[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Rules and Regulations]
[Pages 71386-71410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24790]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2014-0045; FXES11130900000C6-167-FF09E42000]
RIN 1018-BA30
Endangered and Threatened Wildlife and Plants; Reclassifying the
Columbia River Distinct Population Segment of the Columbian White-
Tailed Deer as Threatened With a Rule Under Section 4(d) of the Act
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened species status under the Endangered Species Act of 1973
(Act), as amended, for the Columbia River distinct population segment
(DPS) of Columbian white-tailed deer (Odocoileus virginianus leucurus).
This subspecies of white-tailed deer is found in limited areas of
Clatsop, Multnomah, and Columbia Counties in Oregon, and Cowlitz,
Wahkiakum, Pacific, Skamania, and Clark Counties in Washington. The
effect of this rule is to change the listing status of the Columbia
River DPS of Columbian white-tailed deer from an endangered species to
a threatened species on the List of Endangered and Threatened Wildlife.
We call this ``reclassifying'' or ``downlisting'' the DPS. We are also
adopting a rule under the authority of section 4(d) of the Act (a
``4(d) rule'') that is necessary and advisable to provide for the
conservation of the Columbia River DPS of the Columbian white-tailed
deer.
DATES: This rule is effective November 16, 2016.
ADDRESSES: This final rule is available online at http://www.regulations.gov under Docket No. FWS-R1-ES-2014-0045. Comments and
materials received, as well as supporting documentation used in
preparation of this final rule, are available for public inspection at
http://www.regulations.gov, or by appointment, during normal business
hours at: U.S. Fish and Wildlife Service, Oregon Fish and Wildlife
Office, 2600 SE. 98th Avenue, Portland, OR 97266; telephone 503-231-
6179.
FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor,
telephone: 503-231-6179. Direct all questions or requests for
additional information to: Columbian White-tailed Deer Information
Request, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife
Office, 2600 SE. 98th Avenue, Portland, OR 97266. Individuals who are
hearing impaired or speech impaired may call the Federal Relay Service
at 800-877-8337 for TTY (telephone typewriter or teletypewriter)
assistance 24 hours a day, 7 days a week.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species may warrant
reclassification from endangered to threatened if it no longer meets
the definition of endangered (in danger of extinction). The
reclassification of a listed species can only be completed by issuing a
rule. The endangered designation no longer correctly reflects the
current status of the Columbia River DPS of Columbian white-tailed deer
(CWTD) due to a substantial improvement in the species' status. This
action is based on a thorough review of the best available scientific
and commercial data, which indicate an increasing population trend
within the DPS and the presence of multiple secure subpopulations.
This rule finalizes the reclassification of the Columbia River DPS
of CWTD as a threatened species. It includes provisions under the
authority of section 4(d) of the Act that are necessary and advisable
for the conservation needs of the CWTD.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any one or a
combination of the five factors described in section 4(a)(1) of the
Act: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. The population of the Columbia River DPS of CWTD
consists of over 900 individuals. In addition to the new Ridgefield
National Wildlife Refuge (NWR) subpopulation of 100 individuals, there
are three other secure subpopulations. We have determined that the CWTD
is no longer at risk of extinction and, therefore, does not meet the
definition of endangered, but is still impacted by habitat loss and
degradation of habitat to the extent that the DPS meets the definition
of a threatened species under the Act (a species which is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range).
Under section 4(d) of the Act, the Secretary of the Interior has
discretion to issue such regulations she deems necessary and advisable
to provide for the conservation of the species. A 4(d) rule may include
some or all of the prohibitions and authorizations set out in title 50
of the Code of Federal Regulations (CFR) at sections 17.31 and 17.32
(50 CFR 17.31 and 17.32), but also may be more or less restrictive than
those general provisions. For the Columbia River DPS of CWTD, the
Service has determined that a 4(d) rule is appropriate as a means to
facilitate conservation of CWTD in the Columbia River DPS and expansion
of the species' range by increasing flexibility in management
activities for our State and Tribal partners and private landowners.
Peer review and public comment. We sought comments from independent
specialists to ensure that our
[[Page 71387]]
determination is based on scientifically sound data, assumptions, and
analyses. We invited these peer reviewers to comment on the downlisting
proposal. We considered all comments and information we received during
the comment period.
Background
Previous Federal Actions
On March 11, 1967, the Secretary of the Interior identified the
CWTD as an endangered species (32 FR 4001), under the authority of the
Endangered Species Preservation Act of October 15, 1966 (80 Stat. 926;
16 U.S.C. 668aa(c)). On March 8, 1969, the Secretary of the Interior
again identified the CWTD as an endangered species (34 FR 5034) under
section 1(c) of the Endangered Species Preservation Act of 1966. On
August 25, 1970, the Acting Secretary of the Interior proposed to list
the CWTD as an endangered subspecies (35 FR 13519) under the authority
of new regulations implementing the Endangered Species Conservation Act
(ESCA) of 1969. On October 13, 1970, the Director of the Bureau of
Sport Fisheries and Wildlife listed the CWTD as an endangered
subspecies (35 FR 16047) under the authority of new regulations
implementing the ESCA of 1969. Species listed as endangered under the
ESCA of 1969 were automatically included in the List of Endangered and
Threatened Wildlife when the Endangered Species Act (16 U.S.C. 1531 et
seq.) was enacted in 1973. In December 1971, the Service established
the Julia Butler Hansen National Wildlife Refuge (JBHR) for CWTD in
Cathlamet, Washington. JBHR consists of the Mainland Unit and
Tenasillahe Island (see Figure 1).
On October 21, 1976, the Service released the CWTD Recovery Plan.
On June 14, 1983, the Service released the Revised Recovery Plan for
CWTD. The revised plan addressed the two main populations of CWTD,
Columbia River and Douglas County, separately. On July 24, 2003, the
Service published a rule (68 FR 43647) that: (1) Recognized the Douglas
County and Columbia River populations as DPSs under the Service's 1996
Policy Regarding the Recognition of Distinct Vertebrate Population
Segments under the Act (see 61 FR 4722; February 7, 1996), and (2)
removed the Douglas County population of CWTD from the List of
Endangered and Threatened Wildlife. It was determined that recovery
criteria for the Douglas County population had been met, as it achieved
benchmarks in both population size and amount of secure habitat.
A 5-year status review of the Columbia River DPS was completed on
November 5, 2013 (U.S. Fish and Wildlife Service 2013a). This review
concluded that the CWTD's status had substantially improved since
listing, that the DPS no longer met the definition of an endangered
species under the Act, and recommended that the DPS be downlisted from
endangered to threatened.
On October 8, 2015, we published a proposed rule (80 FR 60850) to
downlist the Columbia River DPS of CWTD from endangered to threatened,
with a 4(d) rule that is necessary and advisable to provide for the
conservation of that DPS. We accepted public comments on the proposal
for 60 days, ending December 7, 2015.
Species Information
The CWTD is the westernmost representative of 38 subspecies of
white-tailed deer in North and Central America (Gavin 1984, p. 6). It
resembles other white-tailed deer subspecies, ranging in size from 39
to 45 kilograms (kg) (85 to 100 pounds (lb)) for females and 52 to 68
kg (115 to 150 lb) for males (Oregon Department of Fish and Wildlife
1995, p. 2). Although CWTD can live up to 20 years, their median
lifespan ranges from 3 to 5 years for bucks and 5 to 9 years for does
(Gavin 1984, p. 490; U.S. Fish and Wildlife Service, unpublished data).
Breeding occurs from mid-September through late February, with a peak
in November. Does reach sexual maturity by 6 months of age or when
their weight reaches approximately 36 kg (80 lb); however, their
maturation and fertility depends on the nutritional quality of
available forage (Verme and Ullrey 1984, p. 96). Fawns are born in
early summer after an approximately 200-day gestation period. In their
first pregnancy, does usually give birth to a single fawn, although
twins are common in later years if forage is abundant (Verme and Ullrey
1984, p. 96). On the JBHR Mainland Unit, Service biologists often
observe fawns in pastures of tall, dense reed canary grass (Phalaris
arundinacea L.) and tall fescue (Festuca arundinacea), as well as mixed
deciduous and Sitka spruce (Picea sitchensis) forest (U.S. Fish and
Wildlife Service 1983, p. 10; Brookshier 2004, p. 2).
CWTD were formerly distributed throughout the bottomlands and
prairie woodlands of the lower Columbia, Willamette, and Umpqua River
basins in Oregon and southern Washington (Bailey 1936, p. 92; Verts and
Carraway 1998, p. 479). The subspecies occupied a range of
approximately 60,000 square kilometers (km\2\) (23,170 square miles
(mi\2\)) west of the Cascades Mountains: From the Dalles, Oregon, in
the east, to the Pacific Ocean in the west; and Lake Cushman in Mason
County, Washington, in the north, to Grants Pass, Oregon, in the south
(Crews 1939, p. 3; Smithsonian 2014, p. 1). Early accounts indicate
that CWTD were locally common, particularly in riparian areas along
major rivers (Crews 1939, p. 5), until the arrival and settlement of
pioneers in the fertile river valleys (Crews 1939, p. 2). Conversion of
brushy riparian land to agriculture, urbanization, uncontrolled sport
and commercial hunting, and perhaps other factors caused the
extirpation of CWTD over most of its range by the early 1900s (Crews
1939, pp. 2, 5). By 1940, a population of 500 to 700 animals along the
lower Columbia River in Oregon and Washington, and a disjunct
population of 200 to 300 in Douglas County, Oregon, survived (Crews
1939, p. 3; Gavin 1984, p. 487; Verts and Carraway 1998, p. 480). These
two remnant populations remain geographically separated by about 320 km
(200 mi), much of which is unsuitable or discontinuous habitat.
Currently, the Columbia River DPS has a discontinuous range of
approximately 240 km\2\ (93 mi\2\) or about 24,281 hectares (ha)
(60,000 acres (ac)) (Smith 1985, p. 247) (Figure 1) in limited areas of
Clatsop, Multnomah, and Columbia Counties in Oregon, and Cowlitz,
Wahkiakum, Pacific, Skamania, and Clark Counties in Washington. Within
that range, CWTD currently occupy an area of approximately 6,475 ha
(16,000 ac) (U.S. Fish and Wildlife Service 2013a, p. 7), with a 2015
population estimate of about 966 deer (U.S. Fish and Wildlife Service,
unpublished data).
BILLING CODE 4333-15-P
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[GRAPHIC] [TIFF OMITTED] TR17OC16.003
BILLING CODE 4333-15-C
Summary of Comments and Recommendations
In the proposed rule that published on October 8, 2015 (80 FR
60850), we requested that all interested parties submit written
comments on the proposal by December 7, 2015. We also contacted
appropriate Federal and State agencies, scientific experts and
organizations, and other interested parties and invited them to comment
on the proposal. Newspaper notices inviting general public comments
were published in the Oregonian, Columbian, Olympian, and Seattle Times
newspapers. We did not receive any requests for a public hearing.
During the public comment period on the proposed rule, we received
a total of 9 comment letters, including 3 from peer reviewers,
addressing the proposed downlisting and proposed 4(d) rule. We received
two duplicate comments in opposition to the proposed downlisting;
however, no reasons specific to CWTD were given. The other seven
comment letters either supported the proposed downlisting and proposed
4(d) rule or provided anecdotal evidence of increases in CWTD numbers.
Within those 7 comment letters, we identified 15 substantive comments
grouped into 6 categories: status of CWTD, population dynamics, threat
assessment, surveys, calculated take, and habitat security. All
substantive information provided during comment periods has either been
incorporated directly into this final determination or is addressed
below. All public and peer review comments are available at http://www.regulations.gov (Docket No. FWS-R1-ES-2014-0045) and from our
Oregon Fish and Wildlife Office by request (see FOR FURTHER INFORMATION
CONTACT).
Peer Review
In accordance with our policy, ``Notice of Interagency Cooperative
Policy for Peer Review in Endangered Species Act Activities,''
published on July 1, 1994 (59 FR 34270), we solicited expert opinion of
three knowledgeable individuals with scientific expertise that included
familiarity with CWTD and its habitat, biological needs, and threats.
We received responses from all three peer reviewers.
[[Page 71389]]
Peer Reviewer Comments
(1) Comment: Two peer reviewers commented on the status of CWTD.
They agreed that the DPS was not in immediate danger of extinction. One
peer reviewer also requested clarification on the Upper Estuary Island
subpopulation and commented that translocations to the Upper Estuary
Island area were successful because CWTD were not found there
previously. Another peer reviewer asked if there was any biological
evidence to support calling Westport and Wallace Island the same
subpopulation.
Our Response: Greater detail has been added to the description of
the Upper Estuary Island subpopulation to clarify which islands are
included and why. We concur that translocations to the Upper Estuary
Islands did create a new subpopulation of CWTD; however, recovery
criteria for minimum population sizes of deer have not yet been met,
and extensive management would likely be required in order to expand
the population. We did not group Westport and Wallace Island based on
biological evidence; rather, we defined subpopulations by the
likelihood of mixing. At the narrowest point, Wallace Island is
approximately 0.13 miles (0.21 km) from the bank of the Oregon mainland
near Westport. At the widest point, Wallace Island is 0.30 miles (0.49
km) from the shore. Although we do not have telemetry data or genetic
data, Wallace Island appears to be close enough that deer would cross
between it and Westport, and we do have evidence that deer are capable
of crossing the amount of water between these two areas (Meyers 2016,
pers comm.). Wallace Island is also not large enough to support a self-
sustaining herd, such that CWTD on the island likely rely on Westport
for their life-history requirements.
(2) Comment: We received two comments regarding population dynamics
in regard to subpopulation classification. One peer reviewer asked if
the new population at Ridgefield NWR was a subpopulation or a new DPS.
Another commenter stated that the lower Columbia River population
(LCRP) is a metapopulation with unique attributes that underpin and
influence all three elements of population dynamics. The commenter went
on to say that metapopulations rely on both demographic and genetic
rescue through periodic dispersal from other subpopulations (none of
which was acknowledged, described, or discussed), suggesting a lack of
understanding of the unique nature of the LCRP or the population
processes necessary for its persistence. The commenter further stated
that the risk of extirpation of each subpopulation is far greater than
the metapopulation, which increases substantially as each subpopulation
becomes extirpated, and that there was little data or discussion about
dispersal among subpopulations, which is fundamental to metapopulation
viability.
Our Response: The new population at Ridgefield NWR is a
subpopulation, not a DPS, because it occurs within the identified range
of the current DPS and there are no geographical barriers preventing
the deer from intermingling with other nearby subpopulations within the
existing DPS. The Service agrees that since the various subpopulations
in the lower Columbia River DPS have infrequent, but regular,
interactions among them, the entire lower Columbia River DPS can be
considered a metapopulation. For instance, CWTD have been seen swimming
between the JBHR Mainland Unit and Tenasillahe Island (Meyers 2015,
pers. comm.). While we have anecdotal evidence, along with data from
several telemetry receivers, to document movement patterns of CWTD, we
do not have information available regarding dispersal patterns or gene
flow across the entire DPS. Based on yearly survey efforts, however, we
do know that no new subpopulations have formed without translocations,
suggesting dispersal may be limited.
(3) Comment: We received one comment regarding population dynamics
as it relates to the origin of our minimum viable population size
estimates. Specifically, the commenter asked how we can say that 50
deer is a minimum viable population without any consideration of age
and sex structure.
Our Response: We incorporated additional clarification on the
origin of minimum viable population estimates from the 1983 Revised
Recovery Plan, including details on how age and sex structure were
incorporated into the estimates. To determine minimum population sizes,
the Revised Recovery Plan used the formula F = 1/(2Ne),
where F is the inbreeding coefficient and Ne is the
effective population size (i.e., the number of individuals the
contribute offspring to the next generation) (U.S. Fish and Wildlife
Service 1983, p. 72). Given potential barriers to genetic exchange
within the Columbia River DPS, the Revised Recovery Plan considered 2
percent to be the maximum reasonable inbreeding coefficient for a
subpopulation and 0.25 percent to be a reasonable inbreeding
coefficient for the total DPS population (U.S. Fish and Wildlife
Service 1983, pp. 72-74). Using both the aforementioned formula and
inbreeding coefficients, the effective population size would be a
minimum of 50 deer per subpopulation and a minimum of 400 total deer in
the DPS, after correcting for an unequal sex ratio (3 females to 1
male) and the percentage of the herd that is of breeding age (65
percent) (U.S. Fish and Wildlife Service 1983, p. 73). To determine the
sex ratio and the percentage of breeding individuals, we used data from
surveys of fawn to doe ratios that also included number of bucks seen
during those surveys. We continue to conduct fawn to doe surveys on the
current population to gather sex ratio and age structure information,
but we do not use that information to create new minimum viable
population (MVP) estimates. We also do not break down age classes
further than fawn and adult. In white-tailed deer, age can be estimated
based on tooth wear and replacement, the amount of cementum built up on
the roots of the teeth, or physical characteristics. The first two
techniques require the jaws of the deer, which require capturing or
killing the deer; however the latter technique, also known as aging on
the hoof (AOTH), can be done in the field. In a recent study assessing
the efficacy of AOTH by deer biologists, the overall accuracy of
assigning white-tailed deer of known ages into the correct age category
was 36 percent (Gee et al. 2014, p. 99). Since the accuracy of AOTH is
poor and it is only used to age adult males, we used the more
conservative categorization of fawn, adult female, or adult male for
our age and sex structure. This information still allowed us to
estimate both the sex ratio of adults and the proportion of a
population that is breeding, both of which were important details in
calculating the aforementioned MVP size of 50 individuals per
subpopulation. All of the subpopulations deemed viable have far
exceeded the MVP of 50 individuals per subpopulation. In 2015, Puget
Island had almost five times the number of individuals necessary to
achieve the MVP, while Westport/Wallace had almost four times the
number of individuals, and Tenasillahe Island had three times the
number of individuals. These data provide support that the viable
subpopulations can handle fluctuations in age and sex structure and
continue to grow.
