[Federal Register: May 24, 1996 (Volume 61, Number 102)]
[Rules and Regulations]
[Page 26255-26320]
[DOCID:fr24my96-27]

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Part II

Department of the Interior

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Fish and Wildlife Service

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50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Final Designation of
Critical Habitat for the Marbled Murrelet; Final Rule

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC33

Endangered and Threatened Wildlife and Plants; Final Designation
of Critical Habitat for the Marbled Murrelet

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service originally proposed to
designate critical habitat for the marbled murrelet (Brachyramphus
marmoratus marmoratus) in Washington, Oregon, and California on January
27, 1994 (59 FR 3811). Based on comments received on the original
proposal and additional information, the Service published a
supplemental proposed designation of critical habitat for the marbled
murrelet on August 10, 1995 (60 FR 40892).
    The marbled murrelet is listed as a threatened species under the
Endangered Species Act (Act). It is a small seabird of the Alcidae
family that forages in the near-shore marine environment and nests in
large trees in coniferous forests. Located primarily on Federal land,
and to a lesser extent on State, county, city, and private lands, this
final critical habitat rule would provide additional protection
requirements under section 7 of the Act with regard to activities that
are funded, authorized, or carried out by a Federal agency. Section 4
of the Act requires the Service to designate critical habitat for
listed species on the basis of the best scientific information
available and to consider the economic and other relevant impacts of
including particular areas in the designation.

EFFECTIVE DATE: June 24, 1996.

ADDRESSES: The complete file for this rule is available at the U.S.
Fish and Wildlife Service, Oregon State Office, 2600 S.E. 98th Avenue,
Suite 100, Portland, Oregon 97266. The file for this rule will be
available for public inspection, by appointment, during normal business
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Russell D. Peterson, State
Supervisor, U.S. Fish and Wildlife Service, see ADDRESSES section or
telephone<PHONE_NUMBER> or FAX<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Background

Previous Federal Actions

    On January 15, 1988, the U.S. Fish and Wildlife Service (Service)
received a petition to list the North American subspecies of the
marbled murrelet (Brachyramphus marmoratus marmoratus) in Washington,
Oregon, and California as a threatened species under the Endangered
Species Act. On October 17, 1988, the Service published a finding that
the petition had presented substantial information to indicate that the
requested action may be warranted (53 FR 40479). Because of the
increased research effort and new information available, the status
review period was reopened, with the concurrence of the petitioners,
from March 5, 1990, through May 31, 1990 (55 FR 4913).
    On June 20, 1991, the Service published a proposal to list the
marbled murrelet in Washington, Oregon, and California as a threatened
species (56 FR 28362). The comment period was reopened for 30 days on
January 30, 1992, to gather the most updated information about the
species (57 FR 3804). On October 1, 1992, following an order by the
U.S. District Court for the Western District of Washington denying a 6-
month extension, the Service published the final rule listing the
marbled murrelet in Washington, Oregon, and California as a threatened
species (57 FR 45328). In February 1993, the Service appointed a
Recovery Team to develop a recovery plan for the marbled murrelet.
    On November 2, 1993, the U.S. District Court for the Western
District of Washington granted a motion by the plaintiffs in Marbled
Murrelet v. Babbitt to compel a proposed designation of critical
habitat. In the ruling, the court ordered the Secretary of the Interior
to propose designating critical habitat for the marbled murrelet no
later than January 21, 1994, and to make a final designation of
critical habitat as soon as reasonably possible under applicable law.
    On January 27, 1994, the Service published a proposed rule for the
designation of critical habitat for the marbled murrelet (59 FR 3811).
Public comment was due by April 27, 1994. On March 14, 1994, the
Service received a request for a public hearing. To allow additional
comment, the public comment period was reopened for 30 days on May 9,
1994. The public hearing was conducted on May 24, 1994, in North Bend,
Oregon.
    Based on comments received from the Marbled Murrelet Recovery Team,
other commenters, and additional information, the Service significantly
amended its proposed critical habitat designation and published a
supplemental proposed rule on August 10, 1995 (60 FR 40892). The
Service held five public hearings on the supplemental proposed rule in
Washington, Oregon, and California during the public comment period.
Public comment was accepted through October 10, 1995.
    Based on the Service's interpretation of Public Law 104-6 as
prohibiting the expenditure of funds for making a final determination
of critical habitat, the record was closed and the comments archived at
the end of the public comment period. On February 29, 1996, Judge
Rothstein denied a motion to vacate her previous order on completion of
the designation of critical habitat and ordered the Service to complete
the final designation by May 15, 1996. This rule complies with that
order.

Ecological Considerations

    The marbled murrelet is a small seabird of the Alcidae family. The
North American subspecies ranges from the Aleutian Archipelago in
Alaska, eastward to Cook Inlet, Kodiak Island, Kenai Peninsula and
Prince William Sound, south along the coast through the Alexander
Archipelago of Alaska, British Columbia, Washington, and Oregon to
central California. Some wintering birds are found in southern
California. A separate subspecies (Brachyramphus marmoratus perdix)
occurs in Asia. Though recent genetic analysis indicates that the two
subspecies may warrant full specific status (Friesen et al. 1994), a
status change has not yet been recognized.
    Marbled murrelets spend most of their lives in the marine
environment where they feed primarily on small fish and invertebrates
in near-shore marine waters. They forage by pursuit diving in waters
generally up to 80 meters (260 feet) deep and 0.3 to 2 kilometers (0.2
to 1.2 miles) off-shore. Pairs are often seen diving simultaneously,
which researchers suggest may increase foraging efficiency (Strachan et
al. 1995). Courtship behaviors have been observed at sea although
copulation rarely has been witnessed. Marbled murrelets also aggregate,
loaf, preen, and exhibit wing-stretching behaviors on the water.
    Marbled murrelets nest inland in Washington, Oregon, and
California, typically in large-diameter old-growth trees in low-
elevation forests with multi-layered canopies (Hamer and Nelson 1995b).
Marbled murrelets have been found occasionally on rivers and

inland lakes (Carter and Sealy 1986; Strachan et al. 1995).
    Dispersal mechanisms are not well understood, however, social
interactions may play an important role. The presence of marbled
murrelets in a forest stand may attract other pairs to currently
unoccupied habitat within the vicinity. This may be one of the reasons
marbled murrelets have been observed in habitat not currently suitable
for nesting, but in close proximity to known nesting sites (Hamer and
Cummins 1990, Hamer et al. 1991, Suddjian 1995). Although marbled
murrelets appear to be solitary in their nesting habits, they are
frequently detected in groups in the forest (Nelson and Peck 1995;
USFWS 1995a). Two nests discovered in Washington during 1990 were
located within 46 meters (150 feet) of each other (Hamer and Cummins
1990), and two nests discovered in Oregon during 1994 were located
within 33 meters (100 feet) of each other (S. K. Nelson, Oregon
Cooperative Wildlife Research Unit, pers. comm. 1995). Therefore,
unoccupied habitat in the vicinity of occupied habitat may be more
important for recovering the species than suitable habitat isolated
from occupied habitat (USFWS 1995a). Similarly, murrelets are more
likely to discover newly developing habitat in proximity to occupied
sites.
    Nesting occurs over an extended period from late March to late
September (Carter and Sealy 1987; Hamer and Nelson 1995b). During the
breeding period, the female marbled murrelet lays a single egg in a
tree containing a suitable nesting platform (e.g., large or forked
limbs, dwarf mistletoe (Arceuthobium spp.) infections, witches' brooms,
deformities, etc. (Hamer and Nelson 1995b). Both sexes incubate the egg
in alternating 24-hour shifts for approximately 30 days, and the young
fledge after an additional 27 to 40 days (Simons 1980; Hirsch et al.
1981; Singer et al. 1991; Hamer and Nelson 1995a; Nelson and Hamer
1995a). Adults feeding young fly from ocean feeding areas to nest sites
at all times of the day, but most often at dusk and dawn (Nelson and
Hamer 1995a). Chicks are fed at least once a day. The adults usually
carry only one fish at a time to the young (Hamer and Cummins 1991;
Singer et al. 1992; Nelson and Hamer 1995a). The young are semi-
precocial. Before leaving the nest, the young molt into a distinctive
juvenile plumage. A fledgling's first flight is from the nest directly
to the marine environment (Hamer and Cummins 1991).
    Marbled murrelets have been observed at some inland sites during
all months of the year (Paton et al. 1987; Naslund 1993). Attendance at
breeding sites during the non-breeding season may enhance pair bond
maintenance, facilitate earlier breeding, or reinforce familiarity with
flight paths to breeding sites (Naslund and O'Donnell 1995; O'Donnell
et al. 1995).
    With respect to critical habitat, the Service considered two
components of marbled murrelet habitat that are biologically
essential--(1) terrestrial nesting habitat and associated forest
stands, and (2) marine foraging habitat used during the breeding
season. Forested areas with conditions that support nesting marbled
murrelets are referred to as ``suitable nesting habitat.'' Marine areas
with conditions that support foraging marbled murrelets are referred to
as ``suitable foraging habitat.'' Because only terrestrial habitat is
being designated as critical habitat, the primary focus of this
description will be on the terrestrial environment.
    Throughout the forested portion of the species' range, marbled
murrelets typically nest in forested areas containing characteristics
of older forests (Binford et al. 1975; Hamer and Cummins 1991; Quinlan
and Hughes 1990; Kuletz 1991; Singer et al. 1991, 1992; Hamer et al.
1994; Hamer and Nelson 1995b; Ralph et al. 1995a). The marbled murrelet
population in Washington, Oregon, and California nests in most of the
major types of coniferous forests in the western portions of these
states, wherever older forests remain inland of the coast. Although
marbled murrelet nesting habitat characteristics are somewhat variable
throughout the range of the species, some general habitat attributes
are characteristic throughout its range, including the presence of
nesting platforms, adequate canopy cover over the nest, landscape
condition, and distance to the marine environment.
    Individual tree attributes that provide conditions suitable for
nesting include large branches (average of 32 centimeters (13 inches),
range of 10 to 81 centimeters (4 to 32 inches) in Washington, Oregon,
and California) or forked branches, deformities (e.g., broken tops),
dwarf mistletoe infections, witches' brooms, or other structures large
enough to provide a platform for a nesting adult murrelet (Hamer and
Cummins 1991; Singer et al. 1991, 1992; Hamer and Nelson 1995b). These
structures are typically found in old-growth and mature forests, but
may be found in a variety of forest types including younger forests
containing remnant large trees.
    Northwestern forests and trees typically require 200 to 250 years
to attain the attributes necessary to support marbled murrelet nesting,
although characteristics of nesting habitat sometimes develop in
younger coastal redwood (Sequoia sempervirens) and western hemlock
(Tsuga heterophylla) forests. Forests with older residual trees
remaining from previous forest stands may also develop into nesting
habitat more quickly than those without residual trees. These remnant
attributes can be products of fire, wind storms, or previous logging
operations that did not remove all of the trees (Hansen et al. 1991;
McComb et al. 1993). Other factors that may affect the time required to
develop suitable nesting habitat characteristics include site
productivity and microclimate.
    Through the 1995 nesting season, at least 95 active or previously
used tree nests had been located in North America, including 9 in
Washington, 41 in Oregon, and 12 in California (S. K. Nelson, pers.
comm. 1996; W. Ritchie, Washington Dept. of Fish and Wildlife, pers.
comm. 1996; Binford et al. 1975; Quinlan and Hughes 1990; Hamer and
Cummins 1990, 1991; Kuletz 1991; Singer et al. 1991, 1992; Hamer and
Nelson 1995b). All of the nests for which data are available in
Washington, Oregon, and California were in large trees that were more
than 81 centimeters (32 inches) diameter at breast height (dbh) (Hamer
and Nelson 1995b). Of the 37 nests for which data were available, 70
percent were on a moss substrate and 30 percent were on litter, such as
bark pieces, conifer needles, small twigs, or duff. Fifty-nine percent
of the nests were on large or deformed branches, 16 percent were on
forked limbs, 6 percent were on a limb where it attached to the tree
bole, 11 percent were on dwarf mistletoe, and 8 percent were on other
structures (Hamer and Nelson 1995b; T. Hamer, Hamer Environmental,
pers. comm. 1995).
    More than 94 percent of the nests for which data were available
were in the top half of the nest trees, which may allow easy nest
access and provide shelter from potential predators and weather. Canopy
cover directly over the nests was typically high (average 84 percent;
range 5 to 100 percent) in Washington, Oregon, and California (Hamer
and Nelson 1995b; T. Hamer, pers. comm. 1995). This cover may provide
protection from predators and weather. Such canopy cover may be
provided by trees adjacent to the nest tree, and/or by the nest tree
itself. Canopy closure of the nest stand/site varied between 12 and 99
percent and averaged 48 percent (Hamer and Nelson 1995b; T. Hamer,
pers. comm. 1995).

