued Under Section
4(d) of the Act
Background
Section 4(d) of the Act contains two
sentences. The first sentence states that
the Secretary shall issue such
regulations as she deems necessary and
advisable to provide for the
conservation of species listed as
threatened species. The U.S. Supreme
Court has noted that statutory language
similar to the language in section 4(d) of
the Act authorizing the Secretary to take
action that she ‘‘deems necessary and
advisable’’ affords a large degree of
deference to the agency (see Webster v.
Doe, 486 U.S. 592, 600 (1988)).
Conservation is defined in the Act to
mean the use of all methods and
procedures which are necessary to bring
any endangered species or threatened
species to the point at which the
measures provided pursuant to the Act
are no longer necessary. Additionally,
the second sentence of section 4(d) of
the Act states that the Secretary may by
regulation prohibit with respect to any
threatened species any act prohibited
under section 9(a)(1), in the case of fish
or wildlife, or section 9(a)(2), in the case
of plants. Thus, the combination of the
two sentences of section 4(d) provides
the Secretary with wide latitude of
discretion to select and promulgate
appropriate regulations tailored to the
specific conservation needs of the
threatened species. The second sentence
grants particularly broad discretion to
the Service when adopting one or more
of the prohibitions under section 9.
The courts have recognized the extent
of the Secretary’s discretion under this
standard to develop rules that are
appropriate for the conservation of a
species. For example, courts have
upheld, as a valid exercise of agency
authority, rules developed under section
4(d) that included limited prohibitions
against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL
2344927 (D. Or. 2007); Washington
Environmental Council v. National
Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have
also upheld 4(d) rules that do not
address all of the threats a species faces
(see State of Louisiana v. Verity, 853
F.2d 322 (5th Cir. 1988)). As noted in
the legislative history when the Act was
initially enacted, ‘‘once an animal is on
the threatened list, the Secretary has an
almost infinite number of options
available to [her] with regard to the
permitted activities for those species.
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[She] may, for example, permit taking,
but not importation of such species, or
[she] may choose to forbid both taking
and importation but allow the
transportation of such species’’ (H.R.
Rep. No. 412, 93rd Cong., 1st Sess.
1973).
The provisions of this proposed 4(d)
rule would promote conservation of the
Sierra Nevada DPS of the California
spotted owl by encouraging
management of its habitat in ways that
facilitate conservation for the species.
The provisions of this proposed rule are
one of many tools that we would use to
promote the conservation of the Sierra
Nevada DPS of the California spotted
owl. This proposed 4(d) rule would
apply only if and when we make final
the listing of the Sierra Nevada DPS of
the California spotted owl as a
threatened species.
As mentioned above in Available
Conservation Measures, section 7(a)(2)
of the Act requires Federal agencies,
including the Service, to ensure that any
action they fund, authorize, or carry out
is not likely to jeopardize the continued
existence of any endangered species or
threatened species or result in the
destruction or adverse modification of
designated critical habitat of such
species. In addition, section 7(a)(4) of
the Act requires Federal agencies to
confer with the Service on any agency
action that is likely to jeopardize the
continued existence of any species
proposed to be listed under the Act or
result in the destruction or adverse
modification of proposed critical
habitat.
If a Federal action may affect a listed
species or its critical habitat, the
responsible Federal agency (action
agency) must enter into consultation
with us. Examples of Federal actions
that are subject to the section 7
consultation process are actions on
State, Tribal, local, or private lands that
require a Federal permit (such as a
permit from the U.S. Army Corps of
Engineers under section 404 of the
Clean Water Act (33 U.S.C. 1251 et seq.)
or a permit from the Service under
section 10 of the Act) or that involve
some other Federal action (such as
funding from the Federal Highway
Administration, Federal Aviation
Administration, or the Federal
Emergency Management Agency).
Federal actions not affecting listed
species or critical habitat—and actions
on State, Tribal, local, or private lands
that are not federally funded,
authorized, or carried out by a Federal
agency—do not require section 7
consultation.
These requirements are the same for
a threatened species with a species-
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specific 4(d) rule. For example, a
Federal agency’s determination that an
action is ‘‘not likely to adversely affect’’
a threatened species will require the
Service’s written concurrence.
Similarly, a Federal agency’s
determination that an action is ‘‘likely
to adversely affect’’ a threatened species
will require formal consultation and the
formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
Exercising the Secretary’s authority
under section 4(d) of the Act, we have
developed a proposed rule that is
designed to address the conservation
needs of the Sierra Nevada DPS of the
California spotted owl. As discussed
previously in Summary of Biological
Status and Threats, we have concluded
that the Sierra Nevada DPS of the
California spotted owl is likely to
become in danger of extinction within
the foreseeable future primarily due to
wildfire, tree mortality, drought, climate
change, rodenticides, and barred owls.
Section 4(d) requires the Secretary to
issue such regulations as she deems
necessary and advisable to provide for
the conservation of each threatened
species and authorizes the Secretary to
include among those protective
regulations any of the prohibitions that
section 9(a)(1) of the Act prescribes for
endangered species. We find that, if
finalized, the protections, prohibitions,
and exceptions in this proposed rule as
a whole satisfy the requirement in
section 4(d) of the Act to issue
regulations deemed necessary and
advisable to provide for the
conservation of the Sierra Nevada DPS
of the California spotted owl.
The protective regulations we are
proposing for the Sierra Nevada DPS of
the California spotted owl incorporate
prohibitions from the Act’s section
9(a)(1) to address the threats to the DPS.
Section 9(a)(1) prohibits the following
activities for endangered wildlife:
importing or exporting; take; possession
and other acts with unlawfully taken
specimens; delivering, receiving,
carrying, transporting, or shipping in
interstate or foreign commerce in the
course of commercial activity; or selling
or offering for sale in interstate or
foreign commerce. This protective
regulation includes all of these
prohibitions because the Sierra Nevada
DPS of the California spotted owl is at
risk of extinction in the foreseeable
future and putting these prohibitions in
place will help to prevent further
declines, preserve the DPS’s remaining
populations, slow its rate of decline,
and decrease synergistic, negative
effects from other ongoing or future
threats.
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In particular, this proposed 4(d) rule
would provide for the conservation of
the Sierra Nevada DPS of the California
spotted owl by prohibiting the following
activities, unless they fall within
specific exceptions or are otherwise
authorized or permitted: importing or
exporting; take; possession and other
acts with unlawfully taken specimens;
delivering, receiving, carrying,
transporting, or shipping in interstate or
foreign commerce in the course of
commercial activity; or selling or
offering for sale in interstate or foreign
commerce.
Under the Act, ‘‘take’’ means to
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or
to attempt to engage in any such
conduct. Some of these provisions have
been further defined in regulations at 50
CFR 17.3. Take can result knowingly or
otherwise, by direct and indirect
impacts, intentionally or incidentally.
Regulating take would help preserve the
DPS’s remaining populations, slow their
rate of decline, and decrease synergistic,
negative effects from other ongoing or
future threats. Therefore, we propose to
prohibit take of the Sierra Nevada DPS
of the California spotted owl, except for
take resulting from those actions and
activities specifically excepted by the
4(d) rule.
Exceptions to the prohibition on take
would include all of the general
exceptions to the prohibition against
take of endangered wildlife, as set forth
in 50 CFR 17.21 and certain other
specific activities that we propose for
exception, as described below.
The proposed 4(d) rule would also
provide for the conservation of the
species by allowing exceptions that
incentivize conservation actions or that,
while they may have some minimal
level of take of the Sierra Nevada DPS
of the California spotted owl, are not
expected to rise to the level that would
have a negative impact (that is, would
have only de minimis impacts) on the
conservation of the DPS. The proposed
exceptions to these prohibitions include
the following provisions (described
below) that are expected to have
negligible impacts to the Sierra Nevada
DPS of the California spotted owl and
its habitat:
(1) Forest or fuels management to
reduce the risk or severity of wildfire
(such as prescribed fire) where fuels
management activities are essential to
reduce the risk of catastrophic wildfire,
and when such activities will be carried
out in accordance with an established
and recognized fuels or forest
management plan that includes
measures to minimize impacts to the
California spotted owl and its habitat
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and results in conservation benefits to
California spotted owls.
(2) Habitat management and
restoration efforts that are specifically
designed to provide for the conservation
of the California spotted owl’s habitat
needs and include measures that
minimize impacts to the California
spotted owl and its habitat. These
activities must be carried out in
accordance with finalized State or
Federal agency conservation plans or
strategies for the California spotted owl.
(3) Management or cleanup activities
that remove toxicants and other
chemicals from trespass cannabis
cultivation sites in California spotted
owl habitat. Cleanup of these sites may
involve activities that may cause
localized, short-term disturbance to
California spotted owls, as well as
require limited removal of some habitat
structures valuable to California spotted
owls (e.g., hazard trees that may be a
suitable nest site).
We may, under certain circumstances,
issue permits to carry out one or more
otherwise-prohibited activities,
including those described above. The
regulations at 50 CFR 17.32 that govern
permits for threatened wildlife state that
the Director may issue a permit
authorizing any activity otherwise
prohibited with regard to threatened
species. These include permits issued
for the following purposes: for scientific
purposes, to enhance propagation or
survival, for economic hardship, for
zoological exhibition, for educational
purposes, for incidental taking, or for
special purposes consistent with the
purposes of the Act (50 CFR 17.32). The
statute also contains certain exemptions
from the prohibitions, which are found
in sections 9 and 10 of the Act.
We recognize the special and unique
relationship with our State natural
resource agency partners in contributing
to conservation of listed species. State
agencies often possess scientific data
and valuable expertise on the status and
distribution of endangered, threatened,
and candidate species of wildlife and
plants. State agencies, because of their
authorities and their close working
relationships with local governments
and landowners, are in a unique
position to assist us in implementing all
aspects of the Act. In this regard, section
6 of the Act provides that we must
cooperate to the maximum extent
practicable with the States in carrying
out programs authorized by the Act.
Therefore, any qualified employee or
agent of a State conservation agency that
is a party to a cooperative agreement
with us in accordance with section 6(c)
of the Act, who is designated by his or
her agency for such purposes, would be
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able to conduct activities designed to
conserve the Sierra Nevada DPS of the
California spotted owl that may result in
otherwise prohibited take without
additional authorization.
Nothing in this proposed 4(d) rule
would change in any way the recovery
planning provisions of section 4(f) of the
Act, the consultation requirements
under section 7 of the Act, or our ability
to enter into partnerships for the
management and protection of the
Sierra Nevada DPS of the California
spotted owl. However, interagency
cooperation may be further streamlined
through planned programmatic
consultations for the DPS between us
and other Federal agencies, where
appropriate. We ask the public,
particularly State agencies and other
interested stakeholders that may be
affected by the proposed 4(d) rule, to
provide comments and suggestions
regarding additional guidance and
methods that we could provide or use,
respectively, to streamline the
implementation of this proposed 4(d)
rule (see Information Requested, above).
III. 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.
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).
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
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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
destruction or adverse modification of
critical habitat. The designation of
critical habitat does not affect land
ownership or establish a refuge,
wilderness, reserve, preserve, or other
conservation area. Such designation also
does not allow the government or public
to access private lands. Such
designation does not require
implementation of restoration, recovery,
or enhancement measures by nonFederal landowners. Where 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
7(a)(2) of the Act. However, even if the
Service were to conclude that the
proposed activity would likely 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 Act’s
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, critical
habitat designations identify, to the
extent known using the best scientific
data available, those physical or
biological features that are essential to
the conservation of the species (such as
space, food, cover, and protected
habitat).
Under the second prong of the Act’s
definition of critical habitat, we can
designate critical habitat in areas
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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.
Section 4 of the Act requires that we
designate critical habitat on the basis of
the best scientific data available.
Further, our Policy on Information
Standards Under the Endangered
Species Act (published in the Federal
Register on July 1, 1994 (59 FR 34271)),
the Information Quality Act (section 515
of the Treasury and General
Government Appropriations Act for
Fiscal Year 2001 (Pub. L. 106–554; H.R.
5658)), and our associated Information
Quality Guidelines provide criteria,
establish procedures, and provide
guidance to ensure that our decisions
are based on the best scientific data
available. They require our biologists, to
the extent consistent with the Act and
with the use of the best scientific data
available, to use primary and original
sources of information as the basis for
recommendations to designate critical
habitat.
When we are determining which areas
should be designated as critical habitat,
our primary source of information is
generally the information from the SSA
report and information developed
during the listing process for the
species. Additional information sources
may include any generalized
conservation strategy, criteria, or outline
that may have been developed for the
species; the recovery plan for the
species; articles in peer-reviewed
journals; conservation plans developed
by States and counties; scientific status
surveys and studies; biological
assessments; other unpublished
materials; or experts’ opinions or
personal knowledge.
Habitat is dynamic, and species may
move from one area to another over
time. We recognize that critical habitat
designated at a particular point in time
may not include all of the habitat areas
that we may later determine are
necessary for the recovery of the
species. For these reasons, a critical
habitat designation does not signal that
habitat outside the designated area is
unimportant or may not be needed for
recovery of the species. Areas that are
important to the conservation of the
species, both inside and outside the
critical habitat designation, will
continue to be subject to: (1)
Conservation actions implemented
under section 7(a)(1) of the Act; (2)
regulatory protections afforded by the
requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their
actions are not likely to jeopardize the
continued existence of any endangered
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or threatened species; and (3) the
prohibitions found in section 9 of the
Act and the 4(d) rule. Federally funded
or permitted projects affecting listed
species outside their designated critical
habitat areas may still result in jeopardy
findings in some cases. These
protections and conservation tools will
continue to contribute to recovery of the
species. Similarly, critical habitat
designations made on the basis of the
best available information at the time of
designation will not control the
direction and substance of future
recovery plans, HCPs, or other species
conservation planning efforts if new
information available at the time of
those planning efforts calls for a
different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as
amended, and implementing regulations
(50 CFR 424.12) require that, to the
maximum extent prudent and
determinable, the Secretary shall
designate critical habitat at the time the
species is determined to be an
endangered or threatened species. Our
regulations (50 CFR 424.12(a)(1)) state
that the Secretary may, but is not
required to, determine that a
designation would not be prudent in the
following circumstances:
(i) The species is threatened by taking
or other human activity and
identification of critical habitat can be
expected to increase the degree of such
threat to the species;
(ii) The present or threatened
destruction, modification, or
curtailment of a species’ habitat or range
is not a threat to the species, or threats
to the species’ habitat stem solely from
causes that cannot be addressed through
management actions resulting from
consultations under section 7(a)(2) of
the Act;
(iii) Areas within the jurisdiction of
the United States provide no more than
negligible conservation value, if any, for
a species occurring primarily outside
the jurisdiction of the United States;
(iv) No areas meet the definition of
critical habitat; or
(v) The Secretary otherwise
determines that designation of critical
habitat would not be prudent based on
the best scientific data available.
As discussed earlier in this document,
there is currently no imminent threat of
collection or vandalism identified under
Factor B for this species, and
identification and mapping of critical
habitat is not expected to initiate any
such threat. In our SSA report and
proposed listing determination for the
California spotted owl, we determined
that the present or threatened
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destruction, modification, or
curtailment of habitat or range is a
threat to both the Sierra Nevada DPS
and the Coastal-Southern California DPS
of the California spotted owl, and that
those threats in some way can be
addressed by section 7(a)(2)
consultation measures. The two DPSs
occur wholly in the jurisdiction of the
United States, and we are able to
identify areas that meet the definition of
critical habitat. Therefore, because none
of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) have
been met and because the Secretary has
not identified other circumstances for
which this designation of critical habitat
would be not prudent, we have
determined that the designation of
critical habitat is prudent for both the
Sierra Nevada DPS and the CoastalSouthern California DPS of the
California spotted owl.
Critical Habitat Determinability
Having determined that designation is
prudent, under section 4(a)(3) of the Act
we must find whether critical habitat for
the California spotted owl is
determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is
not determinable when one or both of
the following situations exist:
(i) Data sufficient to perform required
analyses are lacking, or
(ii) The biological needs of the species
are not sufficiently well known to
identify any area that meets the
definition of ‘‘critical habitat.’’
When critical habitat is not
determinable, the Act allows the Service
an additional year to publish a critical
habitat designation (16 U.S.C.
1533(b)(6)(C)(ii)).
We reviewed the available
information pertaining to the biological
needs of the species and habitat
characteristics where this species is
located and data that would be needed
to perform other required analyses. A
careful assessment of the economic
impacts that may occur due to a critical
habitat designation is not yet complete,
and we are in the process of working
with the States and other partners in
acquiring the complex information
needed to perform that assessment.
Because the information sufficient to
perform a required analysis of the
impacts of the designation is lacking, we
conclude that the designation of critical
habitat for both the Sierra Nevada DPS
and the Coastal-Southern California DPS
of the California spotted owl is not
determinable at this time. The Act
allows the Service an additional year to
publish a critical habitat designation
that is not determinable at the time of
listing (16 U.S.C. 1533(b)(6)(C)(ii)).
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11637
Required Determinations
Clarity of the Rule
We are required by Executive Orders
12866 and 12988 and by the
Presidential Memorandum of June 1,
1998, to write all rules in plain
language. This means that each rule we
publish must:
(1) Be logically organized;
(2) Use the active voice to address
readers directly;
(3) Use clear language rather than
jargon;
(4) Be divided into short sections and
sentences; and
(5) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in ADDRESSES. To
better help us revise the rule, your
comments should be as specific as
possible. For example, you should tell
us the numbers of the sections or
paragraphs that are unclearly written,
which sections or sentences are too
long, the sections where you feel lists or
tables would be useful, etc.
National Environmental Policy Act (42
U.S.C. 4321 et seq.)
Regulations adopted pursuant to
section 4(a) of the Act are exempt from
the National Environmental Policy Act
(NEPA; 42 U.S.C. 4321 et seq.) and do
not require an environmental analysis
under NEPA. We published a notice
outlining our reasons for this
determination in the Federal Register
on October 25, 1983 (48 FR 49244). This
includes listing, delisting, and
reclassification rules, as well as critical
habitat designations and speciesspecific protective regulations
promulgated concurrently with a
decision to list or reclassify a species as
threatened. The courts have upheld this
position (e.g., Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. 1995)
(critical habitat); Center for Biological
Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal.
Aug. 19, 2005) (concurrent 4(d) rule)).
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), E.O. 13175
(Consultation and Coordination with
Indian Tribal Governments), and the
Department of the Interior’s manual at
512 DM 2, we readily acknowledge our
responsibility to communicate
meaningfully with federally recognized
Federal Tribes on a government-to-
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government basis. In accordance with
Secretarial Order 3206 of June 5, 1997
(American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the
Endangered Species Act), we readily
acknowledge our responsibilities to
work directly with Tribes in developing
programs for healthy ecosystems, to
acknowledge that Tribal lands are not
subject to the same controls as Federal
public lands, to remain sensitive to
Indian culture, and to make information
available to Tribes. We sent letters to all
affected Tribes when we began
developing our 12-month finding for the
California spotted owl. We will
continue to work with Tribal entities
during the development of a final
determination on this proposal to list
the Sierra Nevada DPS and the CoastalSouthern California DPS of the
California spotted owl, as well as the
proposed 4(d) rule for the Sierra Nevada
DPS.
Common name
*
References Cited
A complete list of references cited in
this proposed rule is available on the
internet at https://www.regulations.gov
and upon request from the Sacramento
Fish and Wildlife Office (see FOR
FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed
rule are the staff members of the Fish
and Wildlife Service’s Species
Assessment Team and the Sacramento
Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Plants, Reporting and
recordkeeping requirements,
Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
Scientific name
*
50 of the Code of Federal Regulations,
as set forth below:
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; and 4201–4245, unless otherwise
noted.
2. In § 17.11, amend paragraph (h) by
adding entries for ‘‘Owl, California
spotted [Coastal-Southern California
DPS]’’ and ‘‘Owl, California spotted
[Sierra Nevada DPS]’’ to the List of
Endangered and Threatened Wildlife in
alphabetical order under BIRDS to read
as follows:
■
§ 17.11 Endangered and threatened
wildlife.
*
*
*
(h) * * *
Where listed
*
*
*
Status
*
*
*
Listing citations and
applicable rules
*
BIRDS
*
Owl, California spotted
[Coastal-Southern
California DPS].
*
Strix occidentalis
occidentalis.
Owl, California spotted
[Sierra Nevada DPS].
Strix occidentalis
occidentalis.
*
*
3. Amend § 17.41 by adding a
paragraph (n) to read as follows:
Special rules—birds.
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*
*
*
*
*
(n) California spotted owl (Strix
occidentalis occidentalis), Sierra
Nevada DPS.
(1) Prohibitions. The following
prohibitions that apply to endangered
wildlife also apply to the Sierra Nevada
distinct population segment (DPS) of the
California spotted owl. Except as
provided under paragraph (n)(2) of this
section and §§ 17.4, 17.5, and 17.7, it is
unlawful for any person subject to the
jurisdiction of the United States to
commit, to attempt to commit, to solicit
another to commit, or cause to be
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18:21 Feb 22, 2023
*
*
California (All California spotted owls in the vicinity of the Coast, Transverse, and Peninsular mountain ranges from Monterey County
in the north to San Diego County in the
south, and south of the Tehachapi Pass within Kern County).
California and Nevada (All California spotted
owls in the vicinity of the Sierra Nevada
mountain range and the Sierra Nevada foothills from Shasta and Lassen Counties in the
north, but north of the Tehachapi Pass, Kern
County to the south, and east to Carson City,
Douglas, and Washoe Counties in Nevada).
*
■
§ 17.41
*
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*
Frm 00040
Fmt 4701
T
*
committed, any of the following acts in
regard to this DPS:
(i) Import or export, as set forth at
§ 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1)
for endangered wildlife.
(iii) Possession and other acts with
unlawfully taken specimens, as set forth
at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in
the course of a commercial activity, as
set forth at § 17.21(e) for endangered
wildlife.
(v) Sale or offer for sale, as set forth
at § 17.21(f) for endangered wildlife.
(2) Exceptions from prohibitions. In
regard to this DPS, you may:
(i) Conduct activities as authorized by
a permit under § 17.32.
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*
E
Sfmt 4702
*
[Federal Register citation when published
as a final rule].
[Federal Register citation when published
as a final rule]; 50
CFR 17.41(n).4d
*
*
(ii) Take, as set forth at § 17.21(c)(2)
through (4) for endangered wildlife, and
(c)(6) and (7) for endangered migratory
birds.
(iii) Take, as set forth at § 17.31(b).
(iv) Possess and engage in other acts
with unlawfully taken wildlife, in
accordance with the provisions set forth
at § 17.21(d)(2) for Federal and state law
enforcement officers regarding
endangered wildlife, and in (d)(3) and
(4) for certain persons as described
therein with respect to sick, injured
and/or orphaned endangered migratory
birds.
(v) Take incidental to an otherwise
lawful activity caused by:
(A) Forest or fuels management to
reduce the risk or severity of wildfire
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(such as prescribed fire) where fuels
management activities are essential to
reduce the risk of catastrophic wildfire,
and when such activities will be carried
out in accordance with an established
and recognized fuels or forest
management plan that includes
measures to minimize impacts to the
California spotted owl and its habitat
and results in conservation benefits to
California spotted owls.
(B) Habitat management and
restoration efforts that are specifically
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designed to provide for the conservation
of the California spotted owl’s habitat
needs and include measures that
minimize impacts to the California
spotted owl and its habitat. These
activities must be carried out in
accordance with finalized State or
Federal agency conservation plans or
strategies for the California spotted owl.
(C) Management or cleanup activities
that remove toxicants and other
chemicals from trespass cannabis
cultivation sites in California spotted
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11639
owl habitat. Cleanup of these sites may
involve activities that may cause
localized, short-term disturbance to
California spotted owls, as well as
require limited removal of some habitat
structures valuable to California spotted
owls (e.g., hazard trees that may be a
suitable nest site).
Wendi Weber,
Acting Director, U.S. Fish and Wildlife
Service.
[FR Doc. 2023–03526 Filed 2–22–23; 8:45 am]
BILLING CODE 4333–15–P
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]]>Agencies
[Federal Register Volume 88, Number 36 (Thursday, February 23, 2023)]
[Proposed Rules]
[Pages 11600-11639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03526]
[[Page 11599]]
Vol. 88
Thursday,
No. 36
February 23, 2023
Part IV
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; California Spotted Owl;
Endangered Status for the Coastal-Southern California Distinct
Population Segment and Threatened Status With Section 4(d) Rule for the
Sierra Nevada Distinct Population Segment; Proposed Rule
Federal Register / Vol. 88, No. 36 / Thursday, February 23, 2023 /
Proposed Rules
[[Page 11600]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2022-0166; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG64
Endangered and Threatened Wildlife and Plants; California Spotted
Owl; Endangered Status for the Coastal-Southern California Distinct
Population Segment and Threatened Status With Section 4(d) Rule for the
Sierra Nevada Distinct Population Segment
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list two distinct population segments (DPSs) of the California spotted
owl (Strix occidentalis occidentalis), a bird species from California
and Nevada, under the Endangered Species Act of 1973, as amended (Act).
This determination also serves as our 12-month finding on a petition to
list the California spotted owl. After a review of the best available
scientific and commercial information, we find that listing the
Coastal-Southern California DPS as endangered is warranted, and that
listing the Sierra Nevada DPS as threatened is warranted. Accordingly,
we propose to list the Coastal-Southern California DPS as an endangered
species under the Act and the Sierra Nevada DPS as a threatened species
with a rule issued under section 4(d) of the Act (``4(d) rule''). If we
finalize this rule as proposed, it will add these two DPSs to the List
of Endangered and Threatened Wildlife and extend the Act's protections
to them.
DATES: We will accept comments received or postmarked on or before
April 24, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by April 10, 2023.
ADDRESSES:
Written comments: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R8-ES-2022-0166,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R8-ES-2022-0166, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.regulations.gov under Docket No. FWS-R8-ES-2022-0166.
FOR FURTHER INFORMATION CONTACT: Michael Fris, Field Supervisor,
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Sacramento, CA
95825; telephone 916-414-6700. Individuals in the United States who are
deaf, deafblind, hard of hearing, or have a speech disability may dial
711 (TTY, TDD, or TeleBraille) to access telecommunications relay
services. Individuals outside the United States should use the relay
services offered within their country to make international calls to
the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
Sierra Nevada DPS of the California spotted owl meets the definition of
a threatened species, and the Coastal-Southern California DPS of the
California spotted owl meets the definition of an endangered species;
therefore, we are proposing to list them as such. Listing a species as
an endangered or threatened species can be completed only by issuing a
rule through the Administrative Procedure Act rulemaking process (5
U.S.C. 551 et seq.).
What this document does. We propose the listing of the Sierra
Nevada DPS of the California spotted owl as a threatened species with a
rule under section 4(d) of the Act and the Coastal-Southern California
DPS of the California spotted owl as an endangered species under the
Act.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
We have determined that both the Sierra Nevada population and the
coastal-southern California population of the California spotted owl
are discrete and significant under our DPS policy and are, therefore,
listable entities under the Act. The Sierra Nevada DPS is found in the
Sierra Nevada Mountain Ranges and foothills in California and western
Nevada. The Coastal-Southern California DPS is found in the Coast,
Transverse, and Peninsular Ranges of California. These two DPSs
together represent the entirety of the California spotted owl's range.
