[Federal Register Volume 88, Number 215 (Wednesday, November 8, 2023)]
[Rules and Regulations]
[Pages 77014-77039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24514]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2022-0100; FXES11130600000-223-FF06E00000]
RIN 1018-BG79
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of the Gray Wolf in Colorado
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), establish a
nonessential experimental population (NEP) of the gray wolf (Canis
lupus) in the State of Colorado, under the Endangered Species Act of
1973, as amended (Act). The State of Colorado (Colorado Parks and
Wildlife or CPW) requested that the Service establish an NEP in
conjunction with their State-led gray wolf reintroduction effort.
Establishment of this NEP provides for allowable, legal, purposeful,
and incidental taking of the gray wolf within a defined NEP area while
concurrently providing for the conservation of the species. The
geographic boundary of the NEP is the entire State of Colorado. The
best available data indicate that reintroduction of the gray wolf into
Colorado is biologically feasible and will promote the conservation of
the species.
DATES: This rule is effective December 8, 2023.
ADDRESSES: This final rule, public comments on our February 17, 2023,
proposed rule, a final environmental impact statement, and the record
of decision, are available on the internet at https://www.regulations.gov at Docket No. FWS-R6-ES-2022-0100.
Information Collection Requirements: Written comments and
suggestions on the information collection requirements may be submitted
at any time to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or [email protected] (email).
Please reference ``OMB Control Number 1018-BG79'' in the subject line
of your comments.
FOR FURTHER INFORMATION CONTACT: Liisa Niva, Acting Field Supervisor,
U.S. Fish and Wildlife Service, Colorado Ecological Services Field
Office, 134 Union Boulevard, Suite 670, Lakewood, CO 80228; telephone
303-236-4773. Individuals in the United States who are deaf, deafblind,
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION: The Service is establishing a nonessential
experimental population (NEP) of the gray wolf (Canis lupus) in the
State of Colorado, under section 10(j) of the Act.
Previous Federal Actions
Please refer to the proposed section 10(j) rule for the gray wolf
in Colorado published on February 17, 2023 (88 FR 10258), for a
detailed description of previous Federal actions concerning this
species.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review, we
solicited independent scientific review of the proposed rule. We
invited seven independent peer reviewers and received four responses.
The peer reviews can be found at https://www.regulations.gov and
https://fws.gov/library/categories/peer-review-plans. In preparing this
final rule, we incorporated the results of these reviews, as
appropriate, into this final rule. A summary of the peer review
comments, and our responses can be found in the Summary of Comments and
Recommendations below.
Summary of Changes From the Proposed Rule
As a result of comments, additional data received during the
comment period, and additional analysis, several changes were made to
the rule we proposed on February 17, 2023 (88 FR 10258). In this final
rule, we:
Improved consistency with the State of Colorado's Wolf
Restoration and Management Plan (State Plan) (CPW 2023b, entire) by
clarifying that take of gray wolves attacking pets is not excepted but
take of gray wolves that are attacking ``working dogs,'' or dogs that
guard or herd livestock, is excepted.
Recognized the sovereignty of Tribal nations by adding a
provision to allow take of gray wolves that are significantly impacting
ungulate populations on Tribal reservation lands of the Ute Mountain
Ute and Southern Ute Tribes in the State of Colorado.
Changed several terms: In regard to justification for
written take authorization, ``shoot-on-sight'' is now ``depredation'';
we have changed references in the proposed rule from ``problem wolves''
to ``depredating'' wolves; and ``sport hunting'' is now ``recreational
harvest.''
Clarified that a ``designated agent'' is an employee of a
Federal, State, or Tribal agency who is authorized or directed by the
Service to conduct management activities for the gray wolf.
Removed the term ``relocate'' from the definition of
``remove.''
Removed the term ``substantial income'' from the
definition of ``livestock producer.''
Clarified that take would not be excepted if there is any
evidence of baiting of gray wolves, including the use of unusual
attractants, artificial feeding, or intentional feeding.
Summary of Comments and Recommendations
In the proposed rule published on February 17, 2023 (88 FR 10258),
we requested that all interested parties submit written comments on the
proposal by April 18, 2023. We also contacted appropriate Federal and
State agencies, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. We held
public information meetings to present information and obtain feedback
on March 14, 15, 16, 22, and 28, 2023. We issued news releases and
posted them
[[Page 77015]]
on our website announcing the proposal and the dates of the public
meetings. During the 60-day comment period, we received over 20,000
separate comments associated with 4,290 pieces of correspondence,
including form letters with multiple signatures, such as 1
correspondence having 16,233 signatures.
Below, we summarize the substantive comments pertinent to the
rulemaking and our responses to those comments. We considered
substantive comments to be those that provided information relevant to
our requested action, such as data, pertinent anecdotal information, or
opinions backed by relevant experience or information, and literature
citations. Due to the similarity of many comments, we combined multiple
comments into a single, synthesized comment for many issues. We
considered nonsubstantive those comments that expressed a statement or
opinion without providing supporting information or relevance, restated
data or information that we already have but without an alternate
perspective to consider, or were beyond the scope of our proposed
action. Comments from peer reviewers, Federal agencies, State agencies,
and Tribes are grouped separately. All substantive information provided
during the comment periods has either been incorporated directly into
this final determination or is addressed below. Appendix D of our final
environmental impact statement provides a full summary report of our
response to comments that we received on the proposed rule.