(4) Comment: We received one comment regarding our threats
assessment. One peer reviewer stated that assisting deer to expand
their range out of the Columbian River's riparian
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zone is the only long-term solution to flooding and climate-induced
habitat changes. The commenter also stated that while the current rate
of vehicle-caused mortality does not appear to be limiting, estimates
of the number of deer killed on roads are probably low, and increasing
human development and deer population sizes could result in increased
mortality rates in the future.
Our Response: We concur with the comments. First, flooding has been
an issue at the JBHR Mainland Unit multiple times resulting in
temporary reductions in the number of CWTD located there. To minimize
these impacts, new tide gates, a new culvert, and a new set-back levee
were installed. Finding upland areas with suitable habitat would be
beneficial for CWTD and will be pursued prior to making a decision
regarding delisting the deer (that is, removing the Act's protections
for the subspecies), as would a monitoring program with funding
available to determine if current habitat management on the JBHR
Mainland Unit has been successful for CWTD or if management changes are
warranted. Second, because deer are highly mobile, collisions between
CWTD and vehicles do occur, but the number of collisions in the
Columbia River DPS has not prevented the DPS population from increasing
over time and meeting recovery criteria for downlisting. The frequency
of collisions is dependent on the proximity of a subpopulation to roads
with high traffic levels, and collisions with CWTD have been most
frequent among deer that have been translocated to areas that are
relatively close to highly trafficked roads. Even if translocated areas
are relatively far from highly trafficked roads, deer typically roam
following translocation events and may enter traffic corridors. We
anticipate that vehicle collisions could increase as both the CWTD
population and human infrastructure increase. In order to address the
issue of collisions, a habitat connectivity model is being developed by
the Washington Department of Transportation. The goal of this model is
to identify areas that contain suitable habitat for CWTD movement
within their range and to identify areas with potential land-use
conflicts. This model would be a tool for managers to make decisions
regarding translocation sites where vehicle collisions are less likely
and to prioritize habitat restoration sites.
(5) Comment: One peer reviewer questioned the ability of surveys to
accurately quantify the number of CWTD when within black-tailed deer
(Odocoileus hemionus columbianus) habitat. The peer reviewer stated
that for the period in which there was data collected with a similar
protocol in the same locations over time there was a correlation
coefficient of r = -0.93, indicating a negative population trend.
Our Response: Greater detail regarding forward-looking infrared
(FLIR) survey methodology in habitat containing black-tailed deer and
potential error in survey population estimates is incorporated into
this final rule. Aerial surveys using FLIR are a common methodology for
estimating ungulate abundance. The Service began using FLIR
thermography camera systems affixed to a helicopter (or, in 2008, a
fixed-wing Cessna 206) to conduct aerial CWTD surveys in conjunction
with annual ground counts within the Columbia River DPS beginning in
1996. FLIR uses thermal contrast between animals and their environment,
and operates by using sensors to detect infrared radiation undetectable
to human observers. The limitations of FLIR are two-fold: The inability
to determine the demographic structure of a population and the
inability to differentiate between CWTD and black-tailed deer. To
address these limitations, we used data from annual ground counts and
photos from trail cameras to determine a rough estimate of sex ratio
and to determine the ratio of CWTD to black-tailed deer in a given
area. For the latter, the number of deer observed in the FLIR count is
adjusted by the estimated ratio of CWTD to black-tailed deer. Thus, we
do not count every individual deer detected in a FLIR survey as a CWTD.
We have ground count data available from 1984 through 2015, to estimate
subpopulation size because FLIR was always used in conjunction with
ground counts. We do not know the detection rate or error rate of FLIR
within the geographic range of the DPS, and we do not apply reported
detection rates from other studies due to the variability of FLIR
detection rates from studies reporting them along with use of different
equipment and survey protocols. To determine detection rates and
compare survey methods for this DPS, we ideally would have replicated
surveys of closed populations with known numbers of individuals to
ensure that detection rates accounted for differences in counts. Since
we do not have detection rates, we attempted to increase the likelihood
of detection by conducting FLIR surveys in late fall when deer are less
likely to be obscured by overhead vegetation and using the same
equipment year to year. Thus, we have no evidence to suggest that
changes in annual population estimates were the result of differences
in survey methods or detectability, and we have taken measures to
reduce the likelihood of bias in our population estimates. We have no
evidence to suggest that bias in survey methods is accountable for the
increase in population size estimates.
In this instance, a correlation coefficient is not an appropriate
statistical analysis to accurately reflect population trends across the
DPS for multiple reasons. First, the data used for the correlation were
from 1984 to 2005, which eliminates 10 years of population data and
eliminates the upward trend in the population in those 10 years.
Second, the reviewer stated that the choice of the aforementioned dates
was for the period in which there was data collected with a similar
protocol in the same locations over time; however, from 1984 to 1996,
only ground counts were conducted to obtain population data, but from
1996 to 2005, both FLIR and ground counts were used. Thus, the protocol
was not similar throughout the time frame suggested for the
correlation. Third, correlation is only applicable to linear
relationships. A scatter plot of the population data portrays a
quadratic relationship due to the negative trend through 2004, followed
by the upward population trend observed from 2005 onward. Fourth, the
overall population trend for the Columbia River DPS does appear to
decline over time until 2004; however, closer examination revealed that
the overall trend was strongly influenced by the decline at the JBHR
Mainland Unit in the late 1980s. Although population estimates
fluctuated, the population has been steadily increasing over time since
2004. We know that population numbers have been influenced by severe
flooding in the late 1990s and early 2000s, and by the new
subpopulation at Ridgefield NWR, which has been observed breeding and
producing twins following translocations. Thus, we have biological
evidence to support the positive population trend occurring since 2004.
(6) Comment: Two peer reviewers and one commenter questioned take
of CWTD. One peer reviewer suggested changing the limit on take to 5
percent of each subpopulation while another asked why we chose 5
percent as the limit.
Our Response: In regard to changing the limit on take to 5 percent
of each subpopulation instead of 5 percent of the DPS, we point out
that this would not change the number of deer allowed to be taken. Five
percent of each subpopulation results in the same number as 5 percent
of the DPS. We determined the take percentage and developed the 4(d)
rule using best available data on annual mortality of
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CWTD, annual subpopulation growth, translocation data, and best
professional judgment. The subpopulations of CWTD have been able to
maintain a positive annual growth rate even with the removal of
individuals from subpopulations for translocations. For example, the
Service removed 34 CWTD, which constituted 20 percent of the
subpopulation, from Puget Island for translocations in 2012. The
estimated size of the subpopulation on Puget Island was 227 CWTD in
2015, representing an annual population growth rate of 16 percent. If
the subpopulation continues to grow 16 percent each year, then removing
a maximum of 5 percent would still allow the subpopulation to grow.
While it is possible that some areas may experience higher levels of
take than others, we do not anticipate that all 5 percent of annual
allotted take would affect one subpopulation. As currently written, the
4(d) rule allows a maximum of 5 percent of the DPS to be lethally taken
annually for the following activities combined: (1) Damage management
of problem CWTD; (2) misidentification during black-tailed deer damage
management; and (3) misidentification during black-tailed deer hunting.
(7) Comment: Two peer reviewers questioned habitat security. One
reviewer found the updated definition of habitat security surprising,
yet supported calling Puget Island a secure population because there
has been a large population of CWTD there since surveys began, there is
little danger of flooding, and the levees are higher than on JBHR. The
other commenter stated that the new interpretation of secure habitat
violated both the Recovery Plan guidelines defining secure critical
habitat and the mandate on the Department of the Interior's
(Department's) Web site stating that the Department will use the best
science to guide policy and management. This commenter further stated
that the proposal will set a precedent that will almost certainly lead
to future unsupported, arbitrary and capricious considerations. The
commenter emphasized the need for conservation easements to establish
secure habitat.
Our Response: We understand that considering Puget Island to be
secure may appear to contradict earlier definitions of secure habitat
in the 1983 Revised Recovery Plan. In that plan, secure habitat was
defined as free from adverse human activities in the foreseeable future
and relatively safe from natural phenomena that would destroy the
habitat's value to CWTD (U.S. Fish and Wildlife Service 1983, p. 33).
The Service initially interpreted that definition of secure habitat to
mean that legal instruments, such as local land use planning, zoning,
easements, leases, agreements, memoranda of understanding, or a
combination of these, were the only ways to secure habitat protection
and enhancement that was free from adverse human activities in the
foreseeable future because we lacked empirical evidence of potential
long-term security for this DPS. However, for the reasons explained in
this rule, we found that this restrictive interpretation of what
constitutes security has limited our ability to make progress toward
recovery of CWTD. Therefore, we reevaluated the current status of CWTD
under a broadened framework for what constitutes ``secure'' habitat
based on 30 years of population data. The 30-year population trend from
Puget Island makes it clear that CWTD can maintain stable populations
on suitable habitat that is not formally set aside by acquisition,
conservation easement, or agreement for the protection of the species.
Thus, the definition of secure habitat now includes locations that,
regardless of ownership status, have supported viable subpopulations of
CWTD for 20 or more years, and have no anticipated change to land
management in the foreseeable future that would make the habitat less
suitable to CWTD.
Comments From States and Counties
Section 4(b)(5)(A)(ii) of the Act states that the Secretary shall
give actual notice of the proposed regulation (including the complete
text of the regulation) to the State agency in each State in which the
species is believed to occur, and to each county or equivalent
jurisdiction in which the species is believed to occur, and invite the
comment of such agency and each such jurisdiction on the proposed
regulation. We submitted the proposed rule (containing our proposed
regulation language) to the States of Oregon and Washington and
received formal comments from Oregon. We also notified Clatsop,
Multnomah, and Columbia Counties in Oregon, and Cowlitz, Wahkiakum,
Pacific, Skamania, and Clark Counties in Washington, when we published
the proposed rulemaking. We did not receive any comments from the
counties.
(8) Comment: The Oregon Department of Fish and Wildlife indicated
they support Federal reclassification of the Columbia River DPS of
CWTD, as proposed, along with the proposed 4(d) rule, and they welcome
the opportunity to work with the Service, the State of Washington,
Tribes, and other partners in recovering this DPS in Oregon.
Our Response: We thank the Oregon Department of Fish and Wildlife
for its comments. Without our partners, we would not have been able to
accomplish the downlisting goals for the DPS. We continue to work with
our partners toward full recovery of CWTD.
Public Comments
(9) Comment: One commenter asked what the next steps are and what
we hope to see from this reclassification of the DPS from endangered to
threatened.
Our Response: By reclassifying CWTD to threatened, the Service is
recognizing that CWTD are no longer in immediate danger of extinction,
based upon overall population size, addition of a new subpopulation,
and secured habitat. Many landowners do not welcome endangered or
threatened species on their lands due to increased regulatory
restrictions. In addition, under section 4(d) of the Act, we may issue
rules to provide for the conservation of the species. Issuing a 4(d)
rule in this case will support conservation of the species by providing
opportunities for CWTD translocations to new areas previously
unavailable to create new subpopulations, encouraging habitat
restoration of areas on private lands that may act as dispersal
corridors for CWTD, and promoting coexistence between people and CWTD
as the deer population increases. These activities will facilitate
conservation partnerships with the agricultural community and private
landowners to voluntarily create or restore habitat for new and
existing subpopulations of CWTD, and encourage natural expansion of
CWTD. Thus, we have determined that this 4(d) rule is necessary and
advisable for the conservation and recovery of CWTD.
Summary of Changes From the Proposed Rule
In response to comments, in the preamble of this final rule, we
added an explanation of how viable population size using sex and age
structure data was determined in the Revised Recovery Plan, greater
detail regarding the Upper Estuary subpopulation, and clarification of
surveys conducted to estimate population size. We also reorganized the
information associated with downlisting criterion 2 (maintain three
viable subpopulations, two of which are located on secure habitat) to
clarify the interaction between population viability and secure
habitat. In addition, we revised the section discussing climate change.
Finally, we added survey data from 2015 that were unavailable when the
proposed downlisting and proposed 4(d) rule published in the Federal
Register (80 FR 60850; October 8, 2015).
[[Page 71392]]
With these new data, we were able to provide more information regarding
the new subpopulation at Ridgefield NWR.
In the Regulation Promulgation section of this final rule, we made
minor changes to what we proposed for the 4(d) rule for clarity.
Specifically, in the definition of CWTD, we include ``individual
specimens'' to clarify the use of that term in the rule. Also, where we
set forth the provisions concerning the take of problem CWTD, we
specify that this is take ``resulting in mortality.'' Last, where we
set forth reporting and disposal requirements, we now include a
reference to requirements for Tribal employees, State and local law
enforcement officers, and State-licensed wildlife rehabilitation
facilities acting under 50 CFR 17.40(i)(6) of the rule.
Recovery
Section 4(f) of the Act directs us to develop and implement
recovery plans for the conservation and survival of endangered and
threatened species unless we determine that such a plan will not
promote the conservation of the species. Under section 4(f)(1)(B)(ii),
recovery plans must, to the maximum extent practicable, include
objective, measurable criteria which, when met, would result in a
determination, in accordance with the provisions of section 4 of the
Act, that the species be removed from the List of Endangered and
Threatened Wildlife or the List of Endangered and Threatened Plants.
However, revisions to the Lists of Endangered and Threatened Wildlife
and Plants (adding, removing, or reclassifying a species) must be based
on determinations made in accordance with sections 4(a)(1) and 4(b) of
the Act. Section 4(a)(1) requires that the Secretary determine whether
a species is endangered or threatened (or not) because of one or more
of five threat factors. Section 4(b) of the Act requires that the
determination be made ``solely on the basis of the best scientific and
commercial data available.'' While recovery plans provide important
guidance to the Service, States, and other partners on methods of
minimizing threats to listed species and measurable objectives against
which to measure progress towards recovery, they are not regulatory
documents and cannot substitute for the determinations and promulgation
of regulations required under section 4(a)(1) of the Act. A decision to
revise the status of a species on, or to remove a species from, the
Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) is
ultimately based on an analysis of the best scientific and commercial
data then available to determine whether a species continues to meet
the definition of an endangered species or a threatened species,
regardless of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and
recovery may be achieved without all criteria suggested in the recovery
plan being fully met. For example, one or more criteria may be exceeded
while other criteria may not yet be achieved or may never be achieved.
In that instance, we may determine that the threats are minimized
sufficiently and the species is robust enough to delist. In other
cases, recovery opportunities may be discovered that were not known
when the recovery plan was finalized. These opportunities may be used
instead of methods identified in the recovery plan. Likewise,
information on the species may be learned that was not known at the
time the recovery plan was finalized. The new information may change
the extent to which criteria need to be met for recognizing recovery of
the species. Recovery of a species is a dynamic process requiring
adaptive management that may, or may not, fully follow the guidance
provided in a recovery plan.
For downlisting the Columbia River DPS from endangered to
threatened, the Revised Recovery Plan for CWTD (U.S. Fish and Wildlife
Service 1983) established the following criteria: (1) Maintain a
minimum of at least 400 CWTD across the Columbia River DPS; and (2)
maintain three viable subpopulations, two of which are located on
secure habitat (U.S. Fish and Wildlife Service 1983, pp. 31-33). Viable
is defined as a minimum November population of 50 individuals or more
in a subpopulation. A minimum viable population size of 50 deer in each
subpopulation and of 400 total deer in the DPS would theoretically
cancel out any deleterious effects of inbreeding. To determine minimum
population sizes, the Revised Recovery Plan used the formula F = 1/
(2Ne), where F is the inbreeding coefficient and
Ne is the effective population size (i.e., the number of
breeding individuals necessary for optimal genetic exchange) (U.S. Fish
and Wildlife Service 1983, p. 72). Given potential barriers to genetic
exchange within the Columbia River DPS, the Revised Recovery Plan
considered 2 percent to be the maximum reasonable inbreeding
coefficient for a subpopulation and 0.25 percent to be a reasonable
inbreeding coefficient for the total DPS population (U.S. Fish and
Wildlife Service 1983, pp. 72-74). Using both the aforementioned
formula and inbreeding coefficients, the effective population size
would be a minimum of 50 deer per subpopulation and a minimum of 400
total deer in the DPS, after correcting for an unequal sex ratio (3
females to 1 male) and the percentage of the herd that is of breeding
age (65 percent) (U.S. Fish and Wildlife Service 1983, p. 73).