The Sierra Nevada DPS of the California spotted owl is currently
being impacted by high-severity fire, tree mortality, drought, and
barred owls. This DPS still has resiliency throughout its range, and
some areas remain in stable condition; however, we expect the magnitude
of impacts from high-severity fire, tree mortality, drought, climate
change, and other threats to increase into the future. Because the
Sierra Nevada DPS is likely to become in danger of extinction within
the foreseeable future, we propose to list it as threatened.
The Coastal-Southern California DPS has low resiliency, redundancy,
and representation. The entirety of the range of this DPS is at
extremely high risk of fire, and available habitat is fragmented. All
areas of the Coastal-Southern California DPS are currently declining,
and the DPS faces additional threats from tree mortality and drought.
Because the Coastal-Southern California DPS is currently in danger of
extinction, we propose to list it as endangered.
[[Page 11601]]
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status of this species.
(5) Information on regulations that may be necessary and advisable
to provide for the conservation of the Sierra Nevada DPS of the
California spotted owl and that we can consider in developing a 4(d)
rule for the species. In particular, information concerning the extent
to which we should include any of the section 9 prohibitions in the
4(d) rule or whether we should consider any additional exceptions from
the prohibitions in the 4(d) rule.
(6) Whether we should include in our 4(d) rule for the Sierra
Nevada DPS the provision at 50 CFR 17.7 for raptors in captivity.
(7) Which areas may be appropriate as critical habitat for the
species and why areas should or should not be proposed for designation
as critical habitat in the future, including whether there are threats
to the species from human activity that would be expected to increase
due to the designation and whether that increase in threat would
outweigh the benefit of designation such that the designation of
critical habitat may not be prudent.
(8) Specific information on:
(a) The amount and distribution of habitat for the Sierra Nevada
DPS and the Coastal-Southern California DPS of the California spotted
owl which should be considered for proposed critical habitat;
(b) What may constitute the physical or biological features
essential to the conservation of the species within the geographical
range currently occupied by the species;
(c) Where these features are currently found;
(d) Whether any of these features may require special management
considerations or protection;
(e) What areas are currently occupied and contain features
essential to the conservation of the species that should be included in
the designation and why; and
(f) What unoccupied areas may be essential for the conservation of
the species and why.
Please include sufficient information, such as scientific journal
articles or other publications, to allow us to verify any scientific or
commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act (16 U.S.C. 1533(b)(1)(A)) directs that determinations as to
whether any species is an endangered or a threatened species must be
made solely on the basis of the best scientific and commercial data
available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the Coastal-
Southern California DPS is threatened instead of endangered, or that
the Sierra Nevada DPS is endangered instead of threatened, or we may
conclude that neither DPS warrants listing as either an endangered
species or a threatened species. In addition, we may change the
parameters of the prohibitions or the exceptions to those prohibitions
in the 4(d) rule for the Sierra Nevada DPS if we conclude it is
appropriate in light of comments and new information received. For
example, we may expand the incidental-take prohibitions or the
exceptions to those prohibitions in the 4(d) rule for the Sierra Nevada
DPS to include prohibiting additional activities if we conclude that
those additional activities are not compatible with conservation of the
DPS. Conversely, we may establish additional exceptions to the
incidental-take prohibitions in the final rule if we conclude that the
activities would facilitate or are compatible with the conservation and
recovery of the DPS.
Public Hearing
Section 4(b)(5) of the Act (16 U.S.C. 1533(b)(5)) provides for a
public hearing on this proposal, if requested. Requests must be
received by the date specified in DATES. Such requests must be sent to
the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule
a public hearing on this proposal, if requested, and announce the date,
time, and place of the hearing, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing. We may hold the public hearing in person or
virtually via webinar. We will announce any public hearing on our
website, in addition to the Federal Register. The use of virtual public
hearings is consistent with our regulations at 50 CFR 424.16(c)(3).
List of Abbreviations and Acronyms
We use many abbreviations and acronyms in this proposed rule. For
the convenience of the reader, we define some of them here:
ac = acres
BLM = Bureau of Land Management
[[Page 11602]]
CAL FIRE = California Department of Forestry and Fire Protection
CDWR = California Department of Water Resources
CI = confidence interval
cm = centimeters
dbh = diameter at breast height
DPS = distinct population segment
ft = feet
HCP = habitat conservation plan
ha = hectares
in = inches
km = kilometers
IPCC = Intergovernmental Panel on Climate Change
m = meters
mi = miles
MOU = memorandum of understanding
NPS = National Park Service
PAC = protected activity center
RCP = representative concentration pathway
SPI = Sierra Pacific Industries
SSA = species status assessment
USFS = U.S. Forest Service
Previous Federal Actions
For a detailed history of prior petitions, listing actions, and
litigation, please see the 12-month finding published on May 24, 2006
(71 FR 29886). Subsequent to that finding, we were petitioned twice to
list the California spotted owl as endangered or threatened and to
designate its critical habitat under the Act (16 U.S.C. 1531 et seq.).
The first petition was submitted in December 2014, by the Wild Nature
Institute and John Muir Project of Earth Island Institute, and the
second in August 2015, by Sierra Forest Legacy and Defenders of
Wildlife. On September 18, 2015, we published a 90-day finding that the
petitions presented substantial scientific or commercial information
indicating that listing may be warranted for the California spotted owl
(80 FR 56423). On November 8, 2019, we published a 12-month finding
that listing the California spotted owl was not warranted at that time
(84 FR 60371).
In August 2020, Sierra Forest Legacy, Defenders of Wildlife, and
the Center for Biological Diversity filed a complaint challenging our
12-month not-warranted finding. By stipulated settlement agreement
approved by the court on November 30, 2021, we agreed to submit to the
Federal Register a new 12-month finding for the California spotted owl
on or before February 15, 2023 (Sierra Forest Legacy, et al. v. U.S.
Fish and Wildlife Service, et al., No. 5:20-cv-05800-BLF (N.D. Cal.)).
This document serves as our 12-month finding and completes our
obligations under that settlement agreement.
Peer Review
In 2022, a species status assessment (SSA) team prepared an SSA
report for the California spotted owl. The SSA team was composed of
Service biologists, in consultation with other species experts. The SSA
report represents a compilation of the best scientific and commercial
data available concerning the status of the species, including the
impacts of past, present, and future factors (both negative and
beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the California spotted owl SSA
report. The Service sent the SSA report to four independent peer
reviewers and received one response. Results of this structured peer
review process can be found at https://www.regulations.gov. In
preparing this proposed rule, we incorporated the results of these
reviews, as appropriate, into the SSA report, which is the foundation
for this proposed rule.
Summary of Peer Reviewer Comments
We received comments from one peer reviewer on the draft SSA
report. We reviewed all comments we received from the peer reviewer for
substantive issues and new information regarding the information
contained in the SSA report. The peer reviewer generally provided
additional references, clarifications, and suggestions, including
further definitions of some of the terms used. We updated the SSA
report based on the peer reviewer's comments, including changing the
approach to our scoring system for the current and future habitat
analyses, clarifying specific points where appropriate, and adding
additional details and suggested references where needed. Peer reviewer
comments are addressed in the following summary and were incorporated
into the SSA report as appropriate.
Comment 1: The peer reviewer stated that there was not enough
discussion in the SSA report about how habitat factors have been
observed to impact owls, particularly in regards to the existing
studies analyzing demographic trends of California spotted owls.
Further, the peer reviewer stated that the SSA report should discuss
the methodology used in the demography studies.
Our response: We acknowledge that habitat factors and demographic
factors are interrelated, and that understanding the relation between
those two issues is crucial. We discuss how habitat factors influence
demographic factors, and vice versa, in sections 3.1 and 3.2 of the SSA
report (Service 2022, pp. 14-24). We have also incorporated all
available information on how the two are related. Additionally, not all
of the demographic studies discuss the relationship between vital rates
or population trends and habitat factors, but we incorporated the
information into the SSA report where available.
Regarding the methodology used in the demography studies, we added
a paragraph to the SSA report that discusses different methodologies
used in the different types of population studies available in the
literature (Service 2022, p. 24). We will provide a list of all
literature cited should any readers wish to review those studies in
more detail, and we will provide any studies not readily available on
https://www.regulations.gov.
Comment 2: The peer reviewer further questioned the assumption in
the SSA report that high-quality habitat is equivalent to population
stability, or vice versa.
Our response: While we recognize that data are limited, the best
available scientific and commercial data, including all available
information on habitat use and species needs for the California spotted
owl, concluded that the relationship between high-quality habitat and
population stability is sufficiently certain to rely upon for our
analysis of species viability.
Comment 3: While recognizing that some protected activity center
(PAC) information is out of date, the peer reviewer suggested adding
the amount of PAC area to the analysis units in section 5.3 of the SSA
report.
Our response: The detailed analysis unit descriptions describe the
current condition of each unit. Because PAC information does not
provide insight on the current condition of each analysis unit, it
would not be appropriate to include in section 5.3 of the SSA report (a
PAC is a designation made by the USFS to protect the best available 121
ha (300 ac) of habitat in as compact of a unit as possible around a
nest tree). We do, however, incorporate information from PACs
throughout the SSA report and this proposed rule to understand the
impact, breadth, and distribution of threats across the landscape.
Comment 4: The peer reviewer questioned whether we should use the
same criteria to analyze conditions in the Sierra Nevada and in
coastal/southern California.
Our response: In order to present a standardized comparison across
all analysis units, we used the same scoring criteria for the Sierra
Nevada and
[[Page 11603]]
coastal/southern California. However, we recognize that California
spotted owls may use different-sized trees in the coastal-southern
California population than in the Sierra Nevada population. We
presented a separate analysis acknowledging this, and we included the
difference in tree sizes found in the two geographic areas (Service
2022, tables 9, 13, and 18).
I. Proposed Listing Determination
Background
A thorough review of the taxonomy, life history, and ecology of the
California spotted owl (Strix occidentalis occidentalis) is presented
in the SSA report (version 2.0; Service 2022, pp. 8-14).
California spotted owls are medium-sized brown owls measuring 46.6-
48.3 cm (18.3-19.0 in) with a mottled appearance, round face, large
pale brown facial disks, dark brown eyes, and a yellowish green bill
(Verner et al. 1992, p. 55; Guti[eacute]rrez et al. 2020,
``Appearance'' section). Females are generally slightly larger than
males (Verner et al. 1992, p. 55).
The American Ornithological Society (formerly the American
Ornithologists' Union (AOU)) currently recognizes three distinct
subspecies of spotted owls: northern spotted owl (Strix occidentalis
caurina), California spotted owl, and Mexican spotted owl (Strix
occidentalis lucida) (AOU 1957). Given similarities between the
subspecies of spotted owls, the SSA report and this proposed rule use
available relevant literature for both the northern spotted owl and the
Mexican spotted owl as necessary and appropriate and clearly identify
when we refer to those entities. The term ``spotted owl'' is used when
talking about Strix occidentalis as a whole. Additionally, under the
Act, the term ``species'' includes any subspecies of fish or wildlife
or plants. For the purposes of this proposed rule, we in general use
``species'' to refer to the California spotted owl rather than
``subspecies.''
There is some overlap in range between northern spotted owls and
the California spotted owl, and interbreeding between the two
subspecies occasionally occurs (Haig et al. 2004, p. 690; Barrowclough
et al. 2011, pp. 581, 583-586; Miller et al. 2017, pp. 6871, 6875-6877;
Hanna et al. 2018, pp. 3947-3948, 3950-3951). California spotted owls
have the lowest genetic diversity among the subspecies compared to
northern and Mexican spotted owls, suggesting that the California
spotted owl is of more recent origin than the other spotted owl
subspecies or that populations of the California spotted owl are much
smaller than the northern and Mexican spotted owl populations
(Barrowclough et al. 1999, pp. 919, 927; Haig et al. 2004, p. 683).
Within the California spotted owl, genetic differences between
individuals found in the Sierra Nevada and individuals found in
mountain ranges throughout southern California suggest limited
interbreeding between these two areas (Barrowclough et al. 2005, pp.
1113-1114; Hanna et al. 2018, pp. 3947-3948, 3950). However, these
genetic studies are limited by sample size and sampling locations. We
are only aware of one study that includes California spotted owls from
coastal California; this study shows gene flow between geographically
adjacent spotted owl samples, with some evidence of asymmetrical gene
flow between California spotted owls in Carmel, California (coastal
California), and the Sierra Nevada (Barrowclough et al. 2005, p. 1114).
California spotted owls are distributed across habitat in
California and Nevada including the Sierra Nevada, coastal California,
and southern California. The California spotted owl has also been
documented in the Sierra San Pedro Martir mountains in Baja California
Norte, Mexico, with a few scattered records of the spotted owl in Baja
California between 1887 and 1972 (Grinnell 1928, p. 242; Wilbur 1987,
p. 170). However, many researchers now question whether the species
ever actually occurred in Baja California (Erickson in litt. 2022;
Unitt in litt. 2022). There are only a few accounts of the species,
with none of those accounts mentioning breeding or evidence of breeding
pairs. Therefore, we consider the California spotted owl to be only a
rare visitor of Mexico, and do not consider Baja California as its own
population.
California spotted owls are continuously distributed throughout the
forests of the western side of the Sierra Nevada from Shasta County
south to the Tehachapi Pass in Kern County (Guti[eacute]rrez et al.
2017, pp. 13-14). They are sparsely distributed on the eastern side of
the Sierra Nevada into western Nevada (GBBO 2012, p. Spp-47-4). Outside
of the Sierra Nevada, the species' range is not contiguous. Along the
California coast and into southern California, the species is found in
the Coast, Transverse, and Peninsular mountain ranges from Monterey
County in the north to San Diego County in the south (Guti[eacute]rrez
et al. 2020, ``Distribution'' section). However, there is a large break
in the species' range around San Luis Obispo County, where the species
is not known to occur. The Tehachapi Pass between the Sierra Nevada to
the east and the Transverse Range to the west represents a gap between
California spotted owls in the Sierra Nevada and California spotted
owls in coastal and southern California (Verner et al. 1992, p. 4).
California spotted owls are absent from the Santa Cruz Mountains (part
of the Coast Range) in California, where suitable habitat appears to be
present (Guti[eacute]rrez et al. 2017, p. 240).
California spotted owls are currently found throughout their known
historical range, although there is evidence of a decrease in abundance
in parts of the range including both the Sierra Nevada and southern
California (Franklin et al. 2004, pp. 23-42; Tempel et al. 2014b, pp.
90-94; Conner et al. 2016, pp. 7-18; Hanna et al. 2018, pp. 3947-3949;
Tempel et al. 2022, p. 18). The majority of California spotted owls are
found in mid-elevation, mixed-conifer forest on the west slope of the
Sierra Nevada (Guti[eacute]rrez et al. 2017, p. xviii).
California spotted owls are long-lived (approximately 16-23 years)
with high adult survival and low reproductive output (Seamans and
Guti[eacute]rrez 2007, p. 57; Guti[eacute]rrez et al. 2020,
``Demography and Populations'' section). Pairs exhibit high territory
fidelity (Guti[eacute]rrez et al. 2020, ``Sounds and Vocal Behavior''
and ``Behavior'' sections). Territories--the area actively defended by
a breeding pair--can overlap with neighboring pairs and are smaller
than home ranges (Guti[eacute]rrez et al. 2017, pp. xvi, 294).
Estimates of territory size have varied from 203 ha (502 ac) to 813 ha
(2,009 ac), with higher estimates in the northern Sierra Nevada and
lower estimates in southern California (Bingham and Noon 1997, p. 136;
Blakesley et al. 2005, p. 1556; Seamans and Guti[eacute]rrez 2007b, p.
568; Tempel et al. 2014b, p. 2091). Higher quality territories measured
in adult survival, territory colonization, and territory extinction,
tend to have a greater proportion of higher canopy cover (Tempel et al.
2014b, p. 2089; Guti[eacute]rrez et al. 2017, pp. 271-273). Home
ranges, or areas used by a pair to meet requirements for survival and
reproduction, are about 400-1,200 hectares (ha) (1,000-3,000 acres
(ac)) in size (Guti[eacute]rrez et al. 2017, p. xviii). Home ranges are
typically larger in the northern portion of the range (>1,000 ha (2,470
ac)) and smaller in the southern portion of the range (<1,000 ha (2,470
ac)) due to differences in selected prey species (Guti[eacute]rrez et
al. 2017, p. xviii).
Breeding season begins in mid-February, and the juvenile dependency
period can last through mid-September;
[[Page 11604]]
nesting generally starts earlier at lower elevations (Guti[eacute]rrez
et al. 2020, ``Breeding'' section). During the breeding season,
California spotted owls tend to spend the majority of their time at
activity centers of around 121 ha (299 ac) (Verner et al. 1992, p. 87;
Berigan et al. 2012, p. 299). Activity centers are the areas where
California spotted owls they nest, roost, and forage (Verner et al.
1992, p. 87; Guti[eacute]rrez et al. 2017, pp. 270-271). Spotted owls
typically have only one nest per breeding season, and they rarely re-
nest if the first nests fails (Guti[eacute]rrez et al. 2020,
``Breeding'' section). Females typically lay 1-3 eggs, with survival of
offspring into adulthood highest when two young fledge in comparison to
singletons and triplets (Peery and Guti[eacute]rrez 2013, p. 132;
Guti[eacute]rrez et al. 2020, ``Demography and Populations'' section).
Although difficult to estimate due to dispersal, juvenile survival in
California spotted owls is low (Blakesley et al. 2001, p. 667; LaHaye
et al. 2004, p. 1056).
Spotted owls always disperse from their natal areas in the year
they hatch. Natal dispersal occurs during the fall, after juveniles
have reached adult weight and parental care stops (Guti[eacute]rrez et
al. 2020, ``Breeding'' section). Average juvenile dispersal in southern
California is 9.7-11.3 km (6-7 mi), and ranges from 3.2-37.0 km (2-23
mi) (LaHaye et al. 2001, p. 691). Larger dispersal distances, up to 177
km (110 mi), have been documented in both northern and Mexican
subspecies (Guti[eacute]rrez and Carey 1985, p. 60; Ganey et al. 1998,
p. 206; Hollenbeck et al. 2018, p. 533). Adult California spotted owls
typically do not shift territories or undergo breeding dispersal from
an established territory (Blakesley et al. 2006, p. 76; Zimmerman et
al. 2007, p. 963; Guti[eacute]rrez et al. 2011, p. 592); however, some
breeding dispersal occurs in adults or pairs that have been
unsuccessful in mating or if habitat is altered (Blakesley et al. 2006,
p. 71).
Breeding only occurs once a pair is formed and settled into a
territory (Guti[eacute]rrez et al. 2017, p. 15). Pairs can breed in
consecutive years, but in certain conditions may postpone reproduction
until temporarily poor environmental conditions improve (Stearns 1976,
pp. 4, 15-26; Franklin et al. 2000, p. 539; Guti[eacute]rrez et al.
2017, p. xvi). The number of young fledged annually per territorial
California spotted owl female in several areas within the Sierra Nevada
ranged from 0.478-0.988 (Blakesley et al. 2010, pp. 1, 18).
In general, California spotted owls nest in areas of mature,
multistoried forests with complex structure, larger trees, multi-
layered high canopy cover, and large amounts of coarse woody debris,
while areas with higher heterogeneity of forest types and the edges
between them are important for foraging (Guti[eacute]rrez et al. 2017,
p. xvii). In the Sierra Nevada, a majority of California spotted owls
occur within mid-elevation ponderosa pine (Pinus ponderosa), mixed-
conifer, white fir (Abies concolor), and mixed-evergreen forest types,
with few occurring in the lower elevation oak woodlands of the western
foothills (Guti[eacute]rrez et al. 2017, p. 109). In coastal and
southern California, California spotted owls are found in riparian/
hardwood forests and woodlands, live oak/big cone fir forests, and
redwood/California laurel forests (Guti[eacute]rrez et al. 2017, p.
xxvi). In southern California, vegetation types differ relative to the
Sierra Nevada, and what is considered a large tree in southern
California may not be comparable to what is considered a large tree in
the Sierra Nevada. However, California spotted owls in southern
California still select for territories containing larger trees (LaHaye
et al. 1997, pp. 42, 47) and predominantly closed canopy cover (Smith
et al. 2002, pp. 137, 142, 144).
California spotted owls can use a variety of habitat types for
nesting. At higher elevations, the species primarily uses conifers, and
as elevations decrease, they increasingly use hardwoods
(Guti[eacute]rrez et al. 2020, ``Habitat'' section). Important
components of nesting habitat include high canopy cover, larger trees,
and high habitat heterogeneity. For nest trees, California spotted owls
use a subset of larger trees or snags, with the average nest tree
measuring 124 cm (49 in) diameter at breast height (dbh) and 31 m (103
ft) tall in the Sierra Nevada (Guti[eacute]rrez et al. 2017, p. 50). In
southern California, California spotted owls use cavity, broken-top,
and platform nests with different characteristics (LaHaye et al. 1997,
pp. 42, 47; Tanner 2022, pers. comm.). In southern California,
California spotted owl use of platform or old raptor nests is more
common; thus, owls with these types of nests were observed using
smaller trees than used in other nest types (LaHaye et al. 1997, p.
45). Within their nesting territory, California spotted owls select for
nest sites farther away from the forest edge (Phillips et al. 2010, p.
312). Overall, California spotted owl occupancy, colonization, adult
survival, and reproductive success are all positively associated with
an increasing amount of structurally complex habitat on the landscape
(Franklin et al. 2000, p. 578; Blakesley et al. 2005, p. 1562; Tempel
et al. 2014a, pp. 2103-2104).
California spotted owls can also use a variety of habitats to
forage. California spotted owls primarily prey upon a variety of small
to medium-sized mammals, including, but not limited to, flying
squirrels, woodrats, and pocket gophers, as well as birds, lizards, and
insects (Guti[eacute]rrez et al. 2017, p. 28). In the Sierra Nevada,
above approximately 1,200 m (3,937 ft) in coniferous forests,
California spotted owls most commonly consume Humboldt's flying
squirrels (Glaucomys oregonensis) (Laymon 1988, pp. 130-154; Verner et
al. 1992, pp. 4, 65-69; Munton et al. 2002, pp. 99, 101-104). Preferred
habitat conditions of Humboldt's flying squirrels include cool, moist,
mature forest with abundant standing and down snags where they can
forage on mostly fungi and lichens (Cassola 2016, p. 3). In lower
elevation oak woodlands and riparian-deciduous forests in the Sierra
Nevada and southern California, California spotted owls select for
woodrats (Neotoma spp.) (Verner et al. 1992, pp. 4, 65, 68-69; Smith et
al. 1999, pp. 22, 24-28; Munton et al. 2002, pp. 99, 101-104). Due to
this elevational gradient in prey distribution, California spotted owls
select foraging sites characteristic of flying squirrel habitats at
higher elevations and woodrat habitats at lower elevations (Kramer et
al. 2021b, pp. 12-14). Some individuals have smaller home ranges where
woodrats are the primary prey source, presumably because woodrats have
a higher caloric gain per successful foraging event and are found in
higher densities than northern flying squirrels (Zabel et al. 1995, pp.
433, 435-438). There is some evidence that California spotted owl diet
may shift following wildfires. In national parks in the Sierra Nevada
that have implemented longstanding fire management efforts (i.e.,
prescribed fire and managed wildfire), the California spotted owl diet
contains a higher proportion of woodrats and pocket gophers relative to
flying squirrels (Hobart et al. 2021, pp. 254, 256).
In regard to foraging habitat, important components include the
presence of larger trees, high canopy cover, and coarse woody debris.
California spotted owls tend to forage in larger trees, likely due to
the canopy cover provided by larger trees and the important resources
such as shelter and food that larger trees provide for prey species
(Laymon 1988, pp. 47, 71, 77, 100; Verner et al. 1992, pp. 9-10, 60,
88; Moen and Guti[eacute]rrez 1997, pp. 1281, 1284). However,
California spotted owls use medium-size trees (defined by the authors
as >25 cm dbh (9 in)) for
[[Page 11605]]
foraging while avoiding areas dominated by small trees (<25 cm dbh (9
in)) (Kramer et al. 2021a, pp. 4, 6). Coarse woody debris is also an
important habitat feature for California spotted owls because it
provides food, shelter, and protection for prey species, especially
woodrats (Waters and Zabel 1995, pp. 861-862; Pyare and Longland 2002,
pp. 1016-1017; Innes et al. 2007, pp. 1523, 1526; Kelt et al. 2013, p.
1208). Heterogeneous forests, such as those found on private lands, may
provide more habitat for California spotted owls than was previously
understood (Atuo et al. 2019, p. 295), as some privately owned study
areas have higher numbers of occupied sites than adjacent USFS study
areas (Roberts et al. 2017, p. 113).
California spotted owl roosting habitat is very similar to nesting
habitat. Specific components of roosting habitat include multi-layered
high canopy cover and presence of large trees. It is believed that such
forests provide young California spotted owls with protection from
predators and from high temperatures. California spotted owls have a
low heat tolerance in comparison to other bird species, beginning to
show heat stress at 30-34 degrees Celsius ([deg]C) (86-93 degrees
Fahrenheit ([deg]F)). The cooler microclimates that multi-layered high
canopy cover provides are important for both juveniles and adults
during warm summers (Weathers 1981, pp. 358-359; Barrows 1981, pp. 303-
305; Weathers et al. 2001, pp. 678-679). Presence of large trees is
also important for California spotted owl roosting, as individuals tend
to roost in large trees, likely due to the canopy cover provided by
large trees and the resources they provide for prey species (Laymon
1988, pp. 47, 71, 77, 100; Verner et al. 1992, pp. 9-10, 60, 88; Moen
and Guti[eacute]rrez 1997, pp. 1281-1284).
Within the SSA report and this proposed rule, we define a
population as a group of interbreeding California spotted owls that are
more likely to breed among that group than outside of that group. We
use information from genetic studies and habitat features to identify
two California spotted owl populations: one in the Sierra Nevada, and
another in coastal and southern California (hereafter referred to as
the coastal-southern California population).
In the western Sierra Nevada, habitat is relatively continuous,
without significant gaps in distribution (Guti[eacute]rrez et al. 2017,
p. xviii); however, in the eastern Sierra Nevada, habitat is more
discontinuous with disjunct patches (Dilts 2022, pp. 5-9). Despite this
fragmentation, California spotted owls still have substantial gene flow
within the Sierra Nevada. However, there is limited gene flow to
coastal or southern California, and large-scale fragmentation of
suitable habitat divides the Sierra Nevada from this other population
(Barrowclough et al. 2005, pp. 1114-1116). We are not aware of specific
information about individual California spotted owls moving between
these two population areas.
In coastal and southern California, the California spotted owl
population consists of subpopulations distributed among discrete
mountain ranges, resulting in habitat ``islands'' surrounded by
unsuitable habitat (Verner et al. 1992, p. 187). Areas between these
habitat islands are typically lowland desert scrub and chaparral that
is unsuitable for California spotted owls, or substantially modified by
human-induced development and fragmentation (Verner et al. 1992, p.