    Nests have been located in forested areas dominated by coastal
redwood, Douglas-fir (Pseudotsuga menziesii), mountain hemlock (Tsuga
mertensiana), Sitka spruce (Picea sitchensis), western hemlock, and
western redcedar (Thuja plicata) (Binford et al. 1975; Quinlan and
Hughes 1990; Hamer and Cummins 1991; Singer et al. 1991, 1992; Hamer
and Nelson 1995b). Individual nests in Washington, Oregon, and
California have been located in Douglas-fir, coastal redwood, western
hemlock, western redcedar, and Sitka spruce trees.
    For nesting habitat to be accessible to marbled murrelets, it must
occur close enough to the marine environment for murrelets to fly back
and forth. The farthest inland distance for a known occupied site is 84
kilometers (52 miles) in Washington. The farthest known inland occupied
sites in Oregon and California are 61 and 56 kilometers (38 and 35
miles), respectively. Occupied sites are defined as forest stands where
marbled murrelets have been observed exhibiting behaviors associated
with nesting. Additionally, detections (not occupied sites) have been
documented farther inland in Oregon (S. K. Nelson, pers. comm. 1995)
and California.
    Marbled murrelet nests are difficult to locate for several
reasons--(1) nests are generally located high in the canopy; (2) adults
and juveniles have cryptic plumage during most of the nesting season;
(3) adults are often (but not always) extremely quiet in the vicinity
of nests (Nelson and Peck 1995); and (4) adults may show activity near
the nest only once per day, usually under low light conditions.
Therefore, identification of occupied sites and suitable nesting
habitat are the best indicators of potential nest sites. Indicators of
occupied habitat include active nests; egg shell fragments; young found
on the forest floor; marbled murrelets seen flying through the forest
beneath the canopy, landing in trees, circling above the canopy, and
calling from a stationary perch; or large numbers of murrelets heard
calling from in and around a forest stand.
    Inland, marbled murrelets are generally easier to detect at high-
use sites during the spring and late summer when breeding activities
peak (Paton and Ralph 1988; Nelson 1989). Inland detections of the
species are less frequent during the early fall when murrelets have
presumably completed breeding and are undergoing a flightless molt at
sea. Similarly, murrelets may be more difficult to detect in areas that
support low numbers of reproducing pairs, perhaps because birds
occurring in lower densities appear to be less vocal (Rodway et al.
1993; Dillingham et al. 1995).
    Marbled murrelets spend most of their lives in the marine
environment where they consume a diversity of prey species. Areas that
support populations of prey species juxtaposed with nesting areas are
essential to maintaining successfully reproducing marbled murrelet
populations (Burkett 1995). Murrelets often aggregate near local food
concentrations, resulting in a clumped distribution in the marine
environment (Sealy and Carter 1984). Prey breeding areas (e.g., near-
shore kelp beds, sand or gravel beaches, sand banks, etc.) and areas
where prey may concentrate (e.g., near-shore upwellings, waters at the
mouths of bays and coastal rivers, eddies in the vicinity of headlands,
river mouths and associated plumes, and tidal rips, etc.) are likely
the most important features determining murrelet foraging opportunities
(Ainley et al. 1995; Hunt 1995). Human-caused disturbances (e.g.,
intense commercial or recreational fishing) may affect prey density or
accessibility.
    Most of the information available about prey species of marbled
murrelets is from the Gulf of Alaska and British Columbia, and is
summarized by Burkett (1995). Marbled murrelets generally forage in
near-shore marine waters at distances of 0.3 to 2 kilometers (0.2 to
1.2 miles) from shore; however, they occur at distances up to 24
kilometers (14 miles) from shore in reduced numbers. Marine systems
producing sufficient prey to support marbled murrelets provide suitable
foraging habitat for the species.
    Marbled murrelets have been reported feeding on a wide variety of
small fish and invertebrates, indicating their flexibility and
capability to use alternative prey sources. Prey include Pacific
sandlance (Ammodytes hexapterus), Pacific herring (Clupea harengus),
northern anchovy (Engraulis mordax), osmerids, sea perch (Cymatogaster
aggregata), euphausiids (Euphausia pacifica and Thysanoessa spinifera),
mysids (Neomysis spp.), and amphipods, among others (Sealy 1975; Sanger
1987; Sanger and Jones 1981; Carter and Sealy 1990; Strong et al. 1993;
Burkett 1995). Fish are an important component of the diet during the
summer, which coincides with the nestling and fledgling periods, while
euphausiids, mysids, and amphipods seem to be more important in the
winter and spring in some areas (Munro and Clemens 1931; Sealy 1975;
Krasnow and Sanger 1982; Sanger 1983, 1987; Carter 1984; Carter and
Sealy 1990; Vermeer 1992; Burkett 1995).
    Prior to euroamerican settlement in the Pacific Northwest, nesting
habitat for the marbled murrelet was well-distributed, particularly in
the wetter portions of its range in Washington, Oregon, and California.
This habitat was generally found in large, contiguous blocks (Ripple
1994) as described under the Management Considerations section of this
rule. The Recovery Team and others (Ralph et al. 1995b) considered the
loss of nesting habitat to be one of the primary factors limiting
current population size from British Columbia to California.
    Areas where marbled murrelets are concentrated at sea during the
breeding season are likely determined by a combination of terrestrial
and marine conditions. However, nesting habitat appears to be the most
important factor affecting marbled murrelet distribution and numbers.
Recent marine survey data confirm earlier conclusions (60 FR 40892)
that marine observations of murrelets during the nesting season
generally correspond to the largest remaining blocks of suitable forest
nesting habitat (Nelson et al. 1992; Ralph et al. 1995b; Ralph and
Miller 1995; Strong 1995; Varoujean et al. 1994). For example, suitable
nesting habitat data from aggregated GIS databases (S. Holzman, U.S.
Fish and Wildlife Service, pers. comm. 1996) were overlain on the
aerial survey data provided by Varoujean et al. (1994) and the boat
survey data provided by Strong (1995). Highest densities of murrelets
seen in 1992, 1993, 1994, and 1995 closely corresponded with the
presence of large blocks of suitable nesting habitat on the coasts of
northern coastal Washington and central and southern coastal Oregon.
    Consistent with Varoujean et al.'s (1994) 1993 and 1994 aerial
surveys, Thompson (1996) found murrelets to be more numerous along
Washington's northern outer coast and less abundant along the southern
coast. He reported that this distribution appears to be correlated with
(1) proximity of old growth forest, (2) the distribution of rocky
shoreline/substrate versus sandy shoreline/substrate, and (3) abundance
of kelp; his analysis of these variables is continuing. In British
Columbia, Rodway et al. (1995) observed murrelets aggregating on the
water close to breeding areas at the beginning of the breeding season
and, for one of their two study areas, again in July as young were
fledging. Burger (1995) reported that the highest at-sea murrelet
densities in both 1991 and 1993 were seen immediately adjacent to two
tracts of old-growth forest, while areas with very

low densities of murrelets were adjacent to heavily logged watersheds.
    In contrast, where nesting habitat is limited in southwest
Washington, northwest Oregon, and portions of California, few marbled
murrelets are found at sea during the nesting season (Ralph and Miller
1995; Ralph et al. 1995b; Strong 1995; Varoujean and Williams 1995;
Thompson 1996). The area between the Olympic Peninsula in Washington
and Tillamook County in Oregon (160 kilometers (100 miles)) has few
occupied sites or sightings at sea of marbled murrelets. In California,
approximately 480 kilometers (300 miles) separate the large breeding
populations to the north in Humboldt and Del Norte Counties from the
southern breeding population in San Mateo and Santa Cruz Counties.
Currently this reach contains few marbled murrelets during the breeding
season; however, the area likely contained significant numbers of
marbled murrelets before extensive logging (Paton and Ralph 1988,
Larsen 1991).
    In addition to the proximity of suitable nesting habitat, it is
likely that marine factors such as prey abundance influence the local
distribution of breeding murrelets (Ralph and Miller 1995; Strachen et
al. 1995; Strong 1995). The influence of prey distribution and
abundance on the distribution of other alcids has been well documented
(Bradstreet and Brown 1985). In general, nesting murrelets, which must
return to their nest at least once per day, must balance the energetic
costs of foraging trips with the benefits for themselves and their
young (Skutch 1979; Ydenberg 1989; USFWS 1995a). Therefore, breeding
adults are energetically justified in taking relatively long foraging
trips only when they can gain access to high quality foraging areas
(Bradstreet and Brown 1985; Gaston 1985; Carter and Sealy 1990).
Breeding murrelets are known to cover large areas at sea to take
advantage of foraging opportunities (Carter and Sealy 1990; Ralph and
Miller 1995; Rodway et al. 1995). Therefore, use of marine habitat is
constrained during the breeding season by its distance from nesting
habitat and the quality of forage resources available. This is
consistent with the observed juxtaposition of suitable nesting habitat
and distribution of murrelets during the breeding season described
above, and it may explain the differences observed in marine
distribution patterns between murrelets and other non-forest nesting
seabirds (Varoujean et al. 1994). During years of low prey
availability, the distance from nesting areas to adequate foraging
areas is probably a critical determinant of reproductive success (USFWS
1995a).
    Marbled murrelets can be adversely affected by impacts to their
nesting habitat, marine foraging habitat, and food supply, as well as
direct mortality from human activities such as oil spills and gillnet
fisheries. These impacts, and the resulting decline from historical
population levels, formed the basis for the listing of the species as
threatened in 1992 (57 FR 45328). Based on an analysis of likely ranges
of fecundity and survivorship of this species, Beissinger (1995)
developed a population model that estimated that marbled murrelets in
Washington, Oregon, and California may be declining at a rate between 4
and 6 percent per year. These results are consistent with the evidence
of a long-term decline from historical populations.
    This decline may be a result of several factors. In addition to
habitat loss and fragmentation, which may reduce nesting success,
declines may be exacerbated by high mortality rates of the young of the
year prior to reaching the ocean, and high mortality rates of juveniles
and adults in the marine and terrestrial environments.
    Marbled murrelets are believed to be highly vulnerable to predation
when on the nesting grounds, and the species has evolved a variety of
morphological and behavioral characteristics indicative of selection
pressures from predation (Ralph et al. 1995b). For example, plumage and
eggshells exhibit cryptic coloration, and adults fly to and from nests
by indirect routes and often under low-light conditions (Nelson and
Hamer 1995a). Potential nest predators include the common raven (Corvus
corax), Steller's jay (Cyanocitta stelleri), American crow (Corvus
brachyrhynchos), gray jay (Perisoreus canadensis), great horned owl
(Bubo virginianus), sharp-shinned hawk (Accipiter striatus), Cooper's
hawk (Accipiter cooperii), northern goshawk (Accipiter gentilis),
raccoon (Procyon lotor), marten (Martes americana), Townsend chipmunk
(Eutamias townsendii), northern flying squirrel (Glaucomys sabrinus),
Douglas squirrel (Tamiasciurus douglasi), and fisher (Martes pennanti)
(Marzluff et al. 1996). Ravens, Steller's jays, and possibly great
horned owls are known predators of eggs or chicks (Nelson and Hamer
1995b).
    From 1974 through 1993, of those marbled murrelet nests in
Washington, Oregon, and California where success/failure was
documented, approximately 64 percent of the nests failed. Of those
nests, 57 percent failed due to predation (Nelson and Hamer 1995b). The
relatively high predation rate could be biased because nests near
forest edges may be more easily located by observers and more
susceptible to predation and because observers may attract predators.
Hamer and Nelson (1995b) believed that researchers had minimal impacts
on predation in most cases because the nests were monitored from a
distance and relatively infrequently, and precautions were implemented
to minimize predator attraction.
    Several possible reasons exist for the high observed predation
rates of marbled murrelet nests. The first possibility is that these
high predation rates are normal, although it is unlikely that a stable
population could have been maintained under the predation rates
presently being observed (Beissinger 1995).
    Another reason could be that populations of marbled murrelet
predators such as corvids (jays, crows, and ravens) and great horned
owls are increasing in the western United States, largely in response
to habitat changes and food sources provided by humans (Robbins et al.
1986; Rosenberg and Raphael 1986; Johnson 1993; Marzluff et al. 1994,
1996; National Biological Service 1996), resulting in increased
predation rates on marbled murrelets. It has also been proposed that
creation of excessive forest edge habitat may increase the
vulnerability of murrelet nests to predation and ultimately lead to
higher rates of predation. Edge effects have been implicated in
increased forest bird nest predation rates for other species of birds
(Chasko and Gates 1982; Yahner and Scott 1988).
    The potential relationship between forest fragmentation, edge, and
adverse effects on forest nesting birds has received increased
attention during the last few decades. In a comprehensive review of the
many studies on this topic, Paton (1994) concluded that ``strong
evidence exists that avian nest success declines near edges.'' Small
patches of habitat have a greater proportion of edge than do large
patches of the same shape (Schieck et al. 1995). However, Paton (1994)
noted that many of these studies involved lands where forests and
agricultural or urban areas interface, or they involved experiments
with ground nests that are not readily applicable to canopy nesters
such as marbled murrelets. Paton (1994) therefore stressed the need for
studies specific to forests fragmented by timber harvest in the Pacific
Northwest and elsewhere.
    Some research on this topic has been conducted in areas dominated
by timber production and using nests located off the ground (Ratti and
Reese 1988;

