The Service is finalizing the reclassification of the red-cockaded woodpecker from endangered to threatened under the Endangered Species Act. The ESA defines an endangered species as one in danger of extinction and a threatened species as one likely to become endangered within the foreseeable future. Based on a thorough review of the best available scientific and commercial data, the Service has determined the species’ status has significantly improved, and it no longer meets the definition of endangered under the ESA, but it does meet the definition of threatened.  

In conjunction with this downlisting, the Service is finalizing a 4(d) rule to convey the regulatory protections threatened red-cockaded woodpeckers will receive. This rule also corrects the scientific name of the red-cockaded woodpecker on the List of Endangered and Threatened Wildlife. The name will be changed from Picoides borealis to the currently accepted name Dryobates borealis.

Once a common bird distributed contiguously across the southeastern United States, the red-cockaded woodpecker was estimated range-wide around the time of listing in 1970 to be fewer than 10,000 individuals (approximately 1,500 to 3,500 active clusters; an aggregate of cavity trees used by a group of woodpeckers for nesting and roosting) in widely scattered, isolated, and declining populations. Today, the Service’s conservative estimate is that there are 7,800 active clusters range-wide almost double the number of clusters that existed in 1995.

The red-cockaded woodpecker is a non-migratory, territorial resident of old southern pine forests in the southeastern United States. There are currently populations in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Texas, and Virginia.

Some of the ongoing stressors faced by the red-cockaded woodpecker include lack of suitable roosting, nesting, and foraging habitat; habitat fragmentation; natural disaster events, such as hurricanes, ice storms, and wildfires; the effects of small population size; and uncertainty about future conservation management.

Since the red-cockaded woodpecker was listed as endangered in 1970 under the Endangered Species Conservation Act of 1969, and then received federal protection with the passage of the ESA in 1973, it has benefitted from and relied on active conservation efforts from partners. Conservation of red-cockaded woodpeckers depends primarily on the conservation of populations on federal properties (notably, national forests and military installations). This is because the vast majority of existing red-cockaded woodpeckers occur on federal lands and federal lands contain most of the potential habitat for the species. Moreover, the ESA requires that federal agencies conserve listed species. 

Accordingly, federal land management agencies and military installations within the range of the red-cockaded woodpecker have incorporated species-specific conservation strategies into their management plans (e.g., Land and Natural Resources Plans, Integrated Natural Resource Management Plans,) to advance the recovery of the species. As a result of these conservation programs, red-cockaded woodpecker populations have increased, particularly on military installations and in some cases, have achieved or surpassed their red-cockaded woodpecker recovery plan population size objectives. 

In addition to the important conservation work on federal lands, state-wide conservation benefit agreements (formerly called Safe Harbor Agreements) have enrolled 459 non-federal landowners covering approximately 2.5 million acres. Since the program’s inception in the 1990s, these agreements have successfully promoted the recovery of red-cockaded woodpeckers. Due to the concerted efforts of private landowners enrolled in the program, the number of red-cockaded clusters on private lands has increased over the past three decades. 

For threatened species, the Service uses the flexibility provided under section 4(d) of the ESA to tailor the take prohibitions to those necessary and advisable for the conservation of the species. This targeted approach helps reduce regulatory burdens by exempting certain activities that do not significantly harm the species, or that are beneficial while focusing conservation efforts on the threats detrimental to recovery.

This 4(d) rule adopts the same prohibitions that apply to an endangered species under section 9 of the ESA. Specifically, this 4(d) rule continues to prohibit take, among other standard activities (e.g., import/export). The prohibitions would apply throughout the species’ range, on both public and private lands. Over the past four decades, while the species was listed as an endangered species, these prohibitions on take and other activities have provided an understandable, broadly accepted framework for protecting red-cockaded woodpeckers and the habitat resources upon which they depend.

In addition to these prohibitions, several exceptions are included to allow for routine law enforcement activities, allow for the defense of life, allow for aiding sick or injured birds, and encourage the active habitat management this species uniquely requires. 

• First, the 4(d) rule would continue to except take associated with activities that are authorized by permits under the ESA, including those associated with conservation benefit agreements and habitat conservation plans. 
• Second, the 4(d) rule allows employees of state conservation agencies operating under a cooperative agreement with the Service to take red-cockaded woodpeckers to carry out conservation programs for the species. 
• Third, unlike the regulations that currently apply to the species under endangered status, the revised proposed 4(d) rule would provide species-specific exceptions to the standard take prohibitions in the rule. These species-specific exceptions would facilitate continued and increased implementation of beneficial management practices that provide for species conservation.
  • The 4(d) rule allows incidental take on Department of Defense installations resulting from implementing habitat management and military training activities detailed in Service-approved Integrated Natural Resource Management Plans.
  • The 4(d) rule allows incidental take that results from habitat management activities intended to restore or maintain red-cockaded woodpecker habitat on federal land management agency properties. To benefit from this exception, federal land management agencies must detail these planned activities in a federal habitat management plan and incorporate minimization measures that reduce effects on the species. 
  • The 4(d) rule includes a provision that would except take resulting from prescribed burns and the use of herbicides on private lands, when compatible with maintaining any known red-cockaded woodpecker populations, as long as landowners follow best management practices and minimize adverse effects to known active clusters, to the maximum extent practicable.

  • The 4(d) rule also excepts incidental take that occurs as a result of the installation, maintenance, and replacement of artificial cavities, as long as individuals conducting the installation have completed training, have achieved a certain level of proficiency, and are following appropriate guidelines. 

Further details about these requirements are provided in the final rule at http://www.regulations.gov, Docket No. FWS–R4–ES–2019–0018. 

While the Service has reinstated the “blanket rule” option (affording threatened species the same level of protection as endangered species) for protecting newly listed threatened species, we continue with the option for species-specific 4(d) rules and determine which 4(d) protections are appropriate on a case-by-case basis. All 4(d) rules can incentivize known beneficial actions for a species by removing or reducing the regulatory burden associated with those actions and can also remove or reduce the regulatory burden associated with permitting otherwise prohibited actions or forms or amounts of take considered inconsequential to the conservation of the species. The Service determined the particular prohibitions and exceptions in the species-specific 4(d) rule here best balance protections that will prevent the species from becoming endangered and exceptions that will further promote recovery of species.

Yes, federal agencies will still need to consult under section 7 of the ESA. The consultation process usually begins as an informal consultation. The federal agency must initiate consultation when any action they authorize, fund, or carry out (such as through a permit) may affect an endangered or threatened species or designated critical habitat. If the federal agency determines, through a biological assessment or other review, that its action is likely to adversely affect a listed species, the agency submits to the Service a request for formal consultation. During formal consultation, the Service and the agency share information about the proposed project and the species or critical habitat likely to be affected. Formal consultation may last up to 90 days, after which the Service will prepare a biological opinion. A biological opinion intends to analyze the effects of the proposed action on the listed species or designated critical habitat. The conclusion of the biological opinion will state whether the federal agency has ensured that its action is not likely to jeopardize the continued existence of a listed species and/or result in the destruction or adverse modification of critical habitat. A biological opinion usually includes conservation recommendations to further the recovery of listed species, and it may also include reasonable and prudent measures, as needed, to minimize any take of listed species.

This final rule, comments and supporting materials are available at http://www.regulations.gov. under docket number FWS–R4–ES–2019–0018. 

The downlisting and 4(d) rule for the red-cockaded woodpecker will be final 30 days after publication in the Federal Register.