187). Some of the subpopulations are separated by relatively narrow
gaps, such as the gap between the San Gabriel and San Bernardino
Mountains, while other gaps are more significant, such as the gap
between the Northern and Southern Santa Lucia Mountains. California
spotted owls in coastal and southern California are less well-studied
than those in the Sierra Nevada, but there is a notable lack of
documented California spotted owl movement between the coastal and
southern subpopulations, and we are not aware of any dispersal between
them. This population is also described in the literature as being a
presumed metapopulation (Verner et al. 1992, pp. 187-206; LaHaye et al.
1994, entire; Guti[eacute]rrez et al. 2017, p. 241) despite the
documented lack of connectivity, even though dispersal among
populations is a defining characteristic of a metapopulation (see
Hanski and Gilpin 1991 for more on metapopulation theory). However,
spatial structure of a metapopulation within and among subpopulations
is critical for metapopulation functioning, and available evidence does
not document successful dispersal between the San Bernardino, San
Gabriel, and San Jacinto Mountains, which are adjacent mountain ranges,
indicating that if mixing does occur it is very rare (LaHaye et al.
2001, entire; LaHaye et al. 2004, entire; Guti[eacute]rrez et al. 2017,
pp. 242, 250). Further, not all subpopulations within the
metapopulation have equal likelihood of ``blinking out'' or being
rescued/recolonized by other subpopulations, which are important
components of metapopulation theory (Guti[eacute]rrez et al. 2017, pp.
241-242, 250). Within the coastal-southern California population, the
subpopulation inhabiting the San Bernardino and San Gabriel mountains
is the largest subpopulation and is the subject of most ecological
studies. The persistence of this subpopulation has been identified as
important for persistence of the coastal-southern California population
(Verner et al. 1992, pp. 197-206).
To conduct a more focused analysis of how different portions of
each of the populations' ranges contribute to that population's overall
resiliency, we further divided the Sierra Nevada and southern
California populations into analysis units (see figure 1, below). We
chose analysis units roughly based on public land management boundaries
because of varying demographic data and management strategies across
the range. Dividing the population up into analysis units based on land
management boundaries allows a better assessment of the varying
conditions across the range. We identified a total of 15 analysis
units: Lassen, Plumas, Tahoe, Eldorado, Humboldt-Toiyabe, Stanislaus,
Yosemite, Sierra, Sequoia-Kings Canyon, Sequoia, Inyo, Las Padres, Las
Padres-Angeles, San Bernardino, and Cleveland.
BILLING CODE 4333-15-P
[[Page 11606]]
[GRAPHIC] [TIFF OMITTED] TP23FE23.008
Figure 1--Populations and Analysis Units of the California Spotted Owl
(CSO)
BILLING CODE 4333-15-C
Distinct Population Segment Evaluation
Under the Act, the term ``species'' includes any subspecies of fish
or wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature
(16 U.S.C. 1532(16)). To guide the implementation of the DPS provisions
of the Act, we and the National Marine Fisheries Service (National
Oceanic and Atmospheric Administration--Fisheries), published the
Policy Regarding the Recognition of Distinct Vertebrate Population
Segments Under the Endangered Species Act (DPS Policy) in the Federal
Register on February 7, 1996 (61 FR 4722). Under our DPS Policy, we use
two elements to assess whether a population segment under consideration
for listing may be recognized as a DPS: (1) The population segment's
discreteness from the remainder of the species to which it belongs, and
(2) the significance of the population segment to the species to which
it belongs. If we determine that a population segment being considered
for listing is a DPS, then the population
[[Page 11607]]
segment's conservation status is evaluated based on the five listing
factors established by the Act to determine if listing it as either
endangered or threatened is warranted.
As discussed above in Previous Federal Actions, we were petitioned
to list the California spotted owl subspecies throughout its range. In
response to the petitions, we divided the species into two populations
and our analysis covers the full range of the species. Under the Act,
we have the authority to consider for listing any species, subspecies,
or, for vertebrates, any distinct populations segment of these taxa if
there is sufficient information to indicate that such action may be
warranted. Therefore, we considered whether the two populations of the
California spotted owl (the Sierra Nevada portion of the California
spotted owl's range, and the coastal and southern California portions
of the California spotted owl's range) meet the DPS criteria under the
Act. These two populations comprise the entirety of the California
spotted owl's range (and thus the entirety of the petitioned entity),
and we have determined that it is appropriate to analyze them
individually under our DPS policy.
Discreteness
Under our DPS Policy, a population segment of a vertebrate taxon
may be considered discrete if it satisfies either of the following
conditions: (1) It is markedly separated from other populations of the
same taxon as a consequence of physical, physiological, ecological, or
behavioral factors. Quantitative measures of genetic or morphological
discontinuity may provide evidence of this separation; or (2) it is
delimited by international governmental boundaries within which
differences in control of exploitation, management of habitat,
conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the Act.
We conclude the two segments satisfy the ``markedly separate''
condition. The Sierra Nevada part of the range is separated from the
coastal and southern California parts of the range by large-scale
fragmentation of suitable habitat, with the Tehachapi Pass in Kern
County identified as the dividing line between these areas (Verner et
al. 1992, p. 4; Barrowclough et al. 2005, pp. 1114-1116). The distance
between suitable habitat in the closest parts of the Sierra Nevada and
the Transverse Range of southern California is only 40 km (25 mi).
Although this distance is near the known average dispersal of juvenile
California spotted owls, we are not aware of specific information about
individual California spotted owls moving between the Sierra Nevada and
California spotted owl habitat in coastal and southern California
(Service 2022, p. 18).
As discussed above in Background, there are few genetic studies on
the California spotted owl. However, existing analyses provide evidence
that gene flow between the two parts of the range is limited and may
have been restricted to historical asymmetrical gene flow from areas in
the central California coast to the Sierra Nevada (Barrowclough et al.
2005, p. 1113), although the study acknowledges that more data are
needed to inform this conclusion. Our DPS policy notes that we do not
consider it appropriate to require absolute reproductive isolation as a
prerequisite to recognizing a distinct population segment. As the
policy states, this would be an impracticably stringent standard, and
one that would not be satisfied even by some recognized species that
are known to sustain a low frequency of interbreeding with related
species.
Therefore, because the two populations are markedly separated from
each other, we have determined that both the Sierra Nevada and the
coastal and southern California parts of the range both individually
meet the condition for discreteness under our DPS Policy.
Significance
Under our DPS Policy, once we have determined that a population
segment is discrete, we consider its biological and ecological
significance to the larger taxon to which it belongs. This
consideration may include, but is not limited to: (1) Evidence of the
persistence of the discrete population segment in an ecological setting
that is unusual or unique for the taxon, (2) evidence that loss of the
population segment would result in a significant gap in the range of
the taxon, (3) evidence that the population segment represents the only
surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historical range, or
(4) evidence that the discrete population segment differs markedly from
other populations of the species in its genetic characteristics.
For the California spotted owl, we first considered evidence that
loss of a population segment would result in a significant gap in the
range of the taxon. As discussed above, the southwestern and
northeastern parts of the range are separated by approximately 40 km
(25 mi). The loss of the coastal and southern California parts of the
range would result in the loss of the entire southwestern part of the
species' range and decrease species redundancy and ecological and
genetic representation, thus decreasing the species' ability to
withstand demographic and environmental stochasticity. The loss of the
Sierra Nevada range would result in the loss of 70 percent of the
species' range, also reducing the species' ability to withstand
demographic and environmental stochasticity. Therefore, the loss of
either part of the range would result in a significant gap in the range
of the California spotted owl.
We then considered evidence whether either of the discrete
population segments occur in an ecological setting that is unusual or
unique for the taxon. In the Sierra Nevada, a majority of California
spotted owls occur within mid-elevation mixed-conifer and mixed-
evergreen forest types, with few occurring in the lower elevation oak
woodlands of the western foothills (Guti[eacute]rrez et al. 2017, p.
109). As described above, in coastal and southern California,
California spotted owls are found in riparian/hardwood forests and
woodlands, live oak/big cone fir forests, and redwood/California laurel
forests, more so than the mixed-conifer communities (Guti[eacute]rrez
et al. 2017, p. xxvi). Use of these other communities is specific and
unique to owls in these areas. What is considered a large tree in
southern California may not be comparable to what is considered a large
tree in the Sierra Nevada. California spotted owls use a subset of
larger trees or snags as their nest trees, with the average nest tree
measuring 124 cm (49 in) dbh and 31 m (103 ft) tall in the Sierra
Nevada (Guti[eacute]rrez et al. 2017, p. 50). In southern California,
use of platform or old raptor nests is more common; thus, owls with
these types of nests were observed using trees as small as 33 cm (13
in) dbh (Tanner 2022, pers. comm.) with mean values of 75.0 cm (29.5
in) dbh (LaHaye et al. 1997, p. 45). Therefore, we conclude that, for
the two populations of California spotted owls, each persists in a
unique ecological setting for the species.
The evidence that a significant gap in the range of the taxon would
result from the loss of either discrete population segment meets the
significance criterion of the DPS Policy. Additionally, there is
evidence that the coastal and southern California and the Sierra Nevada
parts of the range have persisted in a unique ecological setting for
the species. Therefore, under the Service's DPS Policy, we find that
the Sierra Nevada and the coastal and southern California parts of the
California spotted owl's
[[Page 11608]]
range are significant to the taxon as a whole.
Distinct Population Segment Conclusion
Our DPS Policy directs us to evaluate the significance of a
discrete population in the context of its biological and ecological
significance to the remainder of the species to which it belongs. Based
on an analysis of the best available scientific and commercial data, we
conclude that both parts of the California spotted owl's range are
significant, because loss of either part would result in a significant
gap in the range of the taxon, and because the population segments
represent evidence that both parts of the range have persisted in a
unique ecological setting for the species. Therefore, we conclude that
both the Sierra Nevada and the coastal and southern California parts of
the California spotted owl's range are both discrete and significant
under our DPS Policy and are, therefore, uniquely listable entities
under the Act.
Based on our DPS Policy (61 FR 4722; February 7, 1996), if a
population segment of a vertebrate species is both discrete and
significant relative to the taxon as a whole (i.e., it is a distinct
population segment), its evaluation for endangered or threatened status
will be based on the Act's definition of those terms and a review of
the factors enumerated in section 4(a) of the Act. Having found that
both parts of the California spotted owl's range meet the definition of
a distinct population segment, we evaluate the status of both the
Sierra Nevada DPS and the Coastal-Southern California DPS of the
California spotted owl to determine whether either meets the definition
of an endangered or threatened species under the Act.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act
[[Page 11609]]
and its implementing regulations and policies.
To assess California spotted owl viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report (Service 2022, entire); the full SSA report can be found
at Docket No. FWS-R8-ES-2022-0166 on https://www.regulations.gov.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
California spotted owl and its resources, and the threats that
influence the species' current and future condition, in order to assess
the species' overall viability and the risks to that viability.
We note that the California spotted owl SSA report discusses
California spotted owls at the individual, population, and species
level. The SSA does not make any analysis or conclusions with regard to
policy decisions, such as DPS findings, and does not include mention of
the two populations of the subspecies as DPSs. Instead, the SSA report
provides the biological information that our decisionmakers can then
use to inform those policy decisions. This proposed rule and its
supporting record contain the policy decisions and rationale.
Throughout this Summary of Biological Status and Threats discussion, we
discuss the coastal-southern California population of California
spotted owl, which we identify as the Coastal-Southern California DPS,
and the Sierra Nevada population of California spotted owl, which we
identify as the Sierra Nevada DPS.
California Spotted Owl Needs
Individual Needs
In this section, we assess the best available information to
identify the specific habitat components needed to support individual
fitness at all life stages for California spotted owls. Individual owls
must have adequate nesting, foraging, and roosting habitat to be
successful. For the purpose of the SSA report and this proposed rule,
the components of nesting, foraging, and roosting habitat that we
considered most significant include canopy cover, larger trees, and
habitat heterogeneity. Habitat heterogeneity is important to California
spotted owls as it provides protection from predators and extreme
weather conditions, variable microclimates, and habitat for different
prey species.
We acknowledge that these habitat components are not all-inclusive
and there may be other components of nesting, foraging, and roosting
habitat that are not being considered (such as prey). We also
acknowledge that a history of fire suppression in the western United
States, including throughout the range of both the Sierra Nevada DPS
and the Coastal-Southern California DPS, has caused many ecological
changes that are not fully understood (Mallek et al. 2013, p. 2).
However, we chose to focus on habitat components for which there are
available spatial data across the range of the species. Further, prey
is indirectly considered in our analysis since the primary California
spotted owl prey species also select for high canopy cover and coarse
woody debris (Waters and Zabel 1995, p. 858), which are considered here
as components of habitat heterogeneity. Populations of California
spotted owls require the same habitat components as individuals but at
larger scales.
Multi-layered, or complex, high canopy cover is considered an
important resource for spotted owls because it provides cool shaded
microclimates, camouflage and cover for protection from predators and
extreme weather conditions, and habitat for prey species (Forsman 1975,
pp. 4, 90, 105; Barrows 1981, p. 302; Forsman et al. 1984, p. 5). High
canopy cover from tall trees is associated with higher probability of
successful prey capture by California spotted owls (Zulla et al. 2022,
p. 8) and is an important predictor for California spotted owl nesting
habitat (North et al. 2017, pp. 166, 172-175). Multi-layered high
canopy cover around the nest tree and in territories is an important
factor associated with California spotted owl reproductive success
(Hunsaker et al. 2002, pp. 693-699; Blakesley et al. 2005, pp. 1554,
1558-1562). Areas with canopy cover greater than 70 percent are
considered optimal for California spotted owl nest sites and occupancy
sharply declines when canopy cover is less than 40 percent (Blakesley
et al. 2005, p. 1559; Seamans 2005, pp. iii, 90, 100; Seamans and
Guti[eacute]rrez 2007b, pp. 566, 568; Tempel et al. 2014a, pp. 2089,
2091, 2101; Tempel et al. 2016, pp. 747, 759). Even in southern
California where the habitat is naturally more fragmented with less
canopy cover available, California spotted owls still select for areas
with higher canopy cover relative to what is available (Smith et al.
2002, pp. 142-143). Further, California spotted owls in Yosemite
National Park had territory centers with average values of 40 percent
canopy cover in burned forests (Schofield et al. 2020, pp. 4-5).
The presence of large trees, defined as trees that are greater than
61 cm (24 in) dbh (Seamans and Guti[eacute]rrez 2007b, pp. 566, 571-
574; Tempel et al. 2014b, p. 2094; Jones et al. 2018, p. 344), is
important for California spotted owl foraging, roosting, and nesting.
California spotted owls tend to forage and roost in large trees, likely
due to the canopy cover provided by large trees and the important
resources such as shelter and food that large trees provide for prey
species (Laymon 1988, pp. 47, 71, 77, 100; Verner et al. 1992, pp. 9-
10, 60, 88; Moen and Guti[eacute]rrez 1997, pp. 1281, 1284). The
presence of tall (>48 m (157 ft)) trees, and the canopy cover they
provide, is the best predictor for California spotted owl occupancy,
and areas with a high density of large trees are considered high-
quality habitat (Blakesley et al. 2005, pp. 1554, 1558-1562; North et
al. 2017, pp. 166, 171-176). California spotted owls use a
[[Page 11610]]
subset of large trees or snags as their nest trees (LaHaye et al. 1997,
pp. 42, 47; Blakesley et al. 2005, pp. 1554, 1558-1562;
Guti[eacute]rrez et al. 2017, p. 50), and the nest tree itself is
critical for California spotted owl reproductive success because it
provides the space and structure needed for nests, along with
protection from predators and inclement weather. California spotted
owls do not build their own nests but rely on larger trees that provide
multi-layered high canopy cover with open cavities (created as a result
of fallen branches, woodpeckers, etc.), broken tops, platforms, and old
raptor nests (Guti[eacute]rrez et al. 2020, ``Habitat'' and
``Breeding'' sections). The nest tree chosen within a territory is
typically one of the oldest and largest live or dead trees within the
nesting territory with many defects like cracks, disease scars, or
decaying wood (Verner et al. 1992, pp. 6, 60, 71; North et al. 2000, p.
797).
The preferential use of mature forests with high canopy cover and
large trees is well-known for California spotted owls (Guti[eacute]rrez
et al. 2017, p. iii). However, there have been several recent studies
showing the importance of other habitat types, habitat edges, and
habitat heterogeneity (Atuo et al. 2019; Hobart et al. 2019; Kramer et
al. 2021b; Zulla et al. 2022; Wilkinson et al., in prep.). California
spotted owl occupancy, colonization, adult survival, and reproductive
success are all positively associated with the proportion of
structurally complex forests (Franklin et al. 2000, p. 539; Blakesley
et al. 2005, p. 1562; Tempel et al. 2014b, p. 2089; Tempel et al. 2016,
p. 747). The biological and physical components that create habitat
heterogeneity and complex structure are areas of multi-layered high
canopy cover, large trees, coarse woody debris, understory and mid-
story vegetation, patches of burned habitat, riparian habitat, large
diameter standing dead trees (snags), and some open areas within a
California spotted owl's home range.
Coarse woody debris (fallen dead trees and the remains of large
branches on the ground) is an important habitat feature for California
spotted owls because it provides food, shelter, and protection for
California spotted owl prey species, especially woodrats (Waters and
Zabel 1995, pp. 861-862; Pyare and Longland 2002, pp. 1016-1017; Innes
et al. 2007, pp. 1523, 1526; Kelt et al. 2013, p. 1208). Coarse woody
debris in areas of multi-layered high canopy cover is conducive for
fungal growth, a food source for many California spotted owl prey
species (Verner et al. 1992, pp. 71-72; Pyare and Longland 2002, pp.
1016-1017). Rates of prey capture by California spotted owls are
observed to be higher in taller multilayered forests, in areas with
higher vegetation heterogeneity, and near forest-chapparal edges
(Wilkinson et al. in prep., p. 2). There are a variety of habitats
within a heterogeneous landscape that California spotted owls use and
which may provide specific resources. The size of a California spotted
owl's home range increases as the heterogeneity, or number of different
vegetation patches, increase (Williams et al. 2011, p. 333); the
hypothesis is that there may be an optimal point of habitat
heterogeneity for California spotted owls beyond which territory
quality declines (Williams et al. 2011, p. 333).
Population Needs
Populations of California spotted owls must have adequate amounts
of nesting, foraging, and roosting habitat containing the habitat
components described above in sufficient amounts and the appropriate
configuration on the landscape to support a stable or increasing growth
rate. They also need connectivity between territories and home ranges.
Populations meeting these requirements are better able to withstand
stochastic events. In many instances, however, data are insufficient or
completely lacking regarding a population's size and growth rate. In
the absence of such data, we examine other characteristics that may
serve as surrogate indicators of general population health and,
subsequently, resiliency. Essentially, an assessment of the
availability of a species' identified needs (suitable habitat, food,
breeding sites) may allow us to make assumptions about the potential
resiliency of any given population. However, unless there is a
documented positive correlation between the availability of species'
needs and a population's known demographic condition, the uncertainty
regarding such assumptions must be made clear.
In the SSA report, we describe the demographic factors that are
considered important for California spotted owls, including natal
dispersal, survival, fecundity, occupancy, and population growth. We
describe the importance of each demographic factor to California
spotted owl persistence and how the individual needs influence these
factors.
There is little available information about dispersal and dispersal
habitat between the defined California spotted owl populations and
analysis units within the SSA report and this proposed rule. Dispersal
habitat is described for northern spotted owl as 50 percent of the
forest matrix outside of activity centers in stands with an average of
28 cm (11 in) dbh and 40 percent canopy closure (Thomas et al. 1990, p.
15). This contrasts with dispersal for Mexican spotted owls, which may
move across large areas of unforested habitat to access suitable
habitat on different mountain ranges (Guti[eacute]rrez et al. 1995, p.
5; Guti[eacute]rrez et al. 2017, p. 242). It is unknown how far
California spotted owls will disperse across unsuitable habitat to find
a new territory, but adult northern spotted owls have been found to
occasionally move long distances if forced out of a territory (Forsman
in litt. 2018, p. 22).
For dispersal to be successful, many of the individual needs must
be present within the areas to which California spotted owls disperse.
Canopy cover, large trees, and coarse woody debris all must be
available in sufficient amounts and the appropriate configuration on
the landscape (habitat heterogeneity) for juveniles or sub-adults to
successfully settle into a territory to begin breeding.
Survival for California spotted owls is closely linked to
population growth and is important for maintaining population
resiliency (Seamans and Guti[eacute]rrez 2007a, p. 57; Blakesley et al.
2010, p. 27). Adult California spotted owls have high annual survival
rates ranging from 0.796-0.814 in different study areas within analysis
units in southern California (LaHaye et al. 2004, p. 1056; Franklin et
al. 2004, p. 22), and 0.811-0.891 in study areas within analysis units
in the Sierra Nevada (Blakesley et al. 2001, p. 671; Franklin et al.
2004, p. 22; Blakesley et al. 2010, p. 10; Tempel et al. 2014a, p. 92).
In comparison, juvenile survival is difficult to estimate due to
dispersal, and has been found to be low, ranging from 0.087-0.333 in
study areas within analysis units in the Sierra Nevada (Blakesley et
al. 2001, p. 671; Tempel et al. 2014a, p. 92), and 0.368 for southern
California (LaHaye et al. 2004, p. 1056). For northern spotted owl,
juveniles tend to have high mortality during the dispersal phase
(Miller 1989, pp. 41-44; Forsman et al. 2002, p. 18).
All the individual needs discussed above influence survival. For
example, survival is related to the amount of forest dominated by
medium to large trees, high canopy cover, and habitat complexity
(Blakesley et al. 2005, p. 1554; Tempel et al. 2014b, pp. 2089, 2098;
McGinn et al. 2022, p. 9). In northern spotted owls, habitat
heterogeneity is correlated with higher survival rates (Franklin et al.
2000, p. 539).
Fecundity is defined as the ability to produce offspring and is
measured by the number of viable female offspring
[[Page 11611]]
that an individual can produce over a specific time period. Annual
reproductive output, measured by presence or absence of offspring in a
nest, for female California spotted owls in a demographic study in the
Sierra Nevada was found to range from 0.478-0.988 (Blakesley et al.
2010, p. 1). Reproduction throughout all the demographic studies has
ranged from no reproduction within a study area to nearly all birds
reproducing in a study area in a particular year (Franklin et al. 2004,
pp. 32-33; Seamans and Guti[eacute]rrez 2007a, p. 65; Blakesley et al.
2010, p. 17; MacKenzie et al. 2012, p. 597; Tempel et al. 2014a, p. 91;
Stoelting et al. 2015, p. 46). Fecundity, measured as female young
produced per female annually, has been found to range from 0.284-0.409
in the Sierra Nevada and to be 0.362 in southern California (Franklin
et al. 2004, pp. 11, 23).
Many of the individual needs discussed above influence fecundity.
Reproductive output decreases as non-forest habitat increases within
the area around the nest, and nest success increases as the presence of
large remnant trees within the nest stand increases (Blakesley et al.
2005, p. 1554). Reproduction is positively correlated to the foliage
volume above the nest tree (North et al. 2000, p. 797), although
habitat heterogeneity is also important for reproduction (Franklin et
al. 2000, p. 539; Tempel et al. 2014b, p. 2089; McGinn et al. 2022, p.
9) and foraging (Zulla et al. 2022, pp. 7-8). Annual variation in
weather also plays a role in reproductive success (North et al. 2000,
p. 797; Seamans and Guti[eacute]rrez 2007a, p. 57; MacKenzie et al.
2012, p. 597; Stoelting et al. 2015, p. 46). For example, California
spotted owls experienced increased fecundity when a dry breeding season
followed a previously wet year (LaHaye et al. 2004, pp. 1056, 1062).
Although survival of breeding California spotted owls is an important
factor that is closely connected to population growth, reproductive
output may be more influential to population growth because it varies
more than adult survival (Blakesley et al. 2001, p. 667; Seamans and
Guti[eacute]rrez 2007a, p. 57).
In the SSA report and this proposed rule, we define California
spotted owl occupancy as the stable (not transient) presence of at
least one adult within a territory. California spotted owls select and
defend territories in which they spend most of their life. California
spotted owl pairs will only reproduce once they have established an
occupied territory. The measure of occupancy has been found to be
strongly correlated with regional abundance of California spotted owls
and can provide reliable inferences on population trends (Tempel and
Guti[eacute]rrez 2013, pp. 1093-1093).
Many of the individual needs discussed above need to be present in
order for California spotted owls to occupy a territory. Occupancy is
generally higher and more consistent with an increasing proportion of
the territory containing large trees and high canopy cover (Blakesley
et al. 2005, p. 1554; Seamans and Guti[eacute]rrez 2007b, p. 572;
Roberts et al. 2011, p. 610; Tempel et al. 2014b, p. 2089;
Guti[eacute]rrez et al. 2017, p. vxii). As the proportion of forest
types that are not used for nesting (smaller, similar-aged young trees)
increases, occupancy tends to decrease (Blakesley et al. 2005, pp.
1554, 1560).
In the SSA report and this proposed rule, we define California
spotted owl population growth as the change in the number of
individuals within a particular study area, which correspond to our
analysis units. Population growth is determined by the demographic
factors of survival, fecundity, and occupancy, with fecundity likely
the most influential because it is more variable (Blakesley et al.
2001, p. 667; Seamans and Guti[eacute]rrez 2007a, p. 57; Seamans and
Guti[eacute]rrez 2007b, p. 566; Blakesley et al. 2010, p. 27; Tempel
and Guti[eacute]rrez 2013, pp. 1093-1094; Guti[eacute]rrez et al. 2017,
p. 99). Population growth is variable throughout study areas in the
Sierra Nevada DPS where we have available information, with documented
declines ranging from -50 percent to -31 percent in some study areas
and a population increase of 25 percent in another (Tempel et al.
2014a, pp. 86, 90-92; Conner et al. 2016, p. 15). The only available
demographic data for the Coastal-Southern California DPS is from the
San Bernardino National Forest. A population decline of -9 percent was
observed from 1987-1998, with more recent occupancy analyses showing
further declines in population size (LaHaye et al. 2004, pp. 1056,
1064; Tempel et al. 2022, p. 20, table 5). All individual needs
described above need to be present for positive California spotted owl
population growth.
Species Needs
At the species level, we assess the redundancy and representation
of the entire California spotted owl's range to better understand the
viability of the species. For the California spotted owl, we evaluate
redundancy by considering the number of resilient populations
distributed across the species' range. Having resilient populations
distributed across the range increases the species' ability to
withstand catastrophic events.
For this species, we evaluate representation by considering the
distribution of populations across their various ecological settings
and whether those populations are able to maintain adequate amounts of
genetic diversity. Having a variety of ecological settings that the
species can occupy and a breadth of genetic diversity increases the
species' ability to withstand and adapt to long-term environmental
changes.
Threats
Following are summary evaluations of eight threats analyzed in the
SSA report for the California spotted owl: wildfire (Factor A), tree
mortality (Factor A), drought (Factor A), climate change (Factor A),
fuels reduction and forest management (Factor A), competition and
hybridization with barred owls (Strix varia) (Factor E), rodenticides
(Factor E), and development (Factor A). We also evaluate existing
regulatory mechanisms (Factor D) and ongoing conservation measures.