To determine the sex ratio and the percentage of breeding
individuals, we used data from surveys of fawn to doe ratios that also
included number of bucks seen during those surveys. We did not,
however, have estimates of the age structure of the population. In
white-tailed deer, age can be estimated based on tooth wear and
replacement, the amount of cementum built up on the roots of the teeth,
or physical characteristics. The first two techniques require the jaws
of the deer, which require capturing or killing the deer; however, the
latter technique, also known as aging on the hoof (AOTH), can be done
in the field. In a recent study assessing the efficacy of AOTH by deer
biologists, the overall accuracy of assigning white-tailed deer of
known ages into the correct age category was 36 percent (Gee et al.
2014, p. 99). Since AOTH accuracy is poor and is only used to age male
deer, we categorized individuals as fawns, adult females, or adult
males. We incorporated this information into our analyses of the
aforementioned minimum effective population size.
In order to ensure viable subpopulations of at least 50
individuals, the Revised Recovery Plan determined that protection
through securing habitat would be necessary. Secure habitat was defined
as free from adverse human activities in the foreseeable future and
relatively safe from natural phenomena that would destroy the habitat's
value to CWTD (U.S. Fish and Wildlife Service 1983, p. 33). An example
of a human activity that may cause adverse impacts to deer is large-
scale commercial development. An example of natural phenomena that may
destroy CWTD habitat is persistent flooding.
For delisting (i.e., removing the species from the Federal List of
Endangered and Threatened Wildlife), the recovery plan established the
following criteria: (1) Maintain a minimum of at least 400 CWTD across
the Columbia River DPS; and (2) maintain three viable subpopulations,
all located on secure habitat. Recovery actions specified in the
recovery plan to achieve the downlisting and delisting goals include
management of existing subpopulations and protection of their habitat,
establishment of new subpopulations, and public education
[[Page 71393]]
and outreach to foster greater understanding of the CWTD and its place
in the natural environment of its historical range (U.S. Fish and
Wildlife Service 1983, pp. 31-33).
Recovery Plan Implementation for the Columbia River DPS. At the
time of the Revised Recovery Plan's publication, the JBHR Mainland Unit
subpopulation was the only subpopulation considered viable and secure.
The Revised Recovery Plan recommended increasing the Tenasillahe Island
subpopulation to a minimum viable herd of 50 deer, maintaining a total
population minimum of 400 deer, and securing habitat for one additional
subpopulation (U.S. Fish and Wildlife Service 1983, p. 31).
Forty-nine years have passed since the CWTD was federally listed as
endangered, and the species is now more abundant and better distributed
throughout the lower Columbia River Valley. The improvement is due in
part to the maintenance and augmentation of existing subpopulations,
and to the establishment of new subpopulations via successful
translocations within the species' historical range. Many threats to
the species have been substantially ameliorated, and CWTD have met all
of the criteria for downlisting to threatened in the Revised Recovery
Plan. A review of the species' current status relative to the
downlisting criteria follows.
Downlisting criterion 1: Maintain a minimum of at least 400 CWTD
across the Columbia River DPS. This criterion has been met. The total
population of the Columbia River DPS has been maintained at over 400
deer annually since regular surveys began in 1984. At the time of the
CWTD Revised Recovery Plan publication in 1983, the number of deer in
the Columbia River DPS was thought to be 300 to 400. The first
comprehensive survey effort in 1984 resulted in an estimate of 720
deer, suggesting that prior estimates were probably low. Since 1985,
fall ground counts have been conducted to establish long-term trends by
indicating gross population changes. In addition to annual fall ground
counts, the Service began using forward-looking infrared (FLIR)
thermography camera systems affixed to a helicopter (or, in 2008, a
fixed-wing Cessna 206) to conduct aerial CWTD surveys within the
Columbia River DPS beginning in 1996. The limitations of FLIR are two-
fold: the inability to determine the demographic structure of a
population and the inability to differentiate between CWTD and black-
tailed deer. To address these limitations, ground counts and photos
from trail cameras are used to determine a rough estimate of sex ratio
and to determine the ratio of white-tailed deer to black-tailed deer in
a given area. For the latter, the number of CWTD observed in the FLIR
count is adjusted by the estimated percentage of CWTD to black-tailed
deer. In years when FLIR surveys were not completed, ground counts were
used to estimate whether there had been any unusual decrease or
increase in a subpopulation. As of 2015, there are approximately 966
CWTD spread across 6 main subpopulations: JBHR Mainland Unit,
Tenasillahe Island, Upper Estuary Islands, Puget Island, Westport/
Wallace Island, and Ridgefield NWR (see Table 1, below).
While the overall population trend for the Columbia River DPS
appeared to decline over time along a similar trajectory as the JBHR
Mainland Unit subpopulation until 2006, closer examination revealed
that the overall trend was strongly influenced by the decline at the
JBHR Mainland Unit in the late 1980s. Although population numbers
fluctuated, the other subpopulations did not undergo a similar decline,
and when the JBHR Mainland Unit is left out of the analysis, the
overall Columbia River DPS population demonstrates a more positive
trend exceeding the minimum population size of 400 individuals. Thus,
downlisting criterion 1 has been met.
Table 1--Estimated Population Size of the Columbia River DPS of CWTD by Subpopulation
[U.S. Fish and Wildlife Service 2013a, p. 7; U.S. Fish and Wildlife Service, Unpublished Data]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tenasillahe Westport/ JBHR Mainland Upper Estuary
Year Puget Island Island Wallace Island Unit Islands \c\ Ridgefield NWR Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1984.................................... 170 40 150 360 0 0 720
1985.................................... 215 40 125 480 0 0 860
1986.................................... 195 55 125 500 0 0 875
1987.................................... 185 70 150 500 0 0 905
1988.................................... 205 80 150 410 0 0 845
1989.................................... 205 90 150 375 0 0 820
1990.................................... 200 105 150 345 0 0 800
1991.................................... 200 130 150 280 0 0 760
1992.................................... 200 165 175 280 0 0 820
1993.................................... 200 195 200 175 0 0 770
1994.................................... 200 205 225 140 0 0 770
1995.................................... 200 205 225 120 0 0 750
1996.................................... 200 \a\ 125 \a\ 225 \a\ 51 0 0 610
1997.................................... 200 \a\ 150 \a\ 200 \a\ 100 0 0 650
1998.................................... 200 \a\ 200 \a\ 200 \a\ 110 0 0 710
1999.................................... 150 \a\ 160 \a\ 140 \a\ 110 \a\ 25 0 585
2000.................................... 150 \a\ 135 \a\ 150 \a\ 120 \a\ 55 0 610
2001.................................... 125 \a\ 135 \a\ 150 \a\ 120 \a\ 55 0 585
2002.................................... 125 \a\ 100 \a\ 140 \a\ 125 \a\ 55 0 545
2003.................................... 125 \a\ 100 \a\ 140 \a\ 115 \a\ 80 0 560
2004.................................... 110 \a\ 100 \a\ 140 \a\ 110 \a\ 95 0 555
2005.................................... 125 \a\ 100 \a\ 140 \a\ 100 \a\ 100 0 565
2006\a\................................. n/a 86 104 81 67 0 ..............
2007\a\................................. n/a 82 n/a 59 \e\ 41 0 ..............
2009\a\................................. 138 \b\ 97 146 \b\ 74 28 0 \d\ 593
2010 \a\................................ n/a 143 164 68 39 0 \d\630
2011 \ a\............................... 171 90 n/a 83 \f\ 18 0 \d\ 603
2014 \ a\............................... 227 154 \g\ 154 88 39 48 \d\ 830
[[Page 71394]]
2015 \ a\............................... 228 155 190 100 36 100 \d\966
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Estimates from 1996-2015 are derived from forward-looking infrared (FLIR) survey results, but survey results from 2008 produced anomalous data
because an alternative technique was used. These data are not considered representative of actual numbers, and are thus not included in this table.
\b\ Numbers reflect a post-survey translocation of 16 CWTD from Tenasillahe Island to the Refuge mainland.
\c\ Includes Lord, Walker, Fisher, Hump, and Crims Islands.
\d\ Includes estimates from residual populations in Cottonwood Island, Clatskanie Flats, Brownsmead, Willow Grove, Barlow Point, and Rainier.
\e\ Does not include Fisher and Hump Islands.
\f\ Assuming a white-tailed:black-tailed deer ratio of 20:1; this includes only Crims Island.
\g\ Approximate population estimate after 2014 translocation. Note: Totals are not given in 2006 and 2007 due to incomplete data, and no surveys were
conducted in 2012 or 2013.
Downlisting criterion 2: Maintain three viable subpopulations, two
of which are located on secure habitat. There are currently six
recognized subpopulations of CWTD: JBHR Mainland Unit with 100 deer,
Westport/Wallace Island with 190 deer, Upper Estuary Islands with 36
deer, Ridgefield NWR with 100 deer, Tenasillahe Island with 155 deer,
and Puget Island with 228 deer (see Table 1). One of these
subpopulations is a viable yet unsecure subpopulation of CWTD; three
are non-viable yet secure; and two are viable and secure. The Service
attempted to establish an additional subpopulation on Cottonwood
Island; however, the deer were unable to establish a population there.
Viable yet unsecure subpopulations. The Westport/Wallace Island
subpopulation has been stable and relatively abundant since regular
surveys began. After reaching a peak of approximately 225 deer in 1995,
the subpopulation's last estimate from 2015 was 190 deer (see Table 1,
above) despite the removal of 10 deer from the area to contribute to
the 2014 translocation to Ridgefield NWR. Habitat in the Westport area
consists mainly of cottonwood/willow swamp and scrub-shrub tidal
wetlands. In 1995, Wallace Island, Oregon, was purchased by the Service
for CWTD habitat. Although the habitat is now protected for the
recovery of CWTD, the 227-ha (562-ac) island alone is considered too
small to support a viable population (U.S. Fish and Wildlife Service
2010, p. 4:39). Because it is located adjacent to Westport, Oregon, and
anecdotal reports suggest that CWTD traverse both areas, Wallace Island
is considered part of the Westport/Wallace Island CWTD subpopulation.
Acquisitions by JBHR also included a 70-ha (173-ac) area of Westport
called the Westport Unit. The remaining portion of Westport Island is
in private ownership.
Apart from Wallace Island and the Westport Unit, most of the area
where the Westport/Wallace Island subpopulation resides is owned and
managed by one individual family. The family has managed the land for
duck hunting for many years, implementing intensive predator control
and maintaining levees as part of their land management activities. The
Service suspects that CWTD reproduction in the Westport/Wallace Island
subpopulation has benefited from this intensive predator control
(Meyers 2013, pers. comm.). If the property owners alter the management
regime or the property should change hands, the Westport/Wallace Island
subpopulation could be negatively affected, particularly if the owners
decide to remove the current levees, thereby inundating some of the
CWTD habitat (Meyers 2013, pers. comm.). Because the stability of CWTD
in this area appears to be so closely tied to one private landowner and
their land management choices, there is less certainty as to the long-
term security of this subpopulation and its associated habitat. As a
result, although a small portion of the habitat for this subpopulation
is protected for CWTD, the Service does not currently recognize
Westport/Wallace Island as secure habitat. However, given that the area
has supported a healthy subpopulation of CWTD for several decades, if
the landowner were willing, then securing this property through
purchase or conservation agreement would potentially increase recovery
prospects for the Columbia River DPS.
Non-viable yet secure subpopulations. The Upper Estuary Islands are
a five-island complex with a total area of 400 ha (989 ac), under a mix
of private and State ownership. The Revised Recovery Plan originally
identified four of the five islands near Longview, Washington, as
suitable habitat to create a third subpopulation of CWTD. Of these
islands, Fisher Island is a naturally occurring tidal wetland dominated
by black cottonwood (Populus trichocarpa), willow (Salix spp.), and
dogwood (Cornus nuttallii) (U.S. Fish and Wildlife Service 2005, p. 1).
The remaining three islands are dredge material sites with dense
cottonwood and shrub habitat. The fifth island, Crims Island, lies 1.6
km (1 mi) downstream from the four original Upper Estuary Islands, and
contributes to the interchange among CWTD of neighboring islands and
mainland subpopulations (U.S. Fish and Wildlife Service 2005, p. 4).
Given Crims Island's role in connectivity for subpopulations,
population counts of CWTD on the island were included with the Upper
Estuary Islands, and it was secured for CWTD recovery in a 1999
agreement among the Bonneville Power Administration, the Columbia Land
Trust, and the Service (U.S. Fish and Wildlife Service 2010, p. 1:19).
The protected portion of the island (approximately 191 ha (473 ac))
contains about 121 ha (300 ac) of deciduous forest (black cottonwood,
Oregon ash (Fraxinus latifolia), and willow), pasture, and marsh. Crims
Island was designated as a suitable translocation site in the Revised
Recovery Plan and was originally considered able to support 50 to 100
deer (U.S. Fish and Wildlife Service 2000, p. 2).
To establish a new subpopulation in the Upper Estuary Islands,
translocations of CWTD to Fisher/Hump and Lord/Walker Islands began in
2003, and a total of 66 deer (33 to each set of islands) have been
relocated there to date (U.S. Fish and Wildlife Service 2013a, p. 23).
In addition, 66 deer have been translocated to Crims Island through
several translocation efforts (U.S. Fish and Wildlife Service 2013a, p.
21). At the time of the translocations, CWTD were not known to inhabit
these islands, but habitat was available. The population goal for the
five-island
[[Page 71395]]
complex is at least 50 CWTD (U.S. Fish and Wildlife Service 2005, p.
1), but as a unit, this complex has yet to maintain the target
population of 50 deer. The original four islands currently contain 10
CWTD and reach a total of only 39 deer with the Crims Island
population. It is suspected that the low numbers of CWTD in the complex
are a result of deer finding higher quality habitat in areas adjacent
to the island complex. Telemetry data indicated that CWTD moved to the
adjacent mainland areas of Willow Grove, the Barlow Point industrial
area, and Dibblee Point (U.S. Fish and Wildlife Service 2005, p. 3),
after translocations. These adjacent areas averaged 44 CWTD between
2009 and 2011 (U.S. Fish and Wildlife Service 2013a, p. 23); however,
these areas are considered residual populations, rather than part of
the Upper Estuary Islands, because the mainland portion consisting of
privately owned land cannot be secured. Further range expansion in this
region is limited by its direct proximity to urban development. The
potential for problems associated with translocations, particularly
damage to private gardens and commercial crops, remains an issue with
local landowners and, therefore, limits CWTD range expansion at this
time. Thus, even with translocation efforts, this undeveloped island
complex has only supported between 8 and 33 deer since 2000, with the
latest population estimate at 25 deer in 2015. Therefore, the Upper
Estuary islands do not constitute a viable subpopulation now, and we do
not expect it will in the foreseeable future.
The JBHR Mainland Unit subpopulation has fluctuated in numbers
since regular surveys began, with a high of 500 CWTD in 1987 to a low
of 51 deer in 1996 (after a catastrophic flood event). When the refuge
was established, refuge biologists established a goal of approximately
125 deer for the JBHR Mainland Unit to balance the density of deer
given the amount of available habitat (U.S. Fish and Wildlife Service
2010, p. 2:62).
Flooding on the JBHR Mainland Unit has occurred three times over
the history of the refuge, in 1996, 2006 and 2009, resulting in short-
term population declines after each flood. In March of 2011, a
geotechnical assessment determined that the dike that protects the JBHR
Mainland Unit from flooding by the Columbia River was at ``imminent
risk'' of failure (U.S. Fish and Wildlife Service 2013b, p. 2) and a
breach at that location would result in the flooding of the JBHR
Mainland Unit at high tides. In response to this threat, the Service
conducted an emergency translocation of 37 CWTD from the JBHR Mainland
Unit to unoccupied but suitable habitat at Ridgefield NWR in early 2013
(U.S. Fish and Wildlife Service 2013c, p. 8). The U.S. Army Corps of
Engineers subsequently constructed a set-back levee on the JBHR
Mainland Unit to prevent flooding of the refuge and to restore salmonid
habitat (U.S. Army Corps of Engineers 2013, p. 11). Though the set-back
dike, completed in fall 2014, reduces available CWTD habitat on the
JBHR Mainland Unit by approximately 28 ha (70 ac), or approximately 3.5
percent of the total 797 ha (1,970 ac), it will reduce the likelihood
of future flooding. After the removal of 37 CWTD in 2013, the
population of the JBHR Mainland Unit rebounded to an estimated 100 deer
(2015). Although the current subpopulation count exceeds the criterion
of 50 individuals described in the Revised Recovery Plan, we currently
characterize the JBHR Mainland subpopulation as non-viable because in
defining viability, the Revised Recovery Plan did not account for
either the significant changes in the numbers of individuals within a
donor subpopulation resulting from translocations or the impacts of
significant land disturbances necessary to protect habitat. Therefore,
we recognize that additional demographic monitoring is needed to more
reliably demonstrate viability of the JBHR Mainland Unit subpopulation,
given the removal of nearly half its numbers in 2013 (from 83 prior to
translocations to 46 afterward) and the reduction in habitat from the
construction of the setback dike.