Rudnicky and Hunter 1993; Marzluff et al. 1996; Vander Haegen and
DeGraaf in press). Vander Haegen and DeGraaf (in press) found that
nests in shrubs less than 75 meters from an edge were three times as
likely to be depredated than nests greater than 75 meters from an edge.
Likewise, Rudnicky and Hunter (1993) found that shrub nests on the
forest edge were depredated almost twice as much as shrub nests located
in the forest interior. They also observed that shrub nests were taken
primarily by avian predators such as crows and jays, which is
consistent with the predators believed to be impacting murrelets, while
ground nests were taken by large mammals such as raccoons and skunks.
Ratti and Reese (1988) did not find the edge relationship documented by
Rudnicky and Hunter (1993), Vander Haegen and DeGraaf (in press), and
others cited in Paton (1994). However, Ratti and Reese (1988) did
observe lower rates of predation near ``feathered edges'' compared to
``abrupt'' edges (e.g., clearcut or field edges), and suggested that
the vegetative complexity of the feathered edge may better simulate
natural edge conditions than do abrupt edges. These authors also
concluded that their observations were consistent with Gates and
Gysel's (1978) hypothesis that birds are poorly adapted to predator
pressure near abrupt artificial edge zones.
    Studies of artificial and natural nests conducted in Pacific
Northwest forests also indicate that predation of forest bird nests may
be affected by habitat fragmentation, forest management, and land
development (Hansen et al. 1991; Vega 1993; Bryant 1994; C. Chambers,
Oregon State University, pers. comm. 1994; Nelson and Hamer 1995b;
Marzluff et al. 1996). Nelson and Hamer (1995b), in the only direct
measure of marbled murrelet reproductive success, found that successful
murrelet nests were further from edge than unsuccessful nests. Marzluff
et al. (1996) are conducting the only experimental predation study that
uses simulated marbled murrelet nests, and they have documented
predation of artificial murrelet nests by birds and arboreal mammals.
Although the study is still continuing, preliminary results indicate
that proximity to human activity and landscape contiguity may interact
to determine rate of predation (J. Marzluff, pers. comm. 1996).
Interior forest nests in contiguous stands far from human activity
appear to experience the least predation (Marzluff et al. 1996).
    In addition to studies of edge effects, some research has been
initiated to look at the importance of stand size. Among all Pacific
Northwest birds, the marbled murrelet is considered to be one of the
most sensitive to forest fragmentation (Hansen and Urban 1992).
Murrelet nest stand size in Washington, Oregon, and California varied
between 3 and 1,100 hectares (7 and 2,717 acres) and averaged 206
hectares (509 acres) (Hamer and Nelson 1995b). Nelson and Hamer (1995b)
found that successful murrelets tended to nest in larger stands than
did unsuccessful murrelets, but these results were not statistically
significant. Miller and Ralph (1995) compared murrelet survey detection
rates among four stand size classes in California. Recording a
relatively consistent trend, they observed that a higher percentage of
large stands (33.3 percent) had occupied detections when compared to
smaller stands (19.8 percent), while a greater percentage of the
smallest stands (63.9 percent) had no presence or occupancy detections
when compared to the largest stands (52.4 percent) (Miller and Ralph
1995). However, these results were not statistically significant, and
the authors did not conclude that murrelets preferentially select or
use larger stands. The authors suggested the effects of stand size on
murrelet presence and use may be masked by other factors such as stand
history and proximity of a stand to other old-growth stands. Schieck et
al. (1995) found that murrelet presence and abundance was positively
correlated with old-growth stand size in British Columbia, but their
data were not statistically significant. Rodway et al. (1993)
recommended caution when interpreting murrelet detection data, such as
that used by Miller and Ralph (1995) and Schieck et al. (1995), because
numbers of detections at different sites may be affected by variation
caused by weather, visibility, and temporal shifts.
    In addition to stand size, general landscape condition may
influence the degree to which marbled murrelets nest in an area. In
Washington, marbled murrelet detections increased when old-growth/
mature forests comprised more than 30 percent of the landscape (Hamer
and Cummins 1990). Hamer and Cummins (1990) found that detections of
marbled murrelets decreased in Washington when the percentage of clear-
cut/meadow in the landscape increased above 25 percent. Additionally,
Raphael et al. (1995) found that the percentage of old-growth forest
and large sawtimber was significantly greater within 0.8-kilometer
(0.5-mile) of sites (203-hectare (501-acre) circles) that were occupied
by murrelets than at sites where they were not detected. Raphael et al.
(1995) suggested tentative guidelines based on this analysis that sites
with 35 percent old-growth and large sawtimber in the landscape are
more likely to be occupied. In California, Miller and Ralph (1995)
found that the density of old-growth cover and the presence of coastal
redwood were the strongest predictors of murrelet presence.
    Although ongoing research should shed more light on the specific
factors that affect murrelet nest predation and stand size preferences,
the best available information strongly suggests that marbled murrelet
reproductive success may be adversely affected by forest fragmentation
associated with certain land management practices. Based on this
information, the Service concludes that the maintenance and development
of suitable habitat in relatively large contiguous blocks as described
in this rule and the draft Marbled Murrelet (Washington, Oregon, and
California Population) Recovery Plan (draft Recovery Plan) (USFWS
1995a) will contribute to the recovery of the marbled murrelet. These
blocks of habitat should contain the structural features and spatial
heterogeneity naturally found at the landscape level, the stand level,
and the individual tree level in Pacific Northwest forest ecosystems
(Hansen et al. 1991; Hansen and Urban 1992; Ripple 1994; Bunnell 1995;
Raphael et al. 1995; Schieck et al. 1995).
    In addition to predation at the nest, adult and juvenile murrelets
are vulnerable elsewhere in the terrestrial and marine environments.
For example, in the terrestrial environment adult marbled murrelets
have been preyed upon by sharp-shinned hawks, peregrine falcons (Falco
peregrinus), bald eagles (Haliaeetus leucocephalus), and possibly
merlins (F. columbarius) (Marks and Naslund 1994).
    In the marine environment, oil spills and commercial net fisheries
adversely affect marbled murrelets. Clean water is important for
survival and completion of the murrelet's life cycle and for the
conservation of the species. Clean, unpolluted water is essential for
maintaining the health of individual marbled murrelets and prey
species, and for providing areas for social interactions and other
behaviors.
    Marbled murrelets have a high vulnerability to oiling, and oil
spills have had catastrophic effects when large spills have occurred in
the vicinity of murrelet concentrations. Impacts have been particularly
severe in Prince William Sound in Alaska, western Washington, and
central California (Carter and Kuletz 1995). The 45 marbled murrelets
recovered after the

Tenyo Maru spill in 1991 at the mouth of the Strait of Juan de Fuca in
Washington was the greatest number of murrelets recovered in any oil
spill, with the exception of the Exxon Valdez oil spill, and
represented a significant portion of the local population (Carter and
Kuletz 1995). Oil spills may also affect forage fish populations (Irons
1992; Oakley and Kuletz 1994; Piatt and Anderson In press), reduce
reproductive success, and disrupt breeding activity (Carter and Kuletz
1995). Chronic oil pollution can cause mortality through oiling and
ingestion of oil. Other forms of pollution may also affect birds
directly through toxic effects on their food supply.
    Mortality of marbled murrelets from entanglement and drowning in
fishing nets has declined in recent years in Washington, Oregon, and
California, as fishing effort has declined and regulations to reduce
mortality have been implemented. However, mortality is still a concern,
particularly in Washington. Gillnet fisheries are most significant as a
threat to murrelets in the marine environment in Washington, although
closures of some areas, specifically to protect marbled murrelets, were
implemented in the 1995 season (USFWS 1995b, 1995c). Gillnet fisheries
no longer occur in Oregon, with the exception of those in the Columbia
River. In California, fishing regulations protect most murrelets from
this type of mortality (Carter et al. 1995).
    Gillnet fisheries may occur at the mouth of the Columbia River, in
Willapa Bay, Grays Harbor, the Strait of Juan de Fuca, and Puget Sound,
although fishing efforts in coastal fisheries have been greatly reduced
because of depressed salmon (Oncorhynchus spp.) runs. An observer
program in 1994 in the all-citizens and Tribal sockeye salmon
(Oncorhynchus nerka) drift gillnet fishery of north Puget Sound, which
is the most significant fishery in Puget Sound, estimated an
entanglement of 15 murrelets, with a range of 2 to 59 murrelets (Pierce
et al. 1996). A National Marine Fisheries observer program for marine
mammals on the outer coast fisheries of Washington, where low numbers
of marbled murrelets are present, did not document marbled murrelet
mortality (Jeffries and Brown 1993). However, a number of entangled
birds of the Alcidae family were not identified to species.
Entanglement in other Washington drift net and set gillnet fisheries
has also been documented (Speich and Wahl 1989; Craig and Cave 1994;
BIA 1994; J. Grettenberger, USFWS, pers. comm. 1995). Observer programs
in 1993 and 1994 in Puget Sound salmon purse seine fisheries indicated
that entanglement rates of marbled murrelets were much lower with this
gear type (Natural Resources Consultants 1995). To date, there has not
been any documented murrelet mortalities from gillnet fisheries at the
mouth of the Columbia River.
    It is likely that marbled murrelets, like many other seabirds, are
affected by fluctuations in marine environmental conditions such as El
Nino events (USFWS 1995a). In general, increased mortality of adult
seabirds and decreased reproductive efforts have been linked with El
Nino episodes when food supplies are depressed (Schrieber and Schrieber
1984; Hodder and Graybill 1985; Boekelheide et al. 1990), although
there may be marked differences in effects across regions and among
species with different foraging styles (Hatch 1987). Marbled murrelets
are relatively opportunistic foragers and probably have a great
flexibility in prey choice (USFWS 1995a). This capability may enable
them to respond, to some degree, to changes in prey availability caused
by fluctuating environmental conditions (USFWS 1995a). In general,
unfavorable conditions can result in adult mortality and reduced
productivity. However, a seabird's relatively long life span is an
adaptation which allows an individual to reproduce successfully despite
adverse conditions during its lifetime. This life history strategy
serves to maintain a population despite environmental fluctuations
(USFWS 1995a). However, cumulative impacts (including nest habitat
loss, oil spills, etc.), in addition to repeated El Nino events in
localized areas over a short time period could cause serious population
declines or extirpations (USFWS 1995a).