In the SSA report, we also considered four additional threats:
Overutilization due to recreational, educational, and scientific use
(Factor B); disease (Factor C); predation (Factor C); and recreation
(Factor E). We concluded that, as indicated by the best available
scientific and commercial information, these threats are currently
having little to no impact on the California spotted owl and thus the
overall effect of these threats now and into the future is expected to
be minimal. Therefore, we will not present summary analyses of those
threats in this document, but we considered them in the current and
future condition assessments in the SSA report, and we will consider
them in our determination of the species' status. For full descriptions
of all threats and how they impact the species, please see the SSA
report (Service 2022, pp. 25-68).
For the purposes of this assessment, we consider the foreseeable
future to be the amount of time on which we can reasonably determine a
likely threat's anticipated trajectory and the anticipated response of
the species to those threats. For this proposed rule, we consider the
foreseeable future to be 40-50 years. This time period represents our
best professional judgment of future conditions related to climate
change for California, the California spotted owl's generation time,
and the regeneration time of medium to large trees.
Wildfire
Fire is a natural part of California spotted owl habitat (Verner et
al. 1992, pp. 247-248) and is necessary for maintaining heterogenous
forests and
[[Page 11612]]
overall habitat heterogeneity. Wildfire and associated tree mortality
can be beneficial or detrimental for the California spotted owl
depending on scale and severity. Fires with predominantly low to
moderate severity burn patterns, with small patches of high-severity
fire scattered throughout the fire perimeter, can increase habitat
heterogeneity, ultimately result in higher prey densities, increase
amounts of forest edge for California spotted owl foraging, and provide
for unburned refugia within the fire perimeter that have higher tree
survival and more vegetative cover during the immediate postfire years
(Roberts et al. 2011, p. 610; Lee et al. 2012, p. 792; Bond et al.
2013, pp. 114, 122; Eyes et al. 2017, p. 384; Blomdahl et al. 2019, pp.
1046, 1048, 1049). There is also evidence to suggest that more
pyrodiverse (spatial or temporal variability in fire effects; Jones and
Tingley 2021, p. 1) landscapes support greater habitat heterogeneity,
which may promote greater biodiversity (Steel et al. 2021, pp. 7-8;
Stephens et al. 2021, p. 5). For example, in areas where woodrats are
the primary prey species, a juxtaposition of mature forests and open
canopy patches promotes higher prey diversity and abundance, and
northern spotted owls preferentially select for these areas (Zabel et
al. 1995, p. 433; Ward and Noon 1998, p. 79; Franklin et al. 2000, p.
539; Zabel et al. 2003, p. 1027).
Although burned areas can reduce the amount of canopy cover
available, California spotted owls forage on the edge of and within
areas that have been burned at a range of severities (Bond et al. 2009,
p. 1116; Bond et al. 2016, p. 1290; Eyes et al. 2017, p. 375) although
typically avoiding larger areas of high-severity fire (Jones et al.
2016a, p. 304; Eyes et al. 2017, p. 383). Thus, many researchers
advocate for the use of ecologically beneficial fire to help sustain
California spotted owl habitat and report that low to moderate severity
fire minimizes the effects of future high-severity wildfire (Stephens
et al. 2019, pp. 395-396; Stephens et al. 2020, entire; Stephens et al.
2021, p. 5; Taylor et al. 2022, p. 4).
In contrast, large-scale, high-severity fires have a detrimental
effect on both the California spotted owl and its habitat. Large-scale
high-severity fire (often referred to as a megafire) is generally
defined as over 10,000 ha (24,711 ac) of area burned with 75-100
percent canopy mortality (Jones et al. 2016a, p. 300; Linley et al.
2022, pp. 6, 8). Megafires can degrade or destroy California spotted
owl habitat, completely incinerating large trees and canopy cover (Eyes
2014, p. ii; Roberts et al. 2015, pp. 112-115; Jones et al. 2016a, pp.
300-305). Habitat suitability for northern spotted owls decreased
postfire and depended on fire severity (higher fire severity resulted
in greater declines of habitat suitability) (Wan et al. 2020, p. 7);
thus, megafires have a greater potential to alter the availability of
suitable habitat.
The loss of habitat from large-scale, high-severity fires also
results in direct impacts to California spotted owl individuals and
populations. As megafires alter the number of large trees (including
nest trees), multi-layered high canopy cover, habitat heterogeneity,
and patch size, California spotted owl dispersal, fecundity, and
occupancy are subsequently reduced. It has been observed that large
patches of high-severity fire significantly reduce colonization
(dispersal), occupancy, and habitat use across the California spotted
owl's range (Eyes 2014, p. 42; Tempel et al. 2014b, p. 2089; Jones et
al. 2016a, pp. 300, 303-305; Eyes et al. 2017, pp. 381, 384; Jones et
al. 2019, p. 26; Jones et al. 2020, entire; Schofield et al. 2020, pp.
5-6; Jones et al. 2021a, p. 5; Tempel et al. 2022, p. 13) and for other
subspecies (Rockweit et al. 2017, entire; Lesmeister et al. 2019, p.
13; Duchac et al. 2021, p. 12). Fires may cause direct mortality to
eggs and juveniles during the nesting season, and fast-moving fires
also have the potential to cause direct mortality to adult California
spotted owl individuals (Jones et al. 2016a, p. 305). No data are
available on how many California spotted owls are killed annually by
direct impacts of large-scale, high-severity fire. Although most birds
are able to move to escape direct morality from fires, smoke from fires
can impact birds by damaging their lungs (Verstappen and Dorrestein
2005, p. 139). While many species have existed with frequent fire over
evolutionary time, megafires and extreme smoke events are novel
influences that may act as an additional selective pressure on certain
species (Nimmo et al. 2021, p. 5689). There is limited research on the
effects of wildfire smoke on wildlife in general, but there is clear
evidence that smoke can have both acute and chronic health impacts on a
variety of taxa, which may ultimately affect demographic rates
(Sanderfoot et al. 2021, p. 13).
As discussed above, high-severity fire has negative effects on
individual California spotted owls and their habitat, ranging from
reduced occupancy to direct mortality of individuals. However, several
publications conclude that spotted owls will continue to use areas
burned at high-severity and, therefore, there are no negative effects
of high-severity fire for California spotted owls (Lee and Bond 2015,
entire; Hanson et al. 2018, entire; Hanson et al. 2021, entire; Lee
2018, entire). We have reviewed these publications and acknowledge this
disagreement in the literature. However, our review of all the best
available science, including those sources that conclude no negative
effects, has led us to agree with the vast majority of science, which
concludes that overall spotted owls avoid large patches of high-
severity fire and that high-severity fire is increasing throughout
California and the western United States. For more analysis on the
conflicting results of these studies and our analysis, please see the
SSA report (Service 2022, pp. 27-28).
Current conditions in the California spotted owl's range may
contribute to ongoing fire risk, and depending on the portion of the
range and the land manager, fire management activities may vary.
Decades of fire suppression have led to overall higher canopy cover
from small and medium trees, higher dead biomass density, and more
surface fuels in forests of the western United States (Verner et al.
1992, pp. 247-248; Agee and Skinner 2005, p. 83). The historical fire
return interval for the Sierra Nevada was around 11-16 years, but fire
suppression over the last 100 years has led to a change in fire
behavior of larger, more severe fires in recent years (Safford and
Stevens 2017, pp. v-vi). The multi-layered high canopy cover and
biomass provide important habitat for California spotted owls but also
tend to increase the vulnerability of forests to high-severity fire
(Verner et al. 1992, pp. 251-258; Agee and Skinner 2005, p. 83) in
present day fire-suppressed forests. The higher fuel loads,
particularly large, dead wood (like snags and logs), tend to burn at
higher severity as densities increase (Lydersen et al. 2019, p. 7). In
a recent megafire, dead biomass directly contributed to the fire
effects observed, as areas with high amounts of dead biomass pre-fire
burned at high severity (Stephens et al. 2022, p. 8).
On top of the higher fuel loads, extended droughts and longer
wildfire seasons have led to larger and more severe fires in the
California spotted owl's range and throughout western North America
(Miller and Safford 2012, p. 41; Mallek et al. 2013, p. 1; Nigro and
Molinari 2019, p. 20; Parks and Abatzoglou 2020, p. 4; Safford et al.
2022, p. 12). In 2020 and 2021, more than 1 million ha (2.4 million ac)
burned in California, resulting in more area burned over these 2 years
than in the past 7 years of all California fires
[[Page 11613]]
combined (Safford et al. 2022, p. 5). An increase in high-severity fire
changes how fire interacts with important habitat features for
California spotted owls. For example, fire often killed, but left
standing, trees that would subsequently serve as locations for
California spotted owl nests. However, large patches of high-severity
fire burn hotter and can end up entirely consuming the features
important to California spotted owls. Between the years of 2000 and
2014, 7 percent of suitable California spotted owl nesting habitat (a
total of 85,046 ha (210,153 ac) out of 1,166,560 ha (2,882,633 ac)) was
burned either partially at moderate severity (typically 25-50 percent
tree basal area mortality) or entirely at high severity (typically >75
percent tree basal area mortality), causing >=50 percent tree basal
area mortality and reducing canopy cover to <25 percent (Stephens et
al. 2016, pp. 1, 9).
The size and severity of a fire determines how much it will impact
California spotted owls at the population level. If a high-severity
fire occurs in a large enough area, it can eliminate entire territories
or home ranges of California spotted owls, displacing individuals that
may or may not establish a new territory (Jones et al. 2016a, pp. 300-
305). Site occupancy by California spotted owls after wildfire appears
to be a function of the amount of suitable habitat remaining after the
fire (Guti[eacute]rrez et al. 2017, p. xxiii). If habitat becomes
unsuitable, it takes decades for large trees to reestablish on the
landscape. Based on fire activity and anticipated trends over the next
75 years, the cumulative amount of nesting habitat burned at >=50
percent tree basal area mortality will exceed the total existing
habitat in the Sierra Nevada (Stephens et al. 2016, pp. 1, 12). In
other words, the loss of suitable California spotted owl habitat would
exceed the rate of new forest growing post-fire (Stephens et al. 2016,
pp. 11-13). Thus, future habitat persistence for California spotted
owls is concerning given that high-severity fire appears to be
increasing across all lands (both public and private) occupied by
California spotted owls and throughout the western United States (Parks
and Abatzoglou 2020, pp. 4-5). When private lands are considered
separately, the odds of high severity fire occurring on industrially
managed forests and adjacent lands were 1.8 and 1.4 times higher,
raising some concern over California spotted owl persistence on private
lands (Levine et al. 2022, p. 4).
In the Sierra Nevada, the proportion of high severity fire
throughout the California spotted owl's range has dramatically
increased in recent years. The proportion of high-severity fire in
California montane forests in 2020 was on average 43-76 percent higher
than the combined average between 1984 and 2008, and was three to six
times higher than the estimates of pre-Euroamerican settlement (Safford
et al. 2022, p. 17). Between 1984-2019, 1,084,171 ha (2,679,044 ac;
55.7 percent) burned throughout the California spotted owl range in the
Sierra Nevada with 317,605 ha (784,820 ac; 46.6 percent) burned at high
severity (Keane in litt. 2022, p. 3). In contrast, between 2020 and
2021, 862,625 ha (2,131,593 ac; 44.3 percent) burned throughout the
California spotted owl's range with almost 363,812 ha (899,000 ac; 53.4
percent) of that at high severity (Keane in litt. 2022, p. 3). This
comparison illustrates how megafires in 2020 and 2021 burned more
habitat at high severity in 2 years than fires over the past three and
a half decades. In addition, between 1984 and 2021, 50 percent of
California spotted owl PAC acres have been impacted by wildfire, with
56 percent of that total burned in 2020 and 2021. Further, of the 56
percent that burned between 2020 and 2021, 65 percent burned at high
severity (Keane in litt. 2022, p. 5). Because California spotted owls
are displaced from areas where the entire PAC or majority of the PAC
has burned at high severity, it is unlikely the species will continue
to persist in these areas until the habitat can recover, which can take
decades.
We conducted a fire severity analysis within the entire California
spotted owl's range; details of the methodology used in this analysis
are available in the SSA report (Service 2022, pp. 29-30). Of the
California spotted owl's range, approximately 47 percent burned between
1984 and 2021, with 15 percent at high severity. Most of the area
burned at high severity occurred in 2020 and 2021, with 2 percent and 4
percent, respectively (Service 2022, table 3). Additionally, based on
an existing dataset from the California Department of Forestry and Fire
Protection of the potential threat of future wildfire in California,
the majority of the California spotted owl's range occurs within the
very high wildfire threat category (Service 2022, figure 8). Much of
the coastal-southern California population of the California spotted
owl falls within the extreme fire risk. This dataset contains fire
information through 2014, and so does not consider how the recent fires
from 2014 to 2021 affect future fire threat. Overall, we expect that
the pattern of both area burned and wildfire severity will continue or
increase into the future due to the effects of climate change.
Some regulatory mechanisms and conservation measures can reduce the
potential severity or scale of wildfires. Wildfire fuel reduction
treatments, such as prescribed fire and mechanical thinning, can reduce
the amount or degree of spotted owl habitat loss from a high-severity
fire, and a balanced approach to fuel reduction treatments may ensure
suitable California spotted owl habitat is maintained (Jones et al.
2016a, p. 305; Service 2017, pp. 24-25; Chiono et al. 2017, p. 1; Jones
et al. 2021a, entire). The 2004 USFS Sierra Nevada Forest Plan
Amendment has a goal of actively restoring fire-adapted ecosystems by
reducing unnaturally dense conditions, and there are also measures in
place in the framework to avoid disturbance within California spotted
owl PACs to the greatest extent possible (USFS 2004, pp. 34-35). Fuel
reduction treatments are actively taking place on USFS land, but
special considerations, including the timing of treatments to avoid the
breeding season and the methods that are used, are evaluated to avoid
impacts to owls within PACs. In 2017 and in 2020, an MOU was signed by
Sierra Pacific Industries, California Department of Forestry and Fire
Protection, National Fish and Wildlife Foundation, and the USFS to
coordinate on certain actions that may contribute to forest fuel
reductions and California spotted owl conservation. The purpose of the
MOU is to try to minimize the threat of large-scale, high-severity fire
while still providing quality habitat for California spotted owls.
However, large-scale, high-severity fire cannot be completely addressed
by regulatory mechanisms. Fuel reduction treatments may not prevent
catastrophic damage in an extreme fire event; however, when fire is a
part of the fuel reduction treatment, future fire severity can be
reduced and more fire treatments should be included to achieve fuels
reduction goals, including areas surrounding spotted owl nests and
riparian corridors (North et al. 2021, pp. 527, 529; Taylor et al.
2022, p. 4).
High-severity fire is likely to continue to be a threat into the
future for California spotted owls. Although some individuals could be
harmed or killed by large fires, the primary impact of this threat is
habitat-based. These habitat changes also affect demographic
parameters: following high severity fires, colonization declines and
territory extinction increases, leading to overall declines in
occupancy (Tempel et al. 2022, pp. 13-16). Overall, large-scale, high-
severity fire is currently and will
[[Page 11614]]
likely continue to be a threat throughout the range of the California
spotted owl, including for both the Sierra Nevada and the coastal-
southern California populations.
Tree Mortality
Widespread increases in tree mortality have been occurring in
California due to drought, disease, and bark beetles above historical
levels of mortality (van Mantgem et al. 2009, pp. 521-523; Asner et al.
2015, p. 249; McIntyre et al. 2015, p. 1458; Preisler et al. 2017, p.
166). When tree stand densities are too high compared to available
resources (water, light, nutrients), trees become stressed due to
competition for resources and thus are more vulnerable to mortality
(USFS 2017, p. 9). Large trees are often especially prone to drought,
disease, and beetle-related mortality (Smith et al. 2005, p. 266;
Mueller et al. 2005, p. 1085; Allen et al. 2010, p. 668; McIntyre et
al. 2015, p. 1458). Increased tree mortality may be contributing to
loss of California spotted owl habitat (Guti[eacute]rrez et al. 2017,
p. 137), but the magnitude of the impacts on California spotted owls is
uncertain. Large-scale tree mortality reduces the availability of
canopy cover and large trees, potentially resulting in California
spotted owl population declines because of reduced habitat available
for dispersal and occupancy. However, some tree mortality events can
have some positive effects on California spotted owl habitat, as these
events contribute to habitat heterogeneity and the availability of
coarse woody debris for prey species.
Between 2010 and 2016, an estimated 102 million trees died across
about 3,106,367 ha (7,676,000 ac) throughout California (Tree Mortality
Task Force 2017, p. 2). By February 2019, total tree mortality in
California increased to an estimated 147 million dead trees (Cal Fire
and USFS 2019, p. 1). The latest estimate shows that between 2010 and
2021, the drought combined with subsequent beetle attacks resulted in
approximately 173 million dead trees in California with approximately
3.3 percent of the surveyed forest area in 2021 showing signs of
elevated mortality (USFS 2021, p. 5). The tree mortality events are
particularly severe in the southern Sierra Nevada area. Most of the
tree mortality observed is due to effects from the 2012-2016 drought,
with less mortality occurring from 2018-2021; however, another drought
period started in 2020 (USFS 2021, p. 5).
In 2015, the Governor of California declared a state of emergency
due to the unprecedented number of dead and dying trees in the State.
In response, the California Tree Mortality Task Force, which is now the
Forest Mortality Working Group within the California Wildfire and
Forest Resilience Task Force, was created to coordinate emergency
protective actions and monitor ongoing conditions. The group collects
and manages the tree mortality data, provides recommendations to land
managers, presents grants for research funding, and provides public
outreach. The task force will likely continue to provide the services
listed into the future due to the ongoing and large-scale nature of the
tree mortality events in California.
Regulatory mechanisms and management actions could provide some
protection from the effects of tree mortality. Efforts to restore
historical forest conditions and reduce stand densities through fuels
reduction treatments (mechanical thinning, prescribed fire, etc.) may
indirectly contribute to reducing future tree mortality by reducing
competition. Further, the goal should be to eliminate the excessive
levels of tree mortality currently being observed in the landscape and
not limit all tree mortality, as tree mortality is a natural part of
the forest ecosystem and ultimately creates features important to
California spotted owls (snags, tree cavities). Tree mortality is
likely to continue throughout the range of the California spotted owl
due to predicted increases in drought conditions that will likely
continue to weaken trees and make them susceptible to bark beetles and
disease (Millar and Stephenson 2015, pp. 823-826; Young et al. 2017,
pp. 78, 85). Excessive tree mortality is likely to continue to be a
threat into the future for the California spotted owl.
Drought
California has experienced extreme drought conditions in 2007-2009
and 2012-2016 (Williams et al. 2015, pp. 6823-6824; CDWR 2021, p. 4),
and as of May 2022, a majority of the California spotted owl's range is
considered in severe to moderate drought (CDWR 2022, entire).
Anthropogenic warming likely contributed to more recent drought
anomalies and increases the overall likelihood of extreme droughts in
California into the future (Williams et al. 2015, pp. 6819, 6826; CDWR
2022, entire).
Drought conditions can negatively impact the California spotted
owl's ecological needs. As described above, drought conditions
contribute to tree mortality, which reduces canopy cover, likely
leading to a decline in occupancy. Further, drought conditions likely
reduce the availability of prey species (Franklin et al. 2000, p. 589;
Glenn et al. 2010, p. 2549; Glenn et al. 2011, p. 174). Drought and hot
temperatures in the previous summer are linked to lower reproductive
success in California spotted owls (LaHaye et al. 2004, p. 1066) and
lower survival and recruitment in northern spotted owls in the next
breeding season (Glenn et al. 2011, pp. 159, 174). Inversely, increases
in precipitation either before or after the nesting season are linked
to increased survival and fecundity in all three subspecies of spotted
owls (Seamans et al. 2002, p. 321; LaHaye et al. 2004, pp. 1056, 1064;
Glenn et al. 2011, pp. 159, 174). Thus, drought likely negatively
impacts the California spotted owl's habitat components, and its
demographic needs of dispersal, survival, fecundity, and occupancy. No
regulatory mechanisms or conservation measures in place ameliorate the
direct impacts of drought. It is likely that drought conditions will
continue to be a threat into the future across the California spotted
owl's range and will likely worsen due to the effects of climate
change.
Climate Change
Scientific measurements spanning several decades demonstrate that
changes in climate are occurring and that the rate of change has been
faster since the 1950s. There is strong scientific support for
projections that warming will continue through the 21st century, and
that the magnitude and rate of change will be influenced substantially
by the extent of greenhouse gas emissions (Meehl et al. 2007, pp. 760-
764, 797-811; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011,
pp. 527, 529; IPCC 2013, pp. 19-23).
Projected changes in climate and related impacts can vary
substantially across and within different regions of the world (IPCC
2013, pp. 15-16). Therefore, we used downscaled projections from
California's Fourth Climate Change Assessment, including the following
four regional assessments that cover the California spotted owl's
range: Sierra Nevada (Dettinger et al. 2018, entire), the Central Coast
Region (Langridge 2018, entire), Los Angeles (Hall et al. 2018,
entire), and San Diego (Kalansky et al. 2018, entire). Ten global
climate models were used for all four regional assessments, and each
model considered two different emissions scenarios, one in which
greenhouse gas emissions continue to increase into the next century
(RCP 8.5) and one in which greenhouse gas emissions stabilize by mid-
century and then decline to levels
[[Page 11615]]
seen in the 1990s by the end of the century (RCP 4.5) (Dettinger et al.
2018, pp. 15, 17; Hall et al. 2018, p. 9; Kalansky et al. 2018, p. 18;
Langridge 2018, p. 12).
Under both emissions scenarios, projected annual average
temperatures throughout the California spotted owl's range are
projected to increase. The largest increases under both emissions
scenarios and timeframes are projected for the eastern portions of the
Sierra Nevada (Dettinger et al. 2018, p. 17, figure 2.3). Projected
changes will result in greater temperatures than historically
experienced in the Sierra Nevada, and this degree of temperature change
will likely result in a shift in the rain to snow transition by 1,500-
3,000 feet (Dettinger et al. 2018, pp. 17, 20). Projected temperature
increases are more pronounced in the inland portions of the Central
Coast Region, with the ocean acting as a buffer for coastal areas
(Langridge 2018, p. 14, figure 4). In addition, the average number of
extremely hot days (defined as days that exceed the 98th percentile of
observed, historical (1961-1990) daily maximum temperatures between
April 1 and October 31) are expected to increase throughout the Central
Coast Region (Langridge 2018, pp. 14-15, table 4).
Regional assessments covering southern California include the Los
Angeles and San Diego Regional Assessments (Hall et al. 2018, entire;
Kalansky et al. 2018, entire). Projected annual average maximum
temperatures throughout the Los Angeles Region increase under both
emissions scenarios (Hall et al. 2018, p. 10, figure 2). For the San
Diego Region, projected annual average maximum and minimum temperatures
also increase under both emissions scenarios. Similar to the Central
Coast Region, these changes will be more pronounced in the interior
portions of the Los Angeles and San Diego Regions (Hall et al. 2018, p.
11, figure 3).
In addition to temperature projections, the regional assessments
for California's Fourth Climate Change Assessment also considered
future changes in precipitation, both the amount and the timing. Within
the Sierra Nevada Region, changes in precipitation are projected to be
relatively small and will vary depending on the area. In general,
average annual precipitation in the southern portion of the Sierra
Nevada Region is projected to stay similar or decrease by 5 percent,
regardless of emission scenario. In other portions of the Sierra Nevada
Region, particularly along the eastern side, the amount of
precipitation is projected to increase by up to 10 percent. In addition
to projections showing the northern portions of the range will receive
more precipitation than southern portions, areas at higher elevations
are also more likely to receive an increase in precipitation. Although
the average change in precipitation is projected to be small, the
models show there will be an increase in extreme conditions with more
dry days overall interspersed with higher intensity precipitation
events, when they do occur (Dettinger et al. 2018, p. 19). Further, in
some areas more precipitation will fall as rain instead of snow, as the
rain to snow transition is projected to shift by 457-914 m (1,500-3,000
ft) (Dettinger et al. 2018, pp. 17, 20).
Similar to the Sierra Nevada Region, interannual variability within
the Central Coast Region is expected to increase with more dry days
overall, but more precipitation when rain events do occur (Langridge
2018, p. 16). In southern California, the amount of precipitation in
the Los Angeles and San Diego Regions is highly variable (Hall et al.
2018, p. 12, figure 5; Kalansky et al. 2018, p. 24). Similar to other
regions, projections for the Los Angeles and San Diego Regions show an
increase in extreme conditions such as high-intensity precipitation
events, known as atmospheric rivers, and severe drought conditions
(Hall et al. 2018, pp. 13-14, figure 6; Kalansky et al. 2018, pp. 24-
25, figures 7 and 9).
Because the California spotted owl has a wide geographic range and
the projected changes in climate vary across the range, the effects
those changes will have on the species and its habitat will vary.
Future climate projections of Sierra Nevada vegetation distribution
indicate that low- and mid-elevation forests are vulnerable to
conversion to unsuitable habitat for California spotted owls, such as
shrublands and grasslands (Guti[eacute]rrez et al. 2017, p. 215). These
changes in climate may also include potential shifts in forest
communities upslope, which would have impacts on both the California
spotted owl's habitat and prey habitat (Guti[eacute]rrez et al. 2017,
pp. 132, 215, 288). This potential upslope shift in suitable habitat
may mitigate some climate-induced habitat threats over ecological time,
although it would require many decades for suitable large nest trees to
develop in areas where they do not currently exist (Guti[eacute]rrez et
al. 2017, p. 215). These differences in net habitat loss versus net
habitat gained under future climate scenarios will likely depend not
only on the rate of warming but also how individual plant and prey
species respond (Seamans and Guti[eacute]rrez 2007a, p. 61).
Changing climatic conditions may have direct impacts on California
spotted owl physiology, survival, reproduction, recruitment, or
population growth. The thermal neutral zone (the range of temperatures
tolerated by a warm-blooded animal) for California spotted owls is
18.2-35.2 [deg]C (64.8-95.4 [deg]F) (Weathers et al. 2001, p. 682).
Above this zone, California spotted owls experience heat stress
(Weathers et al. 2001, p. 678). The relatively low thermal neutral zone
may make California spotted owls more susceptible to increased
temperatures or cause behavioral or habitat shifts to cooler
microclimates on the landscape. Behaviorally, California spotted owls
can select cooler microclimates for roosting, especially within warmer
forest stands (McGinn et al. in review, p. 2). Changing climatic
conditions may also have indirect impacts including changes in habitat
and prey distribution, abundance, and quality. California spotted owls
must be able to adjust to the changing climate through behavioral
changes, spatial shifts, or adaptation in order to persist. Under
projected warming conditions in the future, cooler microclimate refugia
are likely to be critically important for the persistence of California
spotted owl individuals and populations (McGinn et al. in review, p.
3). It is likely that climate change will reduce the quantity and
quality of California spotted owl habitat, which would likely result in
population impacts, including a decrease in dispersal, fecundity, and
occupancy. Both the habitat components and demographic factors of
California spotted owls will likely be impacted by climate change, but
the full extent of impacts climate change may have on California
spotted owls is poorly understood (Wan et al. 2018, p. 690).