Ridgefield NWR is the most recently established subpopulation of
CWTD and it was created by translocating individual deer from the JBH
Mainland, Puget Island, and Westport subpopulations to the refuge
beginning in 2013. It is located in Clark County, Washington,
approximately 108 km (67 mi) southeast of JBHR, and is comprised of
2,111 ha (5,218 ac) of marshes, grasslands, and woodlands with about
1,537 ha (3,800 ac) of upland terrestrial habitat. As part of the 2013
emergency translocation, the Service moved 37 deer from the JBHR
Mainland Unit to the Ridgefield NWR (U.S. Fish and Wildlife Service
2013c, p. 8). Eleven of the deer suffered either capture-related
mortality or post-release mortality within 2 months, potentially due to
predation (U.S. Fish and Wildlife Service, unpublished data). In 2014,
another 21 deer were translocated to Ridgefield NWR from Puget Island
and Westport, and the current estimated population based on FLIR
surveys is 100 deer (see Table 1, above). Although this subpopulation
has exceeded the criterion of 50 individuals described in the Revised
Recovery Plan, we currently characterize the Ridgefield NWR
subpopulation as non-viable because in defining viability, the Revised
Recovery Plan did not account for the complex suite of factors that
determine the success or failure of translocations and the resulting
establishment of a new subpopulation. While translocations may appear
immediately successful, variation in both an animal's ability to adapt
to a new environment and the habitat affect the ultimate success of
translocations. This variation can include donor deer population
genetics, animal condition, age and sex of translocated individuals,
and quality of food sources (Foley et. al. 2008, p. 26). Therefore, we
recognize that additional demographic monitoring is needed to more
reliably demonstrate viability of the newly established Ridgefield NWR
subpopulation.
Non-viable and unsecured subpopulations. Although attempts have
been made to translocate deer to Cottonwood Island, it does not contain
a viable subpopulation of CWTD. The island is a recreational site for
camping and fishing; the surrounding waters are used for waterfowl
hunting. Cottonwood Island has multiple landowners, which consist
primarily of a coalition of ports administered by the Port of Portland,
but there are no people living on the island and there are no
commercial interests (U.S. Fish and Wildlife Service 2013b, p. 15). It
lies approximately 1.6 km (1 mi) upriver from Dibblee Point on the
Washington side of the Columbia River. The 384-ha (948-ac) island was
considered in the Revised Recovery Plan as a potential relocation site;
it was thought that the island could support up to 50 deer. In the fall
of 2010, 15 deer were moved to Cottonwood Island from the Westport
population in Oregon (Cowlitz Indian Tribe 2010, p. 1). Seven confirmed
mortalities resulted from vehicle collisions as CWTD dispersed off the
island (Cowlitz Indian Tribe 2010, p. 3). Telemetry monitoring by
Washington Department of Fish and Wildlife (WDFW) personnel in the
spring of 2011 detected three radio-collared CWTD on Cottonwood Island
and two on the Oregon mainland near Rainier, Oregon. A second
translocation of 12 deer to Cottonwood Island (from Puget Island)
occurred in conjunction with the 2013 emergency translocation effort
(U.S. Fish and Wildlife Service 2013a, p. 24). All but four of these
new CWTD subsequently died or moved off
[[Page 71396]]
the island, with five deer dying from vehicle strikes (U.S. Fish and
Wildlife Service, unpublished data). We are uncertain why the deer
moved off the island, but we suspect that habitat quality may have been
a factor. Approximately 6 ha (15 ac) of habitat was improved in 2013,
by eliminating reed canary grass and other invasive plants and by
planting native vegetation. Staff from JBHR and staff representing the
Cowlitz Indian Tribe continue to conduct periodic monitoring of CWTD
translocated to Cottonwood Island.
Viable and secure subpopulations. Tenasillahe Island in Oregon is
part of the JBHR. The Revised Recovery Plan recommended increasing the
Tenasillahe Island subpopulation to a minimum viable herd of 50 CWTD.
The Service has accomplished this recovery goal through several
translocation efforts and habitat enhancement, and the island's
subpopulation, though still susceptible to flood events, has remained
above 50 individuals for the past 20 years. The most current FLIR
survey at this location (in 2015) estimated the population at 155 CWTD
(see Table 1, above). Because this population has been stable and
occurs within the JBHR boundaries, it is considered secure.
Puget Island is a mix of private and public land. The private land
consists mainly of pasture for cattle and goats, residential lots, and
hybrid cottonwood plantations that provide food and shelter for the
deer. Farmers and ranchers on the island often implement predator
(coyote, Canis latrans) control on their lands to protect poultry and
livestock, and this management activity likely benefits the CWTD
population on the island. In fact, Puget Island has supported one of
the largest and most stable subpopulations of CWTD. While densities
have historically been lower than on refuge lands, the size of Puget
Island (about 2,023 ha (5,000 ac)) has enabled it to support a robust
number of deer. Since regular surveys began in 1984, the population at
Puget Island has averaged between 175 and 200 deer. The latest survey
(2015) estimated the population at a high of 228 deer, although 11 deer
were removed from the area for the 2014 translocation to the Ridgefield
NWR. Although Puget Island is not formally set aside for the protection
of CWTD, the fawn:doe (F:D) ratios are higher than on the protected
JBHR Mainland Unit, and the area has supported a stable CWTD population
without active management in the midst of continued small-scale
development for several decades.
Of the three viable subpopulations, only the Tenasillahe Island and
Puget Island subpopulations are located on secure habitat. Page 37 of
the Revised Recovery Plan states, ``. . . protection and enhancement
(of off-refuge CWTD habitat) can be secured through local land use
planning, zoning, easement, leases, agreements, and/or memorand[a] of
understanding'' (U.S. Fish and Wildlife Service 1983, p. 37). In much
of the 30 years following the development of the Revised Recovery Plan,
the Service interpreted this to mean that the only ways to securing
habitat in order to meet recovery criteria were the ones listed in the
above citation. This led the Service to focus most CWTD recovery
efforts on increasing and maintaining the subpopulations within the
boundaries of the JBHR rather than working in areas that did not meet
this narrow interpretation of ``secure'' habitat. These efforts
resulted in some successful recovery projects such as growing and
stabilizing the subpopulation on Tenasillahe Island, which is part of
JBHR and currently one of the largest subpopulations in the Columbia
River DPS. However, it also led the Service to put significant
resources and time toward efforts that have shown less consistent
success, such as establishing viable and stable herds on the Upper
Estuary Islands. At present, a total of 314 deer have been translocated
in an effort to move CWTD to ``secure'' habitats. As discussed earlier
in this section, some translocations appear to have yielded success
(Ridgefield NWR) and some failed to create viable and secure
subpopulations (Cottonwood Island and the Upper Estuary Islands).
Two subpopulations, Puget Island and Westport/Wallace Island, have
maintained relatively large and consistent numbers over the last 3
decades even though these areas are not under conservation ownership or
agreement. The number of CWTD in these two areas clearly demonstrates a
measure of security in the habitat regardless of the ownership of the
land and may be related to the type of activity taking place in these
areas.
The 30-year population trends from Puget Island and Westport/
Wallace Island make it clear that CWTD can maintain secure and stable
populations on suitable habitat that is not formally set aside by
acquisition, conservation easement, or agreement. In light of this
information, we have reevaluated the current status of CWTD and have
determined that ``secure'' habitat includes locations that, regardless
of ownership status, have supported viable subpopulations of CWTD for
20 or more years, and have no anticipated change to land management in
the foreseeable future that would make the habitat less suitable to
CWTD.
While Puget Island and Westport/Wallace Island had previously not
been considered ``secure'' habitat, they have been supporting two of
the largest and most stable subpopulations in the Columbia River DPS
since listing. Although CWTD numbers at these 2 locations have
fluctuated, the Westport/Wallace Island subpopulation had 150 deer in
1984 and 164 deer in 2010, and the Puget Island population had 170 deer
in 1984 and 227 deer in 2014 (see Table 1, above). The Revised Recovery
Plan identified Puget Island and the Westport area as suitable sources
for CWTD translocations due in large part to their population
stability. Subsequently, these two locations have been the donor source
for numerous translocations over the last 30 years, including the
removal of 23 deer from Puget Island and 10 deer from Westport as part
of the 2013 and 2014 translocation efforts. Removal of CWTD from these
two locations on multiple occasions for the purpose of translocation
has not resulted in any significant decrease in donor population
numbers.
Since the late 1980s, the total acreage of tree plantations on
Puget Island decreased by roughly half (Stonex 2012, pers. comm.).
However, a proportional decrease in the numbers of CWTD did not occur.
Furthermore, though Puget Island has experienced changes in land use
and increases in development over time, such as the break-up of large
agricultural farms into smaller hobby farms, the changes have not
inhibited the ability of CWTD to maintain a very stable population on
the island. The Wahkiakum Comprehensive Plan (2006) anticipates that
future development on Puget Island will continue to be tree farms,
agricultural farms, and rural residential (both low density with 1- to
2-ha (2.5- to 5-ac) lots and medium density with 0.4- to 1-ha (1- to
2.5-ac) lots), with a goal of preserving the rural character of the
area (Wahkiakum County 2006, p. 392). Puget Island's human population
has grown at a nominal rate of 1 to 1.5 percent over the past 15 years;
that past rate along with building permit growth over the last 5 years
leads Wahkiakum County to project a population growth rate on the
island of 1.5 percent through the 20-year ``plan horizon'' that extends
through the year 2025 (Wahkiakum County 2006, p. 379). Because CWTD
have demonstrated the ability to adapt to this type of development on
the island, continued development of this type and at this low
[[Page 71397]]
level is not expected to impact CWTD on the island in the foreseeable
future (Meyers 2013, pers. comm.). Since the CWTD population on the
island has been viable for decades and the best available information
does not predict significant changes to land management in the
foreseeable future that would make the habitat less suitable to CWTD,
the Service considers Puget Island secure habitat.
In conclusion, there are currently three viable subpopulations of
CWTD: Tenasillahe Island at 155 deer, Puget Island at 228 deer, and
Westport/Wallace Island at 190 deer (see Table 1, above). Of those, we
consider Tenasillahe Island and Puget Island to be located on secure
habitat. Thus, the downlisting criterion to maintain three viable
subpopulations, two of which are located on secure habitat, has been
met. The Westport/Wallace Island subpopulation has shown consistent
stability over the last 30 years, on par with Puget and Tenasillahe
Islands, but its long-term security is less certain. While the secure
JBHR Mainland Unit and Ridgefield NWR subpopulations have reached the
criterion of 50 individuals described in the Revised Recovery Plan, we
currently characterize them as non-viable because in defining
viability, the Revised Recovery Plan did not account for either the
significant changes in the numbers of individuals within a donor
subpopulation resulting from translocations or the impacts of
significant land disturbances necessary to protect habitat (i.e. JBHR
Mainland Unit subpopulation), nor for the complex suite of factors that
determine the success or failure of translocations and the resulting
establishment of a new subpopulation (i.e., Ridgefield NWR
subpopulation).
Summary of Factors Affecting the Species
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for listing species, reclassifying
species, or removing species from listed status. ``Species'' is defined
by the Act as including any species or subspecies of fish or wildlife
or plants, and any distinct vertebrate population segment of vertebrate
fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A
species may be determined to be an endangered or threatened species
because of any one or a combination of the five factors described in
section 4(a)(1) of the Act: (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. We must consider these same five
factors in reclassifying (in this case, downlisting) a species. We may
reclassify a species from endangered to threatened (``downlist'') if
the best available scientific and commercial data indicate that the
species no longer meets the definition of endangered, but instead meets
the definition of threatened because: (1) The species' status has
improved to the point that it is not in danger of extinction at the
present time throughout all or a significant portion of its range, but
the species is not recovered (as is the case with the CWTD); or (2) the
original scientific data used at the time the species was classified
were in error.
Determining whether a species' status has improved to the point
that it can be downlisted requires consideration of whether the species
is endangered or threatened because of the same five categories of
threats specified in section 4(a)(1) of the Act. For species that are
already listed as endangered or threatened, this analysis of threats is
an evaluation of both the threats currently facing the species and the
threats that are reasonably likely to affect the species in the
foreseeable future following the delisting or downlisting and the
removal or reduction of the Act's protections.
A species is ``endangered'' for purposes of the Act if it is in
danger of extinction throughout all or a significant portion of its
range and is ``threatened'' if it is likely to become endangered within
the foreseeable future throughout all or a significant portion of its
range. The word ``range'' in the significant portion of its range (SPR)
phrase refers to the general geographical area in which the species
occurs at the time a status determination is made. For the purposes of
this analysis, we evaluate whether the currently listed species, the
Columbia River DPS of CWTD, continues to meet the definition of
endangered.
In considering what factors might constitute threats, we must look
beyond the exposure of the species to a particular factor to evaluate
whether the species may respond to the factor in a way that causes
actual impacts to the species. If there is exposure to a factor and the
species responds negatively, the factor may be a threat, and during the
five-factor analysis, we attempt to determine how significant a threat
it is. The threat is significant if it drives or contributes to the
risk of extinction of the species, such that the species warrants
listing as endangered or threatened as those terms are defined by the
Act. However, the identification of factors that could impact a species
negatively may not be sufficient to compel a finding that the species
warrants listing. The information must include evidence sufficient to
suggest that the potential threat is likely to materialize and that it
has the capacity (i.e., it should be of sufficient magnitude and
extent) to affect the species' status such that it meets the definition
of endangered or threatened under the Act.
In the following analysis, we evaluate the status of the Columbia
River DPS of CWTD throughout its range as indicated by the five-factor
analysis of threats currently affecting, or that are likely to affect,
the species within the foreseeable future.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
CWTD evolved as a prairie edge/woodland-associated species with
historically viable populations that were not confined to river valleys
(Bailey 1936, pp. 92-93). However, CWTD have been extirpated in all but
two areas of their historical range: the Columbia River DPS area and
the Douglas County DPS area. The remnant Columbia River DPS population
was forced by anthropogenic factors (residential and commercial
development, roads, agriculture, etc., causing fragmentation of natural
habitats) into the lowland patches of forest and fields it now
inhabits. While CWTD can adapt to scattered human development, the
diffusion of urban, suburban, and agricultural areas now limit natural
range expansion within the current subpopulations, and existing
occupied areas support densities of CWTD indicative of low-quality
habitats, particularly lower-lying and wetter habitat than where the
species would typically be found.
Loss of habitat is suspected as a key factor in historical CWTD
declines; 12,140 ha (30,000 ac) of habitat along the lower Columbia
River were converted for residential and large-scale agricultural use
from 1870 to 1970 (Northwest Power and Conservation Council 2004, p.
B4:13). Over time, CWTD were forced into habitat that was fragmented,
wetter, and in more lowland than what would be ideal for the species.
The recovery of the Douglas County DPS reflects the availability of
more favorable habitat (a mix of conifer and hardwood-dominated
vegetation communities, including oak woodlands
[[Page 71398]]
and savannah) and compatible land-use practices, such as intensive
sheep grazing (Franklin and Dyrness 1988, p. 110).
Though limited access to high-quality upland habitat in the
Columbia River DPS remains the most prominent hindrance to CWTD
dispersal and recovery today, the majority of habitat loss and
fragmentation has already occurred. The most dramatic land-use changes
occurred during the era of hydroelectric and floodplain development in
the Columbia River basin, beginning with the construction of the
Willamette Falls Dam in 1888, and continuing through the 1970s
(Northwest Power and Conservation Council 2013, p. 1). Compared to the
magnitude of change that occurred in CWTD habitat through activities
associated with these types of development (e.g., dredging, filling,
diking, and channelization) (Northwest Power and Conservation Council
2004, pp. III, 13-15), significant future changes to currently
available habitat for the Columbia River DPS are not anticipated.
Recovery efforts for CWTD have, in large part, focused on formally
protecting land for the recovery of the species through acquisitions
and agreements such as JBHR, Crims Island, Cottonwood Island, and
Wallace Island, as well as restoration activities to increase the
quality of existing available habitat. In addition, the Service has
expanded CWTD distribution from approximately 8,093 ha (20,000 ac) to
24,281 ha (60,000 ac) through translocations, reducing the risk that a
catastrophic event affecting any one subpopulation would lead to
extinction. To date, the Service has worked to conserve 3,604 ha (8,918
ac) of habitat for the protection of CWTD (U.S. Fish and Wildlife
Service 2013, p. 20). Habitat restoration and enhancement activities on
JBHR have improved the quality of habitat since publication of the
Revised Recovery Plan in 1983, and the Ridgefield NWR now has an active
habitat enhancement program in place to support the translocated
population of CWTD. These efforts have added to the available suitable
habitat for the Columbia River DPS and helped offset some of the
impacts of previous habitat loss.
Although much of the occupied habitat in the Columbia River DPS is
fragmented, wetter than the species prefers, and vulnerable to
flooding, many variables influence CWTD survival. A mosaic of
ownerships and protection levels does not necessarily hinder the
existence of CWTD when land use is compatible with the habitat needs of
the deer. For example, on Puget Island, which is not formally set aside
for the protection of CWTD, the fawn:doe (F:D) ratios are higher than
on the protected JBHR Mainland Unit, and the area has supported a
stable CWTD population without active management in the midst of
continued small-scale development for several decades. Additionally,
the Westport/Wallace Island subpopulation has long maintained stable
numbers, even though most of the area is not managed for the protection
of CWTD. The level of predation, level of disturbance, and condition of
habitat all influence how CWTD can survive in noncontiguous habitats.