Peer Reviewer Comments
As discussed in Peer Review above, we received comments on our
proposed rule from four peer reviewers. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the contents of the proposed rule. We summarize
substantive peer reviewer comments below.
The peer reviewers generally concurred with our methods and
conclusions and provided additional literature, information,
clarifications, and suggestions to improve the final rule. For example,
all four peer reviewers agreed that our description and analysis of the
biology, habitat, population trends, conservation status, and
distribution of the species is accurate and that our conclusions are
accurate and supported by the provided evidence. Three peer reviewers
shared that our proposed rule did not have any significant oversights,
omissions, or inconsistencies, while one peer reviewer recommended that
we more fully consider the dispersal and expansion capabilities of the
species in terms of the geographic separation of the NEP. Three peer
reviewers also recommended that we more fully explore the potential for
individuals in the NEP to interact with the Mexican wolf (Canis lupus
baileyi), and one peer reviewer commented that we should clarify
whether the NEP would include Mexican wolves. In Comments from States,
below, we have provided additional information regarding the Mexican
wolf and clarified that this NEP applies only to the gray wolf.
Finally, the peer reviewers provided additional literature for our
consideration, such as an additional citation regarding the dispersal
of the gray wolf into Colorado, and we incorporated the recommended
literature, as needed. We address specific comments from the peer
reviewers below.
Comment: A peer reviewer suggested that we may have overestimated
the ability for small, newly established populations of the gray wolf
to withstand high rates of human-caused mortality due to life-history
traits such as high reproductive potential and dispersal capabilities.
Our response: In the past, reintroduced populations of the gray
wolf in the Northern Rocky Mountains (NRM) population area demonstrated
steady population growth despite low levels of human-caused mortality.
However, in the final rule we have clarified that high levels of
natural and human-caused mortality during the early establishment
period may limit population growth and make the State of Colorado's
gray wolf population goals more challenging (see Actions and Activities
in Colorado That May Affect Introduced Gray Wolves, below).
Comment: A peer reviewer commented that the proposed rule provides
take provisions for gray wolves without addressing the possibility that
unusual attractants, artificial feeding, or intentional feeding may
have been involved.
Our response: In the final rule, we have clarified that take would
not be excepted if there is any evidence of baiting of gray wolves,
including the use of unusual attractants, artificial feeding, or
intentional feeding.
Comment: A peer reviewer recommended that we more thoroughly
discuss or define the State of Colorado's definition of success for
their reintroduction efforts.
Our response: In the final rule, we have summarized the State of
Colorado's reintroduction objectives, as outlined in their management
plan (CPW 2023b, entire), and clarified that our success objectives for
the NEP are similar.
Federal Agency Comments
One Federal agency, the U.S. Department of Agriculture (USDA)
Forest Service, provided comments on the proposed rule:
Comment: The USDA Forest Service indicated general support for the
action but provided comments regarding the potential for gray wolves to
disperse south out of the NEP.
Response: We provide additional information regarding this issue in
Comments From States, below. To summarize, any wolf originating from
the Colorado NEP area and dispersing beyond its borders may be managed
by the wolf management regulations established for that area or may be
returned to the Colorado NEP area at least until the State of Colorado
achieves its recovery goals for the gray wolf.
Comments From States
We received comments from five State wildlife agencies and one
State agriculture agency. The States that commented were generally
supportive of the proposed rule. Three of the States expressed concern
over reintroduced wolves dispersing out of the NEP and potentially
interacting with the Mexican wolf and specifically requested research
and scientific collection permits under section 10(a)(1)(A) of the Act
to be able to return wolves to Colorado. The State of Colorado has
agreed to accept the return of gray wolves to the State, until their
recovery goals are achieved, at which time they will revisit this
commitment (CPW 2023a). The State of Colorado's acceptance of returned
gray wolves is to ensure that their restoration plan is successful. To
help minimize potential interactions and to help protect Mexican wolf
genetic integrity, we have simultaneously issued a section 10(a)1(A)
permit to be held by the Service, which will authorize our designated
agents to assist in the capture and return of wolves originating from
the Colorado NEP.
Comment: Commenters stated that the Mexican wolf was listed as a
separate subspecies of gray wolf in 2015, and that this listing
recognized the unique physical, ecological, and genetic differences of
the Mexican wolves from all other gray wolves. The commenters stated
that these unique differences occurred and evolved over time due to
separation of Mexican wolves from the larger gray wolves to the north,
so were concerned that the proposed release and establishment of an
experimental
[[Page 77016]]
population of larger northern wolves in Colorado closer to the wild
Mexican wolf population will dramatically increase the risk of strong
and irreversible genetic swamping of the Mexican wolf.