Climate modeling specific to the central Sierra Nevada portion of
the California spotted owl's range has shown that maintaining high
canopy cover, especially at higher elevations, will be important for
California spotted owls to persist into the future, as high canopy
cover helps maintain future refugia for individuals to select for
cooler microclimates (Jones et al. 2016b, entire). Under both a low
climate change prediction scenario (RCP 2.6) and a high climate change
scenario (RCP 8.5), California spotted owl occupancy decreases in
comparison to baseline climate conditions (Jones et al. 2016b, p. 901).
However, this model did not consider projected increases in frequency
and size of high-severity fires due to climate change, which would
likely result in more significant declines
[[Page 11616]]
in occupancy than predicted by the model (Jones et al. 2016b, p. 903).
Earlier modeling of spotted owl response to projected climate changes
show that different subspecies and populations of spotted owls are
anticipated to respond differently across their ranges (Peery et al.
2011, p. 14).
The climate change projections described above suggest increasing
interannual climate variability throughout the range of the California
spotted owl. Interannual climate variability is defined as when annual
weather patterns differ from historical average climate, including
prolonged drought conditions, heavy rain conditions, and higher or
lower than average temperatures. Interannual climate variability has
been shown to have impacts on the survival and reproductive success of
California spotted owls. Drought conditions and hot temperatures during
the summer have been found to reduce fecundity in California spotted
owls during the next breeding season (LaHaye et al. 2004, p. 1056).
Increases in precipitation either before or after the nesting season
are linked to increased survival and fecundity, whereas increased
precipitation during the nesting season reduces reproductive success
(North et al. 2000, p. 804; LaHaye et al. 2004, pp. 1056, 1064). It is
hypothesized that northern spotted owls exhibit a bet-hedging
reproduction strategy and that an absence of reproduction is linked to
environmental conditions (Franklin et al. 2000, pp. 539, 576).
California spotted owls likely have a similar bet-hedging reproductive
strategy (Stoelting et al. 2015, p. 46; Guti[eacute]rrez et al. 2017,
pp. 14-15). California spotted owls are sensitive to warm temperatures
and, therefore, may be physiologically sensitive to weather patterns
with increased temperatures (Weathers et al. 2001, p. 684).
Temperature, either too hot or too cold, may affect spotted owls
directly by increasing energy demands (Guti[eacute]rrez et al. 2017, p.
20). This increase may have direct impacts on the physiology of spotted
owls or on breeding if mates must bring more food to the nest for the
female to survive. Increased interannual climate variability due to
climate change will likely impact the California spotted owl throughout
its range, which would result in lower fecundity.
Regulatory mechanisms and management actions that are or could
potentially provide some protection from the effects of climate change
include the Clean Air Act (42 U.S.C. 7401 et seq.) and the California
Global Warming Solutions Act. Both address climate change by reducing
greenhouse gas emissions within the United States and California,
respectively. There are no regulatory mechanisms or management actions
that fully address the effects of the climate change.
The effects of climate change will continue to impact California
spotted owls into the future by exacerbating the negative influencing
factors described above, especially extreme weather events such as
prolonged drought and severe storms. The loss or reduction of suitable
habitat throughout the California spotted owl's range will likely
reduce the subspecies' reproduction, occupancy, survival, recruitment,
and population growth.
Fuels Reduction and Forest Management
Forest management has long been a controversial topic regarding
species that require old growth forest habitat, including the spotted
owl (Guti[eacute]rrez 2020, p. 337). With the increasing frequency and
extent of high-severity fire in California in recent decades, fire
mitigation has become a key issue for spotted owl management and
conservation. The goal of fuels management is to reduce the buildup of
fuels in forests that contribute to these large-scale, high-severity
fires, which can effectively mitigate subsequent fire behavior and
their effects, even under extreme weather (Hessburg et al. 2021, p. 7;
Prichard et al. 2021, p. 9). The long-term benefits of properly managed
fuel treatments for reducing the risk of severe wildfire are likely to
outweigh the short-term negative impacts to spotted owl habitat (Ager
et al. 2007, pp. 54-55; Roloff et al. 2012, p. 7; Jones et al. 2021b,
pp. 4-5). These trade-offs are complex and ultimately depend on the
extent that treatments have negative impacts to owl habitat and the
magnitude of effects from subsequent wildfires (Jones et al. 2021b, p.
2). Fuels reductions and forest management practices vary throughout
the California spotted owl's range. Below, we discuss clearcutting,
mechanical thinning, salvage logging, and prescribed fire, and the
positive and negative influences that these practices can have on the
species.
Clearcutting, sometimes referred to as even-aged management, is
defined as an even-age regeneration or harvest method that removes all
trees in the stand, producing a fully exposed microclimate for the
development of a new age class in one entry (Guti[eacute]rrez et al.
2017, p. 292). The natural range of variation for forest gaps in the
Sierra Nevada has been found to range from 0.03-1.17 ha (0.07-2.89 ac)
(Safford and Stevens 2017, p. 140), and within the SSA report and this
proposed rule, clearcutting refers to complete removal greater than the
natural range of variation.
Clearcutting is a mostly historical threat to California spotted
owls, although it still occurs in some areas of the Sierra Nevada. By
removing entire stands of trees, clearcutting reduces the amount of
large trees, high canopy cover, and coarse woody debris available for
California spotted owls. Commercial timber harvest no longer occurs
within the California spotted owl's range on public lands in the
Coastal-Southern California DPS (Guti[eacute]rrez et al. 2017, p. 254).
Clearcutting also does not occur on USFS lands on the eastern side of
the Sierra Nevada range (Boatner in litt. 2022). Clearcutting still
occurs on private timber harvest lands but is limited to 8.1-ha (20-ac)
parcels by California State forest practice rules (California Code of
Regulations (CCR), title 14, article 3 (14 CCR 913 et seq.)).
Additionally, there must be at least 91.44 m (300 ft) of forested area
between clearcuts, and adjacent lands cannot be cut for at least 5
years (14 CCR 913 et seq.). Even with the reduction of clearcutting in
recent history, it will take decades or centuries for large trees to
grow back from the past removal practices; therefore, there are
residual effects that may be impacting California spotted owl
populations and the habitat that is available (Jones et al. 2018, p.
1). California spotted owls may use clearcut habitat, likely for
foraging activities, but these areas are used significantly less than
high canopy cover and large tree areas (Atuo et al. 2019, pp. 295, 301-
302).
Mechanical thinning is a forest management strategy to thin trees
either in even or uneven-aged stands by removing trees in rows, strips,
or by using fixed pacing intervals, usually implemented to meet forest
management objectives. It can be done for commercial harvest of trees
or to reduce fuel loads to decrease the likelihood of large-scale,
high-severity fires (Guti[eacute]rrez et al. 2017, p. 292). Within the
SSA report and this proposed rule, we use ``mechanical thinning'' to
include both individual tree selection (new age classes are created in
uneven-aged stands by removing individual trees of all size classes
more or less uniformly throughout the stand to achieve desired stand
structure) and group tree selection (treatment involves salvage harvest
in a stand where small groups of trees are harvested because of tree
mortality due to windstorm, wildfire, insects, disease, or other
animals).
Mechanical thinning is actively used to manage forests occupied by
California
[[Page 11617]]
spotted owls and can have positive or negative impacts on the
California spotted owl's habitat and demographics depending on the
specific methods used. The 2004 Sierra Nevada Forest Plan Amendment
promotes reducing, using methods including mechanical thinning,
unnaturally dense forest conditions on the landscape to reduce the risk
of large-scale, high-severity fire (USFS 2004, pp. 34-35). Minimal area
is treated mechanically, especially when compared to area burned by
wildfire (566,560 ha (1,400,000 ac) burned between 2017-2020 versus
61,852 ha (152,842 ac) previously treated; North et al. 2021, p. 524).
Treatments are located to avoid California spotted owl activity centers
to the greatest extent possible (USFS 2004, pp. 34-35), which often
leaves the PACs untreated and potentially vulnerable to stand-replacing
fires (Stephens et al. 2019, p. 395). Further, strategic thinning can
promote forest resiliency, but removing some large, fire-intolerant
tree species like fir and cedar may be necessary to promote future
resilience of forested habitat (Stephens et al. 2020, entire; North et
al. 2021, p. 530).
Resilience of California spotted owl habitat results from low stand
densities, which reduces competition and allows trees to grow, so more
intensive fuels treatments (mechanical thinning and prescribed fire)
may be needed to achieve historically lower levels of tree densities
(North et al. 2022, p. 6). When conducted outside California spotted
owl activity centers, mechanical thinning will likely reduce the amount
of damage the habitat may experience due to high-severity fire while
also minimizing short-term habitat impacts (Stephens et al. 2014, p.
904; Tempel et al. 2015, p. 1; Chiono et al. 2017, p. 1). Strategic
mechanical thinning to reduce fuel loads and reduce the risk of large-
scale, high-severity fire, while also maintaining the necessary forest
structure components of large trees, multi-layered high canopy cover,
habitat heterogeneity, and coarse woody debris, will be important for
California spotted owl management into the future (Jones et al. 2016a,
p. 305; Tempel et al. 2016, p. 305; Jones et al. 2019, p. 22).
Strategically placed landscape fuel treatments can decrease future fire
severity while also increasing seedling densities (Tubbesing et al.
2019, p. 54). Many studies emphasize the importance of scaling-up fuel
reduction treatments (mechanical thinning and prescribed fire) and
suggest an increased benefit of treating within California spotted owl
territories for long-term persistence, although positive effects would
not be observed until mid-century and treatments should still strive to
maintain large trees and high canopy cover forest (Jones et al. 2021b,
p. 3; Safford et al. 2022, p. 17).
This fuels management technique has little to no impact on
occupancy if carried out in a strategic way (for example, maintaining
some patches of high canopy cover mixed with patches of moderate canopy
cover to provide for the primary habitat of California spotted owls and
incorporating limited operating periods that restrict activities from
occurring during the critical nesting period) (Tempel et al. 2016, p.
747). However, mechanical thinning can decrease California spotted owl
occupancy and is negatively correlated with reproduction (Tempel et al.
2014a, p. 2089; Stephens et al. 2014, p. 903; Tempel et al. 2022, p.
19). Although one study detected some negative effects of fuels
reduction treatments on California spotted owls in southern California,
the authors suggested that occupancy declines were small compared to
the potential negative effects of fire (Tempel et al. 2022, p. 22).
Similarly, there is evidence of reduced foraging in fuel treatment
areas that have a moderate to high proportion of forest gaps with
little to no canopy cover (Gallagher et al. 2018, pp. 487, 494-499).
Forest thinning has complex effects on both California spotted owls and
their mammalian prey species. Thinning may have negative short-term
effects on prey species by increasing the risk of predation by removing
above-ground cover and reducing canopy connectivity, and thinning may
remove suitable nesting substrates; however, there may be positive
effects in the long term (over decades) by promoting growth of the
midstory layer of trees that is favorable to certain mammalian prey
species (Wilson and Forsman 2013, p. 79).
Salvage logging is a practice where damaged or dying trees are
removed to recover their economic value and promote forest health
(Guti[eacute]rrez et al. 2017, p. 293; Jones et al. 2020, p. 11).
Salvage logging often occurs after natural disturbances such as
wildfires, disease, and insect infestation (Lindenmayer et al. 2008, p.
4). Post-fire fuels treatment that includes the removal of smaller
trees and surface and ladder fuels is not generally considered a threat
to California spotted owls relative to the threat posed by megafires
(Jones et al. 2021b, p. 7). Negative effects of salvage logging have
been documented for wildlife, vegetation, and soils, but there is a
paucity of literature on the subject, which may lead to inaccurate
comparisons when studies occur across varied geographic regions;
nevertheless, the negative effects may be mediated by altering
equipment, timing of operations, and harvest prescriptions to leave
more large snags (Nemens et al. 2019, entire). California spotted owls
inhabit areas of low-medium severity fire, patchy high-severity fire,
and areas with dead trees; therefore, salvage logging likely reduces
the amount of habitat available for California spotted owls
(Guti[eacute]rrez et al. 2017, p. 276). Salvage logging can result in
short-term decreased vegetation regrowth (Wagenbrenner et al. 2015, p.
176), which would likely impact prey species for California spotted
owls. However, salvage logging does not appear to make much difference
in long-term vegetation regrowth, so salvage logged areas have the
potential to again become suitable habitat after the centuries it takes
to establish large trees in the area (Peterson and Dodson 2016, p. 56).
Salvage logging in certain instances may also be necessary to reduce
future fire severity as high levels of dead biomass are associated with
high-severity fire (Lydersen et al. 2019, p. 7; Stephens et al. 2022,
p. 8); salvage logging may also be required for restoration personnel
to safely access an impacted site for re-planting activities (Sawyer in
litt. 2022).
The California spotted owl's response to salvage logging appears to
be at least partly dependent on the characteristics of the fire after
which it occurs, which can make it difficult to analyze these
relationships (detailed in Jones et al. 2019). For example, salvage
logging that occurs within a large, burned area is less likely to
negatively impact spotted owls relative to salvage logging that occurs
within a smaller burned area (Jones et al. 2020, p. 12). There is some
evidence that northern spotted owl (Clark et al. 2012, p. 15) and
California spotted owl occupancy decreases with salvage logging (Lee et
al. 2013, p. 1327; Lee and Bond 2015, p. 228; Hanson and Chi 2021, p.
5), while other evidence suggests that salvage logging has no effect on
California spotted owl persistence or colonization (Jones et al. 2021b,
p. 5). Salvage logging can be a threat to California spotted owls when
their habitat components of large trees, coarse woody debris, and
habitat heterogeneity are removed from the landscape, resulting in a
decrease in occupancy at the population level. The 2004 Sierra Nevada
Forest Plan Amendment prohibits salvage harvest in California spotted
owl PACs unless a biological evaluation determines that the areas
proposed for harvest have been rendered unsuitable for the purpose they
were intended (i.e., California
[[Page 11618]]
spotted owl habitat) by a catastrophic stand-replacing event (USFS
2004, pp. 52-53).
Prescribed fire or cultural burning as a tool for ecosystem
management had been used for millennia by Native Americans; with the
colonization of North America, Europeans introduced a culture of fire
suppression onto the landscape (Marks-Block et al. 2021, p. 3).
Wildfire suppression is still the dominant management practice over
prescribed or controlled burning across much of western North America
(Stephens et al. 2019, p. 391). Between 2017 and 2020, approximately
49,000 ha (120,000 ac) per year were treated with prescribed burning
across Federal, State, and Tribal lands in California (Gabbert 2022,
entire). The State of California recently released a report outlining a
plan to increase the use of ``beneficial fire'' to 162,000 ha (400,000
ac) annually by 2025 (California Wildfire & Forest Resilience Task
Force 2022, p. 3). Spotted owls can persist in low- and moderate-
severity fire areas with similar probabilities to unburned landscapes
(Roberts et al. 2011, p. 617), demonstrating their adaptation to a
natural fire regime (Verner et al. 1992, pp. 247-248; Stephens et al.
2019, p. 394). However, studying the relationship between spotted owls
and prescribed fire alone is difficult because there are usually
confounding factors of past timber harvest or salvage logging (Clark et
al. 2012, p. 15). Prescribed ``ecologically beneficial'' fire is an
important tool for protecting nesting and roosting habitat from
catastrophic fires and for maintaining diverse California spotted owl
habitat throughout the landscape (Roberts et al. 2011, p. 617; Stephens
et al. 2019, p. 394).
Fuels reductions and forest management practices within the
California spotted owl's range include clearcutting, mechanical
thinning, salvage logging, and prescribed fire. Depending on the method
used and how it is implemented, fuels reductions and forest management
practices can have both positive and negative influences on the
species. The existing regulatory mechanisms and conservation measures
do not completely ameliorate the negative impacts of fuels reductions
and forest management practices to California spotted owls; however,
land management direction, including the Sierra Nevada Forest Plan
Amendment, includes protective standards and guidelines that must be
adhered to while conducting management activities in California spotted
owl habitat.
Fuels reduction in some form is necessary to ensure California
spotted owl habitat persistence because long-term gains in habitat
protection outweigh the short-term negative effects, especially when
conservation measures are implemented appropriately (Jones et al.
2021a, p. 2; Jones et al. 2021b, entire; North et al. 2022, entire;
Safford et al. 2022, entire). Differences in forest management may help
explain why California spotted owl populations occurring in some mixed
ownership landscapes have higher occupancy, density, and probability of
reproduction compared to public land (Roberts et al. 2017, p. 113;
Hobart et al. 2019, p. 198; SPI et al. 2022, pp. 9, 17). The need to
increase the pace and scale of fuels reduction efforts is recognized
across agencies, and, recently, the Department of the Interior
announced funding through the Bipartisan Infrastructure Law
(Infrastructure Investment and Jobs Act, Pub. L. 117-58, 135 Stat. 429)
to increase fuels treatments across the United States (DOI 2022,
entire). The USFS also identified preliminary projects to address fuel
reduction projects through its wildfire crisis landscape investments,
and two projects are expected in the near term within the California
spotted owl's range that include mechanical thinning and prescribed
fire (Tahoe National Forest and the Stanislaus National Forest; USFS
2022a, entire). Fuels reductions and forest management practices will
likely continue to have varied effects on California spotted owls
throughout the species' range.
Competition and Hybridization With Barred Owls
The barred owl is a closely related species to the spotted owl,
native to eastern North America (Mazur and James 2000, ``Introduction''
section). Since the 1960s, the barred owl has been extending its range
westward, first coming in contact with northern spotted owls and more
recently moving into the California spotted owl's range (Peterson and
Robins 2003, p. 1162; Livezey 2009, p. 49; Keane et al. 2018, p. 5).
Barred owls were first detected in northwestern California in 1982
(Evens and LeValley 1982, p. 890), the Sierra Nevada in 1991 (Dark et
al. 1998, p. 53), and along the coast as far south as Marin County in
California by 2002 (Jennings et al. 2011, p. 105).
Barred owls and spotted owls have similar habitat requirements,
with old forests representing high-quality habitat for both, although
barred owls use a broad mix of forest types (Wiens et al. 2014, pp. 14,
32). Because barred owls have more habitat flexibility than spotted
owls, there is potential for barred owls to expand into spotted owl
habitat through corridors of lower quality habitat. For example, recent
barred owl sightings from Davis, California (eBird 2022, entire),
suggest that barred owls could expand across the Central Valley into
California spotted owl habitat from the west in addition to the more
likely pathway through forests in the Sierra Nevada. Although the
California spotted owl's range has a gap between the Sierra Nevada DPS
and the Coastal-Southern California DPS, barred owls may be able to
colonize the coastal-southern California spotted owl's range because of
the barred owl's ability to use other forest types. Detections of
barred owls in coastal forests in the Santa Cruz Mountains in San Mateo
County, California, an area without known occurrences of the California
spotted owl, suggests a pathway towards connectivity to the coastal
portion of the California spotted owl's range.
Barred owls are aggressively outcompeting and displacing spotted
owls on the landscape (Wiens et al. 2014, p. 1; Guti[eacute]rrez et al.
2017, p. xvi; Long and Wolfe 2019, entire). Barred owls are larger than
spotted owls (Guti[eacute]rrez et al. 2007, pp. 185-186) and
behaviorally dominant (Van Lanen et al. 2011, pp. 2197-2198). Although
diet overlaps between the two species, with both predominantly feeding
on nocturnal mammals, barred owls are generalists that consume many
more prey species in comparison to spotted owls (Wiens et al. 2014, pp.
24-25; Kryshak et al. 2022, pp. 12-13).
Competition between the two species results in negative effects to
the survival, productivity, and recruitment of northern spotted owls
(Dugger et al. 2016, pp. 69-91), and barred owls have been described as
demographically superior to northern spotted owls because they have
higher survival estimates and produced, on average, 4.4 times more
young than northern spotted owls over a 3-year period (Wiens et al.
2014, p. 28). The presence of barred owls has caused lower detection
rates and occupancy probabilities in northern spotted owls (Olson et
al. 2005, p. 918; Crozier et al. 2006, p. 760; Kroll et al. 2010, p.
1264; Yackulic et al. 2012, p. 1953; Yackulic et al. 2014, p. 265).
Although there is some evidence that lower detection rates may be in
part due to northern spotted owls responding less frequently in the
presence of barred owls (Crozier et al. 2006, p. 760), the negative
effects of barred owls on spotted owls are clear.
Although there is no evidence of barred owls wounding or killing
northern spotted owls (Wiens et al. 2014, p. 33), competition
ultimately has
[[Page 11619]]
population-level effects because of impacts to occupancy and
reproduction. Additionally, barred owls can hybridize with spotted owls
(Guti[eacute]rrez et al. 2017, p. 211). There are likely broader
impacts on the ecosystem from the barred owl's range expansion, such as
an imbalance in predator/prey relationships, causing even greater
impacts to spotted owl interspecific competition (Holm et al. 2016, p.
615). Because of the wide and diverse diet of barred owls in comparison
to spotted owls, barred owls will not be ecological replacements to the
spotted owls that they displace, and this could have widespread
ecological impacts (Kryshak et al. 2022, pp. 15-16).
Barred owl detections within the California spotted owl's range
have continued to increase. From 1989 to 2013, 51 barred owls and 27
barred owl/spotted owl hybrids had been detected in the Sierra Nevada
(Guti[eacute]rrez et al. 2017, p. xxv). By 2017, the number of barred
and barred owl/spotted owl hybrid detections in the Sierra Nevada
increased to approximately 145 (Keane et al. 2018, p. 7), with another
2.6-fold increase between 2017 and 2018 (Wood et al. 2020, p. 4). Even
these seemingly low numbers of barred owls in the California spotted
owl's range are of concern, given that in the northern spotted owl's
range, replacement of northern spotted owls began at a slow rate in the
early years of the expansion, followed by a rapid rate of replacement
once the barred owl population reached a critical mass (Forsman in
litt. 2018, p. 1). As shown, over the last 10 years in particular,
barred owl detections throughout the California spotted owl's range
have increased at a higher rate (Service 2022, figure 11).
Experimental barred owl removal studies were first initiated and
are currently ongoing in the northern spotted owl's range (e.g., Diller
et al. 2012, entire; Wiens et al. 2020, entire). In Washington and
Oregon, removals successfully decreased site use by barred owls and
increased northern spotted owl use within treatment areas (Wiens et al.
2021, entire). Further, successful barred owl removals can result in
competitive release for spotted owls (Wiens et al. 2021, pp. 4-5)
(competitive release describes a situation in which one of two similar
species competing for the same resources is removed, allowing the
remaining species to use more of the resources; this is generally
considered beneficial for the remaining species). In another (smaller)
example of barred owl removals within the northern spotted owl's range,
after nine barred owls were removed from historical northern spotted
owl sites, all sites were re-occupied by northern spotted owls within a
year of removal: four by the original residents and five by new
residents (Diller et al. 2012, p. 405). However, barred owls again
replaced the northern spotted owls at three sites within 1-4 years of
the northern spotted owls reoccupying those territories (Diller et al.
2012, p. 405). Overall, evidence to date indicates some measure of
success for northern spotted owls related to barred owl removal efforts
in at least some cases. However, species experts caution that forest
conditions, densities of barred owls, and numbers of spotted owls would
all factor into whether or not similar results could be obtained in
other areas (Wiens et al. 2020, p. 1).
Experimental barred owl removal studies have also recently been
initiated in the California spotted owl's range, specifically in the
Sierra Nevada (Hofstadter et al. 2022, entire). In 2017, a California
spotted owl conservation assessment concluded that control measures for
barred owls in the California spotted owl's range were likely to be
more successful and cost efficient while densities of barred owls are
still relatively low in the California spotted owl's range, and that if
control measures were not taken, barred owls would most likely replace
California spotted owls on the landscape in the future (though the
timescale of this replacement was uncertain) (Guti[eacute]rrez et al.
2017, pp. xxxi, xxv; see also Wood et al. 2020, pp. 5-7). Within the
California spotted owl's range, barred owl removal experiments were
initiated in 2018, and have continued through 2022 (Hofstadter et al.
2022, entire). Between 2018 and 2020, researchers removed 76 owls (63
barred owls and 13 hybrids) from the Sierra Nevada, decreasing barred
owl occupancy by a factor of 6.3 down to 0.03 (confidence interval:
0.01-0.04). Experimental removals were guided by passive acoustic
monitoring, which was also used to measure the efficacy of removals.
Partnerships were crucial to the regional-scale removal, with public-
private partnerships allowing access to 92 percent of the California
spotted owl's range in the Sierra Nevada, including almost all known
barred owls in the area and minimizing refugia for barred owls.
California spotted owls rapidly colonized territories where barred owls
were removed: 15 out of 27 territories were recolonized by California
spotted owls within 1 year of barred owl removals, with successful
breeding documented in five of these territories (Hofstadter et al.
2022, pp. 4-5). Early and effective experimental removals of barred
owls within the California spotted owl's range in the Sierra Nevada has
dampened the urgency of this threat, but the potential for continued
and persistent expansion into the range remains. Funding is currently
available to continue barred owl removal experiments in the California
extent of the Sierra Nevada through 2024 (Peery in litt. 2022).
However, continued barred owl monitoring and experimental removal would
likely need to continue into the future (Hofstadter et al. 2022, p. 6).
Management options are currently being evaluated for potential future
implementation.
Regulatory mechanisms and management actions that are providing or
could potentially provide some protection from the effects of barred
owl expansion include management teams, management plans, and habitat
conservation plans (HCPs) that coordinate, fund, and implement the
experimental removals described above. However, barred owls are a
significant threat to the persistence of California spotted owls, and
we expect the magnitude of the threat to increase into the foreseeable
future, particularly if management efforts are not continued.
Rodenticides
Exposure of nontarget wildlife to anticoagulant rodenticides
threatens many species, including California spotted owls, likely
because of ingestion of exposed prey animals, known as secondary
exposure (Gabriel et al. 2018, p. 5; Franklin et al. 2018, p. 2).
Secondary exposure to anticoagulant rodenticides in predators such as
raptors can be lethal, with higher levels causing severe blood loss and
internal hemorrhaging that can result in organ failure and death (Gomez
et al. 2022, p. 147). Although this threat has potential impacts to
individuals, the loss of just a few individuals may reduce survival and
the population growth rate because the California spotted owl is a
long-lived species with low reproductive rates. This threat would be
particularly detrimental if a parent were exposed during the breeding
season because hatchlings and juveniles rely on parental care to
survive, so the loss of just one parent would likely result in the loss
of offspring as well.
Rates of mortality in free-living wild birds due to anticoagulant
rodenticides are often unknown due to the difficulty of linking
exposure to death and the lack of understanding of toxicity thresholds
in different species (Gomez et al. 2022, pp. 147-148). Documentation of
anticoagulant
[[Page 11620]]
rodenticides in ovaries of female barred owl suggests the possibility
for in-utero transfer to chicks (Hofstadter et al. 2021, pp. 7-8). Sub-
lethal effects of anticoagulant rodenticides in other owl species
include reduced clutch size, brood size, fledging success, slower
clotting time, residual transfer to eggs, anemia, and impaired
mobility; however, these impacts have not yet been documented in
spotted owls (Rattner et al. 2012, p. 832; Salim et al. 2014, p. 113;
Gabriel et al. 2018, p. 7; Gomez et al. 2022, p. 148).