Flooding, from either anthropogenic or natural events, is a threat
to CWTD habitat when browsing and fawning grounds become inundated for
prolonged periods. CWTD habitat is susceptible to flooding because a
large proportion of occupied CWTD habitat is land that was reclaimed
from tidal inundation by construction of dikes and levees for
agricultural use in the early 20th century (U.S. Fish and Wildlife
Service 2010, p. 2:48). For example, in 1983, the population of CWTD at
Karlson Island was estimated to be between 8 and 12 individuals. Since
that time, however, the dike on the island has breached such that the
island is now prone to sustained and frequent flooding events. CWTD
have abandoned the island. On the JBHR Mainland Unit, three major
storm-related floods occurred in 1996, 2006, and 2009. These flooding
events were associated with a sudden drop in population numbers,
followed by population recovery in the next few years.
In recent years, there has been interest in restoring the natural
tidal regime to some of the land that was reclaimed from tidal
inundation in the early 20th century, mainly for fish habitat
enhancement. This restoration could reduce habitat for CWTD in certain
areas where the majority of the subpopulation relies upon the reclaimed
land. Since 2009, three new tide gates were installed on the JBHR
Mainland Unit to improve fish passage and facilitate drainage in the
event of large-scale flooding. When the setback levee on the refuge was
completed in fall 2014, the original dike under Steamboat Slough Road
was breached, and the estuarine buffer created now provides additional
protection from flooding to the JBHR Mainland Unit. However, it has
also resulted in the loss or degradation of about 28 ha (70 ac) of CWTD
habitat, which amounts to approximately 3.5 percent of the total
acreage of the JBHR Mainland Unit.
The persistence of invasive species, especially reed canary grass,
has reduced forage quality over much of the CWTD's range, but it
remains unclear how much this change in forage quality is affecting the
overall status of CWTD. While CWTD will eat the grass, it is only
palatable during early spring growth, or about 2 months in spring, and
it is not a preferred forage species (U.S. Fish and Wildlife Service
2010, p. 3:12). Cattle grazing and mowing are used on JBHR lands to
control the growth of reed canary grass along with tilling and planting
of pasture grasses and forbs. This management entails a large effort
that will likely be required in perpetuity unless other control options
are discovered. Reed canary grass is often mechanically suppressed in
agricultural and suburban landscapes, but remote areas, such as the
upriver islands, experience little control. Reed canary grass thrives
in wet soil and excludes the establishment of other grass or forb
vegetation that is likely more palatable to CWTD. Increased groundwater
due to sea-level rise or subsidence of diked lands may exacerbate this
problem by extending the area impacted by reed canary grass. However,
where groundwater levels rise high enough and are persistent, reed
canary grass will be drowned and may be eradicated, although this rise
in water level may also negatively affect CWTD. The total area occupied
by reed canary grass in the future may therefore decrease, remain the
same, or increase, depending on topography, land management, or both.
Competition with elk (Cervus canadensis) for forage on the JBHR
Mainland Unit has historically posed a threat to CWTD (U.S. Fish and
Wildlife Service 2004, p. 5). To address these concerns, JBHR staff
trapped and removed 321 elk during the period from 1984 to 2001.
Subsequently, JBHR staff conducted two antlerless elk hunts, resulting
in a harvest of eight cow elk (U.S. Fish and Wildlife Service 2004, p.
13). The combination of these efforts and elk emigration reduced the
elk population to fewer than 20 individuals. The JBHR considers their
elk reduction goal to have been met. Future increases in the population
above 20 individuals may be controlled with a limited public hunt (U.S.
Fish and Wildlife Service 2010, p. B-20). In a related effort, JBHR
personnel have constructed roughly 4 miles (6.4 km) of fencing to deter
elk immigration onto JBHR (U.S. Fish and Wildlife Service 2004, p. 10).
Climate Change
Our analyses under the Act include consideration of ongoing and
projected
[[Page 71399]]
changes in climate. The terms ``climate'' and ``climate change'' are
defined by the Intergovernmental Panel on Climate Change (IPCC).
``Climate'' refers to the mean and variability of different types of
weather conditions over time, with 30 years being a typical period for
such measurements, although shorter or longer periods also may be used
(Intergovernmental Panel on Climate Change 2013, p. 1450). The term
``climate change'' thus refers to a change in the mean or variability
of one or more measures of climate (e.g., temperature or precipitation)
that persists for an extended period, typically decades or longer,
whether the change is due to natural variability, human activity, or
both (Intergovernmental Panel on Climate Change 2013, p. 1450). Various
types of climate change may be positive, neutral, or negative and they
may vary over time, depending on the species and other relevant
considerations, such as the effects of interactions of climate with
other variables (e.g., habitat fragmentation) (Intergovernmental Panel
on Climate Change 2007, pp. 8-14, 18-19). In our analyses, we use our
expert judgment to weigh relevant information, including uncertainty,
in our consideration of various aspects of climate change.
Environmental changes related to climate change will likely affect
CWTD occupying low-lying habitat that is not adequately protected by
well-maintained dikes. Furthermore, even in areas that have adequate
dikes built, the integrity of those dikes could be at risk of failure
due to the effects of climate change. Climatic models have projected
significant sea-level rise over the next century (Mote et al. 2014, p.
492). Rising sea levels could degrade or inundate current habitat,
forcing some subpopulations of CWTD to move out of existing habitat
along the Columbia River into marginal or more developed habitat. A
rise in groundwater levels could alter vegetation regimes, lowering
forage quality of CWTD habitat and allowing invasive plants to expand
their range into new areas of CWTD habitat. The increase in ground
water levels due to sea-level rise could also allow the threat of hoof
rot (see discussion under Factor C) to persist or increase.
Maintaining the integrity of existing flood barriers that protect
CWTD habitat will be important for recovery of the Columbia River DPS
until greater numbers of CWTD can occupy upland habitat through
additional translocations, and subsequent recruitment and natural range
expansion. The JBHR Mainland Unit has experienced three major storm-
related floods since 1996. While we do not have data to indicate that
climate change is responsible for past storm-related flooding events,
climate change could result in increased storm intensity and frequency,
which would exacerbate the impacts of flooding. Flooding events have
been associated with sudden drops in the CWTD population (see Table 1,
above), which then slowly recovered. An increased rate of occurrence of
these events, however, could permanently reduce the size of this
subpopulation. To facilitate drainage in the event of large-scale
flooding, three new tide gates have been installed on the JBHR Mainland
Unit since 2009. Potentially, additional tide gates could be installed
and dikes could be elevated to reduce the impact of flooding and sea-
level rise on the JBHR Mainland Unit. A new, larger culvert under
Highway 4 was also installed in 2015 allowing a tributary better flow
from the Elochoman River to facilitate drainage and reduce the
likelihood of flooding. Since Puget and Tenasillahe Islands lack stream
input from the Elochoman River or other stream sources, the risk of
flooding from storm events is low. Additionally, Puget Island and
Tenasillahe Island are adequately protected from potential sea level
rises due to the height of their levees and their location within the
main stem of the Columbia River.
The National Wildlife Federation has employed a model to project
changes in sea level in Puget Sound, Washington, and along areas of the
Oregon and Washington coastline. The study projected an average rise of
0.28 meters (m) (0.92 feet (ft)) by 2050, and 0.69 m (2.26 ft) by 2100,
in the Columbia River region (Glick et al. 2007, p. 73). A local rise
in sea level would translate into the loss of some undeveloped dry land
and tidal and inland fresh marsh habitats. By 2100, projections show
that these low-lying habitats could lose from 17 to 37 percent of their
current area due to an influx of saltwater. In addition, since the JBHR
Mainland Unit and Tenasillahe Island were diked in the early 1900s, the
land within the dikes has subsided and dropped to a level near or below
groundwater levels. This in turn has degraded CWTD habitat quality in
some areas. Although saltwater intrusion does not extend this far
inland, the area experiences 2 to 2.5 m (7 to 8 ft) tidal shifts due to
a backup of the Columbia River. Sea-level rise may further increase
groundwater levels on both of these units, as levees do not provide an
impermeable barrier to groundwater exchange.
Due to the reasons listed above, we find the effects of climate
change (specifically sea level rise and increased frequency and
magnitude of storm events) to be a threat to CWTD in the foreseeable
future. The indirect effects of climate change in the form of more
frequent or more severe floods may be exacerbated by that threat.
Because of the low-lying nature of some currently occupied CWTD habitat
in the Columbia River DPS, the long-term stability of the
subpopulations in those areas may rely on the availability of and
access to upland habitat protected from the effects of projected sea-
level rise. The Columbia River DPS would benefit from the
identification of additional suitable high-quality upland habitat and
the development of partnerships with State wildlife agencies to
facilitate the translocation of CWTD to these areas, as well as
securing land with existing stable subpopulations, such as the Westport
area.
Summary of Factor A
Habitat loss from fragmentation, flooding, and continued urban and
suburban expansion remains a threat to CWTD persistence. Stable
populations of the species do persist in habitat that was previously
dismissed as inadequate for long-term survival such as the
subpopulations on Puget Island, Washington, and in Westport, Oregon
(Westport/Wallace Island subpopulation). Historical habitat loss was
largely a result of development, and while this activity is still a
limiting factor, we now understand that the type of development
influences how CWTD respond. Areas such as Puget Island have been and
are expected to continue experiencing the break-up of large
agricultural farms into smaller hobby farms with a continued focus on
low- to medium-density rural residential development. This type of
change has not inhibited the ability of CWTD to maintain a stable
population on Puget Island (about 2,023 ha (5,000 ac)). Therefore, this
type of development is not expected to impact CWTD on Puget Island in
the foreseeable future. In contrast, areas like Willow Grove will
likely see a continued change from an agricultural to a suburban
landscape; this type of development may have a negative impact on CWTD
depending on the density of development.
The Service's recovery efforts involving habitat acquisition and
restoration have led to a corresponding increase in the amount and
quality of habitat specifically protected for the benefit of CWTD.
Habitat enhancement efforts have been focused primarily on the JBHR
Mainland Unit, Tenasillahe Island, and Crims Island where attention has
been focused on increasing the quality of browse, forage, and cover.
There is also a new habitat
[[Page 71400]]
enhancement program at Ridgefield NWR that is focused on increasing the
amount of browse and forage available to CWTD. Finally, CWTD now have
access to the upland areas at Ridgefield NWR, and it is expected that
they will respond positively to the higher quality habitat.
The rise in sea level predicted by climate change models may
threaten any low-lying habitat of the Columbia River DPS not adequately
protected by dikes, and may also threaten the integrity of dikes
providing flood control to certain subpopulations of CWTD. To minimize
possible impacts from flooding, dikes and levees will need to be
maintained and potentially rebuilt or improved over time. Although the
effects of climate change do not constitute a threat to CWTD now, we do
expect the effects to constitute a threat in the foreseeable future.
Overall, although the threat of habitat loss and modification still
remains, it is lower than when the species was listed and the Recovery
Plan was developed; this is due to habitat acquisition and enhancement
efforts, based on an overall better understanding of the influence of
different types of development on CWTD populations.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Overutilization for commercial, scientific, or educational purposes
would likely be a threat to CWTD without the continued protections of
the Act. Although legal harvest of CWTD in the Columbia River DPS
ceased when CWTD were federally listed as endangered, historical
overharvest of CWTD in the late 1800s and early 1900s contributed to
population decline. Early pioneers and explorers to western Oregon used
CWTD as a food resource along main travel corridors, resulting in
extirpation of CWTD in these locations (Crews 1939, p. 5).
As long as take prohibitions generally remain in place, poaching is
not currently considered a threat. Just after the establishment of the
JBHR, poaching was not uncommon given the JBHR's proximity to roads and
easy accessibility. Public understanding and views of CWTD have
gradually changed, however, and poaching is no longer considered a
threat but could become a threat if regulations and enforcement are not
maintained to protect CWTD from overutilization. This downlisting and
associated 4(d) rule will not change this. There have been only a few
cases of intentional shooting of CWTD through poaching in the 49 years
since CWTD were first listed (Bergh 2014, pers. comm.). Although
poaching cannot be completely ameliorated, this current level of
poaching is not considered a threat to the DPS. If poaching levels
change, however, then poaching could hinder CWTD population growth
because of the DPS's small population size. Small populations face
greater risks of extinction because genetic drift and demographic
stochasticity (i.e., random change) have a proportionally large effect
on small populations. Genetic drift reduces allelic diversity in the
population, so poaching could lead to higher levels of homozygosity and
inbreeding depression. Loss of such genetic variation can reduce the
population's ability to respond to environmental changes and increase
the risk of extinction. In addition, preferential pursuit of bucks for
trophy reasons can skew buck to doe ratios and possibly reduce the
overall age structure of bucks. If these larger and older bucks are
removed from the population, the genetic advantages they may pass down
to offspring would also be removed from the population. Thus, while
overutilization does not constitute a threat to CWTD now, it would
likely become a threat without the continued protections of the Act.
C. Disease or Predation
Disease
The Revised Recovery Plan lists necrobacillosis (hoof rot) as a
primary causal factor in CWTD mortality on the JBHR (U.S. Fish and
Wildlife Service 1983, p. 13). Fusobacterium necrophorum is identified
as the etiological agent in most cases of hoof rot, although
concomitant bacteria such as Arcanobacterium pyogenes may also be at
play (Langworth 1977, p. 383). Damp soil or inundated pastures increase
the risk of hoof rot among CWTD with foot injuries (Langworth 1977, p.
383); increased flooding frequency thus may have potential to increase
these risk factors in the future. Among 155 carcasses recovered from
1974 to 1977, hoof rot was evident in 31 percent (n=49) of the cases,
although hoof rot was attributed directly to only 3 percent (n=4) of
CWTD mortalities (Gavin et al. 1984, pp. 30-31). Currently, CWTD on the
JBHR Mainland Unit have occasionally displayed visible evidence of hoof
rot, and recent cases have been observed on Puget Island, but its
prevalence is not known to be a limiting factor in population growth
(U.S. Fish and Wildlife Service 2010, p. 4:53). Of the 49 CWTD captured
from the JBHR Mainland Unit and Puget Island in 2013, none displayed
evidence of hoof rot at the time of capture (U.S. Fish and Wildlife
Service, unpublished data).
Deer hair loss syndrome (DHLS) was documented in black-tailed deer
in northwestern Oregon from 2000 to 2004 (Biederbeck 2004, p. 4). DHLS
results when a deer with an immune system weakened by internal
parasites is plagued with ectoparasites such as deer lice (Damalinia
(Cervicola) spp.). The weakened deer suffer increased inflammation and
irritation, which result in deer biting, scratching, and licking
affected areas and, ultimately, removing hair in those regions. This
condition is found most commonly among deer occupying low-elevation
agricultural areas (below 183 m (600 ft) elevation). While the study
found a higher instance in black-tailed deer, cases in CWTD have also
been observed. Most cases (72 percent) of DHLS detected at the Saddle
Mountain Game Management Unit in northwestern Oregon were associated
with black-tailed deer. Twenty-six percent of black-tailed deer
surveyed in the Saddle Mountain Game Management Unit showed symptoms of
DHLS, while only 7 percent of CWTD were symptomatic (Biederbeck 2004,
p. 4). Additionally, cases were identified in CWTD in 2002 and 2003,
but none of the CWTD surveyed in 2004 showed evidence of the disease
(Biederbeck 2004, p. 4). CWTD captured during translocations in recent
years have occasionally exhibited evidence of hair loss. Mild hair loss
has been observed in a few fawns and yearlings (U.S. Fish and Wildlife
Service 2010, p. 4:53).
DHLS is not thought to be highly contagious, nor is it considered
to be a primary threat to CWTD survival, although it has been
associated with deer mortality (Biederbeck 2002, p. 11; 2004, p. 7).
Reports of DHLS among black-tailed deer in Washington have indicated
significant mortality associated with the condition. In 2006, a high
number of Yakima area mule deer (Odocoileus hemionus) mortalities were
reported with symptoms of DHLS (Washington Department of Fish and
Wildlife 2010, p. 1), although their mortality may be more related to a
significant outbreak of lice in the population at the time. With
respect to CWTD, however, there has been no documented mortality
associated with the disease on the JBHR Mainland Unit (U.S. Fish and
Wildlife Service 2010, p. 4:53), and DHLS is not a current or
foreseeable threat.
Parasite loads were tested in 16 CWTD on the JBHR Mainland Unit and
Tenasillahe Island in February of 1998 (Creekmore and Glaser 1999, p.
3). All CWTD tested via fecal samples showed
[[Page 71401]]
evidence of the stomach worm Haemonchus contortus. Lung worm
(Parelaphostrongylus spp.) and trematode eggs, possibly from liver
flukes (Fascioloides spp.), were also detected. These results are
generally not a concern among healthy populations, and although the
Columbia River DPS of CWTD has less than optimal forage and habitat
quality available in some subpopulations, their relatively high
parasite load has never been linked to mortality in the DPS. Parasites
are not a current or future threat to CWTD, as the parasite load
appears to be offset by a level of fecundity that supports stable or
increasing populations.