Management Considerations

    Marbled murrelets are found in forests containing a variety of
forest structure, which is in part the result of varied management
practices and natural disturbance (Hansen et al. 1991; McComb et al.
1993). In many areas, management practices have resulted in
fragmentation of the remaining older forests and creation of large
areas of younger forests that have yet to develop habitat
characteristics suitable for marbled murrelet nesting (Hansen et al.
1991). Past and current forest management practices have also resulted
in a forest age distribution skewed toward younger even-aged stands at
a landscape scale (Hansen et al. 1991; McComb et al. 1993).
    In many portions of the range of the marbled murrelet during the
last 50-70 years, forest management has concentrated on clear-cut
logging (Hansen et al. 1991). After forests are clear-cut, the sites
are traditionally replanted to a single or few tree species and
maintained as even-aged stands for maximum wood-fiber production. Site-
preparation and management activities may further decrease species
diversity (Hansen et al. 1991). These methods include prescribed
burning and the use of herbicides or mechanical methods to control
competing vegetation.
    Prior to the widespread application of clearcut timber harvest,
historical logging practices in some portions of the species' range
consisted of more selective timber harvest, leaving remnant patches of
forests of varying ages with older forest characteristics. The uneven-
aged management practices used in these areas usually resulted in more
diverse forests that may currently provide some nesting habitat where a
few trees containing suitable marbled murrelet nesting structure remain
(Hansen et al. 1991).
    Current and historic loss of marbled murrelet nesting habitat is
generally attributed to timber harvest and land conversion practices,
although, in some areas, natural catastrophic disturbances such as
forest fires have caused losses (Hansen et al. 1991; Ripple 1994;
Bunnell 1995). Reduction of the remaining older forest has not been
evenly distributed in western Washington, Oregon, and California.
Timber harvest has been concentrated at lower elevations and in the
Coast Ranges (Thomas et al. 1990), generally overlapping the range of
the marbled murrelet.
    Habitat for marbled murrelets has been generally declining since
the arrival of European settlers. Bolsinger and Waddell (1993)
estimated that old-growth forest in Washington, Oregon, and California
has declined by two-thirds statewide during the last five decades.
Information specific to the range of the marbled murrelet is not
available. Historic forest conditions have been estimated for western
Washington and Oregon by several authors. Marbled murrelet habitat
represents a significant portion of area included in these estimates;
therefore, trends in habitat are assumed to follow the same general
pattern identified for the larger area.
    Although the extent of mature and old-growth forest before the
1800s is difficult to quantify, western Washington and Oregon are
estimated to have been covered by approximately 9.7 to 12.8 million
hectares (24 to 32 million acres) of forest at the time of euroamerican
settlement in the early to

mid-1800s, of which about 5.6 to 7.9 million hectares (14 to 20 million
acres) (60 to 70 percent) are estimated to have been old-growth
(Society of American Foresters Task Force 1983; Spies and Franklin
1988; Morrison 1988; Norse 1988; Booth 1991; Ripple 1994). As of 1991,
there were approximately 1.4 million hectares (3.4 million acres) of
old-growth forest remaining in western Washington and Oregon, an 82
percent reduction from estimated prelogging levels (Booth 1991).
    Estimates for a similar time period in northwestern California are
not as precise, but suggest there were between 526,000 and 1.3 million
hectares (1.3 and 3.2 million acres) of old-growth Douglas-fir/mixed
conifer forest and approximately 890,000 hectares (2.2 million acres)
of old-growth coastal redwood forest (Society of American Foresters
Task Force 1983; Laudenslayer 1985; Fox 1988; California Department of
Forestry and Fire Protection 1988; Morrison 1988). Currently there are
approximately 28,000 hectares (70,000 acres) of old-growth coastal
redwood forest remaining in California (Larsen 1991).
    Some of the forests that were affected by past natural
disturbances, such as forest fires and windthrow, currently provide
suitable nesting habitat for marbled murrelets because they retain
scattered individual or clumps of large trees that provide structure
for nesting (Hansen et al. 1991; McComb et al. 1993; Bunnell 1995).
This is particularly true in coastal Oregon where extensive fires
occurred historically. Marbled murrelet nests have been found in
remnant old-growth trees in mature forests in Oregon.
    Forests providing suitable nesting habitat and nest trees generally
require 200 to 250 years to develop characteristics that supply
adequate nest platforms for marbled murrelets. This time period may be
shorter in redwood and western hemlock forests and in areas where
significant remnants of the previous stand remain. Intensively managed
forests in Washington, Oregon, and California have been managed on
average cutting rotations of 70 to 120 years (USDI 1984; USDA 1988).
Cutting rotations of 40 to 50 years are common for some private lands.
Timber harvest strategies on Federal lands and some private lands have
emphasized dispersed clear-cut patches and even-aged management. Forest
lands that are intensively managed for wood fiber production are
generally prevented from developing the characteristics required for
marbled murrelet nesting. Suitable nesting habitat that remains under
these harvest patterns is highly fragmented.

Previous Management Efforts

    Since 1990, several different approaches to management of older
forests and their associated species (including marbled murrelets) have
been developed through various Federal efforts. These include the
Interagency Scientific Committee's Conservation Strategy for the
Northern Spotted Owl (Thomas et al. 1990), the Scientific Panel on Late
Successional Forest ecosystems commissioned by the U.S. House of
Representatives (Johnson et al. 1991), the designation of spotted owl
critical habitat by the Service (57 FR 1796), and the U.S. Forest
Service's (Forest Service) Scientific Analysis Team Report (Thomas et
al. 1993). All of these efforts would have provided some level of
protection to marbled murrelets but most did not address murrelets
specifically or provide a framework for a specific marbled murrelet
management strategy.
    In July 1993, the Service, Forest Service, U.S. Bureau of Land
Management, National Park Service, National Marine Fisheries Service,
and U.S. Environmental Protection Agency released the Report of the
Forest Ecosystem Management Assessment Team (FEMAT Report) (USDA et al.
1993a). Information from this report was used in developing the Final
Supplemental Environmental Impact Statement on Management of Habitat
for Late-Successional and Old-Growth Forest Related Species Within the
Range of the Northern Spotted Owl (USDA et al. 1993b) and the Record of
Decision for Amendments to the Forest Service and Bureau of Land
Management Planning Documents Within the Range of the Northern Spotted
Owl (ROD). This ROD is referred to as the Northwest Forest Plan (USDA
and USDI 1994). The FEMAT report and ROD provide a specific marbled
murrelet management strategy for Federal lands.
    Within the range of the marbled murrelet, the Northwest Forest Plan
designates a system of Late-Successional Reserves, which provides large
areas expected to eventually develop into contiguous, unfragmented
forest. In addition to Late-Successional Reserves, the Northwest Forest
Plan designates a system of Adaptive Management Areas, where efforts
focus on answering management questions, and matrix areas, where most
forest production occurs. Administratively withdrawn lands, as
described in the individual National Forest or Bureau of Land
Management land use plans, are also part of the Northwest Forest Plan.
    Specific measures in the Northwest Forest Plan protect all occupied
murrelet sites on Federal lands outside of the Federal reserve system.
These measures include surveys prior to activities that may affect
habitat and protection of contiguous marbled murrelet nesting and
recruitment habitat (stands capable of becoming suitable nesting
habitat within 25 years) within 0.8-kilometer (0.5-mile) of areas
occupied by murrelets.
    An assessment of population viability of marbled murrelets was
conducted by the FEMAT. The assessment group concluded that ``We
believe there is only about a 60 percent likelihood (with a range of 50
to 75 percent) that the marbled murrelet population on Federal lands
would be stable and well distributed after 100 years, regardless of
which option is selected.'' An additional assessment based only on the
projected habitat condition at 100 years concluded that there was an 80
percent likelihood that nesting habitat would be well distributed on
Federal lands at 100 years under the option most similar to the current
Northwest Forest Plan.
    The Service recognizes the value of the Northwest Forest Plan (USDA
and USDI 1994) and acknowledges its integral role in marbled murrelet
conservation. The Northwest Forest Plan complements this critical
habitat designation by stressing the need for protection of large,
unfragmented areas of suitable nesting habitat that are well-
distributed throughout the species' range, with special emphasis on
areas close to the marine environment.
    Concurrently with the implementation of the Northwest Forest Plan,
the Marbled Murrelet Recovery Team continues to work on a Recovery Plan
that will outline a strategy for recovering the species. The Recovery
Plan, which builds on the Northwest Forest Plan, also addresses
management needs on non-Federal lands and in the marine environment.
    The Marbled Murrelet Recovery Team is completing a final Recovery
Plan that will outline a strategy for recovering the species. The draft
Recovery Plan (USFWS 1995a) suggested the establishment of six Marbled
Murrelet Conservation Zones where viable populations of murrelets
should be maintained in Washington, Oregon, and California. The
Recovery Team would designate the Marbled Murrelet Conservation Zones
to address differing needs for recovery actions in portions of the
marbled murrelet's range and to maintain well-distributed populations.
The zones are generally described as follows: (1) the Puget Sound
Conservation Zone includes all the waters of Puget Sound, the eastern
waters of the Strait of Juan de Fuca and

associated inland habitat extending 80 km (50 miles) from eastern Puget
Sound and bisecting of the Olympic Peninsula; (2) the Western
Washington Coast Range Conservation Zone includes the outer coast of
Washington, the western waters of the Strait of Juan de Fuca and
associated inland habitat extending inland to the midpoint of the
Olympic Peninsula and in southwest Washington as far as 80 km (50
miles) from the Pacific Ocean shoreline; (3) the Oregon Coast Range
Conservation Zone includes most of the coastal waters of Oregon
(between the Columbia River and Coos Bay) within 2 km (1.2 miles) of
the shoreline and associated inland habitat extending inland a distance
of 56 km (35 miles); (4) the Siskiyou Coast Range Conservation Zone
includes a portion of the coastal waters of Oregon and California
(between Coos Bay, Oregon and the southern boundary of Humboldt County,
California) within 2 km (1.2 miles) of the shoreline and associated
inland habitat extending inland a distance of 56 km (35 miles) from the
Pacific Ocean shoreline; (5) the Mendocino Conservation Zone includes a
portion of the California coastal waters (from the Humboldt County line
to the mouth of San Francisco Bay) within 2 km (1.2 miles) of the
shoreline and associated inland habitat extending inland a distance of
up to 40 km (25 miles) from the Pacific Ocean shoreline; and (6) the
Santa Cruz Mountains Conservation Zone includes a portion of the
central California coastal waters (from the mouth of San Francisco Bay
to Point Sur, Monterey County) within 2 km (1.2 miles) of the shoreline
and associated inland habitat extending inland a distance of up to 24
km (15 miles) from the Pacific Ocean shoreline (USFWS 1995a).
    In the marine environment, several laws apply that benefit
murrelets directly or indirectly. The Oil Pollution Act of 1990
addresses the development of a national planning and response system
for spills in marine and freshwater environments. A variety of planning
efforts are underway that address responses to worst-case discharges of
oil or hazardous substances, and mitigation or prevention of a
substantial threat of discharge from a vessel, offshore facility, or
onshore facility. Planning efforts include the development of a
national contingency plan, regional area contingency plans, and local
geographic response plans. The Service has worked extensively with the
U.S. Coast Guard, industry representatives, local response communities,
and other State, Federal, and Tribal natural resource trustees to
develop area contingency plans and geographic response plans for
Pacific coastal areas. These plans address mechanical recovery, use of
dispersants, in-situ burning, shoreline cleanup, protection of
sensitive areas, and protection, rescue, and rehabilitation of fish and
wildlife. These planning efforts and associated spill exercises should
help prevent or minimize the impact of spills on natural resources.
    Several other marine laws address threats to murrelets. These
include the Clean Water Act, which regulates the discharge of pollution
into marine waters and establishes National Contingency plans to
minimize damage from oil spills; the Coastal Zone Management Act, which
establishes the Coastal Nonpoint Source Pollution Control Program; the
Marine Protection, Research and Sanctuaries Act, which restricts ocean
dumping of waste, including dredged materials, and establishes marine
sanctuaries; and the Outer Continental Shelf Act, which regulates
offshore oil development.
    Mortality of marbled murrelets in commercial net fisheries in
Washington is being addressed through changes in State and Tribal
regulations. In 1995, the State of Washington and the Tribes instituted
area closures in a number of areas with high densities of marbled
murrelets to reduce the potential for entanglement. In 1995, the first
year of a 2-year study to evaluate modified gillnets designed to reduce
seabird entanglement was completed, and the initial results were
encouraging (Melvin and Conquest 1996). Research was also conducted in
1995 to evaluate the extent of fisheries/murrelet overlap and factors
that affect entanglement. Educational programs have been implemented
that provide material to fishermen on marbled murrelet identification
and distribution. As a result of section 7 consultation, observer
programs were required in 1993 and 1994 to evaluate and quantify the
extent of marbled murrelet mortality in purse seine and gillnet salmon
fisheries (USFWS 1995b, 1995c).
    Finally, the Forest Service published the ``Ecology and
Conservation of the Marbled Murrelet,'' a compilation of original
studies and literature reviews that represents the most current
treatise on marbled murrelets (Ralph et al. 1995a). The document is
particularly valuable for management, because it has assembled and
synthesized most of what is known about the marbled murrelet.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as ``(i)
the specific areas within the geographical area occupied by the
species, at the time it is listed * * * on which are found those
physical or biological features (I) essential to the conservation of
the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed * * *
upon a determination * * * that such areas are essential for the
conservation of the species.'' 16 U.S.C. 1532(5)(A). The term
``conservation,'' as defined in section 3(3) of the Act, means ``* * *
to use and 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 this Act are no longer
necessary * * *'' 16 U.S.C. 1532(3).