Although there is little information specific to California spotted
owls regarding the exposure rates and resulting impacts of
rodenticides, available literature on other species suggests the
potential for widespread exposure. Exposure of nontarget species to
anticoagulant rodenticides is commonly associated with agricultural or
urban settings, but exposure in forest settings in northern California
is detrimental to northern spotted owls and barred owls (Gabriel et al.
2018, p. 5; Franklin et al. 2018, p. 2). Seven out of 10 northern
spotted owl carcasses tested positive for anticoagulant rodenticides,
and 40 percent of 84 barred owls tested in the northern spotted owl's
range had been exposed (Gabriel et al. 2018, pp. 4-5). In another study
using barred owls as a proxy for spotted owls, almost half of barred
owls sampled (n=40) and one northern spotted owl sampled demonstrated
exposure to anticoagulant rodenticides (Wiens et al. 2019, p. 4). High
rates of exposure were also demonstrated in barred owls and barred owl/
spotted owl hybrids in California, with females having higher rates of
exposure than males (Hofstadter et al. 2021, pp. 6-7). Large amounts of
rodenticides and other pesticides have been found on USFS land in the
southern Sierra Nevada (Thompson et al. 2013, pp. 95-99). Approximately
85 percent of fisher (Martes pennanti--a carnivorous predator with
similar habitat requirements as California spotted owls) carcasses
tested in the Sierra National Forest had been exposed to rodenticides
(Gabriel et al. 2012, pp. 1-14; Thompson et al. 2013, pp. 91).
Anticoagulant rodenticide use has increased throughout California
with increases in illegal marijuana cultivation, as anticoagulant
rodenticides are used to control rodent damage to the plants (Franklin
et al. 2018, p. 1). A comparison of marijuana cultivation site
likelihood with northern spotted owl suitable habitat found almost 50
percent overlap between the two (Wengert et al. 2021, p. 10). Although
the number of illegal marijuana growing operations within the
California spotted owl's range is unknown, considering the number of
illegal marijuana growing operations found throughout the State, there
are likely thousands within the California spotted owl's range (Gabriel
et al. 2012, pp. 12-13; Thompson et al. 2013, pp. 95-99; Gabriel et al.
2018, p. 6).
In 2014, the California Department of Pesticide Regulation
restricted the purchase, possession, and use of anticoagulant
rodenticides in the State to purchase and use by a certified pesticide
applicator with a permit issued by the county agricultural commissioner
in order to protect wildlife; however, anticoagulant rodenticides
associated with illegal marijuana grows are more likely the source of
contaminants. If illegal marijuana grows are found, State law
enforcement will shut the operations down, but there is currently no
standardized clean-up protocol and a limited amount of funding to
ensure removal of all rodenticides. Recently there has been an
increased effort to locate and shutdown illegal marijuana grows on
public lands in California called Operation Forest Watch (Department of
Justice 2018, entire). Overall, anticoagulant rodenticides are likely
affecting owls across their range, and we expect this threat will
continue into the foreseeable future.
Development
Anthropogenic land use (including both cultivation and development)
in California is expected to increase 28 percent by 2100 with a
projected 3 percent decrease in overall forest land cover (Sleeter et
al. 2017, pp. 1068, 1075). Urbanization is projected to be a primary
driver of land use and land cover change in California over this time
frame (Sleeter et al. 2017, p. 1076). Urban development is a threat
throughout the range of California spotted owls; however, the threat is
more substantial in the coastal and southern California population
(Sleeter et al. 2017, p. 1081, figures 6 and 7). A majority of
California spotted owl habitat occurs on public lands (approximately 71
percent of total range); therefore, this threat is primarily limited to
a small amount of private lands.
Southern California faces high development demands with specific
threats of wind farms and large reservoirs impacting connectivity
within the California spotted owl's range (Guti[eacute]rrez et al.
2017, pp. 253-254). Loss of riparian areas due to water diversion in
southern California has created barriers to dispersal among small
populations (Guti[eacute]rrez et al. 2017, pp. 253-254). The southern
California area of the California spotted owl's range is fragmented,
with low dispersal between populations, so more development could
further exacerbate fragmentation (LaHaye et al. 2001, p. 692;
Barrowclough et al. 2005, p. 1116; Guti[eacute]rrez et al. 2017, pp.
253-254).
In the Sierra Nevada, low- to mid-elevation development is
considered a threat to the California spotted owl and its habitat
(Verner et al. 1992, pp. 264-265). Low- and mid-elevation zones in the
Sierra Nevada continue to experience human population growth, which may
increase the demand for development. Fifty percent of known California
spotted owl sites on the west slope of the Sierra Nevada are considered
wildland-urban interface and may be vulnerable to further development
(Guti[eacute]rrez et al. 2017, p. 207). The northern Sierra Nevada is
expected to have a higher level of forest harvest compared to other
parts of the California spotted owl's range (Sleeter et al. 2017, p.
1081, figure 7). Overall, development is likely affecting owls across
their range, and we expect this threat will continue into the
foreseeable future.
Conservation Efforts and Regulatory Mechanisms
Mechanisms and actions related to the California spotted owl and
its habitat include State and Federal laws and regulations, federal
incidental take permits, and forest management on USFS lands. In this
proposed rule, we describe the key actions related to the California
spotted owl and its habitat. For a full description of all conservation
efforts and regulatory mechanisms, please see the SSA report (Service
2022, pp. 57-66).
The USFS has been a part of ongoing conservation efforts for
California spotted owls, including the 2004 Sierra Nevada Forest Plan
Amendment, which includes USFS land in the Lassen, Plumas, Tahoe,
Humboldt-Toiyabe, Eldorado, Stanislaus, Sierra, Inyo, and Sequoia
California spotted owl analysis units, and the 2005 Southern California
National Forest Land Management Plans, which includes the Los Padres,
Angeles, San Bernardino, and Cleveland California spotted owl analysis
units. In 2019, the Inyo National Forest completed its own land
management plan, and revised forest plans for the Sierra and Sequoia
National Forests are expected to be final in 2023 (Miller in litt.
2022). Once these plans are finalized, the Inyo, Sierra, Sequoia
National Forests will follow their individual plans and no longer
follow
[[Page 11621]]
the 2004 Sierra Nevada Forest Plan Amendment. All of these are
regulatory documents that provide conservation measures for California
spotted owls on USFS lands (USFS 2004, entire; USFS 2005, entire; USFS
2019a, pp. 43-47; USFS 2022b, pp. 59-68; USFS 2022c, pp. 59-68). The
main goals of these conservation efforts include protection and
management of California spotted owl activity centers and home range
core areas, increasing the frequency of large trees on the landscape,
and increasing structural habitat diversity. The goals relate to
increasing the condition of the species' ecological needs to increase
resiliency and provide conservation efforts related to the threats of
large-scale, high-severity fire; clearcutting; mechanical thinning; and
salvage logging.
The 2004 and 2005 USFS land management plans and the 2019 Inyo
National Forest and 2022 draft versions of the Sierra and Sequoia
National Forest plans maintain the designation of PACs for California
spotted owls, which encompass the best available 121 ha (300 ac) of
habitat in as compact of a unit as possible around a nest tree (USFS
2004, p. 37; USFS 2005, p. 109; USFS 2019a, p. 43; USFS 2022b, p. 61;
USFS 2022c, pp. 61-62). There are special considerations for any land
management activities or projects that may take place within a PAC.
Depending on the plan, management standards and guidelines include
conducting surveys during the planning process of vegetation treatments
where appropriate (i.e., in areas of suitable habitat for California
spotted owls), limiting activities to reducing surface and ladder fuels
through prescribed fire, limiting mechanical treatments to only allow
fuel reduction treatments in some wildland urban defense zones where
prescribed fire is not feasible, identifying maximum size of canopy
gaps created within California spotted owl territories, requiring a
limited operating period for when vegetation treatments can occur, and
limiting the impacts a vegetation treatment can have on a PAC per year
(USFS 2004, pp. 50-51, 54, 60-61; USFS 2005, pp. 7, 82-83; USFS 2019a,
pp. 43-47; USFS 2022b, pp. 63-68; USFS 2022c, pp. 63-68).
In addition to protections, the 2004 Sierra Nevada Forest Plan
Amendment and the 2022 version of the Sierra and Sequoia National
Forest Plans outline desired conditions for PACs and other large
habitat blocks within the home range that include at least two tree
canopy layers, dominant and co-dominant trees with average diameters of
at least 61 cm (24 in) dbh, at least 60 percent to 70 percent canopy
cover, some very large snags (greater than 114 cm (45 in) dbh), and
snag and course woody debris levels that are higher than average (USFS
2004, pp. 37, 39-40; USFS 2022b, pp. 60-61; USFS 2022c, pp. 60-61). As
discussed below, in April 2019, the USFS finalized a new California
spotted owl conservation strategy for the Sierra Nevada (USFS 2019b,
entire). The intention of the strategy is to be used for adaptive
management and to be incorporated into future forest plan updates,
although it is not legally enforceable and does not commit agency
action or inaction.
As described above in ``Fuels Reduction and Forest Management,''
there is disagreement about whether or not measures in these plans,
such as mechanical thinning, are beneficial or detrimental to
California spotted owls, and whether or not protections afforded to
PACs are sufficient to ameliorate impacts to California spotted owls
(John Muir Project of Earth Island Institute and The Wild Nature
Institute 2014, pp. 70-71, 98, 108; Sierra Forest Legacy and Defenders
of Wildlife 2015, pp. 39-40). However, a meta-analysis of California
spotted owl occupancy and forest management practices indicated that
mechanical thinning treatments that maintain canopy cover at 40 percent
or greater would not substantially reduce California spotted owl
occupancy, although canopy cover at 50 percent or above is more
strongly correlated with California spotted owl occupancy (Tempel et
al. 2016, pp. 761-762). Forest management practices from the 2004
Sierra Nevada Framework generally maintain at least 50 percent canopy
cover as well as large trees within PACs, and in the 2005 Southern
California plan, 40-50 percent canopy cover must be maintained. The
2019 Conservation Strategy also maintains a minimum of 50 percent
canopy cover within PACs (USFS 2019b, p. 28). Overall, PACs are
designated to preserve key habitat used by California spotted owls, and
some researchers have concluded that PACs are a key conservation tool
that should continue to be implemented (Berigan et al. 2012, pp. 300,
303). In contrast, other research has shown that PACs can be more
susceptible to the effects of high-severity fire due to the relatively
larger amounts of surface fuel (North et al. 2012, p. 395).
In April 2019, the USFS completed an updated California spotted owl
conservation strategy for the Sierra Nevada national forests (USFS
2019a, entire). The updated strategy includes new scientific
understanding since the 2004 Sierra Nevada Forest Plan Amendment and
will be incorporated into national forest land management plans as they
are updated in the coming years, in accordance with USFS regulations in
title 36 of the Code of Federal Regulations (CFR) at part 219. Until
the revised national forest land management plans can be completed, the
Pacific Southwest Region of the USFS sent a letter of direction to the
Sierra Nevada national forests on April 19, 2019, to provide guidance
on implementing the new conservation strategy in the interim (USFS
2019b, entire). The new conservation strategy gives direction for
increased pace and scale of ecological restoration to provide more
resilient habitat for California spotted owls, while simultaneously
continuing to protect the most important habitat attributes and areas
for California spotted owls.
The three main goals for the 2019 conservation strategy include:
(1) Maintain a well-distributed and stable California spotted owl
population across the Sierra Nevada by minimizing impacts from non-
habitat threats (such as barred owls and contaminants); (2) promote and
maintain well-distributed California spotted owl habitat by developing
key habitat elements and connectivity; and (3) promote California
spotted owl persistence by enhancing habitat resilience to multiple
disturbances, considering climate change. This increased habitat
resilience will lead to improved conditions on the landscape and
greater population resiliency. The new strategy provides adaptive
management and metrics for success in order to ensure the conservation
measures outlined in the plan are beneficial to California spotted
owls.
In addition to the conservation strategy, the USFS is planning to
implement a new monitoring plan using acoustic recording units to cover
the Sierra Nevada portion of the California spotted owl's range. The
goal is to use the information from the new monitoring plan to allow
the USFS to conduct a future California spotted owl occupancy modeling
effort to provide information over a larger portion of the California
spotted owl's range and allow greater potential for inference on broad-
scale effects of restoration and disturbance (USFS 2019c, pp. 14-15).
Elements of the strategy may entail some short-term, localized
reduction in occupancy. These elements allow for more forest management
flexibility in application of fuels reduction and other landscape
treatment projects as compared to the 2004 Sierra Nevada Forest Plan
Amendment both within PACs and on the landscape, as well as more
flexibility in the retirement of
[[Page 11622]]
PACs when they are no longer occupied. Additional flexibility in these
landscape treatments provides access to additional tools to maintain
and restore California spotted owl habitat (USFS 2019a, entire). We
anticipate that the short-term impacts that may occur for the purpose
of fuel reduction and forest health will be outweighed by the long-term
benefit as more sustainable and dynamic habitat is developed through
active management (USFS 2019a, p. 2).
On August 30, 2017, an MOU (hereafter referred to as the Fire MOU)
was signed by SPI, CAL FIRE, National Fish and Wildlife Foundation, and
the USFS, which will impact all lands from Lassen National Forest south
through Stanislaus National Forest. The purpose of the Fire MOU is to
document the agreement between the parties to coordinate on certain
actions to reduce the risk of large-scale, high-severity wildfire
through forest fuels reduction to benefit California spotted owl
conservation. This MOU involves establishing a strategic conservation
framework to help restore and protect areas where California spotted
owls are threatened by habitat degradation due to uncharacteristically
extensive and severe adverse fire effects. The Fire MOU is designed for
signatories to engage in collaborative landscape-level fuels and fire
risk reduction treatments to: (1) Minimize potential fire-related
impacts to California spotted owl activity centers on Federal, State,
and private lands; and (2) better coordinate implementation of fuels
reduction work on Federal, State, and private lands to maximize the
effectiveness of this work. Sites for fuels treatment are selected to
minimize risk to known occupied California spotted owl activity
centers. Measures associated with the Fire MOU include fire management
activities such as increased mechanical thinning that may benefit
California spotted owls by decreasing risk of large-scale, high-
severity fire. If mechanical thinning is planned with consideration of
the California spotted owl's habitat needs, there may be some negative
impacts, but these would be outweighed by reducing the risk of large-
scale, high-severity fire in California spotted owl activity centers
(Jones et al. 2016a, p. 305; Service 2017, pp. 24-25; Chiono et al.
2017, p. 1; Jones et al. 2021b, p. 6).
The USFS, SPI (a private corporation), and CAL FIRE manage forest
lands in California that are frequently adjacent to each other and have
ongoing programs to protect and enhance habitat for fish and wildlife.
On these lands, forest fuels are managed to reduce fire risk and its
potential impacts on wildlife species. Under State law, SPI has the
authority to participate in fire suppression on its own lands, while
CAL FIRE, contract counties, USFS, and other government agencies have
primary fire suppression responsibility for all Federal, State, and
private wildlands in California. The parties also have responsibilities
and interests in the inventory of their respective lands for species
recognized as endangered, threatened, proposed as endangered or
threatened, candidate, and sensitive species by the Federal or State
government. The parties also have responsibility and interest in the
development of appropriate protection measures for these species. Due
to these natural resource challenges, the Fire MOU parties believe it
is important to establish a coordinated, multi-stakeholder agreement to
help protect and enhance forest resources.
Though the Fire MOU was initially set to expire on December 2019,
an amendment was signed in April 2019 to extend the terms of the MOU
through December 2024. In March 2020, a new MOU that supersedes the
2017 MOU and 2019 amendment was signed by the same parties. An
amendment to the 2020 Fire MOU was signed in September 2020 to add a
number of new commercial forest landowners. The terms of the 2020 MOU
are effective through December 2024. The Service is actively engaged
with the signatory parties to discuss fuels reduction efforts and
associated monitoring.
Barred owls have expanded into western North America over the past
several decades, first through the Pacific Northwest and more recently
into the Sierra Nevada. The Service and the USFS are funding
researchers at the University of Wisconsin-Madison to carry out an
ongoing barred owl removal study. The project grant was signed in
August of 2018, and funding has been secured from the Service and
potentially University of Wisconsin-Madison through 2025 (Peery in
litt. 2022). The project addresses several key questions related to the
range expansion of barred owls in the Sierra Nevada and will inform the
development of a scientifically based barred owl management plan.
Specifically, this project: (1) Assesses the current distribution and
density of barred owls; (2) conducts experimental barred owl removals;
(3) tests for reductions in barred owl site occupancy rates; (4)
quantifies spatiotemporal patterns of barred owl recolonization; and
(5) characterizes barred owl dispersal into and within the Sierra
Nevada. This project takes place primarily in the northern and central
Sierra Nevada, including Lassen National Forest, Lassen National Park,
Plumas National Forest, Tahoe National Forest, Eldorado National
Forest, Yosemite National Park, and Sequoia-Kings Canyon National Park.
Additionally, on July 22, 2022, the Service published in the
Federal Register (87 FR 43886) a notice of intent to prepare an
environmental impact statement, initiating a 30-day public scoping
period seeking input on barred owl management in the northern spotted
owl's and California spotted owl's ranges. Preventative barred owl
management for California spotted owls will likely be considered in the
environmental impact statement. Northern spotted owls are the main
focus right now, but barred owls have expanded into northern California
into the California spotted owl's range and are expected to continue to
expand without continued management.
Currently, two HCPs include the California spotted owl. Habitat
conservation plans are planning documents required as part of an
application for an incidental take permit; they can apply to both
listed and non-listed species, including those that are candidates or
have been proposed for listing. They describe the anticipated effects
of the proposed taking; how those impacts will be minimized or
mitigated to the maximum extent practicable; and how the HCP is to be
funded.
Sierra Pacific Industries is the largest private forest land owner
in California, with approximately 744,621 ha (1,840,000 ac) of
timberland in northern California (SPI 2021, p. 1). Sierra Pacific
Industries' habitat conservation plan for both the northern spotted owl
and California spotted owl covers all areas on SPI-managed property
where covered activities will occur within the range of the two spotted
owl subspecies, which is more than 607,028 ha (1,500,000 ac) (SPI 2021,
p. 2). Covered activities under the HCP include timber operations and
other forest management activities. Major activities associated with
the HCP include growing, harvesting, and transporting timber; timber
stand regeneration and improvements; road and landing construction and
maintenance; fuel break construction and maintenance; and monitoring
and research (including for spotted owls) (Service 2020, p. 8).
Implementation of the HCP is not expected to result in direct injury or
mortality of California spotted owls due to the implementation of
conservation measures that will be implemented throughout the 50-year
permit term. These measures will support California spotted owl species
needs and address threats currently affecting the species,
[[Page 11623]]
including reducing the risk of catastrophic fire and eradication of
illegal marijuana plantations (Service 2020, pp. 10-13).
In 2015, SPI began studying barred owls via removal experiments. In
2018, the study was revised to include the following objectives: (1)
assess the genetic differentiation of barred owl populations across
northern and central California, (2) analyze allele frequency changes
on the front of the range expansion, (3) estimate the amount of spotted
owl-barred owl interbreeding (admixture) in each population, and (4)
identify what barred owls are preying on in California. These efforts
are ongoing, and SPI has committed to continue these efforts during the
term of the permit, as feasible. Ongoing research and monitoring
efforts for California spotted owls on SPI land have indicated that
some California spotted owl populations in mixed-ownership landscapes
have higher occupancy, density, and probability of reproduction
compared to California spotted owl populations on public land (Roberts
et al. 2017, p. 113; Hobart et al. 2019, p. 198; SPI et al. 2022, pp.
9, 17).
The Western Riverside County Multiple Species Habitat Conservation
Plan (MSHCP) is one of the largest habitat conservation plans in the
United States, covering 202,343 ha (500,000 ac). The California spotted
owl is currently listed as a ``species not adequately conserved'' under
the MSHCP until an MOU is executed with the USFS that addresses
management of California spotted owls on USFS lands. The MSHCP plan
area includes 21,901 ha (54,119 ac) of modeled habitat for California
spotted owls. If the MOU with the USFS is signed, the loss of 5,223 ha
(12,905 ac) (24 percent) of this modeled habitat is anticipated over
the 75-year permit term. With the low density of California spotted
owls in the plan area, loss of these 5,223 ha (12,905 ac) is not
anticipated to result in direct mortality of adult birds. However, loss
of foraging and nesting habitats to development will cause California
spotted owls in impacted areas to disperse in search of other habitats.
Thus, loss of breeding and foraging habitat may impact overall
population numbers of California spotted owls within the plan area over
the long term by reducing the number of areas suitable for use as
foraging and nesting sites (Service 2004, p. 449). In order to offset
these impacts, the MSHCP will conserve and manage 535 ha (1,321 ac) (2
percent) of modeled habitat for California spotted owls within
additional reserve lands. In total, 16,679 ha (41,214 ac) (76 percent)
of the modeled habitat for California spotted owls will be included in
the MSHCP conservation area. If the MOU with the USFS is signed,
additional monitoring and management would occur in habitat for
California spotted owls within USFS lands included in the MSHCP
conservation area.
Combined Impacts of Threats
The threats discussed above not only act independently, but also
interact with each other. It is important to assess the relationship
between threats because there may be new or exacerbated impacts that
are not considered when a threat is assessed alone. There are a vast
number of ways threats may be interacting with each other, but the SSA
report and this proposed rule only focus on what is currently most
relevant to the viability of the species.
For example, climate change intensifies the threats of large-scale,
high-severity fire; drought; and tree mortality, and it increases
interannual climate variability (Kadir et al. 2013, pp. 132, 137;
Stephens et al. 2018, p. 77). Development in wildland-urban interfaces
also increases the likelihood of large-scale, high-severity fire (Mann
et al. 2016, pp. 14-18). An increase of large-scale, high-severity
fires with changing climate conditions can lead to accelerated, fire-
facilitated conversion of forest edge to non-forested habitat (Parks et
al. 2019, pp. 1, 7). The impacts to the California spotted owl would
likely range from direct physiological impacts to indirect habitat and
prey impacts. The loss of trees due to high-severity fire, drought, and
tree mortality would likely lead to increased salvage logging on the
landscape, further reducing California spotted owl habitat.
Additionally, the expansion of barred owls outcompeting California
spotted owls in combination with timber harvest outside of PACs further
worsens the outlook for habitat availability. Spotted owls living near
the wildland-urban interface may be at a higher risk for exposure to
anticoagulant rodenticides, as is the case for barred owls and hybrids
(Hofstadter et al. 2021, p. 8).
Barred owls are moving south into the California spotted owl's
range, so the northern portion of the Sierra Nevada DPS will likely
experience a greater magnitude of this threat, and earlier in time.
Tree mortality is more concentrated in the Sierra Nevada DPS than other
parts of the landscape and may experience more significant impacts from
this threat. The threat of wildfire is of higher magnitude in the
Coastal-Southern California DPS. Considering the temporal, spatial, and
interactive components of all the threats together is important for
understanding the viability of California spotted owls throughout their
range now and into the future.
Current Condition
For our current condition analysis in the SSA report and this
proposed rule, we considered the status of the two populations of
California spotted owls: the Sierra Nevada population and the coastal-
southern California population. As described above in Background, to
analyze these populations in more detail, we further divided them into
analysis units; however, we recognize that these units do not function
independently, and in areas where the species' distribution is
continuous, like the Sierra Nevada population, impacts to one unit may
result in impacts to an adjacent unit. We assessed the condition of all
California spotted owls' ecological needs where information was
available for each analysis unit, including the demographic factors of
survival, fecundity, occupancy, and population growth, and habitat
components of large trees and canopy cover. In addition, because high-
severity fire has significant effects on the condition of habitat
within an analysis unit, we also incorporated results from our fire
analysis. For each population, we present an overview of the available
information on ecological conditions and threats across the entire
population, our analysis of the demographic factors and habitat
components within each analysis unit to determine current condition,
and a summary assessing population resiliency. In this proposed rule,
for each DPS, we then assess California spotted owl redundancy and
representation under the current condition analysis.
For detailed information on how we determined all demographic and
habitat scores, total scores for each population and analysis unit, and
uncertainties considered in the analysis, please see the SSA report
(Service 2022, pp. 70-77).
Sierra Nevada DPS Current Resiliency
Resiliency is the ability of a species to withstand stochastic
events, the normal year-to-year variations in both environmental
conditions and demographic conditions (Redford et al. 2011, p. 40).
Determined by the size and growth rate of the populations comprising
the species, resiliency can be evaluated to gauge the ability of a
species to weather the natural range of favorable and unfavorable
conditions.
Until recently, California spotted owls and suitable habitat were
relatively
[[Page 11624]]
well-distributed in the Sierra Nevada with few barriers to dispersal
(Guti[eacute]rrez et al. 2017, p. 94): as of 2017, an estimated 1.98
million ha (4.9 million ac) of suitable habitat for California spotted
owls were available in the Sierra Nevada, primarily on Federal lands
(Guti[eacute]rrez et al. 2017, pp. xx, 123). Of that land, 75 percent
is managed by the USFS, 7 percent is managed by the NPS, and 18 percent
is either privately owned or managed by other government agencies
(Guti[eacute]rrez et al. 2017, p. xx). However, recent large,
catastrophic fires have reduced available habitat and have likely
created new barriers for California spotted owl dispersal in this DPS.
Other barriers to dispersal include urban and suburban development,
large reservoirs, physiographic features such as non-forested or
unsuitable habitat or vegetation communities, or lack of riparian areas
to act as corridors through unsuitable extents (Guti[eacute]rrez et al.
2017, pp. 94-95, 253-254).
From our habitat analyses, we found that the Sierra Nevada has
higher canopy cover and tree size values than southern California
(Service 2022, tables 5, 9, and 13). When comparing the northern to the
southern Sierra Nevada, the north contains higher canopy cover, which
aligns with historical forest structure data that tend to show more
dense forests in the northern Sierra Nevada (Van Wagtendonk et al.
2006, p. 250), with the exception being on the east side of the Sierra
Nevada (Humboldt-Toiyabe and Inyo analysis units), which contains more
open and disjunct habitat than the west side. Higher canopy cover
combined with higher precipitation levels tend to result in lower tree
mortality in the northern Sierra Nevada, which may have helped reduce
the potential for megafires in the northern Sierra Nevada in past
years, but climate change impacts of reduced snowpack and increased
temperatures show that increased fire risk is also occurring in the
northern Sierra Nevada. We also found that the two units mostly
composed of National Parks (Yosemite and Sequoia-Kings Canyon) contain
the largest tree size percentages. Overall, the overlap values between
canopy cover and large trees were low across all analysis units
(Service 2022, table 9).
The threats that are currently impacting the Sierra Nevada
population include large-scale, high-severity fire; tree mortality;
drought; climate change; various impacts from fuels reductions and
forest management; competition with barred owls; and rodenticides.