Predation
Coyote predation on CWTD has been a problem for the Columbia River
DPS, but careful attention to predator control has demonstrated that
predation can be managed. Since 1983, studies have been conducted to
determine the primary factors affecting fawn survival throughout the
range of the Columbia River DPS of CWTD (U.S. Fish and Wildlife
Service, unpublished data), and coyote predation is thought to be the
most significant impact on fawn recruitment. On the JBHR Mainland Unit,
Clark et al. (2010, p. 1) fitted 131 fawns with radio collars and
tracked them for the first 150 days of age from 1978 to 1982, and then
again from 1996 to 2000 (16 deer were dropped from the analyses due to
collar issues). The authors found only a 23 percent survival rate. They
also determined that predation from coyotes was the primary cause of
fawn mortality, accounting for 69 percent (n = 61) of all documented
deaths. Of the remaining fatalities, 16 percent were attributed to
disease and starvation, and 15 percent were attributed to unknown
causes. The percentage of mortalities from predation for CWTD fawns is
comparable to that of other ungulate species; however, CWTD fawn
survival rate is much lower. Using 111 papers and reports, Linnell et
al. (1995, p. 209) found the average fawn survival rate of northern
ungulates was approximately 54 percent, with predation accounting for
67 percent of fawn mortality.
Between 1997 and 2008, 46 coyotes were removed from the JBHR
Mainland Unit by the U.S. Department of Agriculture (USDA) Animal and
Plant Health Inspection Service (U.S. Fish and Wildlife Service 2010,
p. 4:62). Coyote removal appears to result in an increase in fawn
survival, although this has not been analyzed statistically. In 1996,
the estimated JBHR Mainland Unit fawn:doe (F:D) ratio was 15:100. The
following year, after 9 coyotes were removed, the F:D ratio increased
to 61:100 (U.S. Fish and Wildlife Service 2010, p. 4:54); however, this
was the year following catastrophic flooding, so some F:D ratio
improvement could be a result of post-flooding conditions. On
Tenasillahe Island, the average F:D ratio between 2001 and 2003 was
6:100. No coyotes were removed during that time. Over the next 5 years
(2004 to 2008), 31 coyotes were removed, and the F:D ratio improved and
averaged 37:100. Clark et al. (2010, p. 14) suggested shifting the
timing of coyote removal from winter/early spring to the critical
fawning period of June to September. This suggestion has been included
in the comprehensive conservation plan for the JBHR and has been
implemented since 2008. Since shifting the timing of predator control,
a F:D ratio of 37:100 has been maintained on the JBHR Mainland Unit.
Due to the evident success of predator control efforts at JBHR,
Ridgefield NWR began implementing a coyote control program in May 2013,
to support the then-newly translocated CWTD. We do not anticipate a
change in predator control levels on refuge lands in the foreseeable
future.
It is common for private landowners in the region to practice
predator control on their property, but we do not know the extent of
predator control occurring currently or the amount that is likely to
occur in the future. On private lands with sheep and other livestock,
we have no information that leads us to anticipate a decrease in the
level of predator control in the foreseeable future (Meyers 2016, pers.
comm.). Even with predation occurring on private lands, the populations
of Puget Island and Westport still demonstrate a positive growth rate
over time (see Table 1, above). Additionally, coyote control has been
in practice on refuge lands for some time and will continue to be
implemented on both the JBHR and Ridgefield NWR to support CWTD
populations. While coyote control efforts in the Columbia River DPS
have met with some success, there may be other factors, such as habitat
enhancement, that are also influencing increased F:D ratios in certain
CWTD subpopulations. Doe survival in the DPS depends heavily on the
availability of nutritious forage rather than on predation pressure,
although fawn predation within subpopulations is most likely influenced
by coyote population cycles (Phillips 2009, p. 20). Furthermore, deer
and elk populations can be depressed by the interplay between various
factors such as habitat quality and predation pressure (Oregon
Department of Fish and Wildlife 2013, p. 8).
The causes of mortality in ungulates are often divided into
predation and food limitation (Linnell et. al. 1995, p. 209). Predation
levels on CWTD fawns are comparable to average predation levels for
other ungulates; however, average survival rates are lower for CWTD
fawns. Thus, further information is needed on food availability and
habitat quality within the range of the Columbia River DPS of CWTD to
determine how food limitation affects fawn survival. As CWTD increase
in numbers and occupy areas with higher quality habitat, predation will
likely be offset by increased fecundity. For instance, anecdotal
observations of twins on Ridgefield NWR provide some indication that
CWTD fecundity is higher in higher quality habitat. The population size
of the Ridgefield NWR subpopulation also doubled in 1 year, from 48
individuals in 2014 to 100 individuals in 2015 (see Table 1, above).
Fecundity increases that will lead to self-sustaining population levels
are anticipated as a result of long-term improvement of habitat
conditions and continued focus on coyote control on refuge lands (and
monitoring of predation by other species such as bobcat). As predation
on CWTD fawns is comparable to fawn predation levels in other
ungulates, and as we anticipate increases in fecundity, and potentially
fawn survival, with habitat improvement, predation is not a threat to
the DPS.
Summary of Factor C
Naturally occurring diseases such as hoof rot, DHLS, and parasite
loads can often work through an ungulate population without necessarily
reducing the overall population abundance. Although the relatively high
parasite load in the Columbia River DPS of CWTD is compounded by the
additional stressor of suboptimal forage and habitat quality for some
subpopulations, the load itself has never been linked to mortality in
the DPS. Disease in the Columbia River DPS of CWTD is not a threat now,
and we have no evidence to suggest it may become a threat in the
foreseeable future.
Predation in the Columbia River DPS of CWTD is not a threat now,
and we have no reason to expect it to become a threat in the
foreseeable future. Depredation of fawns by coyotes is common in the
Columbia River DPS; however, many factors, such as food availability,
work in conjunction with each other to determine the overall level of
fawn recruitment. Coyote control is in practice on some private lands
in the
[[Page 71402]]
region as well as on both the JBHR and Ridgefield NWR to decrease the
likelihood of fawn depredation, and the level of control is not
anticipated to change in the foreseeable future on refuge lands. Even
with a large proportion of fawns being lost to predation, the
population of the Columbia River DPS has increased since surveys began
in the late 1980s. As CWTD increase in numbers and habitat quality
improves through restoration efforts, population increases will likely
offset the impact of predation.
D. The Inadequacy of Existing Regulatory Mechanisms
Under this factor, we examine whether existing regulatory
mechanisms adequately address the threats to the CWTD discussed under
other factors. Section 4(b)(1)(A) of the Act requires the Service to
take into account, ``those efforts, if any, being made by any State or
foreign nation, or any political subdivision of a State or foreign
nation, to protect such species. . . .'' In relation to Factor D under
the Act, we interpret this language to require the Service to consider
relevant Federal, State, and Tribal laws, regulations, and other such
mechanisms that may minimize any of the threats we describe in threat
analyses under the other four factors, or otherwise enhance
conservation of the species. We give strongest weight to statutes and
their implementing regulations and to management direction that stems
from those laws and regulations. Examples are State governmental
actions enforced under a State statute or constitution, or Federal
action under statute.
The following section includes a discussion of State, local, or
Federal laws, regulations, or treaties that apply to CWTD. It includes
legislation for Federal land management agencies and State and Federal
regulatory authorities affecting land use or other relevant management.
Before CWTD was federally listed as endangered in 1967, the species had
no regulatory protections. Existing laws were considered inadequate to
protect the subspecies. The CWTD was not officially recognized by
Oregon or Washington as needing any special protection or given any
special consideration under other environmental laws when project
impacts were reviewed.
Now the CWTD is designated as ``State Endangered'' by the WDFW.
Although there is no State Endangered Species Act in Washington, the
Washington Fish and Wildlife Commission has the authority to list
species (Revised Code of Washington (RCW) 77.12.020), and they listed
CWTD as endangered in 1980. State-listed species are protected from
direct take, but their habitat is not protected (RCW 77.15.120). Under
the Washington State Forest Practices Act, the Washington State Forest
Practices Board has the authority to designate critical wildlife
habitat for State-listed species affected by forest practices
(Washington Administrative Code (WAC) 222-16-050, WAC 222-16-080),
although there is no critical habitat designated for CWTD.
The WDFW's hunting regulations remind hunters that CWTD are listed
as endangered by the State of Washington (Washington Department of Fish
and Wildlife 2015, pp. 18, 20). This designation means it is illegal to
hunt, possess, or control CWTD in Washington. There has been one
documented case of an accidental shooting of CWTD by a black-tailed
deer hunter due to misidentification, and a few cases of intentional
shooting of CWTD through poaching in the 49 years since CWTD were first
listed (Bergh 2014, pers. comm.). The State endangered designation
protects individual CWTD from direct harm, but offers no protection to
CWTD habitat.
The Washington State Legislature established the authority for
Forest Practices Rules (FPR) in 1974. The Forest Practices Board
established rules to implement the Forest Practices Act in 1976, and
has amended the rules continuously over the last 30 years. The WDNR is
responsible for implementing the FPR and is required to consult with
the WDFW on matters relating to wildlife, including CWTD. The FPR do
not specifically address CWTD, but they do address endangered and
threatened species under their ``Class IV-Special'' rules (WAC 222-10-
040). If a landowner's forestry-related action would ``reasonably . . .
be expected, directly or indirectly, to reduce appreciably the
likelihood of the survival or recovery of a listed species in the wild
by reducing the reproduction, numbers, or distribution of that
species,'' then the landowner would be required to comply with the
State's Environmental Policy Act guidelines before the landowner could
perform the action in question. The guidelines can require the
landowner to employ mitigation measures, or they may place conditions
on the action such that any potentially significant adverse impacts
would be reduced. Compliance with the FPR does not substitute for or
ensure compliance with the Federal Endangered Species Act. A permit
system for the scientific taking of State-listed endangered and
threatened wildlife species is managed by the WDFW.
Though CWTD (Columbia River DPS) are not listed as endangered or
threatened by the State of Oregon, they are classified as a ``protected
mammal'' by the State of Oregon because of their federally endangered
designation, and this will not change upon CWTD being federally
downlisted to threatened (Oregon Department of Fish and Wildlife 2012,
p. 1). The CWTD is designated as ``Sensitive-Vulnerable'' by the Oregon
Department of Fish and Wildlife (ODFW). The ``Sensitive'' species
classification was created under Oregon's Sensitive Species Rule
(Oregon Administrative Rules (OAR) 635-100-040) to address the need for
a proactive species conservation approach. The Sensitive Species List
is a nonregulatory tool that helps focus wildlife management and
research activities, with the goal of preventing species from declining
to the point of qualifying as ``endangered'' or ``threatened'' under
the Oregon Endangered Species Act (Oregon Revised Statutes (ORS)
496.171, 496.172, 496.176, 496.182 and 496.192). Species designated as
Sensitive-Vulnerable are those facing one or more threats to their
populations, habitats, or both. Vulnerable species are not currently
imperiled with extirpation from a specific geographic area or the
State, but could become so with continued or increased threats to
populations, habitats, or both. This designation encourages but does
not require the implementation of any conservation actions for the
species. The ODFW does not allow hunting of CWTD, except for controlled
hunt of the federally delisted Douglas County DPS in areas near
Roseburg, Oregon (Oregon Department of Fish and Wildlife 2015, p. 39).
There have been no documented cases of accidental or intentional
killing of CWTD in the Columbia River DPS in Oregon (Boechler 2014,
pers. comm.).
The State may authorize a permit for the scientific taking of a
federally endangered or threatened species for ``activities associated
with scientific resource management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation and
transplantation.'' An incidental taking permit or statement issued by a
Federal agency for a species listed under the Federal Endangered
Species Act ``shall be recognized by the state as a waiver for any
state protection measures or requirements otherwise applicable to the
actions allowed under the federal permit'' (ORS 96.172(4)).
The Oregon Forest Practices Act (ORS 527.610 to 527.992 and OAR
chapter 629, divisions 600 to 665) lists
[[Page 71403]]
protection measures specific to private and State-owned forested lands
in Oregon. These measures include specific rules for overall
maintenance of fish and wildlife, and specifically for federally
endangered and threatened species including the collection and analysis
of the best available information and establishing inventories of these
species (ORS 527.710, section 3(a)(A)). Compliance with the forest
practice rules does not substitute for or ensure compliance with the
Federal Endangered Species Act.
The Oregon Department of Forestry recently updated their Northwest
Oregon Forest Plan (Oregon Department of Forestry 2010). There is no
mention of CWTD in their Forest Plan, but they do manage for elk and
black-tailed deer. Landowners and operators are advised that Federal
law prohibits a person from taking certain endangered or threatened
species that are protected under the Federal Endangered Species Act
(OAR 629-605-0105).
The 4(d) rule we are making final in this rulemaking retains most
take prohibitions, which will provide additional protections to CWTD
that are not available under State laws. Other than the ``take'' that
will be allowed for the specific activities outlined in the 4(d) rule,
``take'' of CWTD is prohibited on all lands without a permit or
exemption from the Service. Furthermore, the National Wildlife Refuge
System Improvement Act of 1997 (16 U.S.C. 668dd et seq.) provides
additional protection to CWTD. Where CWTD occur on NWR lands (the JBHR
and Ridgefield NWRs), this law protects CWTD and their habitats from
large-scale loss or degradation due to the Service's mission ``to
administer a national network of lands . . . for the conservation,
management, and where appropriate, restoration of the fish, wildlife,
and plant resources and their habitats.''
The JBHR was established in Washington in 1971, specifically to
protect and manage the endangered CWTD. Approximately one-third of the
population of CWTD occurs on the JBHR in the JBHR Mainland Unit
subpopulation and the Tenasillahe Island subpopulation. The JBHR's
comprehensive conservation plan (CCP) includes goals for the following:
(1) Protecting, maintaining, enhancing, and restoring habitats for
CWTD; (2) contributing to the recovery of CWTD by maintaining minimum
population sizes on JBHR properties; and (3) conducting survey and
research activities, assessments, and studies to enhance species
protection and recovery (U.S. Fish and Wildlife Service 2010a, pp.
2:48-76). The JBHR implements habitat improvement and enhancement
actions on a regular basis as well as predator management. As of early
2013, the Ridgefield NWR is home to a new subpopulation of CWTD. The
Ridgefield CCP states that current and proposed habitat management will
support a mix of habitats suitable for CWTD (U.S. Fish and Wildlife
Service 2010b, p. 48). Habitat conditions on Ridgefield NWR are
favorable for CWTD, and both habitat enhancement and predator control
are being implemented. Regular monitoring will occur to assess the
viability of this subpopulation over time. Both JBHR and Ridgefield NWR
must conduct consultations under section 7 of the Act for any refuge
activity that may result in adverse effects to CWTD.
Summary of Factor D
Although additional regulatory mechanisms have been developed for
the Columbia River DPS since its listing under the Act and these
mechanisms are working as designed and help to minimize threats, they
do not fully ameliorate the threats to the species and its habitat.
Without the continued protections of the Act, the existing regulatory
mechanisms for the Columbia River DPS would be inadequate.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Hybridization
Hybridization with black-tailed deer was not considered a
significant threat to the Columbia River DPS of CWTD at the time of the
development of the Revised Recovery Plan (U.S. Fish and Wildlife 1983,
p. 40). Later studies raised some concern over the presence of black-
tailed deer genes in the isolated Columbia River DPS population. Gavin
and May (1988, p. 1) found evidence of hybridization in 6 of 33 samples
of CWTD on the JBHR Mainland Unit and surrounding area. A subsequent
study revealed evidence of hybridization on Tenasillahe Island, but not
within the JBHR Mainland Unit (Piaggio and Hopken 2009, p. 18). On
Tenasillahe Island, 32 percent (8) of the 25 deer tested and identified
as CWTD contained genes from black-tailed deer. Preliminary evidence
shows no morphological differences in CWTD/black-tailed deer hybrids,
suggesting molecular analysis may be the only analytic tool in tracking
hybridization. These data suggest that these genes may have been due to
a single hybridization event that is being carried through the
Tenasillahe Island population (Piaggio and Hopken 2009, p. 18).
Translocation efforts have at times placed CWTD in areas that
support black-tailed deer populations. While few black-tailed deer
inhabit the JBHR Mainland Unit or Tenasillahe Island, the Upper Estuary
Islands population may experience more interspecific interactions.
Aerial FLIR survey results in 2006 detected 44 deer on the four-island
complex of Fisher/Hump and Lord/Walker. Based upon the proportion of
CWTD to black-tailed deer sightings using trail cameras on these
islands, Service biologists estimated that, at most, 14 of those
detected were CWTD (U.S. Fish and Wildlife Service 2007, p. 1). A study
conducted in 2010 by the JBHR and the National Wildlife Research Center
using fecal samples collected on Crims, Lord, and Walker Islands showed
no hybridization in any of the samples collected, suggesting a low
tendency to hybridize even in island situations (Piaggio and Hopken
2010, p. 14). The actual magnitude of hybridization has probably not
changed since the listing of CWTD; however, there are not enough data
available to confirm this assumption. Hybridization might affect the
genetic viability of the Columbia River DPS, and additional research
regarding hybridization could give broader insight to the implications
and occurrence of this phenomenon, and how it may influence subspecies
designation. Although a more complete data set would provide more
conclusive information regarding hybridization in CWTD, based upon the
minor level of detections of black-tailed deer genetic material and the
complete lack of any evidence of hybridization on several islands, we
find that hybridization is not a threat to the Columbia River DPS.