Role in Species Conservation

    The use of the term ``conservation'' in the definition of critical
habitat indicates that its designation would include habitat essential
to a species' eventual recovery and delisting. However, when critical
habitat is designated at the time a species is listed or before a
recovery plan is completed, the Service frequently does not know all of
the habitat areas that are essential for a species' recovery. Thus, the
Act provides that critical habitat designations may be revised from
time to time (16 U.S.C. 1533(a)(3)(B)).
    The designation of critical habitat is only one of several measures
available to contribute to the conservation of a listed species.
Critical habitat helps focus conservation activities by identifying
areas that contain essential habitat features (primary constituent
elements), thus alerting Federal agencies and the public to the
importance of an area in the species' conservation. Critical habitat
also identifies areas that may require special management or
protection. The identification of these areas may be helpful in
planning federally regulated land use activities. The added emphasis on
these areas for conservation of the species may shorten the time needed
to achieve recovery.
    Critical habitat receives consideration under section 7 of the Act
with regard to actions carried out, authorized, or funded by a Federal
agency. As such, designation may affect non-Federal lands only where
such a Federal nexus exists. Federal agencies must insure that their
actions are not likely to result in destruction or adverse modification
of critical habitat. Aside from this added consideration under section
7, the Act does not provide any additional protection to lands
designated as critical

habitat. Designating critical habitat does not create a management plan
for the areas; does not establish numerical population goals or
prescribe specific management actions (inside or outside of critical
habitat); and does not have a direct effect on areas not designated as
critical habitat. Specific management recommendations for critical
habitat are addressed in recovery plans, management plans, and in
section 7 consultation.
    In Washington, specific State Forest Practices rules are triggered
by Federal critical habitat designation covering private lands. Under
Forest Practices rules, a forest management activity within designated
critical habitat is classified as a ``Class IV--special'' forest
practice. The applicant for the forest practices permit must submit, in
addition to the usual information for the Forest Practices permit, an
environmental checklist under the State Environmental Policy Act
(SEPA). This checklist covers all resources, not just the species or
critical habitat in question. The Washington Department of Natural
Resources (WDNR) then makes a threshold determination from this
information. The WDNR may make a determination of nonsignificance,
mitigated determination of nonsignificance, or a determination of
significance. If a determination of nonsignificance or mitigated
determination of nonsignificance is reached, the action can proceed. If
a determination of significance is made, preparation of an
Environmental Impact Statement is required. This includes public
involvement, and may involve significant time delays and costs.
However, the State Forest Practices Board has the option to exclude any
Federal critical habitat from this designation under a Class IV
special. State regulations exclude from critical habitat, and Class
IV--Special review requirements, areas covered by a conservation plan
and permit approved the Service. State agencies are required to conduct
SEPA review on all State land projects, so the designation of critical
habitat designation will have less effect on their process.
    In Oregon, State laws and regulations do not recognize critical
habitat. Therefore, no effect can be attributed to Federal critical
habitat through Oregon State law for critical habitat designated on
non-federal land.
    In California, the California Endangered Species Act (CESA)
contains a similar concept to critical habitat called essential
habitat. The State does not necessarily designate essential habitat in
terms of mapped and described areas, as does critical habitat. Laws and
regulations do not specifically defer to or recognize Federal critical
habitat. California Department of Fish and Game biologists, in their
normal CESA and California Environmental Quality Act (CEQA) review of
proposed activities, may be aware of critical habitat and consider it
in lieu of essential habitat. However, there is no requirement to do
so, nor any prescribed manner for treating critical habitat. In the
absence of critical habitat, State biologists continue to consider the
concept of essential habitat. While State biologists may use Federal
critical habitat during CESA and CEQA reviews, the impact is not
expected to exceed impacts under the above laws in the absence of
critical habitat.

Primary Constituent Elements

    A designation of critical habitat begins by identifying areas
essential to conservation of a species. In determining which areas to
designate as critical habitat, the Service considers those physical and
biological features essential to a species' conservation and that may
require special management considerations or protection. Such physical
and biological features, as stated in 50 CFR 424.12, include, but are
not limited to, the following:
    (1) Space for individual and population growth, and for normal
behavior;
    (2) Food, water, air, light, minerals or other nutritional or
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, rearing of offspring; and
    (5) Habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
    The Service is required to base critical habitat designations on
the best scientific data available (16 USC 1533(b)(2)). In designating
critical habitat for the marbled murrelet in Washington, Oregon, and
California, the Service has reviewed its overall approach to the
conservation of the species. For a thorough discussion of the ecology
and life history of this subspecies, see the Service's Biological
Report (Marshall 1988); the final listing rule published in the Federal
Register on October 1, 1992 (57 FR 45328); The Status and Conservation
of the Marbled Murrelet in North America (Carter and Morrison 1992);
the Biology of the Marbled Murrelet: Inland and at Sea (Nelson and
Sealy 1995); the draft Recovery Plan (USFWS 1995a); the Ecology and
Conservation of the Marbled Murrelet (Ralph et al. 1995a); and the
Ecological Considerations section of this rule.
    The Service has determined that the physical and biological habitat
features (referred to as the primary constituent elements) associated
with the terrestrial environment that support nesting, roosting, and
other normal behaviors are essential to the conservation of the marbled
murrelet and require special management considerations.
    Within areas essential for successful marbled murrelet nesting, the
Service has focused on the following primary constituent elements: (1)
individual trees with potential nesting platforms, and (2) forested
areas within 0.8 kilometers (0.5 miles) of individual trees with
potential nesting platforms, and with a canopy height of at least one-
half the site-potential tree height. This includes all such forest,
regardless of contiguity. These primary constituent elements are
essential to provide and support suitable nesting habitat for
successful reproduction of the marbled murrelet.
    Individual nest trees include large trees, generally more than 81
centimeters (32 inches) dbh with the presence of potential nest
platforms or deformities such as large or forked limbs, broken tops,
dwarf mistletoe infections, witches' brooms, or other formations
providing platforms of sufficient size to support adult murrelets.
Because marbled murrelets do not build nests, moss or detritus may be
important to cushion or hold the egg. Platforms should have overhead
cover for protection from predators and weather, which may be provided
by overhanging branches, limbs above the nest area, or branches from
neighboring trees. Based on current information from Washington,
Oregon, and California, nests have been found in Douglas-fir, coastal
redwood, western hemlock, western redcedar, or Sitka spruce (Hamer and
Nelson 1995b).
    On a landscape basis, forests with a canopy height of at least one-
half the site-potential tree height in proximity to potential nest
trees are likely to contribute to the conservation of the marbled
murrelet. These forests may reduce the differences in microclimates
associated with forested and unforested areas (Chen et al. 1992; Chen
et al. 1993), reduce potential for windthrow during storms (Chen et al.
1992), and provide a landscape that has a higher probability of
occupancy by marbled murrelets (Raphael et al. 1995). The site-
potential tree height is the average maximum height for trees given the
local growing conditions, and is based on species-specific site index
tables. Nest trees may be scattered or clumped

throughout the area. Potential nesting areas may contain fewer than one
suitable nesting tree per acre.
    Within the boundaries of designated critical habitat, only those
areas that contain one or more primary constituent element are, by
definition, critical habitat. Areas without any primary constituent
elements are excluded by definition.

Criteria Used To Identify Critical Habitat

    Several qualitative criteria were considered in the selection of
specific areas for inclusion in critical habitat. These criteria are
similar to criteria used in the development of several recent Federal
management proposals, such as the Scientific Panel (Johnson et al.
1991) and Northwest Forest Plan (USDA and USDI 1994). The following is
a description of the criteria considered:
    Suitable Nesting Habitat: The presence of suitable nesting habitat
as defined in the previous section. Suitable habitat was located
through the use of specific site knowledge, GIS data, remote sensing
data, and aerial photos.
    Survey Data: Information about presence/absence and occupancy were
used to indicate murrelet use areas. Critical habitat units include
most of the known sites occupied by marbled murrelets on Federal,
State, county, and private lands. However, known occupied sites may
represent only a small portion of the population due to the limited
coverage of past survey efforts.
    Proximity to Marine Foraging Habitat: During the nesting season,
marbled murrelets forage in the marine environment and return to the
nest at least once daily carrying a prey item to their young. Foraging
and nesting habitat areas must be juxtaposed within the flight
capabilities and energetic limits of the species. Critical habitat
units were designated taking into account the distance of murrelet
detections from the marine environment in a given area.
    Large, Contiguous Blocks of Nesting Habitat: In response to the
problems of fragmentation of suitable habitat, potential increases in
predation, and reduced reproductive success, the Service concentrated
on defining critical habitat units in terms of large, contiguous blocks
of late-successional forest. The Service used the Late-Successional
Reserve system identified in the Northwest Forest Plan (USDA and USDI
1994) to the extent possible to provide large blocks of habitat.
Marbled murrelet locations and habitat were considered in the
development of these reserves. State, county, private, and city lands
were included where large blocks of Federal reserve areas were
insufficient or not available, but where critical habitat was crucial
to retaining distribution of the species.
    Rangewide Distribution: To maintain the current distribution of the
species and reduce the impact of catastrophic losses of habitat or
murrelets, critical habitat units were identified throughout the range
of the species in the three states. Well distributed critical habitat
reduces the probability that a natural or human-caused catastrophe
would threaten the survival or recovery of the species in Washington,
Oregon, and California. Catastrophes that might threaten the species
include wildfires, windstorms or oil spills. Given the intense site
fidelity of many alcid species, maintaining rangewide distribution may
also be needed to provide potential source populations for the
recolonization of future habitat.
    Adequacy of Existing Protection and Management: The Service
considered the existing legal status of lands in designating areas as
critical habitat. Areas with permanent legal protection of wildlife,
such as congressionally designated wilderness areas, National Parks,
and National Wildlife Refuges are not proposed unless specific threats
were identified that are not addressed by existing management and
protection. State park regulations vary, but are often more recreation
oriented, and less restrictive or protective of wildlife.

Designated Areas Identified by Applying Criteria

    Application of the foregoing criteria and consideration of comments
and information received as a result of the supplemental proposal has
resulted in the designation of most of the Late-Successional Reserves
(LSR), as described in the Northwest Forest Plan, on Federal lands
within the range of the marbled murrelet in Washington, Oregon, and
California. These areas, as managed under the Northwest Forest Plan,
should develop into large blocks of suitable murrelet nesting habitat
given sufficient time. However, LSRs are plan-level designations with
less assurance of long-term persistence than areas designated by
Congress. Designation of LSRs as critical habitat compliments and
supports the Northwest Forest Plan and helps to ensure persistence of
this management directive over time. In some areas, these large blocks
of Federal land can provide the necessary contribution for recovery of
the species. In other areas, Federal ownership is limited and Federal
lands alone cannot meet recovery needs to reverse the current
population decline in marbled murrelets and maintain a well-distributed
population.
    The FEMAT report recognized the limited ability of Federal agencies
to recover this species on Federal lands alone. ``Although the Forest
Ecosystem Management Assessment was designed to address only Federal
lands within the range of the northern spotted owl, the marbled
murrelet is an example of a species whose life history requirements
cannot be accommodated only on Federal lands. The marbled murrelet is a
seabird that nests inland and therefore is influenced by both the
marine and terrestrial environments. Its nesting range in the three-
state area includes land that is south of the range of the northern
spotted owl. In addition, several areas that are considered key to the
recovery of the marbled murrelet involve private and state lands''
(FEMAT Report at IV-151 and IV-152, USDA et al. 1993a).
    Based on information provided in public comments, including the
recommendations of the Marbled Murrelet Recovery Team in the draft
Recovery Plan (USFWS 1995a), the Service is designating selected non-
Federal lands that meet the requirements identified in the Criteria for
Identifying Critical Habitat section, where Federal lands alone are
insufficient to provide suitable nesting habitat for the recovery of
the species.
    Non-Federal lands are designated as critical habitat where Federal
lands are limited or nonexistent, and where non-Federal lands are
essential for maintaining marbled murrelet populations and nesting
habitat. State lands are particularly important in southwestern
Washington, northwestern Oregon, and California south of Cape
Mendocino. Small segments of county lands are also included in
northwestern Oregon and central California. This is consistent with the
Memorandum of Understanding between the Service and the State of
California signed in 1991.
    Some private lands are being designated as critical habitat because
they provide essential elements and occur where Federal lands are very
limited, although habitat availability on private land is typically
much more limited than on public lands. These areas include the Arlecho
Basin, which supports occupied sites in the lowlands of northern
Washington; land supporting known occupied sites in southwestern
Washington and in the Siletz River drainage in Oregon; nesting habitat
and occupied sites for the at-sea murrelet population in the southern
portion of the Draft Recovery Plan's proposed Marbled Murrelet
Conservation Zone 4 in California,

including the Headwaters Forest area; and nesting habitat for the
central California population. State, county, city, and private lands
contain the last remnants of nesting habitat for the southern-most
population of murrelets, which is the smallest, most isolated, and most
susceptible to extirpation.