These threats are not equivalent across all analysis units within the
Sierra Nevada population (Service 2022, pp. 77-87). For example,
competition with barred owls is more pronounced in the northern part of
this population than in the southern portion, and the threat from
rodenticides is more pronounced at the wildlife-urban interface.
However, some threats, like fire, are considered a threat across the
population, and there is a general increasing trend in the annual
acreage and relative proportion of high-severity fires in the Sierra
Nevada (Keane in litt. 2022, p. 3). In 2020-2021, the percent of
habitat that burned at high severity within California spotted owl PACs
in the Sierra Nevada was almost twice as that from 1993-2019; in 1993-
2019, 44 percent of habitat burned, with 35 percent of that at high
severity, compared to 65 percent of fire being high severity in 2020-
2021 (Keane in litt. 2022, p. 5).
We conducted a separate fire analysis for the entire California
spotted owl's range, which includes PACs as well as additional acreage
outside PACs (Service 2022, pp. 29-30, appendix I). Our fire analysis
shows similar results, with approximately 42 percent of the California
spotted owl's range in the Sierra Nevada burned between 1984 and 2021,
with 7 percent and 12 percent of that total from acreages burned in
2020 and 2021, respectively. Of the 42 percent of California spotted
owl's range burned within the Sierra Nevada, approximately 13 percent
was burned at high severity (Service 2022, appendix I). In our
supplemental analysis that analyzes habitat and fire metrics along an
ecological boundary between the northern and southern Sierra Nevada, we
found that both portions of the Sierra Nevada burned at similar amounts
between 1984 and 2021 (Service 2022, appendix I). However, the majority
of burned acreage in the northern Sierra Nevada occurred in 2021 (18
percent burned with 9 percent at high severity compared to 5 percent or
less in all other years and 2 percent or less at high severity from
1984 to 2021). In the southern Sierra Nevada, 11 percent burned in 2020
with 2 percent at high severity in 2020 and 2021, compared to 5 percent
or less total burned and 1 percent or less at high severity from 1984
to 2021 (Service 2022, appendix I). These results suggest higher levels
of disturbance to the species and increased recovery time for habitat
conditions to improve post-fire because such a large acreage burned
over a relatively concentrated period of time.
In addition to common threats acting on all analysis units within
this population, there are also common management actions taking place
within the Sierra Nevada population. For example, the USFS designates
PACs around known California spotted owl nest trees, so analysis units
containing national forests (e.g., all Sierra Nevada population
analysis units except for Yosemite and Sequoia-Kings Canyon) include
these protections. Further, barred owl removal experiments in the
northern Sierra Nevada have so far been successful in avoiding the
catastrophic impacts that could have occurred in the absence of any
management.
The current condition of analysis units throughout the Sierra
Nevada population varies, with three analysis units currently
considered stable, five declining, and three strongly declining
(Service 2022, table 12). All three of the units ranked as strongly
declining are on the upper boundary of our scoring system for the SSA
report. Based on these results, the overall condition of the Sierra
Nevada population is declining and, therefore, has low resiliency.
However, though resiliency has declined from historical conditions and
connectivity has decreased, the Sierra Nevada population is still
distributed throughout its historical range, and ongoing conservation
measures and regulatory mechanisms are decreasing the magnitude of
threats. Therefore, the Sierra Nevada population maintains the ability
to withstand stochastic events.
Sierra Nevada DPS Current Redundancy
To assess current redundancy of the Sierra Nevada DPS, we consider
the ability of a species to withstand catastrophic events, i.e.,
natural or anthropogenic stochastic events that would result in the
loss of a substantial component of the overall species population.
However, redundancy is not simply a measure of the total number of
individuals or populations of a species, but instead must also be
evaluated in the context of an assessment of reasonably plausible
catastrophic events. For example, when we consider the redundancy of an
entity comprised of a single population that is very large and widely
distributed, it could have a high ability to withstand a catastrophic
event that would only affect a small percentage of the overall
population. Therefore, our characterization of the Sierra Nevada DPS's
redundancy takes into consideration both an assessment of the size and
distribution of its population, and an evaluation of the kinds and
likelihood of reasonably plausible catastrophic events to which the
species could be exposed.
Of the two populations throughout the species' range, the Sierra
Nevada population that makes up the Sierra Nevada DPS covers the most
area and is
[[Page 11625]]
the largest population. Catastrophic events that could impact
California spotted owls include very large, high-severity wildfire;
extreme drought; extreme weather events; and prolonged and persistent
competition and displacement due to barred owl expansion. Overall,
current California spotted owl redundancy has declined from historical
condition, which risks making the species more vulnerable to
extirpations from catastrophic events. However, the Sierra Nevada DPS
is large, contiguous, and still distributed throughout its historical
range, meaning it is more able to recover from events such large,
catastrophic wildfires.
Sierra Nevada DPS Current Representation
In this proposed rule, to assess current representation, which is
the California spotted owl's current ability to adapt to change, we
considered the ecological setting and genetic diversity in the Sierra
Nevada DPS. In the Sierra Nevada population, a majority of California
spotted owls occur within mid-elevation ponderosa pine, mixed-conifer,
white fir, and mixed-evergreen forest types, with few California
spotted owls occurring in the lower elevation oak woodlands of the
western foothills (Guti[eacute]rrez et al. 2017, p. xix). Further,
California spotted owls in the northern portion of the Sierra Nevadas
tend to have larger home range sizes than California spotted owls in
the southern portion of the mountain range (Guti[eacute]rrez et al.
2017, p. xviii). Within the Sierra Nevada, the northern portion of the
range experiences more precipitation and lower mean temperatures than
the southern portion of the range (Climate Engine 2017, unpaginated).
The diversity in habitat and climate between and within the areas for
which we have data suggests that the species has some flexibility to
adapt to changing environmental conditions.
Of the three spotted owl subspecies (northern, California, and
Mexican), California spotted owls have the lowest genetic diversity
when measured by unique haplotypes (Barrowclough et al. 1999, pp. 919,
927; Haig et al. 2004, p. 683). This suggests that California spotted
owls have lower genetic representation in general than either of the
other two subspecies. However, whether the observed level of genetic
diversity indicates low representation is unclear. Because the
California spotted owl has persisted throughout much of its historical
range for an extended period of time, the relatively low genetic
diversity may be an historical artifact rather than an indication of
concern for representation. Within the California spotted owl
subspecies, genetic differences are found between California spotted
owls found in the Sierra Nevada and those found in coastal-southern
California; this provides some degree of genetic representation at the
subspecies level, although not enough for each population to be
considered a separate subspecies (Barrowclough et al. 1999, p. 927;
Guti[eacute]rrez et al. 2017, p. 101; Hanna et al. 2018, pp. 3946-3947,
3949). Whole-genome data indicate that there is greater genetic
difference between California spotted owls (in the northern and
southern extent of the subspecies' range) than there is between
northern spotted owls and California spotted owls in the northern
portion of the range; this is consistent with isolation-by-distance
(geographic differences increase with geographic scale) (Hanna et al.
2018, pp. 3946-3947). The genetic differences observed between
populations, as well as the habitat and climate differences, may
represent a moderate degree of adaptation and thus moderate
representation at the subspecies level.
Though the Sierra Nevada DPS has lower representation than the
subspecies as a whole, the California spotted owl continues to inhabit
different ecological settings throughout the Sierra Nevada. The overall
condition of the DPS has declined, which has likely resulted in reduced
genetic diversity. Therefore, current California spotted owl
representation in the Sierra Nevada DPS has declined from historical
condition, suggesting that the ability for the taxon to adapt to change
is decreased.
Coastal-Southern California DPS Current Resiliency
Habitat within the Coastal-Southern DPS is considered to be
naturally fragmented, with little dispersal occurring between
subpopulations due to discontinuous mountain ranges (Guti[eacute]rrez
et al. 2017, pp. 93-95). This natural fragmentation has been further
fragmented by development/habitat loss in the greater southern
California area. Specific information about habitat and demographic
conditions, when available, is incorporated below for each of our
southern California analysis units. The available evidence does not
document successful dispersal between the San Bernardino, San Gabriel,
and San Jacinto Mountains, which are adjacent mountain ranges,
indicating that if dispersal does occur within this population, it is
very rare (LaHaye et al. 2001, entire; LaHaye et al. 2004, entire;
Guti[eacute]rrez et al. 2017, pp. 242, 250).
As previously discussed, within this population, occupancy data are
only available for the San Bernardino Mountains. The San Bernardino
Mountains have historically contained the largest number of California
spotted owls, suggesting that information extrapolated from this area
would lead to a too optimistic view for the overall population
(Guti[eacute]rrez et al. 2017, p. 242). Data from one recent study
showed higher occupancy in the San Bernardino Mountains than the San
Jacinto and San Gabriel Mountains, and the authors suggest that other
parts of southern California may also have experienced greater declines
than this area (Tempel et al. 2022, pp. 20-21).
As mentioned for the Sierra Nevada population, our habitat analyses
found that habitat values for large trees and canopy cover were lower
in southern California than in the Sierra Nevada (Service 2022, tables
5, 9, and 13). Overlap between canopy cover and large trees was also
low (Service 2022, table 13). In southern California, high canopy cover
is positively associated with California spotted owl reproductive
output, but large trees appeared to be more important than high canopy
cover (Tempel et al. 2022, p. 22) and are also important for occupancy.
Our analysis found large tree values for southern California are low,
which may indicate lower habitat quality in this analysis unit. For
this population, we conducted an additional analysis identifying the
percentage of small trees within the overall population that could
potentially support platform or stick nests (Service 2022, table 14).
We found that 14 percent of the coastal-southern California analysis
units contain these small trees compared to an overall value of 1
percent for large trees only trees larger than 61 cm dbh are
considered. When looking at the combined total of small trees and large
trees, 16 percent of southern California contains potential trees that
could support the California spotted owl's ecological needs (Service
2022, table 14).
The threats that are likely currently impacting this population
include large-scale, high-severity fire; tree mortality; drought;
climate change; various impacts from fuels reductions and forest
management; and rodenticides. Competition with barred owls is not yet
considered a current threat within this population. Impacts from these
threats may not be equally distributed across the population and are
not equivalent to the ways that these threats impact the Sierra Nevada
population. For example, what might be considered a stochastic event
(in this case, an event that removes one or a few individuals from the
population) in the Sierra Nevada population could instead be considered
[[Page 11626]]
catastrophic if it were to occur in the coastal-southern California
population because of the lower number of California spotted owls
within this population. Our fire analysis shows that 60 percent of the
California spotted owl's range in southern California burned between
1984 and 2021, 17 percent at high severity, with 6 percent of the total
area burned in 2020 and 1 percent at high severity that year. There
were no fires in 2021 within the range of this population. Typically, 4
percent or less of habitat within this population burned per year, with
1 percent or less burning at high severity, although some years burned
at higher percentages (2003 at 6 percent with 3 percent high severity,
and 2007 at 8 percent with 4 percent high severity; Service 2022,
appendix I). In addition to common threats acting on all analysis units
within this population, there are also common management actions taking
place throughout the analysis units comprising the coastal-southern
California population. For example, analysis units containing national
forests include PACs around known California spotted owl nest trees.
The current condition of analysis units within the Coastal-Southern
California DPS is that two analysis units are strongly declining and
two units are declining (Service 2022, table 17). Based on these
results and our scoring of habitat conditions and available demographic
information (Service 2022, table 18), the overall condition of the
Coastal-Southern California DPS is strongly declining and, therefore,
has very low resiliency.
Coastal-Southern California DPS Current Redundancy
As with the Sierra Nevada DPS, our characterization of redundancy
for the Coastal-Southern California DPS takes into consideration both
an assessment of the size and distribution of its population, and an
evaluation of the kinds and likelihood of reasonably plausible
catastrophic events to which the species could be exposed.
As with the Sierra Nevada DPS, catastrophic events that could
impact the Coastal-Southern California DPS include very large, high-
severity wildfire; extreme drought; extreme weather events; and
prolonged and persistent competition and displacement due to barred owl
expansion. The population that makes up the Coastal-Southern California
DPS is highly fragmented with gaps between occupied areas. In areas
where demographic data are available (the San Bernardino analysis
unit), declines have accelerated over the last 30 years, and as stated
above, information extrapolated from a study area that historically
contained the largest number of California spotted owls could lead to
an overly optimistic view for other areas of the coastal-southern
California population (Guti[eacute]rrez et al. 2017, p. 242). Overall,
current California spotted owl redundancy in this DPS has declined from
historical condition, making the species more vulnerable to
extirpations and potentially extinction from catastrophic events.
Coastal-Southern California DPS Current Representation
To assess current representation, which is the California spotted
owl's current ability to adapt to change, we considered the ecological
setting and genetic diversity among the two California spotted owl
populations. In coastal and southern California, California spotted
owls are found in riparian/hardwood forests and woodlands, live oak/big
cone fir forests, and redwood/California laurel forests
(Guti[eacute]rrez et al. 2017, p. xxvi). California spotted owls use
stick nests more frequently in southern California compared to in the
Sierra Nevada. Further, California spotted owls in the northern portion
of the range tend to have larger home range sizes than California
spotted owls in the southern portion of the range (Guti[eacute]rrez et
al. 2017, p. xviii). The climate of the Coastal-Southern California DPS
is more arid than that of the Sierra Nevada (Climate Engine 2017,
unpaginated).
In regard to genetic diversity, in the Coastal-Southern California
DPS, the population has become highly fragmented, which likely has
resulted in reduced genetic diversity. The increased fragmentation has
reduced the amount of available habitat in throughout the coastal-
southern California population. Therefore, current California spotted
owl representation in the coastal-southern California population has
declined from historical condition, suggesting that the ability for the
DPS to adapt to change is decreased.
Future Condition
For our future condition analysis, we forecast the response of the
Sierra Nevada DPS of the California spotted owl to two plausible future
scenarios. These two scenarios represent the extremes of a range of
future changes in environmental conditions and success of implemented
conservation efforts. The future scenarios project the influences to
viability discussed above in Current Condition into the future and
consider the impacts those influences would potentially have on
California spotted owl viability. We apply the concepts of resiliency,
redundancy, and representation to the future scenarios to describe the
future viability of California spotted owls in the Sierra Nevada DPS.
For this analysis, we describe two future scenarios and assess
future resiliency for the Sierra Nevada DPS. Scenario 1 assesses future
viability with an increase in the trend and magnitude of threats with
implemented management efforts having mixed success. Scenario 2
assesses the viability of the species if the trend and magnitude of
threats were to continue at the current trajectory into the future with
implemented management efforts being fully successful. A full
comparison of the assumptions made for each scenario is available in
the SSA report (Service 2022, table 19). Using two scenarios
representing the extremes of plausible future projections for the
species allows us to consider the full range of future possibilities
for predicting the future viability of the Sierra Nevada DPS and
incorporates any uncertainty regarding the impact of future
environmental conditions and the success of implemented conservation
efforts. For the SSA report and this proposed rule, we assessed future
conditions at approximately 40-50 years. For a detailed description of
our methods and assumptions for each future scenario, as well as more
details on how the impacts of threats would differ under each scenario,
please see the SSA report (Service 2022, pp. 97-100).
In the SSA report, we also applied our two future scenarios to the
population of California spotted owls that makes up the Coastal-
Southern California DPS. Because we determined that the current
condition of the Coastal-Southern California DPS is consistent with an
endangered species (see Status of the Coastal-Southern California DPS
of the California Spotted Owl Throughout All of Its Range, below), we
are not presenting the results of the future scenarios in this proposed
rule. Please refer to the SSA report (Service 2022, pp. 100-125) for
the full analysis of future scenarios.
Scenario 1
Scenario 1 considers viability of the Sierra Nevada DPS if some of
the significant threats were to increase in magnitude into the future
and future management efforts have mixed success in addressing those
threats. Under this scenario, climate change models under RCP 8.5
project temperature increases of 4.5-6 [deg]F, depending on the portion
of the range. Increases in temperatures will
[[Page 11627]]
likely increase extreme weather events, including heat waves and
drought conditions (Kadir et al. 2013, pp. 38, 48). With increased
drought conditions, tree mortality and large-scale, high-severity fire
are likely to increase in frequency and size, especially if fuel loads
in forests are not decreased (Westerling and Bryant 2008, pp. S244-
S248; Abatzoglou and Williams 2016, pp. 11770, 11773; Young et al.
2017, p. 78). Extreme weather events or significant changes in
interannual climate variability may have negative impacts on the
California spotted owl's survival and reproduction. Although there are
some protections in place for California spotted owls on public lands,
timber harvest values can vary year to year. Therefore, it is possible
that increases in timber harvest targets may reduce California spotted
owl habitat that is available now or that may be available in the
future for California spotted owls to establish new territories and
disperse beyond the PACs.
Without continued ongoing experimental removals, barred owls will
likely continue to expand their range into California spotted owl
habitat, eventually reaching a point of exponential increase and
significantly displacing and outcompeting California spotted owls on
the landscape (Keane et al. 2018, pp. 8, 47). The timeline for barred
owl expansion and replacement of California spotted owls on the
landscape is unknown; however, because they were able to expand so
quickly within the northern spotted owl's range, under future scenario
1 we assume barred owls would move beyond the Sierra Nevada and
continue to expand into southern California. This expansion could be
due to current experimental removal efforts becoming less successful
over time (i.e., decreased experimental removal efforts) or the barred
owl being able to cross what was thought to be unsuitable habitat, like
the Central Valley. Under scenario 1, it is also possible that
rodenticide use could continue to increase in California due to the
legalization of marijuana in 2016. There will likely continue to be an
increase in demand for marijuana, which may increase illegal grow sites
using anticoagulant rodenticides in California if the costs of buying
land and acquiring/maintaining permits to legalize a grow operation are
too high (Soboroff and Koss 2017, entire; Yakowicz 2018, entire;
Harrison 2018, entire). In regards to disease and parasites, there is
evidence that changing climate conditions could increase pathogen
development and occurrence (Harvell et al. 2002, p. 2158), creating a
slight chance that disease and parasites may become a more significant
issue in the future. Finally, development may continue to encroach upon
California spotted owl habitat as the California human population
continues to grow (California Economic Forecast 2016, pp. xii-xiii,
233-236).
Under scenario 1, almost all analysis units degrade in condition,
with four analysis units considered declining, four strongly declining,
and three that will likely be extirpated (Service 2022, tables 20 and
22). Two of the units that will likely be extirpated under scenario 1
are currently small, peripheral units. Based on these results, under
scenario 1 the future overall condition of the Sierra Nevada population
will be strongly declining (average overall future condition score of
0.82). Therefore, the Sierra Nevada population has very low resiliency
under future scenario 1.
Scenario 2
Scenario 2 considers a future where the threats continue at the
current trajectory and ongoing management efforts are successful at
addressing those threats. Under this scenario, climate change models
under RCP 4.5 project temperature increases of 3.5-5 [deg]F, depending
on the portion of the range. Under future scenario 2, drought
conditions, tree mortality events, and high-severity fire will likely
continue at the current trajectory. Currently, there are research
actions in place to experimentally limit barred owl expansion within
study areas, which have so far been successful and which we project
will continue to be successful in limiting the barred owl's expansion
under this scenario. Protections would continue to stay in place for
California spotted owls on public lands, and timber harvest would
remain at reduced levels on public lands. Rodenticide use would either
remain the same or decrease due to continued law enforcement activity
shutting down illegal marijuana grows. Under scenario 2, the current
rate of human population growth will continue, leading to steadily
increasing development, specifically in areas that are not on public
land.
As in future scenario 1, under future scenario 2, large-scale,
high-severity fire will likely impact a majority of the California
spotted owl's ecological needs, with negative impacts to prey, large
trees, habitat heterogeneity, and available nest trees, and there may
be some increase in California spotted owl mortality. With a reduction
in some of the key habitat components due to large-scale, high-severity
fires, fecundity, occupancy, and population growth will likely decline
under future scenario 2.
Under scenario 2, most analysis units degrade in condition, but
some maintain their current condition. Overall, under scenario 2, we
project the Sierra Nevada population will have four analysis units
declining, five strongly declining, and two that will likely be
extirpated (Service 2022, table 24). Based on these results, under
scenario 2, the future condition of the Sierra Nevada population will
be strongly declining, but to a lesser degree than under scenario 1.
Therefore, the Sierra Nevada DPS has very low resiliency under future
scenario 2.
Future Redundancy
Under future scenario 1, we anticipate the population that makes up
the Sierra Nevada DPS would be less resilient compared to current
condition. The California spotted owl will likely maintain a wide
distribution throughout the Sierra Nevada; however, the conditions of
all analysis units within the Sierra Nevada population are declining,
with over half the analysis units projected to be strongly declining or
extirpated. Therefore, under scenario 1, redundancy would decline
compared to the current condition, as the species would be less likely
to be able to withstand catastrophic events with only one population
with very low resiliency.
Under future scenario 2, the Sierra Nevada DPS would be less
resilient compared to the current condition. The California spotted owl
will likely maintain a majority of its current distribution throughout
the Sierra Nevada. Overall, the DPS would be less likely to be able to
withstand catastrophic events, with its population losing resiliency
and a majority of analysis units declining or strongly declining with
the potential to be extirpated under scenario 2. For species
redundancy, the outcome of scenario 1 and scenario 2 are very similar
after 40-50 years. There are differences in how quickly the population
would decrease in condition, the likelihood of the impacts, and how
many analysis units within a population may actually become extirpated.
It is more likely that redundancy would be reduced, potentially from a
catastrophic event, under scenario 1.
Future Representation
Predictions for future scenario 1 are that many of the habitat
components identified for California spotted owls will likely have a
limited ability to withstand predicted changes and are likely to
further decline in condition in
[[Page 11628]]
the future. This would indirectly cause a decrease in representation
for the Sierra Nevada DPS if the current degree of diversity in habitat
and climate declines. Further, with continued declines in occupancy,
fecundity, and survival, population growth will decline and will likely
further reduce genetic diversity. Under scenario 1, representation
would decline compared to current condition as the species would have
less flexibility to adapt to changing environmental conditions.
Under Scenario 2, most analysis units degrade in condition, but
some maintain their current condition. Overall, under scenario 2 we
project the Sierra Nevada population will have seven analysis units
declining and four strongly declining (Service 2022, table 24). Based
on these results, under scenario 2 the future condition of the Sierra
Nevada population will be strongly declining (average overall future
condition score of 1.9), but to a lesser degree than under scenario 1.
An overall future condition score of 1.9 is at the very upper limit of
our scoring boundary for a strongly declining population condition
(Service 2022, tables 4 and 7). Therefore, the Sierra Nevada population
has very low resiliency under future scenario 2, but it is closer to
the boundary of low resiliency.
Table 1. Analysis Unit Current and Future Condition Comparisons
(Changes From Current Condition in Bold).
BILLING CODE 4333-15-P
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BILLING CODE 4333-15-C
Figure 2--Condition of California Spotted Owl (CSO) Analysis Units
Under Current and Future Scenarios
Determination of California Spotted Owl's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely
[[Page 11630]]
to become an endangered species within the foreseeable future
throughout all or a significant portion of its range. The Act requires
that we determine whether a species meets the definition of an
endangered species or a threatened species because of any of the
following factors: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
Status of the Sierra Nevada DPS of the California Spotted Owl
Throughout All of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Sierra Nevada DPS of the California spotted owl and its habitat.
In this proposed rule, we present summary evaluations of eight threats
analyzed in the SSA report for the California spotted owl: wildfire
(Factor A), tree mortality (Factor A), drought (Factor A), climate
change (Factor A), fuels reduction and forest management (Factor A),
competition and hybridization with barred owls (Factor E), rodenticides
(Factor E), and development (Factor A), as well as the combined effects
of those threats. We also evaluated existing regulatory mechanisms
(Factor D) and ongoing conservation measures.
In the SSA, we also considered four additional threats:
Overutilization due to recreational, educational, and scientific use
(Factor B); disease (Factor C); predation (Factor C); and recreation
(Factor E). We concluded that, as indicated by the best available
scientific and commercial information, these threats are currently
having little to no impact on the California spotted owl, and thus
their overall effect now and into the future is expected to be minimal.
However, we consider them in this determination, because although these
minor threats may have low impacts on their own, combined with impacts
of other threats, they could further reduce the number of California
spotted owls. For full descriptions of all threats and how they impact
the species, please see the SSA report (Service 2022, pp. 25-68).
The California spotted owl needs an adequate amount of nesting,
foraging, and roosting habitat to be successful, and requires the
components of canopy cover, larger trees, and habitat heterogeneity.
Over the last several decades, impacts from wildfire (Factor A), tree
mortality (Factor A), and some forest management practices (Factor A),
particularly the historical effects of clearcutting, have reduced the
amount of forest with these habitat needs. Historical fire suppression
has also contributed to the current increase in high-severity fire
across the range of the Sierra Nevada DPS of the California spotted
owl.
High-severity wildfire is one of the most significant threats
currently affecting the California spotted owl and its habitat,
including the Sierra Nevada DPS. The Sierra Nevada DPS occurs within a
very high wildfire threat category. Approximately 47 percent of the
California spotted owl's range burned between 1984 and 2021, with 15
percent burned at high severity. Most of the area burned at high
severity occurred in 2020 and 2021. In the Sierra Nevada DPS
specifically, over 1,000,000 ha (2,500,000 ac) burned between 1984-
2019, with 317,605 ha (784,820 ac) burned at high severity (Keane in
litt. 2022, p. 3). Areas burned at high fire severity can take decades
to recover. Based on fire activity data from 2000 through 2014, the
cumulative amount of fire burned at high severity within the next 75
years could exceed total existing habitat in the Sierra Nevada, such
that the loss of suitable habitat may exceed the rate of new habitat
growing post-fire (Stephens et al. 2016, pp. 1, 11-13). Although
important actions are being taken by the USFS and its partners,
particularly through the recent Fire MOUs to reduce the scope and
magnitude of wildfires, this magnitude of the threat of wildfire is
expected to continue into the foreseeable future.
Under the current condition, 3 of the 11 Sierra Nevada analysis
units are in stable condition, 5 analysis units are declining, and 3
analysis units are strongly declining. Based on recent demographic
information and our habitat analysis, we found the current resiliency
of the Sierra Nevada population is very low. Overall, the subspecies'
current redundancy has decreased from historical condition. Although
the species is currently distributed throughout its historical range
within the Sierra Nevada, the condition of most analysis units is
currently declining, reducing the species' ability to withstand
catastrophic events. However, the subspecies maintains suitable habitat
condition and retains habitat needs, particularly throughout the Sierra
Nevada. Additionally, conservation efforts and regulatory mechanisms
are decreasing the magnitude of effects from threats, including
experimental removals of barred owls.
Effects from the threats described above are anticipated to
increase into the foreseeable future, particularly drought and climate
change (Factor A). Climate models project increased temperatures and
more frequent drought in the Sierra Nevada DPS, with temperature
increases projected to increase between 4-6 [ordm]F in the next 40
years. Climate projections also forecast snow moving to higher
elevations, as well as more extreme precipitation and drought events.
Overall increases in drought will increase tree mortality and the risk
of high-severity fire. Invasions by barred owls (Factor E) are
projected to continue into the foreseeable future and may outpace
experimental removal efforts. In both our future scenarios, analysis
units within the range of the Sierra Nevada DPS will be either strongly
declining or extirpated due to the combined effects of all threats.