Vehicle Collisions
Because deer are highly mobile, collisions between CWTD and
vehicles do occur, but the number of collisions in the Columbia River
DPS has not prevented the DPS from increasing over time and meeting
downlisting criteria. The frequency of collisions is dependent on the
proximity of a subpopulation to roads with high traffic levels, and
collisions with CWTD have been most frequent among deer that have been
translocated to areas that are relatively close to high trafficked
roads. In 2010, 7 of 15 deer translocated to Cottonwood Island,
Washington, from Westport, Oregon swam off the island and were killed
by collisions with vehicles on U.S. Highway 30 in Oregon, and on
Interstate 5 in Washington (Cowlitz Indian Tribe 2010, p. 3). In 2013,
5 of 12 deer translocated to Cottonwood Island from Puget Island were
killed by collisions with vehicles,
[[Page 71404]]
and another 4 may have been killed by vehicles or by other means such
as disease or predation (U.S. Fish and Wildlife Service, unpublished
data). When combined, 12 of 27 CWTD (44 percent) were killed by vehicle
strikes while dispersing from Cottonwood Island. (Translocation efforts
to Cottonwood Island are not currently active.) By contrast, of the 58
deer that were translocated to Ridgefield NWR in 2013 and 2014, only 3
have been struck by vehicles, and all 3 were struck after wandering off
refuge land. Because of its proximity to Highway 4 in Washington, JBHR
sees occasional collisions between vehicles and CWTD on or near the
refuge. Refuge personnel recorded four CWTD killed by vehicle
collisions in 2010 along Highway 4 and on the JBHR Mainland Unit. These
were deer that were either observed by Service personnel or reported
directly to the JBHR. There are no trend data available for these
collisions because systematic data collection has not occurred.
The Washington Department of Transportation removes road kills
without reporting species details to the JBHR, so the actual number of
CWTD struck by cars in Washington is probably slightly higher than the
number of cases of which JBHR staff is aware. Since the 2013
translocation, ODFW has had an agreement with the Oregon Department of
Transportation (ODOT) that ODOT personnel assigned to stations along
Highway 30 will report any CWTD mortalities. So far, they have been
contacting the Oregon State Police and occasionally ODFW staff when
they find a mortality with a collar or ear tags. It is uncertain if the
ODOT staff report unmarked CWTD mortalities (VandeBergh 2013, pers.
comm.).
Although the number of deer collisions may increase over time as
CWTD populations expand in both numbers and range, the rate of
collisions in proportion to the Columbia River DPS population size is
not limiting. We acknowledge that estimates of the number of deer
killed on roads could be low and that increasing human development and
deer population sizes could result in increased mortality rates in the
future, especially for those populations near highways. Therefore,
while vehicle collisions could potentially impact certain
subpopulations of CWTD, they do not constitute a threat to the entire
DPS now, and we do not expect them to be a threat in the foreseeable
future.
Summary of Factor E
Low levels of hybridization have recently been detected between
black-tailed deer and CWTD on the JBHR (Piaggio and Hopken 2010, p.
15). Future genetic work could give a broader insight into the
implications and occurrence of this phenomenon. However, Piaggio and
Hopken concluded that although hybridization can occur between CWTD and
black-tailed deer, it is not a common or current event (2010, p. 16).
The two species will preferentially breed within their own taxa, and
their habitat preferences differ somewhat. Therefore, hybridization
does not constitute a threat now, and we have no reason to expect it
will become a threat in the foreseeable future. While collisions
between CWTD and vehicles do occur, frequency of collisions is
dependent on the proximity of a subpopulation to roads with high
traffic levels, making some subpopulations more susceptible to vehicle
mortality than others. Overall, vehicle collisions have not prevented
the DPS population from increasing over time and meeting recovery
criteria for downlisting, and there is no evidence to suggest that they
will become a threat to the DPS in the foreseeable future.
Overall Summary of Factors Affecting CWTD
The Columbia River DPS has consistently exceeded the minimum
population criterion of 400 deer over the past 2 decades. Based on the
most recent comprehensive survey data from 2015, the Columbia River DPS
has approximately 966 CWTD, with two subpopulations that are both
viable and secure (Tenasillahe Island and Puget Island). The current
range of CWTD in the lower Columbia River area has been expanded
approximately 80.5 km (50 mi) upriver from its easternmost range of
Wallace Island in 1983, to Ridgefield, Washington, due to a
translocation of animals from the JBHR Mainland Unit, Puget Island, and
Westport subpopulations. Based on observations of successful breeding
and subpopulation growth to date, the recently established Ridgefield
NWR population is expected to continue to grow and represent an
additional viable subpopulation, as defined in the recovery plan;
however, we will conduct additional demographic monitoring to
accurately assess the overall response of the newly established
Ridgefield NWR subpopulation and more reliably demonstrate its
viability. Like the Ridgefield NWR subpopulation, we anticipate the
JBHR Mainland Unit subpopulation will continue to rebound and represent
a viable subpopulation in the near future.
Threats to the Columbia River DPS from habitat loss or degradation
(Factor A) still remain and will likely continue into the foreseeable
future in the form of habitat alteration, and some subpopulations are
expected to be affected by habitat changes resulting from the effects
of climate change. Predation, diseases, and parasites (Factor C) are
not currently known to significantly contribute to mortality in CWTD.
While there is potential for increased flood frequency to increase risk
factors for hoof rot, available information does not indicate that the
disease, in combination with other factors, is currently a significant
limiting factor for the population or is likely to become so. Thus we
do not consider disease or predation (Factor C) to be a threat. Without
the protections of the Act, the existing regulatory mechanisms,
including those to prevent overutilization (Factor B), for the Columbia
River DPS remain inadequate (Factor D). While hybridization (Factor E)
is not a threat, vehicle collisions (Factor E) may pose a threat to
some subpopulations during dispersal.
Determination
As stated above, section 4 of the Act (16 U.S.C. 1533), and its
implementing regulations at 50 CFR part 424, set forth the procedures
for adding species to or removing species from the Federal Lists of
Endangered and Threatened Wildlife and Plants. An assessment of the
need for a species' protection under the Act is based on whether a
species is in danger of extinction or likely to become so because of
any of five factors described above in the Summary of Factors Affecting
the Species section. As required by section 4(a)(1) of the Act, we
considered these five factors in assessing whether the Columbia River
DPS of CWTD is in danger of extinction or likely to become so in the
foreseeable future throughout all of its range.
As required by the Act, we considered the five factors in assessing
whether the Columbia River DPS of CWTD is endangered or threatened
throughout all or a significant portion of its range. We carefully
examined the best scientific and commercial information available
regarding the past, present, and future threats faced by the DPS. We
reviewed the information available in our files and other available
published and unpublished information, and we consulted with recognized
experts and State and Tribal agencies.
We find that the Columbia River DPS is still affected by habitat
loss and degradation, and some subpopulations are likely to be affected
in the future by habitat changes resulting from the
[[Page 71405]]
effects of climate change and may be affected by vehicle collisions. We
did not identify any factors that put the DPS in danger of extinction
at the present time; however, without the continued protections of the
Act, effects of take could be detrimental to small subpopulations,
especially those that have not reached minimum viable population size,
due to the proportionally large effects of genetic drift and
demographic stochasticity. Conservation efforts have progressed to the
point that the minimum population size of 400 has now been met or
exceeded for more than 20 years, and we have three viable
subpopulations, two of which are considered currently secure, but
additional viable and secure subpopulations are needed to achieve the
recovery of the DPS. Increasing the amount and quality of habitat to
address the ongoing threat of habitat loss or degradation will be a key
component of achieving the security of additional subpopulations to
attain recovery goals. Thus, although the threats that led to the
initial listing of the Columbia River DPS of the CWTD have been
ameliorated such that the DPS is not presently in danger of extinction,
ongoing threats to the DPS such as habitat loss and threats to certain
subpopulations such as effects due to climate change are such that the
DPS is likely to become an endangered species within the foreseeable
future. Our analysis thus indicates that the Columbia River DPS of CWTD
is not at imminent risk of extinction throughout all of its range;
therefore, the Columbia River DPS of CWTD does not meet the definition
of an endangered species. We conclude that the DPS is not currently in
danger of extinction, but is likely to become in danger of extinction
within the foreseeable future, such that it now meets the definition of
a threatened species. Therefore, on the basis of the best scientific
and commercial data available, we find that the Columbia River DPS of
CWTD no longer meets the definition of endangered and should be
reclassified as a threatened species in accordance with sections 3(20)
and 4(a)(1) of the Act.
Significant Portion of the Range
Because we have concluded that the Columbia River DPS of CWTD is a
threatened species throughout all of its range, no portion of its range
can be ``significant'' for purposes of the definitions of ``endangered
species'' and ``threatened species.'' See the Service's Significant
Portion of its Range (SPR) Policy (79 FR 37578, July 1, 2014).
Effects of the Rule
This final rule revises 50 CFR 17.11(h) to reclassify the Columbia
River DPS of CWTD from endangered to threatened on the List of
Endangered and Threatened Wildlife. Reclassification of CWTD from
endangered to threatened provides recognition of the substantial
efforts made by Federal, State, and local government agencies; Tribes;
and private landowners to recover the species. This rule formally
recognizes that this species is no longer at imminent risk of
extinction and therefore does not meet the definition of endangered,
but is still impacted by habitat loss and degradation of habitat to the
extent that the species meets the definition of a threatened species (a
species which is likely to become an endangered species within the
foreseeable future) under the Act. However, this reclassification does
not significantly change the protection afforded this species under the
Act. Other than the ``take'' that will be allowed for the specific
activities outlined in the accompanying 4(d) rule, the regulatory
protections of the Act will remain in place. Anyone taking, attempting
to take, or otherwise possessing a CWTD, or parts thereof, in violation
of section 9 of the Act will still be subject to penalties under
section 11 of the Act, except for the actions covered under the 4(d)
rule. Whenever a species is listed as threatened, the Act allows
promulgation of a rule under section 4(d) that modifies the standard
protections for threatened species found under section 9 of the Act and
Service regulations at 50 CFR 17.31 (for wildlife) and 17.71 (for
plants), when it is deemed necessary and advisable to provide for the
conservation of the species. These rules may prescribe conditions under
which take of the threatened species would not be a violation of
section 9 of the Act.
4(d) Rule
The purposes of the Act are to provide a means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved, to provide a program for the conservation of
endangered species and threatened species, and to take such steps as
may be appropriate to achieve the purposes of the treaties and
conventions set forth in the Act. When a species is listed as
endangered, certain actions are prohibited under section 9 of the Act,
as specified at 50 CFR 17.21. These include, among others, prohibitions
on take within the United States, within the territorial seas of the
United States, or upon the high seas; import; export; and shipment in
interstate or foreign commerce in the course of a commercial activity.
The Act does not specify particular prohibitions and exceptions to
those prohibitions for threatened species. Instead, under section 4(d)
of the Act, the Secretary is authorized to issue regulations deemed
necessary and advisable to provide for the conservation of threatened
species. The Secretary also has the discretion to prohibit by
regulation with respect to any threatened species any act prohibited
under section 9(a)(1) of the Act. Exercising this discretion, the
Service has by regulation applied those prohibitions to threatened
species unless a special rule is promulgated under section 4(d) of the
Act (``4(d) rule'') (50 CFR 17.31(c)). Under 50 CFR 17.32, permits may
be issued to allow persons to engage in otherwise prohibited acts for
certain purposes unless a special rule provides otherwise.
A 4(d) rule may include some or all of the prohibitions and
authorizations set out at 50 CFR 17.31 and 17.32, but also may be more
or less restrictive than those general provisions. For the Columbia
River DPS of CWTD, the Service has determined that a 4(d) rule is
necessary and appropriate for the conservation of the species. As a
means to provide continued protection from take and also to facilitate
both conservation of CWTD in the Columbia River DPS and to facilitate
natural expansion of their range by increasing flexibility in
management activities for our State and Tribal partners and private
landowners, we are issuing a rule for this species under section 4(d)
of the Act.
Under this 4(d) rule, take will generally continue to be prohibited
but the following forms of take are allowed:
Take by landowners or their agents conducting intentional
harassment not likely to cause mortality if they have obtained a permit
from the applicable State conservation agency;
Take of problem CWTD (as defined under Provisions of the
4(d) Rule, below) by Federal or State wildlife management agency staff,
or private landowners acting in accordance with a permit obtained from
a State conservation agency;
Take by private landowners that is accidental and
incidental to an otherwise permitted and lawful activity to control
damage by black-tailed deer, and if reasonable due care was practiced
to avoid such taking;
Take by black-tailed deer hunters if the take was
accidental and incidental to hunting done in full compliance with the
State hunting rules, and if
[[Page 71406]]
reasonable due care was practiced to avoid such taking;
Take by designated Tribal employees and State and local
law enforcement officers to deal with sick, injured, or orphaned CWTD;
Take by State-licensed wildlife rehabilitation facilities
when working with sick, injured, or orphaned CWTD; and
Take under permits issued by the Service under 50 CFR
17.32.
Other than these exceptions, the provisions of 50 CFR 17.31(a) and
(b) apply.
The 4(d) rule targets these activities to facilitate conservation
and management of CWTD where they currently occur through increased
flexibility for State wildlife management agencies, and to encourage
landowners to facilitate the expansion of the CWTD's range by
increasing the flexibility of management of the deer on their property
(see Justification, below). Activities on Federal lands or with any
Federal agency involvement will still need to be addressed through
consultation under section 7 of the Act. Take of CWTD in defense of
human life in accordance with 50 CFR 17.21(c)(2) or by the Service or
designated employee of a State conservation agency responding to a
demonstrable but non-immediate threat to human safety in accordance
with 50 CFR 17.21(c)(3)(iv) (primarily in the event that a deer
interferes with traffic on a highway) is not prohibited. Any deterrence
activity that does not create a likelihood of injury by significantly
disrupting normal CWTD behavioral patterns such as breeding, feeding,
or sheltering is not take and is therefore not prohibited under section
9. Non-injurious deterrence activities for CWTD damage control may
include yelling at the deer, use of repellents, fencing and other
physical barriers, properly deployed noise-making devices (including
explosive devices such as propane cannons, cracker shells, whistlers,
etc.), scarecrows, plant protection devices (bud caps, netting, tree
tubes, etc.), and artificial lighting.
If there is potential that an activity would interrupt normal CWTD
behavior to the point where the animal would stop feeding or not find
adequate cover, creating a likelihood of injury, then the activity
would have the potential to cause take in the form of harassment. Under
this 4(d) rule, if the activity is not likely to be lethal to CWTD, it
is classified as intentional harassment not likely to cause mortality
and is allowed if the activity is carried out under and according to a
legally obtained permit from the Oregon or Washington State
conservation agency. Actions that may create a likelihood of injury,
but are determined by State wildlife biologists not likely to cause
mortality, may include the use of nonlethal projectiles (including
paintballs, rubber bullets, pellets or ``BB's'' from spring- or air-
propelled guns, etc.) or herding or harassing with dogs, and are only
allowed if the activity is carried out under and according to a legally
obtained permit from the Oregon or Washington State conservation
agency.
This 4(d) rule allows a maximum of 5 percent of the DPS to be
lethally taken annually for the following activities combined: (1)
Damage management of problem CWTD, (2) misidentification during black-
tailed deer damage management, and (3) misidentification during black-
tailed deer hunting. The identification of a problem CWTD will occur
when the State conservation agency or Service determines in writing
that: (1) A CWTD is causing more than de minimus negative economic
impact to a commercial crop, (2) previous efforts to alleviate the
damage through nonlethal methods have been ineffective, and (3) there
is a reasonable certainty that additional property losses will occur in
the near future if a lethal control action is not implemented.
The current estimated population of the DPS is 966 deer; therefore
5 percent would currently equate to 48 deer. We will set the allowable
take at 5 percent of the most current annual November population
estimate of the DPS based on FLIR surveys and ground counts to provide
sufficient flexibility to our State wildlife agency partners in the
management of CWTD and to strengthen our partnership in the recovery of
the DPS. Although the fecundity and overall recruitment rate is strong
and will allow the DPS to persist and continue to recover even with
take up to the maximum allowable 5 percent, we do not expect that the
number of deer taken per year will ever exceed 2 percent of the DPS per
year for several reasons. First, no CWTD have been injured or killed as
a result of management activities because damage management activities
have not been required for successfully translocated CWTD, although
most translocations were to NWR lands. We anticipate that the necessity
of damage management activities may increase as the CWTD population
increases and as CWTD are able to disperse to areas previously
unavailable, such as those agricultural areas surrounding the
Ridgefield NWR. Furthermore, the Service expects that most CWTD will
respond to non-injurious or nonlethal means of dispersal so that lethal
take of problem CWTD will not often be necessary. We are, therefore,
confident that the amount of CWTD lethally taken under this 4(d) rule
during CWTD damage management actions will be relatively low.
Additionally, the Service expects that the potential for accidental
shooting by mistaking a CWTD for a black-tailed deer will be low
because there has been only one documented case of an accidental
shooting of CWTD by a black-tailed deer hunter due to misidentification
(Bergh 2014, pers. comm.) and there have been no documented accidental
shootings of CWTD during black-tailed deer damage management. The 2015
big game hunting regulations in both Oregon and Washington provide
information on distinguishing black-tailed deer from CWTD and make it
clear that shooting CWTD from the Columbia River DPS is illegal under
State law (Oregon Department of Fish and Wildlife 2015, p. 39;
Washington Department of Fish and Wildlife 2015, pp. 18, 20). Even with
this 4(d) rule in place, a hunter who shot a CWTD due to
misidentification will still be required under the Act to report the
incident to the Service, be required under State law to report the
incident to State authorities, and be subject to potential prosecution
under the discretion of State law.