Areas Not Designated

    Not all suitable nesting habitat is included in the designated
critical habitat units. Emphasis has been placed on those areas
considered most essential to the species' conservation in terms of
habitat, distribution, and ownership. That does not mean that lands
outside of designated critical habitat units are not important to the
marbled murrelet. Some Federal lands outside of designated critical
habitat will receive additional protection from the marbled murrelet
conservation measures outlined in the Northwest Forest Plan. Under the
ROD, all marbled murrelet habitat will be surveyed prior to removal or
degradation of habitat, and all occupied sites will be protected. The
Adaptive Management Areas, matrix lands, and administratively withdrawn
lands contain areas of occupied habitat that would be protected from
timber harvest.
    Some areas outside this critical habitat designation may prove to
contain elements important to the recovery of the species. This
includes several areas recommended in public comment (see Issue 26).
However, under the Administrative Procedure Act (5 U.S.C. 553), the
Service cannot finally designate areas which were not included in a
proposed rule; and the Service was under court order to finalize this
designation by May 15, 1996. The Service will consider these areas for
potential inclusion in any future revisions of marbled murrelet
critical habitat.
    In considering whether tribal lands would be designated as critical
habitat, the Service gave particular attention to the Federal
government's trust responsibilities to Native Americans. The Hoopa
Valley Indian Reservation (Reservation) was considered but not
designated as critical habitat because no occupied sites have been
documented after 3 years of surveys on various portions of the
Reservation. The Reservation contains only a small quantity of
fragmented marbled murrelet habitat and is surrounded by Federal lands.
Some of those Federal lands contain high quality habitat supporting
occupied sites and are either designated as critical habitat or
protected as a Congressionally Withdrawn Area.
    Three other areas of Tribal land were considered for inclusion in
critical habitat, including portions of the Quinault and Makah Indian
Reservations in Washington and lands owned by the Siletz Tribe in
Oregon. The Makah Indian Reservation was not designated because little
suitable habitat remains in this area. The Siletz lands support marbled
murrelets and contain suitable habitat. However, because these parcels
are small, isolated, and relatively few, they have limited ability to
contribute to recovery, especially considering the proximity of Federal
land in the area. Many of these tribal lands contain murrelet occupied
sites and activities on these areas undergo section 7 consultation
through the Bureau of Indian Affairs, providing an option for achieving
essential conservation contributions. Therefore, the Siletz lands were
not included in the supplemental proposed rule, for any future
revisions to critical habitat for the marbled murrelet.
    The Quinault lands are considered important to the conservation of
the marbled murrelet. The North Boundary Area of the Quinault Indian
Reservation contains large blocks of contiguous, old-growth habitat.
Much of this habitat currently supports marbled murrelets. However, the
Quinault lands were not included in the supplemental proposed rule
after consideration of the Federal government's trust responsibilities
and the options for achieving essential conservation contributions
through other alternatives. The Service is still considering the
appropriateness of designating critical habitat on Quinault lands, for
any future revisions to critical habitat for the marbled murrelet.
    The Service considered including five marine areas in critical
habitat. Clean water and accessible foraging opportunities are
important life history requirements for the marbled murrelet. These
five areas support the highest concentrations of murrelets during the
breeding season in Washington, Oregon, and California. One area
consisted of the waters of Puget Sound and the Strait of Juan de Fuca
in Washington, including the waters surrounding the San Juan Islands.
The Service also considered near shore waters (within 2 km (1.2 mi) of
the shore) along the Pacific coast from Cape Flattery to Point
Grenville in Washington, from Newport Bay to Coos Bay in Oregon, from
the California State border to Cape Mendocino in northern California,
and from Pillar Point to Davenport in central California.
    While these marine areas are very important to the conservation of
marbled murrelets, the Service does not believe that they require
special management consideration or protection at this time beyond that
provided by the existing Federal laws and regulations discussed in the
Previous Management Efforts section. These laws and regulations
specifically address reducing the threats identified in the marine
environment.
    While the draft Recovery Plan clearly indicates that marine habitat
is important to the survival of marbled murrelets, it also indicates
that the primary concern with respect to declining murrelet populations
is loss of nesting habitat. The Service's evaluation of the effects of
actions in the terrestrial environment focuses on the impacts to the
species' nesting habitat, although take of murrelets is also addressed.
With respect to the marine environment the Service is primarily
concerned with mortality issues.
    Activities or events that adversely affect marbled murrelets at sea
seem to be more associated with the mortality of individual birds than
with long-term destruction or adverse modification of habitat. For
example, gillnet fisheries result in incidental capture of murrelets,
but may not significantly adversely affect the prey base. Murrelets
appear to forage opportunistically on available fish, and are likely
able to respond to minor changes in fish abundance and location.
    Murrelets are also adversely affected by spills of oil and other
pollutants. Although these events undoubtedly harm the murrelet prey
base, their principal adverse impact is the death of birds in the area
of the event. The effects of these events on the murrelet prey base are
somewhat more difficult to predict than are the effects on any
murrelets that happen to be in the area. The Service's assessments of
these events typically relies upon an assessment of the mortality issue
rather than an assessment of habitat issues such as prey base.
    Many of the threats specifically result in the loss of individuals
through death or injury. Such effects related to projects authorized,
funded, or carried out by a Federal agency can and should be considered
under section 7 of the Act. The Service will continue to monitor marine
threats and may propose marine critical habitat in the future if
warranted.

Changes From the Supplemental Proposal

    The Service reviewed public comments, information on forest stands
provided by landowners during the public comment period, aerial
photographs, and updated GIS data. The Service dropped areas and
corrected

area descriptions accordingly. Generally, the corrections were
relatively minor adjustments to boundary lines.
    A number of proposed units in southwest Washington on private and
State lands were reduced in size if it was determined that: (1) primary
constituent elements were not present or, (2) the area removed was not
considered necessary for the conservation of the species. The north
portion of Capital Forest (WA-04-a) was removed because of the lack of
primary constituent elements, coupled with high levels of motorized
recreational use that further reduce habitat potential.
    In Oregon, the Elliott State Forest was originally proposed for
designation as critical habitat. The State of Oregon has since
completed the Elliott State Forest Habitat Conservation Plan that
includes provisions for the marbled murrelet and received an incidental
take permit. This permit describes how the area will be managed for
murrelets. Therefore, the Service has removed this area from the final
designation.
    On Federal lands in Oregon, the Service included approximately 100
acres and deleted approximately 300 acres of land on the Siuslaw
National Forest at the request of the Forest Service. This change
reflects a land exchange intended to protect marbled murrelet occupied
sites. The Service deleted areas managed by the Siskiyou National
Forest (portions of subunits OR-07-e and OR-07-f); and the Eugene,
Roseburg and Medford Districts of the Bureau of Land Management
(subunits OR-04-h, and portions of subunits OR-06-d, OR-04-f, and OR-
04-I) based on survey information provided by the agencies during the
public comment period. Survey information included the location and
results (positive and negative) of murrelet surveys in the eastern
portion of these areas. The survey locations were based on planned
timber sales and habitat-based surveys in many areas, rather than a
statistically designed study to determine the inland distribution of
marbled murrelets. Therefore, the Service was only able to utilize the
survey information in critical habitat units where the survey effort
was greatest. The Service interprets lack of detections or occupied
sites, when coupled with habitat information, to indicate that these
areas are currently likely to support much lower densities of murrelets
than areas closer to the coast. The Service does not consider these
survey data to be sufficient at this time to define the full inland
distribution of murrelets in these areas and does not propose to change
the murrelet zones used in the Northwest Forest Plan.
    In California, some portions of proposed critical habitat on
private and Federal lands in the Siskiyou Coast Range Zone (unit CA-10-
b and the east half of unit CA-10-a) and on city and state lands in the
Santa Cruz Mountains Zone were dropped based on information provided by
the landowners and land management agencies or other new information
available to the Service. These areas were dropped because the Service
determined that they did not contain the primary constituent elements
or were not considered essential to the conservation of the species.
All of Golden Gate National Recreation Area was dropped based on
information provided by the National Park Service indicating that the
Federal government owns the timber rights to any potentially suitable
murrelet habitat within the area. After reviewing this information, the
Service has determined that Federal lands within the Golden Gate
National Recreation Area do not require special management.
    Portions of primary constituent element (3) from the supplemental
rule (forested areas of at least one-half the site-potential tree
height regardless of the presence of potential nest platforms) have
been incorporated into primary constituent element (2) in the final
rule, and the remainder dropped. Forested areas surrounding nest trees
were retained because they likely contribute to successful reproductive
efforts by providing the microclimate suitable for maintaining nest
tree characteristics and potentially reducing predation. The
contribution of forested areas to successful reproduction likely
decreases with increasing distance from the nest tree and at some
distance the contribution becomes indistinguishable. Raphael et al.
(1995) found an increased chance of occupancy in landscape conditions
with increased amounts of large saw timber and old growth components
within a 0.8 km (0.5 mile) radius circle. Specific studies are lacking
to document the value of forested conditions to marbled murrelet
nesting beyond the 0.8 km (0.5 mile) radius. Therefore, until these
studies are completed, it is the best professional judgement of Service
biologists that forested conditions within 0.8 km (0.5 mile) of a
potential nest tree contribute more significantly to successful
reproduction than those beyond this area and the Service has changed
the primary constituent elements accordingly.

Congressionally Withdrawn Areas

    Congressionally Withdrawn Areas (e.g., wilderness areas and
national parks) are limited in the range of the marbled murrelet in
Washington, Oregon, and California. Few wilderness areas are within the
flight distance of marbled murrelets from the marine environment,
although those that are provide crucial contributions to the
conservation of the species. Wilderness areas and national parks
contain approximately 302,000 hectares (747,000 acres) of marbled
murrelet nesting habitat, representing 29 percent of the suitable
nesting habitat on Federal lands in the range of the marbled murrelet.
However, a substantial portion of the remainder of these areas is
incapable of producing marbled murrelet nesting habitat because of
forest composition, lack of forest cover, elevation, and other
constraints. By themselves, Congressionally Withdrawn Areas are
incapable of supporting stable and interactive populations of marbled
murrelets.
    Marbled murrelet habitat in congressionally designated wilderness
areas, national parks, national monuments (natural areas), and national
wildlife refuges is generally managed by statutory requirements to
protect natural ecosystems and for the benefit of wildlife. Thus,
habitat in these areas does not require special management
consideration or protection. For example, a potential highway
realignment through the Redwood National Park in northern California
could result in the removal of occupied habitat. The Park's statutory
authority and general management goals, however, are considered
adequate to conserve the species without the additional designation of
critical habitat.
    However, not all Congressionally Withdrawn Areas are managed in
this manner. For example, some national recreation areas may not be
managed to maintain older forest habitats or may face external actions
(e.g., outside ownership of mineral or timber rights) which may
threaten marbled murrelet habitat within the area. One congressionally
withdrawn area in California, the Golden Gate National Recreation Area,
was proposed for designation. Area staff indicated that potential
marbled murrelet habitat within the area might still be subject to
timber harvest and loss, because the National Park Service does not
control rights to the standing timber on some parts of the recreation
area. During the public comment period the National

Park Service was able to verify that any lands where timber rights may
not be secure do not contain potentially suitable marbled murrelet
habitat. Therefore the Recreation Area was dropped from designation
because murrelet habitat within the area no longer needs special
management consideration or protection beyond the area's existing
statutory requirements.
    Several other congressionally designated areas were considered
important to recovery of the marbled murrelet because of their location
within the range of the species and presence of suitable nesting
habitat, but are not designated because they do not require special
management in light of their existing statutory requirements. These
include: (1) North Cascades, Olympic, and Mount Rainier National Parks;
Willapa National Wildlife Refuge; Mount Saint Helens National Volcanic
Monument; Mount Baker, Noisy Diobsud, Glacier Peak, Boulder River,
Henry M. Jackson, Alpine Lakes, Clearwater, Norse Peak, Glacial View,
Tatoosh, Buckhorn, The Brothers, Mount Skokomish, Wonder Mountain, and
Colonel Bob Wilderness Areas in Washington; (2) Drift Creek, Cummins
Creek, Rock Creek, Grassy Knob, Wild Rogue, and Kalmiopsis Wilderness
Areas in Oregon; and (3) the Kalmiopsis, Siskiyou, and Trinity
Wilderness Areas; Muir Woods National Monument and Point Reyes National
Seashore in California. Portions of the Smith River National Recreation
Area in California were not included because they did not contain high-
quality nesting habitat. External threats in these areas are very
limited, management goals are generally adequate to conserve the
species, and these areas do not require special management
consideration or protection beyond their individual statutory
authorities.