Overall, redundancy and representation would decline as conditions
degrade throughout the range and population resiliency declines,
reducing the species' ability to withstand catastrophic events and
adapt to changing environmental conditions.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that the Sierra Nevada DPS is facing threats
associated with high-severity fire, tree mortality, drought and climate
change, rodenticides, and barred owls. Although it is declining in some
parts of the DPS, the Sierra Nevada DPS currently retains resiliency,
redundancy, and representation. Thus, it is not in danger of extinction
now throughout all of its range. However, the threats of wildfire,
climate change, and barred owls are anticipated to increase into the
foreseeable future, and even in the more optimistic of the plausible
future scenarios, habitat is still projected to severely decline, and
we project that many parts of the range may become extirpated. Thus,
after assessing the best available information, we conclude that the
Sierra Nevada DPS is not currently in danger of extinction but is
likely to become in danger of extinction within the foreseeable future
throughout all of its range.
Status of the Sierra Nevada DPS of the California Spotted Owl
Throughout a Significant Portion of Its Range
We evaluated the range of the Sierra Nevada DPS of the California
spotted owl to determine if the DPS is in danger of extinction now in
any portion of its range. The range can theoretically be
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divided into portions in an infinite number of ways. We focused our
analysis on portions of the range that may meet the definition of an
endangered species. For the Sierra Nevada DPS, we considered whether
the threats or their effects on the DPS are greater in any biologically
meaningful portion of the range than in other portions such that the
DPS is in danger of extinction now in that portion.
The statutory difference between an endangered species and a
threatened species is the timeframe in which the species becomes in
danger of extinction; an endangered species is in danger of extinction
now while a threatened species is not in danger of extinction now but
is likely to become so in the foreseeable future. Thus, we reviewed the
best scientific and commercial data available regarding the time
horizon for the threats that are driving the Sierra Nevada DPS of the
California spotted owl to warrant listing as a threatened species
throughout all of its range. We then considered whether these threats
or their effects are occurring (or may imminently occur) in any portion
of the range with sufficient magnitude such that the DPS is in danger
of extinction now in that portion of its range. We examined the
following threats: wildfire (Factor A); tree mortality (Factor A);
drought (Factor A); climate change (Factor A); fuels reduction and
forest management (Factor A); competition and hybridization with barred
owls (Factor E); rodenticides (Factor E); development (Factor A);
overutilization due to recreational, educational, and scientific use
(Factor B); disease (Factor C); predation (Factor C); and recreation
(Factor E), as well as the combined effects of those threats. We also
evaluated existing regulatory mechanisms (Factor D) and ongoing
conservation measures.
We found a potential difference in biological condition of the DPS
in the Humboldt-Toiyabe, Inyo, and Sequoia analysis units (see figure
2, above), where our habitat analysis indicated that they are strongly
declining in the current condition.
Our habitat analysis found that the Humboldt-Toiyabe unit has low
amounts of suitable habitat for the California spotted owl, and 16
percent of the unit has recently burned. The Inyo unit is a small
peripheral area with no recent detections, and habitat is considered
degraded. The Sequoia unit has lower values for large trees and canopy
cover than many other parts of the Sierra Nevada DPS, and wildfires
have burned 60 percent of the unit between 1984 and 2021. We have no
evidence that the magnitude of threats is higher in this portion of the
range. However, the status of these units is degraded compared to the
remainder of the DPS, and they may be in danger of extinction.
We next considered whether or not these three analysis units are
significant to the Sierra Nevada DPS. We asked whether this portion of
the range (i.e., the Humboldt-Toiyabe, Inyo, and Sequoia analysis unit
portions of the Sierra Nevada DPS's range) is significant. The
Service's most recent definition of ``significant'' within agency
policy guidance has been invalidated by court order (see Desert
Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d 1011,
1070-74 (N.D. Cal. 2018)). In undertaking this analysis for the Sierra
Nevada DPS, we considered whether these three units may be significant.
Therefore, in light of the court decision, for the purposes of this
analysis when considering whether this portion is significant, we
considered whether the portion may (1) occur in a unique habitat or
ecoregion for the species; (2) contain high-quality or high-value
habitat relative to the remaining portions of the range, for the
species' continued viability in light of the existing threats; (3)
contain habitat that is essential to a specific life-history function
for the species and that is not found in the other portions (for
example, the principal breeding ground for the species); or (4) contain
a large geographic portion of the suitable habitat relative to the
remaining portions of the range for the species.
Overall, the three units make up approximately 14 percent of
habitat in the DPS. There are limited owl detections in these areas,
particularly in the Inyo and Humboldt-Toiyabe analysis units; thus,
these areas are not contributing significantly to the resiliency of the
Sierra Nevada population. The habitat in all three units is degraded.
They also do not contain any unique or unusual habitat for the taxon,
nor do they contain any habitat essential to any life-history functions
that is not found in any other portions. Therefore, these portions do
not meet the identified prongs for significance, as outlined above.
We also analyzed the five analysis units in the DPS that are
currently in declining condition. In our definition of current
condition, this means that these analysis units are less likely to
persist for the next 40-50 years, but are not in danger of extinction
now. Limited population data are available for these analysis units.
For the Lassen, Sierra, Eldorado, and portions of the Plumas unit, the
most recent demography studies found that California spotted owls are
declining under both occupancy and mark-recapture models (Tempel and
Guti[eacute]rrez 2013, pp. 1091-1093; Tempel et al. 2014b, pp. 86, 90-
92, Conner et al. 2016, p. 15). Reproductive output has varied in
Lassen, Plumas, and Sierra analysis units, and has been declining in
the Eldorado unit (Franklin et al. 2004, p. 24; Blakesley et al. 2010,
pp. 17-19), Apparent adult survival remained high in all units with
demographic data (Blakesley et al. 2010, pp. 12-19; Conner et al. 2016,
p. 11). Within the Lassen, Plumas, and Sierra units, new owls (sub-
adults and territorial adults) continued to be marked each year over
the course of the demography studies (Conner et al. 2016, pp. 3, 7,
table 1), indicating recruitment of owls into those areas through local
reproduction or dispersal from other areas. Additionally, these units
still maintain suitable habitat and species needs such as forest
heterogeneity, tall trees, and canopy cover. These five analysis units
overall retain contiguous suitable habitat, allowing for dispersal
between areas. Because of this, these analysis units can recover from
stochastic and catastrophic events, allowing this portion of the
population as a whole to withstand threats and allowing potential
dispersal or recolonization from surrounding analysis units. Thus, we
conclude that these areas are not currently in danger of extinction.
Therefore, we determine that the Sierra Nevada DPS is likely to
become in danger of extinction within the foreseeable future throughout
all of its range. This does not conflict with the courts' holdings in
Desert Survivors v. U.S. Department of the Interior, 321 F. Supp. 3d
1011, 1070-74 (N.D. Cal. 2018) and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017) because, in reaching
this conclusion, we did not apply the aspects of the Final Policy on
Interpretation of the Phrase ``Significant Portion of Its Range'' in
the Endangered Species Act's Definitions of ``Endangered Species'' and
``Threatened Species'' (Final Policy; 79 FR 37578, July 1, 2014),
including the definition of ``significant,'' that those court decisions
held to be invalid.
Status of the Sierra Nevada DPS of the California Spotted Owl
Our review of the best available scientific and commercial
information indicates that the Sierra Nevada DPS meets the Act's
definition of a threatened species. Therefore, we propose to list the
Sierra Nevada DPS of the California spotted owl as a
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threatened species in accordance with sections 3(20) and 4(a)(1) of the
Act.
Status of the Coastal-Southern California DPS of the California Spotted
Owl Throughout All of Its Range
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Coastal-Southern California DPS of the California spotted owl
and its habitat. In this proposed rule, we present summary evaluations
of eight threats analyzed in the SSA report for the California spotted
owl: wildfire (Factor A), tree mortality (Factor A), drought (Factor
A), climate change (Factor A), fuels reduction and forest management
(Factor A), competition and hybridization with barred owls (Factor E),
rodenticides (Factor E), and development (Factor A), as well as the
combined effects of those threats. We also evaluated existing
regulatory mechanisms (Factor D) and ongoing conservation measures.
In the SSA, we also considered four additional threats:
Overutilization due to recreational, educational, and scientific use
(Factor B); disease (Factor C); predation (Factor C); and recreation
(Factor E). We concluded that, as indicated by the best available
scientific and commercial information, these threats are currently
having little to no impact on the California spotted owl, and thus
their overall effect now and into the future is expected to be minimal.
As with the Sierra Nevada DPS, we now consider them in this
determination, because although these minor threats may have low
impacts on their own, combined with impacts of other threats, they
could further reduce the number of California spotted owls. For full
descriptions of all threats and how they impact the species, please see
the SSA report (Service 2022, pp. 25-68).
In the Coastal-Southern California DPS, impacts from wildfire are
at very high magnitude, with all of the DPS considered to be at extreme
fire risk. Our fire analysis shows that 60 percent of the range of the
Coastal-Southern California DPS burned between 1984 and 2021, including
17 percent at high severity. These high-severity fires in particular
are removing the California spotted owl's needs of canopy cover, large
trees, and habitat heterogeneity. Given that habitat in the Coastal-
Southern California DPS is already fragmented and that there is limited
evidence of movement between habitat patches, any habitat burned at
high severity is less likely to be able to recover from high-severity
fires.
Development has further degraded naturally fragmented habitat in
the Coastal-Southern California DPS, and owls in this DPS are affected
by ongoing drought conditions and tree mortality. In southern
California, there are high development demands with wind farms and
large reservoirs impacting connectivity within the California spotted
owl's range, and riparian areas used by California spotted owls are
being lost to water diversion. These threats are continuing to reduce
the California spotted owl's needs of high canopy cover and large
trees, both of which are already at low condition. Barred owls are
currently only having a limited impact on this DPS.
Limited population data are available for this part of the range,
but in the San Bernardino Mountains, occupancy of territories has
declined by half (Tempel et al. 2022, pp. 16, 18). Additionally, we
were not able to find information about California spotted owls
dispersing between mountain ranges in coastal or southern California.
The number of owls in this part of the range is low. Therefore, what
might be considered a stochastic event in the Sierra Nevada DPS leading
to the removal of one or a few individuals from the population could
have a much higher impact if it were to occur in the coastal-southern
California DPS. Additionally, due to the highly developed nature of the
areas between suitable patches of habitat in coastal and particularly
southern California, there is no record of owls dispersing between
occupied areas. All four analysis units in this DPS are currently
declining.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we find that threats associated with wildfire, drought, and
tree mortality, as well as the current impacts of climate change, have
degraded habitat in the Coastal-Southern California DPS of the
California spotted owl, such that most of this part of the range could
become extirpated. These threats are impacting the DPS now; thus, this
DPS does not meet the Act's definition of a threatened species. Due to
the extreme risk of wildfire, degraded habitat conditions, no dispersal
between subpopulations, and very low population resiliency and
redundancy, we find that the Coastal-Southern California DPS meets the
Act's definition of an endangered species. Thus, after assessing the
best available information, we determine that Coastal-Southern
California DPS of the California spotted owl is in danger of extinction
throughout all of its range.
Status of the Coastal-Southern California DPS of the California Spotted
Owl Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the Coastal-Southern California DPS
is in danger of extinction throughout all of its range and accordingly
did not undertake an analysis of any significant portion of its range.
Because the Coastal-Southern California DPS warrants listing as
endangered throughout all of its range, our determination does not
conflict with the decision in Center for Biological Diversity v.
Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), which vacated the
provision of the Final Policy (79 FR 37578, July 1, 2014) providing
that if the Services determine that a species is threatened throughout
all of its range, the Services will not analyze whether the species is
endangered in a significant portion of its range.
Status of the Coastal-Southern California DPS of the California Spotted
Owl
Our review of the best available scientific and commercial
information indicates that the Coastal-Southern DPS of the California
spotted owl meets the Act's definition of an endangered species.
Therefore, we propose to list the Coastal-Southern California DPS as an
endangered species in accordance with sections 3(6) and 4(a)(1) of the
Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate
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goal of such conservation efforts is the recovery of these listed
species, so that they no longer need the protective measures of the
Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Sacramento Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If these DPSs are listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of California and Nevada
would be eligible for Federal funds to implement management actions
that promote the protection or recovery of the California spotted owl.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/service/financial-assistance.
Although the Sierra Nevada DPS and the Coastal-Southern California
DPS of the California spotted owl are only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for these DPSs. Additionally, we
invite you to submit any new information on the California spotted owl
whenever it becomes available and any information you may have for
recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency (action agency) must enter into consultation
with the Service.
Examples of actions that may be subject to the section 7 processes
are land management or other landscape-altering activities on Federal
lands administered by the USFS, BLM, DOD, NPS, and the Service, as well
as actions on State, Tribal, local, or private lands that require a
Federal permit (such as a permit from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a
permit from the Service under section 10 of the Act) or that involve
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation. Examples of
Federal agency actions that may require consultation for the California
spotted owl could include forest and fuels management, land management
planning, habitat restoration, recreation management, and road
maintenance. Given the difference in triggers for conferencing and
consultation, Federal agencies should coordinate with the local Service
Field Office (see FOR FURTHER INFORMATION CONTACT, above) with any
specific questions.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any species listed as an endangered species. It is
also illegal to possess, sell, deliver, carry, transport, or ship any
such wildlife that has been taken illegally. Certain exceptions apply
to employees of the Service, the National Marine Fisheries Service,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.22. With regard to
endangered wildlife, a permit may be issued for the following purposes:
for scientific purposes, to enhance the propagation or survival of the
species, and for incidental take in connection with otherwise lawful
activities. The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
[[Page 11634]]
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. For the Sierra Nevada DPS of the
California spotted owl, which we are proposing to list as threatened,
the discussion below under II. Proposed Rule Issued Under Section 4(d)
of the Act regarding protective regulations under section 4(d) of the
Act complies with our policy.
We now discuss specific activities related to the Coastal-Southern
California DPS, which we are proposing to list as endangered. Based on
the best available information, the following actions are unlikely to
result in a violation of section 9 of the Act, if these activities are
carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Any actions that may affect the Coastal-Southern California DPS
of the California spotted owl that are authorized, funded, or carried
out by a Federal agency, when the action is conducted in accordance
with the consultation requirements for listed species pursuant to
section 7 of the Act;
(2) Any action taken for scientific research carried out under a
recovery permit issued by us pursuant to section 10(a)(1)(A) of the
Act;
(3) Land actions or management carried out under a habitat
conservation plan approved by us pursuant to section 10(a)(1)(B) of the
Act; and
(4) Recreation activities that comply with local rules and that do
not result in take of listed species, including hiking and backpacking.
Based on the best available information, the following activities
may potentially result in a violation of section 9 of the Act if they
are not authorized in accordance with applicable law; this list is not
comprehensive:
(1) Unauthorized modification of the forest landscape within the
range of the Coastal-Southern California DPS; and
(2) Unauthorized use of first- and second-generation anticoagulant
rodenticides within the range of the Coastal-Southern California DPS.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act in regards to the Coastal-Southern
California DPS of the California spotted owl should be directed to the
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the Sierra Nevada DPS of the California spotted owl by
encouraging management of its habitat in ways that facilitate
conservation for the species. The provisions of this proposed rule are
one of many tools that we would use to promote the conservation of the
Sierra Nevada DPS of the California spotted owl. This proposed 4(d)
rule would apply only if and when we make final the listing of the
Sierra Nevada DPS of the California spotted owl as a threatened
species.
As mentioned above in Available Conservation Measures, section
7(a)(2) of the Act requires Federal agencies, including the Service, to
ensure that any action they fund, authorize, or carry out is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of designated critical habitat of such species. In addition, section
7(a)(4) of the Act requires Federal agencies to confer with the Service
on any agency action that is likely to jeopardize the continued
existence of any species proposed to be listed under the Act or result
in the destruction or adverse modification of proposed critical
habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of Federal actions that are subject to
the section 7 consultation process are actions on State, Tribal, local,
or private lands that require a Federal permit (such as a permit from
the U.S. Army Corps of Engineers under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section
10 of the Act) or that involve some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
These requirements are the same for a threatened species with a
species-
[[Page 11635]]
specific 4(d) rule. For example, a Federal agency's determination that
an action is ``not likely to adversely affect'' a threatened species
will require the Service's written concurrence. Similarly, a Federal
agency's determination that an action is ``likely to adversely affect''
a threatened species will require formal consultation and the
formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the
conservation needs of the Sierra Nevada DPS of the California spotted
owl. As discussed previously in Summary of Biological Status and
Threats, we have concluded that the Sierra Nevada DPS of the California
spotted owl is likely to become in danger of extinction within the
foreseeable future primarily due to wildfire, tree mortality, drought,
climate change, rodenticides, and barred owls. Section 4(d) requires
the Secretary to issue such regulations as she deems necessary and
advisable to provide for the conservation of each threatened species
and authorizes the Secretary to include among those protective
regulations any of the prohibitions that section 9(a)(1) of the Act
prescribes for endangered species. We find that, if finalized, the
protections, prohibitions, and exceptions in this proposed rule as a
whole satisfy the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of the Sierra Nevada DPS of the California spotted owl.
The protective regulations we are proposing for the Sierra Nevada
DPS of the California spotted owl incorporate prohibitions from the
Act's section 9(a)(1) to address the threats to the DPS. Section
9(a)(1) prohibits the following activities for endangered wildlife:
importing or exporting; take; possession and other acts with unlawfully
taken specimens; delivering, receiving, carrying, transporting, or
shipping in interstate or foreign commerce in the course of commercial
activity; or selling or offering for sale in interstate or foreign
commerce. This protective regulation includes all of these prohibitions
because the Sierra Nevada DPS of the California spotted owl is at risk
of extinction in the foreseeable future and putting these prohibitions
in place will help to prevent further declines, preserve the DPS's
remaining populations, slow its rate of decline, and decrease
synergistic, negative effects from other ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the Sierra Nevada DPS of the California spotted owl by
prohibiting the following activities, unless they fall within specific
exceptions or are otherwise authorized or permitted: importing or
exporting; take; possession and other acts with unlawfully taken
specimens; delivering, receiving, carrying, transporting, or shipping
in interstate or foreign commerce in the course of commercial activity;
or selling or offering for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally. Regulating
take would help preserve the DPS's remaining populations, slow their
rate of decline, and decrease synergistic, negative effects from other
ongoing or future threats. Therefore, we propose to prohibit take of
the Sierra Nevada DPS of the California spotted owl, except for take
resulting from those actions and activities specifically excepted by
the 4(d) rule.
Exceptions to the prohibition on take would include all of the
general exceptions to the prohibition against take of endangered
wildlife, as set forth in 50 CFR 17.21 and certain other specific
activities that we propose for exception, as described below.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
Sierra Nevada DPS of the California spotted owl, are not expected to
rise to the level that would have a negative impact (that is, would
have only de minimis impacts) on the conservation of the DPS. The
proposed exceptions to these prohibitions include the following
provisions (described below) that are expected to have negligible
impacts to the Sierra Nevada DPS of the California spotted owl and its
habitat:
(1) Forest or fuels management to reduce the risk or severity of
wildfire (such as prescribed fire) where fuels management activities
are essential to reduce the risk of catastrophic wildfire, and when
such activities will be carried out in accordance with an established
and recognized fuels or forest management plan that includes measures
to minimize impacts to the California spotted owl and its habitat and
results in conservation benefits to California spotted owls.
(2) Habitat management and restoration efforts that are
specifically designed to provide for the conservation of the California
spotted owl's habitat needs and include measures that minimize impacts
to the California spotted owl and its habitat. These activities must be
carried out in accordance with finalized State or Federal agency
conservation plans or strategies for the California spotted owl.
(3) Management or cleanup activities that remove toxicants and
other chemicals from trespass cannabis cultivation sites in California
spotted owl habitat. Cleanup of these sites may involve activities that
may cause localized, short-term disturbance to California spotted owls,
as well as require limited removal of some habitat structures valuable
to California spotted owls (e.g., hazard trees that may be a suitable
nest site).
We may, under certain circumstances, issue permits to carry out one
or more otherwise-prohibited activities, including those described
above. The regulations at 50 CFR 17.32 that govern permits for
threatened wildlife state that the Director may issue a permit
authorizing any activity otherwise prohibited with regard to threatened
species. These include permits issued for the following purposes: for
scientific purposes, to enhance propagation or survival, for economic
hardship, for zoological exhibition, for educational purposes, for
incidental taking, or for special purposes consistent with the purposes
of the Act (50 CFR 17.32). The statute also contains certain exemptions
from the prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be
[[Page 11636]]
able to conduct activities designed to conserve the Sierra Nevada DPS
of the California spotted owl that may result in otherwise prohibited
take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the Sierra
Nevada DPS of the California spotted owl. However, interagency
cooperation may be further streamlined through planned programmatic
consultations for the DPS between us and other Federal agencies, where
appropriate. We ask the public, particularly State agencies and other
interested stakeholders that may be affected by the proposed 4(d) rule,
to provide comments and suggestions regarding additional guidance and
methods that we could provide or use, respectively, to streamline the
implementation of this proposed 4(d) rule (see Information Requested,
above).
III. Critical Habitat
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.
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).
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 destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where 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 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
likely 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 Act's 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, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's 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, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered
[[Page 11637]]
or threatened species; and (3) the prohibitions found in section 9 of
the Act and the 4(d) rule. Federally funded or permitted projects
affecting listed species outside their designated critical habitat
areas may still result in jeopardy findings in some cases. These
protections and conservation tools will continue to contribute to
recovery of the species. Similarly, critical habitat designations made
on the basis of the best available information at the time of
designation will not control the direction and substance of future
recovery plans, HCPs, or other species conservation planning efforts if
new information available at the time of those planning efforts calls
for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of collection or vandalism identified under Factor B
for this species, and identification and mapping of critical habitat is
not expected to initiate any such threat. In our SSA report and
proposed listing determination for the California spotted owl, we
determined that the present or threatened destruction, modification, or
curtailment of habitat or range is a threat to both the Sierra Nevada
DPS and the Coastal-Southern California DPS of the California spotted
owl, and that those threats in some way can be addressed by section
7(a)(2) consultation measures. The two DPSs occur wholly in the
jurisdiction of the United States, and we are able to identify areas
that meet the definition of critical habitat. Therefore, because none
of the circumstances enumerated in our regulations at 50 CFR
424.12(a)(1) have been met and because the Secretary has not identified
other circumstances for which this designation of critical habitat
would be not prudent, we have determined that the designation of
critical habitat is prudent for both the Sierra Nevada DPS and the
Coastal-Southern California DPS of the California spotted owl.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
California spotted owl is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located and data that would be needed to perform other required
analyses. A careful assessment of the economic impacts that may occur
due to a critical habitat designation is not yet complete, and we are
in the process of working with the States and other partners in
acquiring the complex information needed to perform that assessment.
Because the information sufficient to perform a required analysis of
the impacts of the designation is lacking, we conclude that the
designation of critical habitat for both the Sierra Nevada DPS and the
Coastal-Southern California DPS of the California spotted owl is not
determinable at this time. The Act allows the Service an additional
year to publish a critical habitat designation that is not determinable
at the time of listing (16 U.S.C. 1533(b)(6)(C)(ii)).
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Federal Tribes on a
government-to-
[[Page 11638]]
government basis. In accordance with Secretarial Order 3206 of June 5,
1997 (American Indian Tribal Rights, Federal-Tribal Trust
Responsibilities, and the Endangered Species Act), we readily
acknowledge our responsibilities to work directly with Tribes in
developing programs for healthy ecosystems, to acknowledge that Tribal
lands are not subject to the same controls as Federal public lands, to
remain sensitive to Indian culture, and to make information available
to Tribes. We sent letters to all affected Tribes when we began
developing our 12-month finding for the California spotted owl. We will
continue to work with Tribal entities during the development of a final
determination on this proposal to list the Sierra Nevada DPS and the
Coastal-Southern California DPS of the California spotted owl, as well
as the proposed 4(d) rule for the Sierra Nevada DPS.
References Cited
A complete list of references cited in this proposed rule is
available on the internet at https://www.regulations.gov and upon
request from the Sacramento Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Sacramento Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.11, amend paragraph (h) by adding entries for ``Owl,
California spotted [Coastal-Southern California DPS]'' and ``Owl,
California spotted [Sierra Nevada DPS]'' to the List of Endangered and
Threatened Wildlife in alphabetical order under BIRDS to read as
follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Birds
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Owl, California spotted Strix occidentalis California (All E [Federal Register
[Coastal-Southern California occidentalis. California spotted citation when
DPS]. owls in the vicinity published as a
of the Coast, final rule].
Transverse, and
Peninsular mountain
ranges from Monterey
County in the north to
San Diego County in
the south, and south
of the Tehachapi Pass
within Kern County).
Owl, California spotted [Sierra Strix occidentalis California and Nevada T [Federal Register
Nevada DPS]. occidentalis. (All California citation when
spotted owls in the published as a
vicinity of the Sierra final rule]; 50
Nevada mountain range CFR
and the Sierra Nevada 17.41(n).\4d\
foothills from Shasta
and Lassen Counties in
the north, but north
of the Tehachapi Pass,
Kern County to the
south, and east to
Carson City, Douglas,
and Washoe Counties in
Nevada).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.41 by adding a paragraph (n) to read as follows:
Sec. 17.41 Special rules--birds.
* * * * *
(n) California spotted owl (Strix occidentalis occidentalis),
Sierra Nevada DPS.
(1) Prohibitions. The following prohibitions that apply to
endangered wildlife also apply to the Sierra Nevada distinct population
segment (DPS) of the California spotted owl. Except as provided under
paragraph (n)(2) of this section and Sec. Sec. 17.4, 17.5, and 17.7,
it is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit,
or cause to be committed, any of the following acts in regard to this
DPS:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of a commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this DPS, you may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife, and (c)(6) and (7) for endangered migratory birds.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, in accordance with the provisions set forth at Sec.
17.21(d)(2) for Federal and state law enforcement officers regarding
endangered wildlife, and in (d)(3) and (4) for certain persons as
described therein with respect to sick, injured and/or orphaned
endangered migratory birds.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Forest or fuels management to reduce the risk or severity of
wildfire
[[Page 11639]]
(such as prescribed fire) where fuels management activities are
essential to reduce the risk of catastrophic wildfire, and when such
activities will be carried out in accordance with an established and
recognized fuels or forest management plan that includes measures to
minimize impacts to the California spotted owl and its habitat and
results in conservation benefits to California spotted owls.
(B) Habitat management and restoration efforts that are
specifically designed to provide for the conservation of the California
spotted owl's habitat needs and include measures that minimize impacts
to the California spotted owl and its habitat. These activities must be
carried out in accordance with finalized State or Federal agency
conservation plans or strategies for the California spotted owl.
(C) Management or cleanup activities that remove toxicants and
other chemicals from trespass cannabis cultivation sites in California
spotted owl habitat. Cleanup of these sites may involve activities that
may cause localized, short-term disturbance to California spotted owls,
as well as require limited removal of some habitat structures valuable
to California spotted owls (e.g., hazard trees that may be a suitable
nest site).
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-03526 Filed 2-22-23; 8:45 am]
BILLING CODE 4333-15-P