Because the maximum amount of take allowed for these activities is
a percentage of the DPS population in any given year, the exact number
of CWTD allowed to be taken will vary from year to year in response to
each calendar year's most current estimated population. As mentioned
above, we do not expect that the number of deer taken will ever exceed
2 percent of the DPS per year. If take does exceed 2 percent of the DPS
population in a given year, the Service will convene a meeting with the
Oregon and Washington Departments of Fish and Wildlife to discuss CWTD
management and strategies to minimize further take from these
activities for the rest of the year. If take should exceed 5 percent of
the total DPS population in any given year, no further take will be
allowed for these activities in the DPS as a whole, and, should any
further take occur, it would be subject to potential prosecution under
the Act.
We encourage any landowner concerned about potential take of listed
species on their property that is not covered under this rule (see
Regulation Promulgation, below) to contact the Service to explore
options for developing a safe harbor agreement or habitat conservation
plan that can provide for the conservation of the species and offer
management options
[[Page 71407]]
to landowners associated with a permit to protect the party from
violations under section 9 of the Act (see FOR FURTHER INFORMATION
CONTACT).
Justification
As habitat destruction remains a threat to the species, continued
application of the prohibition on harm is needed to discourage
significant habitat modification that would kill or injure CWTD. In
addition, in light of the relatively small size of the subpopulations
and the history of overutilization of CWTD, the species is vulnerable
to hunting and poaching unless the prohibitions on take are generally
maintained. As the Columbia River DPS of CWTD grows in number and
range, however, the deer are facing increased interaction and potential
conflict with the human environment. Reclassification of the Columbia
River DPS of CWTD from endangered to threatened status under the Act
allows employees of State conservation agencies operating a
conservation program pursuant to the terms of a cooperative agreement
with the Service in accordance with section 6(c) of the Act, and who
are designated by their agencies for such purposes, and who are acting
in the course of their official duties, to take CWTD to carry out
conservation programs (see 50 CFR 17.31(b)). There are many activities
carried out or managed by the States, Tribes, and private landowners
that help reduce conflict with CWTD and thereby facilitate the movement
of CWTD across the landscape, but would not be afforded take allowance
under reclassification alone. These activities include CWTD damage
management, black-tailed deer damage management, and black-tailed deer
hunting. The 4(d) rule provides incentive to States, Tribes, and
private landowners to support the movement of CWTD across the landscape
by alleviating concerns about unauthorized take of CWTD.
One of the limiting factors in the recovery of the Columbia River
DPS has been the concern of landowners and State wildlife agencies
regarding CWTD on their property due to the potential property damage
from the species. Landowners express concern over their inability to
prevent or address the damage because of the threat of penalties under
the Act. These concerns may lead landowners to modify unoccupied
habitat in such a way that it could no longer support deer or to erect
fences or other manmade structures to exclude deer from their lands. If
landowners take actions to deter CWTD from areas where they could occur
to avoid the burden of take restrictions, then natural range expansion
and connectivity on the landscape could be negatively impacted.
Increased management flexibility is intended to create an incentive for
private landowners to voluntarily maintain, create, or restore habitat
for the benefit of CWTD. Furthermore, State wildlife agencies expend
resources addressing landowner complaints regarding potential CWTD
damage to their property, or concerns from black-tailed deer hunters
who are hunting legally but might accidentally shoot a CWTD even after
reasonable due care was practiced to avoid such taking. For instance,
the majority of translocation efforts have moved CWTD to refuge lands;
however, some areas of State and private land offer high-quality
habitat for CWTD, and future translocations to these areas would
benefit the species by either creating a new subpopulation or creating
connectivity between existing subpopulations. Small-scale agricultural
lands, especially, can provide potential habitat for CWTD, as
demonstrated on Puget Island, as opposed to other types of land
management changes. By providing more flexibility to the States,
Tribes, and landowners regarding management of CWTD, we expect to
enhance support for both the movement of CWTD within areas where they
already occur, as well as the expansion of the subspecies' range into
additional areas of Washington and Oregon through translocations. In
addition, easing the general take prohibitions on non-Federal
agricultural lands is intended to encourage continued responsible land
uses that provide an overall benefit to CWTD and facilitate private
lands partnerships that promote conservation efforts.
The 4(d) rule addresses intentional CWTD damage management by
private landowners and State and Tribal agencies; black-tailed deer
damage management and hunting; and management of sick, injured, and
orphaned CWTD by Tribal employees, State and local law enforcement
officers, and State licensed wildlife rehabilitation facilities.
Addressing these targeted activities that may normally result in take
under section 9 of the Act increases the incentive for landowners and
land managers to allow CWTD on their property, and provides enhanced
options for State wildlife agencies with respect to CWTD damage
management and black-tailed deer management, thereby encouraging the
States' participation in recovery actions for CWTD.
The actions and activities allowed under the 4(d) rule, while they
may have some minimal level of harm or disturbance to individual CWTD
in the Columbia River DPS, are not expected to adversely affect efforts
to conserve and recover the DPS. In fact, conservation efforts should
be facilitated by increasing the likelihood of natural range expansion,
providing support for translocations onto State and Tribal lands, and
creating private lands partnerships to promote conservation efforts
throughout the current range of the DPS. The take of CWTD from these
activities will be strictly limited to a maximum of 5 percent of the
most current annual DPS population estimate in order to have a
negligible impact on the overall DPS population. Though there would be
a chance for lethal take to occur, recruitment rates appear to be high
enough in the DPS to allow for continued population growth despite the
take that is allowed in this final rule. For example, the Service
removed 34 CWTD, which constituted 20 percent of the subpopulation,
from Puget Island for translocations in 2012. The estimated size of the
subpopulation on Puget Island was 228 CWTD in 2015, representing an
average annual population growth rate of 16 percent. If the
subpopulation continues to grow 16 percent each year, then removing a
maximum of 5 percent would still allow the subpopulation, and the DPS
as a whole, to continue to grow.
For the reasons described above, we find that it is necessary and
advisable to apply the provisions of 50 CFR 17.31(a), which prohibit
take of threatened species, with exceptions intended to facilitate the
growth and expansion of CWTD subpopulations within the DPS required to
achieve recovery. By generally extending section 9 take prohibitions
but allowing take under specified circumstances, the rule will provide
needed protection to the species while allowing management flexibility
to benefit the species' long-term conservation. Thus, the provisions of
this rule meet the statutory requirement under section 4(d) of the Act
of being necessary and advisable to provide for the conservation of the
species.
Provisions of the 4(d) Rule
The increased interaction of CWTD with the human environment
increases the potential for property damage caused by CWTD, as well as
the potential for conflict with legal black-tailed deer management
activities. Therefore, this 4(d) rule applies the prohibitions of 50
CFR 17.31(a) with some exceptions to increase the flexibility of CWTD
management for the States, Tribes, and private landowners by allowing
take of CWTD resulting from CWTD damage management, and
[[Page 71408]]
black-tailed deer damage management and hunting. The maximum allowable
annual take per calendar year for these activities combined is 5
percent of the most current annual CWTD DPS population estimate.
A State conservation agency will be able to issue permits to
landowners or their agents to harass CWTD on lands they own, rent, or
lease if the State conservation agency determines in writing that such
action is not likely to cause mortality of CWTD. The techniques
employed in this harassment must occur only as specifically directed or
restricted by the State permit in order to avoid causing CWTD
mortality. The State conservation agency will also be able to issue a
permit to landowners or their agents to lethally take problem CWTD on
lands they own, rent, or lease if the State conservation agency or
Service determines in writing that: (1) The CWTD are causing more than
de minimus negative economic impact to a commercial crop; (2) previous
efforts to alleviate the damage through nonlethal methods have been
ineffective; and (3) there is a reasonable certainty that additional
property losses will occur in the near future if a lethal control
action is not implemented. Lethal take of problem CWTD will have to be
implemented only as directed and allowed in the permit obtained from
the State conservation agency. Additionally, any employee or agent of
the Service or the State conservation agency, who is designated by
their agency for such purposes and when acting in the course of their
official duties, will be able to lethally take problem CWTD.
Take of CWTD in the course of carrying out black-tailed deer damage
control will be a violation of this rule unless: The taking was
accidental; reported within 72 hours; reasonable care was practiced to
avoid such taking; and the person causing the take was in possession of
a valid black-tailed deer damage control permit from a State
conservation agency. Take of CWTD in the course of hunting black-tailed
deer will be a violation of this rule unless: (1) The take was
accidental; (2) the take was reported within 72 hours; (3) the take was
in the course of hunting black-tailed deer under a lawful State permit;
and (4) reasonable due care was exercised to avoid such taking.
The increased interaction of CWTD with the human environment
increases the likelihood of encounters with injured or sick CWTD.
Therefore, take of CWTD will also be allowed by Tribal employees, State
and local government law enforcement officers, and State-licensed
wildlife rehabilitation facilities to provide aid to injured or sick
CWTD. Tribal employees and local government law enforcement officers
will be allowed take of CWTD for the following purposes: (1) Aiding or
euthanizing sick, injured, or orphaned CWTD; (2) disposing of a dead
specimen; and (3) salvaging a dead specimen that may be used for
scientific study. State-licensed wildlife rehabilitation facilities
will also be allowed to take CWTD for the purpose of aiding or
euthanizing sick, injured, or orphaned CWTD.
Required Determinations
National Environmental Policy Act
We have determined that an environmental assessment or an
environmental impact statement, as defined under the authority of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.),
need not be prepared in connection with regulations adopted pursuant to
section 4(a) and 4(d) of the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes.
We have coordinated the development of this reclassification and
4(d) rule with the Cowlitz Indian Tribe, which manages land where one
subpopulation of CWTD population is located, Cottonwood Island.
Biologists from the Cowlitz Indian Tribe are members of the CWTD
Working Group and have worked with the Service, WDFW, and ODFW to
incorporate conservation measures to benefit CWTD into their management
plan for the island.
References Cited
A complete list of all references cited in this rule is available
at http://www.regulations.gov under Docket No. FWS-R1-ES-2014-0045, or
upon request from the Oregon Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this final rule are staff members of the
Oregon Fish and Wildlife Office in Portland, Oregon (see FOR FURTHER
INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Deer, Columbian
white-tailed'' under MAMMALS in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
Mammals
[[Page 71409]]
* * * * * * *
Deer, Columbian white-tailed Odocoileus Columbia River T............... 32 FR 4001; 3/11/
[Columbia River DPS]. virginianus (Clark, Cowlitz, 1967, 68 FR 43647; 7/
leucurus. Pacific, Skamania, 24/2003, [Insert
and Wahkiakum Federal Register
Counties, WA, and citation 10/17 2016,
Clatsop, Columbia, 50 CFR 17.40(i)
and Multnomah \4d\.
Counties, OR).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.40 by adding paragraph (i) to read as follows:
Sec. 17.40 Special rules--mammals.
* * * * *
(i) Columbian white-tailed deer (Odocoileus virginianus leucurus)
(CWTD), the Columbia River distinct population segment. (1) General
requirements. Other than as expressly provided at paragraph (i)(3) of
this section, the provisions of Sec. 17.31(a) apply to the CWTD.
(2) Definitions. For the purposes of this entry:
(i) CWTD means the Columbia River distinct population segment (DPS)
of Columbian white-tailed deer or individual specimens of CWTD.
(ii) Intentional harassment means an intentional act which creates
the likelihood of injury to wildlife by annoying it to such an extent
as to significantly disrupt normal behavior patterns which include, but
are not limited to, breeding, feeding, or sheltering. Intentional
harassment may include prior purposeful actions to attract, track, wait
for, or search out CWTD, or purposeful actions to deter CWTD.
(iii) Problem CWTD means an individual specimen of CWTD that has
been identified in writing by a State conservation agency or the
Service as meeting the following criteria:
(A) The CWTD is causing more than de minimus negative economic
impact to a commercial crop;
(B) Previous efforts to alleviate the damage through nonlethal
methods have been ineffective; and
(C) There is a reasonable certainty that additional property losses
will occur in the near future if a lethal control action is not
implemented.
(iv) Commercial crop means commercially raised horticultural,
agricultural, or forest products.
(v) State conservation agency means the State agency in Oregon or
Washington operating a conservation program for CWTD pursuant to the
terms of a cooperative agreement with the Service in accordance with
section 6(c) of the Endangered Species Act.
(3) Allowable forms of take of CWTD. Take of CWTD resulting from
the following legally conducted activities is allowed:
(i) Intentional harassment not likely to cause mortality. A State
conservation agency may issue permits to landowners or their agents to
harass CWTD on lands they own, rent, or lease if the State conservation
agency determines in writing that such action is not likely to cause
mortality of CWTD. The techniques employed in this harassment must
occur only as specifically directed or restricted by the State permit
in order to avoid causing CWTD mortality.
(ii) Take of problem CWTD resulting in mortality. Take of problem
CWTD is authorized under the following circumstances:
(A) Any employee or agent of the Service or the State conservation
agency, who is designated by their agency for such purposes, may, when
acting in the course of their official duties, take problem CWTD. This
take must occur in compliance with all other applicable Federal, State,
and local laws and regulations.
(B) The State conservation agency may issue a permit to landowners
or their agents to take problem CWTD on lands they own, rent, or lease.
Such take must be implemented only as directed and allowed in the
permit obtained from the State conservation agency.
(iii) Accidental take of CWTD when carrying out State-permitted
black-tailed deer damage control. Take of CWTD in the course of
carrying out black-tailed deer damage control will be a violation of
this rule unless the taking was accidental; reasonable care was
practiced to avoid such taking; and the person causing the take was in
possession of a valid black-tailed deer damage control permit from a
State conservation agency. When issuing black-tailed deer damage
control permits, the State conservation agency will provide education
regarding identification of target species. The exercise of reasonable
care includes, but is not limited to, the review of the educational
material provided by the State conservation agency and identification
of the target before shooting.
(iv) Accidental take of CWTD when carrying out State-permitted
black-tailed deer hunting. Take of CWTD in the course of hunting black-
tailed deer will be a violation of this rule unless the take was
accidental; the take was in the course of hunting black-tailed deer
under a lawful State permit; and reasonable due care was exercised to
avoid such taking. The State conservation agency will provide
educational material to hunters regarding identification of target
species when issuing hunting permits. The exercise of reasonable care
includes, but is not limited to, the review of the educational
materials provided by the State conservation agency and identification
of the target before shooting.
(4) Take limits. The amount of take of CWTD allowed for the
activities in paragraphs (i)(3)(ii), (iii), and (iv) of this section
will not exceed 5 percent of the CWTD population during any calendar
year, as determined by the Service. By December 31 of each year, the
Service will use the most current annual DPS population estimate to set
the maximum allowable take for these activities for the following
calendar year. If take exceeds 2 percent of the DPS population in a
given calendar year, the Service will convene a meeting with the Oregon
Department of Fish and Wildlife and the Washington Department of Fish
and Wildlife to discuss CWTD management and strategies to minimize
further take from these activities for the rest of the year. If take
exceeds 5 percent of the CWTD population in any given calendar year, no
further take under paragraphs (i)(3)(ii), (iii), and (iv) will be
allowed during that year and any further take that does occur may be
subject to prosecution under the Endangered Species Act.
(5) Reporting and disposal requirements. Any injury or mortality of
CWTD associated with the actions authorized under paragraphs (i)(3),
(6), and (7) of this section must be reported to the Service within 72
hours, and specimens may be disposed of only in accordance with
directions from the Service. Reports should be made to the Service's
Law Enforcement Office at (503) 231-6125, or the Service's Oregon Fish
and Wildlife Office at (503) 231-6179. The Service may allow additional
[[Page 71410]]
reasonable time for reporting if access to these offices is limited due
to closure.
(6) Additional taking authorizations for Tribal employees, State
and local law enforcement officers, and State-licensed wildlife
rehabilitation facilities. (i) Tribal employees and State and local
government law enforcement officers. When acting in the course of their
official duties, both Tribal employees designated by the Tribe for such
purposes, and State and local government law enforcement officers
working in the States of Oregon or Washington, may take CWTD for the
following purposes:
(A) Aiding or euthanizing sick, injured, or orphaned CWTD;
(B) Disposing of a dead specimen; and
(C) Salvaging a dead specimen that may be used for scientific
study.
(ii) Such take must be reported to the Service within 72 hours, and
specimens may be disposed of only in accordance with directions from
the Service.
(7) Wildlife rehabilitation facilities licensed by the States of
Oregon or Washington. When acting in the course of their official
duties, a State-licensed wildlife rehabilitation facility may take CWTD
for the purpose of aiding or euthanizing sick, injured, or orphaned
CWTD. Such take must be reported to the Service within 72 hours as
required by paragraph (i)(5) of this section, and specimens may be
retained and disposed of only in accordance with directions from the
Service.
(8) Take authorized by permits. Any person with a valid permit
issued by the Service under Sec. 17.32 may take CWTD, pursuant to the
special terms and conditions of the permit.
* * * * *
Dated: October 5, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-24790 Filed 10-14-16; 8:45 am]
BILLING CODE 4333-15-P