Economic Analysis Summary

    Section 1(b)(2) of the Act requires the Service to consider the
economic and other relevant impacts of specifying any particular area
as critical habitat. The Secretary may exclude areas from critical
habitat if the benefits of exclusion outweigh the benefits of including
the area in critical habitat, unless failure to designate a specific
area would result in extinction of the species. The Service contracted
with ECONorthwest, a consulting firm in Eugene, Oregon, to conduct an
economic analysis of the potential economic effects of designating
critical habitat for the marbled murrelet. As required by the Act, the
report addresses only the incremental economic consequences of the
proposed critical habitat. It does not address the consequences of
listing the species or other actions that have been proposed or taken
to protect marbled murrelets prior to this designation.
    The habitat covered by the designation plays a complex role in the
regional economy by producing multiple, valuable goods and services,
including: the marbled murrelet itself; other species, including
salmon; fresh water; recreational opportunities; and timber. The data
regarding the designation's impacts on some of these goods and services
are not sufficient to support a detailed conclusion about whether the
proposed designation would result in net economic benefits or costs.
Evidence indicates, however, that the designation's economic benefits
largely offset, and may even outweigh, its economic costs. The overall
net effect is expected to be close to zero.
    The designation will have few immediate and direct impacts on the
economy. The primary effect of critical habitat is through the section
7 requirement for Federal agencies to avoid the destruction or adverse
modification of critical habitat through actions they fund, permit, or
carry out. The Service, with information provided by the cooperating
Federal agencies, has determined that the designation of critical
habitat for the marbled murrelet is not likely to significantly
restrict the activities of any Federal agency, whether on Federal or
non-federal lands. In particular, although the designation will
reinforce the efforts of the Forest Service and Bureau of Land
Management to protect and enhance the terrestrial habitat of the
marbled murrelet, it will not cause these agencies to manage Federal
lands in a manner that will have immediate, direct impacts on the flow
of timber and other goods and services from these lands.
    For non-federal landowners with lands included in this designation,
the primary potential for an impact of critical habitat will be on
actions that require a Federal permit or involve Federal funding. One
of these activities is the issuance of incidental take permits under
section 10(a) of the Act. The Service works with landowners, at their
request, in the development of the HCP required for issuance of the
permit to allow activities to proceed while minimizing and mitigating
for impacts to listed species. The Service consults under section 7 on
the issuance of the permit, to ensure the permit will not jeopardize
the species or adversely modify critical habitat. The Service has
defined critical habitat for marbled murrelets to exclude lands covered
by a legally-operative incidental take permit for the species,
including marbled murrelet incidental take permits that may be issued
subsequent to the designation. Other permitting or funding agencies
have indicated that they do not expect critical habitat to have a
significant effect on permits or funding.
    The designation may, however, lead to changes in the actions of the
Washington Department of Natural Resources (WDNR), which is required by
State regulations to take Federal critical habitat designations into
account when assessing applications for permits to conduct logging and
other activities. These regulations require WDNR to scrutinize more
thoroughly the potential impacts on all aspects of the environment--
natural, recreational, cultural, and infrastructural--when a proposed
activity will occur inside designated critical habitat. However,
marbled murrelet critical habitat is defined to exclude areas covered
by marbled murrelet incidental take permits. Washington State Forest
Practices regulations exclude areas covered by a marbled murrelet
incidental take permit from this requirement.
    The economy most directly affected by the designation--western
Washington, western Oregon, and northwestern California--is highly
diversified and growing rapidly. Any potential loss of jobs should be
compensated for by other employment opportunities as has happened over
the last 15 years in this area. Markets are expected to respond
quickly, whatever the designation's impacts on the timber industry. The
designation is unlikely to cause any change in the prices of timber and
derivative products.

Summary of the Exclusion Process

    Under section 4(b)(2) of the Act, the Secretary may exclude any
area from critical habitat if he determines that the benefits of such
exclusions outweigh the benefits of specifying such areas as part of
the critical habitat, unless he determines that the failure to
designate such areas will result in the extinction of the species
concerned. To determine whether to include or exclude an area, the
Service has analyzed the economic and conservation benefits of
retaining or excluding critical habitat areas, and weighed those
benefits.
    The economic analysis focused on Federal agencies because the
primary impact of critical habitat occurs through a Federal nexus. For
the supplemental proposed rule, the Service contacted all Federal
agencies operating within the range of the murrelet in Washington,
Oregon, and California. The Service

discussed the potential effects of critical habitat and the various
regulatory activities of the agencies, to assist in determining whether
the proposed designation would have a potential to affect the agency's
actions, including funding and permitting activities on non-federal
lands. Each agency contact was sent a questionnaire requesting
information on the potential impacts of the designation on any projects
or activities funded, permitted, or carried out by their agency,
followed by personal contact. Follow-up contacts were made with the
various agencies to answer any additional questions. For the final
rule, updates were requested.
    Several portions of critical habitat were dropped from the proposed
rule due to new information made available to the Service during the
public comment period. Because the effects of critical habitat
designation vary by ownership and State regulation, the Service
evaluated the effect of the designation on areas defined by state and
ownership, beginning with critical habitat areas on Federal land in the
three States. Federal lands are managed under the same requirements,
through the Northwest Forest Plan. Therefore, potential effects of
critical habitat are similar for all these lands. Baseline condition of
Federal lands was established in the Northwest Forest Plan.
    Within each state, the Service examined the potential effects of
critical habitat on the various ownerships and areas defined by
differences in the baseline condition. Effects examined included any
potential effects where Federal permits or funding were involved. In
addition, any effects of state regulations that tier to Federal
critical habitat were examined.
    Based on the impacts revealed by the economic analysis summarized
above, and careful examination of the conservation benefits of the
critical habitat units, the Service has determined that the overall
conservation and other benefits to be gained from the designation
outweigh the benefits of excluding any remaining areas. Therefore, the
Service did not exclude any areas during this process and has made a
final determination to designate critical habitat for the marbled
murrelet. A copy of the economic analysis and description of the
exclusion process with supporting documents are included in the
Service's administrative record.

Effects of the Designation

    This designation of critical habitat for the marbled murrelet
identifies 32 critical habitat units encompassing approximately
1,573,340 hectares (3,887,800 acres) of Federal and non-Federal lands
based on information available in the Interagency Geographic
Information System (GIS). Twenty-two critical habitat units include
State, county, city, or private lands. See Table 1.

   Table 1.--Designated Critical Habitat by State, Ownership, and Land
                               Allocation
------------------------------------------------------------------------
                                             Hectares          Acres
------------------------------------------------------------------------
Washington:
    Federal Lands:
        Congressionally Withdrawn Lands.             740           1,800
        Late-Successional Reserves......         485,680       1,200,200
    Non-Federal Lands:
        State Lands.....................         172,720         426,800
        Private Lands...................           1,020           2,500
Oregon:
    Federal Lands:
        Late-Successional Reserves......         541,530       1,338,200
    Non-Federal Lands:
        State Lands.....................          70,880         175,100
        County Lands....................             440           1,100
        Private Lands...................             350             900
California (Northern):
    Federal Lands:
        Late-Successional Reserves......         193,150         477,300
    Non-Federal Lands:
        State Lands.....................          71,040         175,500
        Private Lands...................          16,360          40,400
California (Central):
        State Lands.....................          14,080          34,800
        County Lands....................           3,230           8,000
        City Lands......................             400           1,000
        Private Lands...................           1,720           4,200
------------------------------------------------------------------------

    Some small areas of naturally occurring or human-created unsuitable
habitat (i.e., areas that have never been or will likely never be
marbled murrelet nesting habitat, such as alpine areas, water bodies,
serpentine meadows, lava flows, airports, roads, buildings, parking
lots, etc.) are inside the boundaries of critical habitat units but are
not affected by the designation because they do not contain primary
constituent elements. Where possible, these areas were not included
within the critical habitat boundaries and acreage totals were adjusted
to reflect the exclusion of this non-suitable habitat. However, many of
these areas are small and could not be physically identified on the GIS
maps. Current mapping information does not allow precise identification
of the location of all forest areas containing primary constituent
elements. This is particularly true for potential nest trees. These
trees are often a small component of the forest stands and are not
recorded on many timber-oriented data systems. The Service used the
best existing data to locate the forest areas most likely to contain
the primary constituent elements. Where possible in the time frame
available, the Service refined the boundaries of the critical habitat
units to eliminate significant identified areas that do not contain one
or more of the primary constituent elements based on the best data
available.
    Efforts by Federal agencies to survey for marbled murrelets have
been concentrated in areas of proposed

timber sales or limited research locations. A small fraction of
suitable nesting habitat has been surveyed to date, and surveys have
not been uniformly spread throughout the range of the species.
Therefore, known occupied sites provide only a partial indication of
the areas used by the species. In addition, there are a significant
number of known occupied sites within Redwood National Park that are
not currently on the database and are therefore not reported here. The
designated critical habitat includes 695 (86 percent) of the 807 known
occupied sites on Federal lands.
    The Service had limited information about the amount of suitable
nesting habitat or habitat containing one or more of the primary
constituent elements on non-Federal lands within the species' range.
The Service relied on analysis of satellite imagery that does not
identify small features such as potential nest trees. The Service is
aware of at least 354 known occupied sites on non-Federal lands, of
which 218 (61 percent) are included within critical habitat. Several of
the occupied sites outside of critical habitat are within the Elliott
State Forest, which is operating under an active incidental take permit
for murrelets. The Service did receive specific and detailed
information in the public comments from some non-Federal landowners
relative to the forest condition on their lands. Based on this
information, the Service has removed from the designation lands that
are unlikely to contain either primary constituent element.

Available Conservation Measures

    Two of the principal purposes of the Act, as stated in section
2(b), are to provide a means to conserve the ecosystems upon which
endangered and threatened species depend and to provide a program for
the conservation of listed species. The Act mandates the conservation
of species through several different mechanisms, such as section 7
(requiring Federal agencies to ensure that their actions will not
likely jeopardize the continued existence of the listed species or
result in the destruction or adverse modification of critical habitat);
section 9 (prohibition of taking of listed species); section 10
(habitat conservation plans); and section 6 (cooperative State and
Federal grants).

Recovery Planning

    Designation of critical habitat does not offer specific direction
for managing marbled murrelet nesting or foraging habitat and does not
provide a management or conservation plan for the species. Guidance for
conservation is generally provided in recovery plans, which usually
include management recommendations for designated critical habitat. The
Service continues to work closely with the Marbled Murrelet Recovery
Team relative to critical habitat.
    Recovery planning is an ``umbrella'' that guides conservation
activities under the Act and promotes a species' conservation. Recovery
plans provide guidance, which may include population goals and
identification of areas that are in need of protection or special
management. Recovery plans also include management recommendations for
areas proposed or designated as critical habitat. Critical habitat
promotes recovery by highlighting areas that should be given additional
consideration in local planning processes. Critical habitat helps focus
conservation activities by identifying areas that contain essential
habitat features (primary constituent elements) and that may require
special management or protection. Critical habitat complements recovery
plans by providing a regulatory mechanism when a Federal nexus is
present to increase immediate protection of primary constituent
elements and essential areas and preserve options for the long-term
conservation of the species.

Section 7  Consultation

    Section 7(a)(2) of the Act requires Federal agencies to insure that
activities they authorize, fund, or carry out are not likely to destroy
or adversely modify designated critical habitat. This Federal
responsibility accompanies, and is in addition to, the requirement in
section 7(a)(2) of the Act that Federal agencies insure that their
actions are not likely to jeopardize the continued existence of any
listed species. A Federal agency must consult with the Service if its
proposed action may affect a listed species or critical habitat.
Regulations implementing this interagency cooperation provision of the
Act are codified at 50 CFR 402.
    Destruction or adverse modification of critical habitat is defined
as ``* * * a direct or indirect alteration that appreciably diminishes
the value of critical habitat for both the survival and recovery of a
listed species. Such alterations include, but are not limited to,
alterations adversely modifying any of those physical or biological
features that were the basis for determining the habitat to be
critical.'' 50 CFR 402.02. Jeopardy is defined at 50 CFR 402.02 as any
action that would be expected to reduce appreciably the likelihood of
both the survival and recovery of a listed species in the wild. The
scope of analysis for evaluating the impacts of an activity on marbled
murrelet critical habitat is the broadly defined unit and conservation
zone, not each individual acre. The designation of critical habitat
does not create de facto wilderness or prohibit all human activities
within the boundaries. Many activities may take place in critical
habitat without resulting in the destruction or adverse modification of
the critical habitat.

Section 10  Incidental Take Permits (Habitat Conservation Plans)

    Section 10(a) of the Act authorizes the Service to issue permits
for the taking of listed species incidental to otherwise lawful
activities. Incidental take permit applications must be supported by a
habitat conservation plan (HCP) that identifies conservation measures
that the permittee agrees to implement for the species to minimize and
mitigate the impacts of the requested incidental take. The issuance of
an incidental take permit is a Federal action and is subject to the
consultation requirements of section 7 of the Act. The Service cannot
issue an incidental take permit if the HCP would jeopardize any listed
species, or destroy or adversely modify any critical habitat.
    The Service expects that critical habitat may be used as a tool to
help identify areas within the range of the murrelet most critical for
the conservation of the species and the Service will encourage
development of HCPs for such areas on non-federal lands. The Service
considers HCPs to be one of the most important methods through which
non-Federal landowners can resolve endangered species conflicts. The
Service provides technical assistance and works closely with applicants
throughout the development of HCPs to help identify special management
considerations for the murrelet. Several HCP efforts are currently
underway in areas designated as murrelet critical habitat in
Washington, Oregon, and California.
    HCPs, coupled with Federal management under the Northwest Forest
Plan, provide an opportunity to develop a package of sufficient
management considerations that meet or enhance the conservation of the
species. Thus, they may remove the need for special management
consideration or protection, thereby removing the need to designate
such areas as critical habitat. Therefore, any lands within critical
habitat that are covered by a legally-operative incidental take permit
for marbled murrelets based on an approved HCP that addresses
conservation of the marbled murrelet are excluded from the critical
habitat

while the permit is active. The State of Oregon is currently operating
under an incidental take permit for murrelets on the Elliott State
Forest, therefore this area has been excluded from critical habitat.

Basis for Section 7 Analysis

    Designation of critical habitat focuses on the primary constituent
elements within the designated habitat units and their contribution to
the species' survival and recovery. The evaluation of actions that may
affect critical habitat for the marbled murrelet would consider the
effects of a Federal action on any of the factors that were the basis
for determining the habitat to be critical, including the primary
constituent elements of potential nest trees and surrounding forest.
    The range of the marbled murrelet has been subdivided by the
Recovery Team into six Marbled Murrelet Conservation Zones (USFWS
1995a), as discussed in the Previous Management Efforts section. These
subdivisions were not based on identification of separate populations
of marbled murrelets, but rather on the need for potentially different
recovery actions in various portions of the marbled murrelet's range,
and the need to maintain well-distributed populations. Marbled
murrelets within the conservation zones are likely to interact across
zone boundaries at some level.
    For a wide-ranging species such as the marbled murrelet, where
multiple critical habitat units are designated, each unit has a
regional (conservation zone) and range-wide role in contributing to the
conservation of the species. The basis for an adverse modification
opinion would be whether a proposed action appreciably reduces the
ability of critical habitat to function in achieving the regional
conservation zone goals. In evaluating the effect of a proposed action,
the Service will analyze the impacts to individual units in light of
their overall contribution to the survival and recovery of murrelets in
the conservation zone described in the Previous Management Efforts
section, and the overall range of the marbled murrelet in Washington,
Oregon, and California. Thus, an adverse modification finding would be
based upon a broader inquiry than the mere assessment of adverse
effects at the local unit level. The loss of populations throughout one
or more conservation zones, or even a major part of a conservation
zone, could lead to genetic and demographic isolation of parts of the
population.

Examples of Proposed Actions

    Section 4(b)(8) of the Act requires, for any proposed or final
regulation concerning critical habitat, a brief description and
evaluation of those activities (public or private) that may adversely
modify such habitat or may be affected by the critical habitat
designation. Regulations found at 50 CFR 402.02 define destruction or
adverse modification of critical habitat as a direct or indirect
alteration that appreciably diminishes the value of critical habitat
for both the survival and recovery of a listed species. Such
alterations include, but are not limited to, alterations adversely
modifying any of those physical or biological features that were the
basis for determining the habitat to be critical.
    A variety of ongoing or proposed activities that disturb or remove
primary constituent elements may adversely affect, though not
necessarily ``adversely modify'' marbled murrelet critical habitat as
that term is used in section 7 consultations. Examples of such
activities include, but are not limited to, (1) forest management
activities which greatly reduce stand canopy closure, appreciably alter
the stand structure, or reduce the availability of nesting sites; (2)
land disturbance activities such as mining, sand and gravel extraction,
construction of hydroelectric facilities and road building, and (3)
harvest of certain types of commercial forest products (e.g. moss).
These activities have the following effects on the primary constituent
elements of murrelet critical habitat:
    (1) Removal or degradation of individual trees with potential
nesting platforms, or the nest platforms themselves, that results in a
significant decrease in the value of the trees for future nesting use.
Moss may be an important component of nesting platforms in some areas.
    (2) Removal or degradation of trees adjacent to trees with
potential nesting platforms that provide habitat elements essential to
the suitability of the potential nest tree or platform, such as trees
providing cover from weather or predators.
    (3) Removal or degradation of forested areas with a canopy height
of at least one half the site-potential tree height and regardless of
contiguity, within 0.8 km (0.5 mile) of individual trees containing
potential nest platforms. This includes removal or degradation of trees
currently unsuitable for nesting that contribute to the structure/
integrity of the potential nest area (i.e., trees that contribute to
the canopy of the forested area). These trees provide the canopy and
stand conditions important for marbled murrelet nesting.
    For a proposed action to result in the destruction or adverse
modification of critical habitat, it must appreciably diminish the
value of critical habitat for both the survival and recovery of a
listed species in the affected conservation zone. Each proposed action
requiring a section 7 consultation must be evaluated individually, in
light of the baseline condition of the critical habitat unit and
conservation zone, unique history of the area, and effect of the impact
on the critical habitat unit in light of its regional and range-wide
role in the conservation of the species. Activities that are acceptable
in one critical habitat unit or conservation zone may cause serious
effects in another, due to differences in current condition and
conservation needs. Therefore, the Service cannot provide, in this
rule, a detailed description of the threshold for future actions that
would result in the destruction or adverse modification of critical
habitat applicable throughout the range of the species.
    A variety of activities would not affect the primary constituent
elements and therefore would not adversely modify critical habitat.
Such activities would include, but are not limited to, certain
recreational use and personal-use commodity production (e.g., mushroom
picking, Christmas tree cutting, rock collecting, recreational fishing
along inland rivers) and certain commercial commodity production (e.g.,
mushroom picking, brush picking). Actions that affect forest stands not
within 0.8 km (0.5 miles) of individual trees with potential nesting
platforms (are not primary constituent elements) also would not
adversely modify critical habitat, even if they are within the
boundaries of the area designated as critical habitat.
    Activities that do not affect the primary constituent elements in
the forests are unlikely to be affected by the designation. However,
even though an action may not adversely modify critical habitat, it may
still affect marbled murrelets (e.g. through disturbance) and may,
therefore, still be subject to consultation under section 7 of the Act.
    Activities conducted according to the standards and guidelines for
Late-Successional Reserves, as described in the ROD for the Northwest
Forest Plan would be unlikely to result in the destruction or adverse
modification of marbled murrelet critical habitat. Activities in these
areas would be limited to manipulation of young forest stands that are
not currently marbled murrelet nesting habitat. These forest management
activities would be

conducted in a manner that would not slow the development of these
areas into future nesting habitat, and should speed the development of
some characteristics of older forest.

Summary of Comments and Recommendations on the Supplemental Proposed
Rule

    In the August 10, 1995, supplemental proposed rule for designation
of marbled murrelet critical habitat, the Service requested all
interested parties to submit information and comments concerning the
proposal. Additional comments were received at five public hearings
held on the supplemental proposed rule in Washington, Oregon, and
California.
    During the public comment period, the Service received 339 written
comments. In addition, 60 people testified at the public hearings. All
comments received are part of the record for this designation and are
available for public review. Issues raised during the public comment
period that were not addressed in the body of the final rule are
discussed next.

Legal/Policy

    Issue 1: Two commenters questioned whether the language of a
temporary injunction granted by Judge Chesney of the United States
District Court for the Northern District of California expanded the
scope of activities subject to consultation under section 7 of the Act,
and therefore the impact of critical habitat on non-federal lands.
    Service Response: Judge Chesney ruled that there was a serious
question as to whether the Service's advice to a timber company, that
proposed logging would not result in take of the marbled murrelet in
violation of section 9 of the Act, was an action subject to section 7
consultation. On May 7, 1996, the U.S. Court of Appeals for the Ninth
Circuit reversed Judge Chesney's ruling and concluded that the
Service's advice to a private entity on compliance with section 9 is
not an action subject to section 7. Marbled Murrelet v. Babbitt, No.
95-16945 (9th Cir.).
    A Federal nexus refers to a situation where a Federal agency
authorizes, funds, or carries out an action.
    Issue 2: One commenter questioned whether the acceptance of Federal
funding for a project on a portion of a State forest would create a
Federal nexus for all activities on the forest.
    Service Response: The Federal nexus would apply only to the funded
activity and related actions. Actions that are interrelated and
interdependent with the federally-funded activity would be considered
in the biological opinion and could be subject to modification. Any
modifications suggested by the Service would, for a non-jeopardy/non-
adverse modification action, be confined to ``minor'' changes which
would still allow the goals and intent of the project to be met. Other
unrelated actions would not be covered in the consultation.
    Issue 3: Several commenters questioned the statement that critical
habitat designation would not affect activities on State, local, or
private lands unless there is a Federal permit, license, or funding
involved, citing potential impacts of the designation through State
laws.
    Service Response: During the public comment period, the Service
sought and received additional information on the potential impact of
critical habitat designation resulting from State laws and regulations.
The potential impacts vary by state. See the Role in Species
Conservation section for a detailed discussion of the effects by state.
    Issue 4: Several commenters recommended that the Service postpone
issuing a final rule until additional studies are conducted and better
information on the species' biology and threats is available. Other
commenters suggested that the Service should seek new information
before adopting a final rule.
    Service Response: The Service is required to use the best available
information in designating critical habitat. The Service is under court
order to complete the designation of murrelet critical habitat by May
15, 1996. The Service did solicit new biological data and public
participation during the comment period and public hearings on the
revised proposed rule. The Service will continue to monitor and collect
new information and may revise the critical habitat designation in the
future if new information supports a change.
    Issue 5: Several commenters raised issues already addressed in the
supplemental proposed rule for the designation of critical habitat for
the marbled murrelet (60 FR 40892). These include issues related to the
listing of the species, the potential for critical habitat to result in
the ``take'' of private lands, access across critical habitat, the need
for an Environmental Impact Statement, and questions on the
prehistorical condition of habitat in the Oregon Coast Ranges.
    Service Response: The Service incorporates by reference its
responses to these issues contained in the supplemental proposed rule
(60 FR 40892). No new information was provided that would result in any
significant changes to the responses in the supplemental proposed rule.
    Issue 6: One commenter maintained that the Service failed to
distinguish recovery objectives from the designation of critical
habitat.
    Service Response: In the revised proposed rule, the Service
provided information on the link between recovery and critical habitat.
The areas designated as murrelet critical habitat conform to the Act's
requirements for critical habitat designations. Critical habitat
includes the areas ``essential to the conservation of the species'' (16
USC 1532(5)(A)). Conservation is defined in the Act as actions
necessary to promote recovery of the species (16 USC 1532(3)).
Therefore, critical habitat is linked to recovery.
    The commenter also confused the issuance of a ``no jeopardy''
biological opinion on the Northwest Forest Plan with conservation of
the murrelet throughout three-state range. The biological opinion on
the Northwest Forest Plan addressed only the impacts on Federal lands.
Conservation of the murrelet has to be analyzed more broadly.
    Issue 7: One commenter maintained that the Service failed to
provide reasoned explanation for changes between the first and second
proposals.
    Service Response: The Service addressed the basis and rationale for
the differences in the supplemental proposed rule (60 FR 40892). In the
first proposal, the Service had indicated that some revisions might be
necessary and had requested information to assist the Service in making
changes.
    Issue 8: One commenter suggested that the Service provide a method
to correct legal descriptions without going through the formal rule-
making process. Other commenters suggested that the Service specify
that lands traded from public to private ownership be excluded from
critical habitat once the trade is complete. Several commenters
believed that failure to exclude traded areas would effectively halt