Our response: We recognize the unique characteristics of the
Mexican wolf and the recovery efforts of our agency and the States of
Arizona and New Mexico. We have simultaneously issued a section
10(a)(1)(A) permit to allow our designated agents to capture gray
wolves that venture out of the NEP so that they may be returned to
Colorado. Additionally, we do not intend to initiate or allow adaptive
introgression between gray wolves and Mexican wolves as part of the
genetic management of Mexican wolves (87 FR 39357, July 1, 2022).
Comment: A commenter suggested that we include information in the
final rule about the State of Wyoming's predator management area, where
licensing for lethal take is not needed.
Our response: This rule applies only to management activities for
the gray wolf that take place within the NEP's boundary in the State of
Colorado, so we have not included additional information regarding
activities in the State of Wyoming.
Comment: A commenter recommended that the final rule provide
assurances that the NEP wolves in Colorado will not be considered
``sensitive species'' by other Federal agencies, such as the Bureau of
Land Management or the USDA Forest Service.
Our response: We do not have the authority to dictate which species
receive sensitive species status under other Federal agencies'
conservation frameworks.
Comment: A commenter recommended that the final rule consider all
gray wolves that may disperse into the State of Utah as part of the
NEP, which could allow for their immediate capture and return to the
State of Colorado.
Our response: The exceptions provided in the rule are limited to
the NEP area identified in the regulation (i.e. the State of Colorado).
We use this boundary as a means to identify the NEP as required by our
regulations. Any gray wolf that enters Utah will take on endangered
status under the Act. Relocation of gray wolves to Colorado will be
conducted under other authorities under the Act.
Comment: A commenter stated that we inconsistently define
``occupied range'' and that the State of Colorado's proposed
reintroduction zones are within the species' current range.
Our response: We have verified that we use the term ``occupied
range'' consistently throughout the rule. Additionally, although two
male gray wolves are known to occur within the State of Colorado, they
do not meet the definition of a population or a pack, as explained in
this preamble to the final rule, so the NEP is wholly geographically
separate from other populations of the species.
Comment: A commenter noted that the rule's requirement to report
lethal or injurious take within 24 hours may be impractical due to the
remoteness of some areas.
Our response: In response to this comment, we added language to the
reporting requirement to give additional time when necessary.
Comment: A commenter noted that the rule should be consistent with
CPW's State Plan (CPW 2023b, entire), which does not allow killing of a
wolf that is attacking pets.
Our response: We have updated the final rule accordingly, so that
it does not provide an exception for take of gray wolves that are
attacking pets. This change improves consistency with the State of
Colorado's plan. Additionally, we have added a definition for ``working
dogs'' and a take exception for gray wolves that are attacking working
dogs that are guarding or herding livestock. Pets are typically under
the immediate control of their owner, so the owner may
opportunistically harass wolves if they are encountered.
Comment: A commenter stated that annual reporting should be
required for only 5 years post-reintroduction but did not provide any
rationale or information to support this suggestion.
Our response: The regulatory requirements under section 10(j) of
the Act for designation of a nonessential experimental population
require a process for periodic review and evaluation of success or
failure of the release and the effect on recovery of the species. While
annual reporting is not specifically required, we must continue to
periodically assess the effects of the NEP on recovery for as long as
the species is federally listed. We have determined that annual
reporting is appropriate, because this frequency of reporting allows
for more quickly adjusting management and responding to changing
conditions.
Comment: In the exception for take by landowners on their private
land, the word ``their'' should be removed, because it would exclude
the exception for individuals who lease private lands for livestock
production but do not own the property.
Our response: We have removed the term ``their'' from the
exception, such that a lessee would also be able to protect their
livestock under the exception.
Comments From Tribes
We received one comment letter from a Tribe, the Southern Ute
Indian Tribe. The Southern Ute Indian Tribe generally supports the
action and provided comments that we summarize below along with our
responses.
Comment: The Southern Ute Indian Tribe requested that the final
rule include a provision to take gray wolves if they are unacceptably
reducing ungulate populations. The Tribe requested that we add this
provision to recognize the sovereignty of Tribal nations and to be
consistent with the State of Colorado's management plan (CPW 2023b,
entire) that also recognizes Tribal sovereignty.
Our response: In response to this comment, we added a provision to
the rule to allow Tribes in the State of Colorado to take wolves that
are having an unacceptable impact on wild ungulate herds or
populations. However, the exception is limited to Tribal lands, does
not include areas outside of Tribal reservation lands, and requires a
science-based, peer-reviewed determination that the impacts to the
ungulate populations are significant before take of gray wolves can be
authorized.
Comment: The Southern Ute Indian Tribe requested that wolf
management options in the rule include the removal of problem wolves
(which we are now referring to as ``depredating wolves'') from Tribal
land upon request.
Our response: The rule allows the Tribes to become designated
agents, which will allow them to address wolf management issues.
Additionally, we will be available to assist through education and
training, and will continue to coordinate and assist the State and the
Tribes to help resolve conflicts, as time and resources allow.
Public Comments
Comment: Commenters both supported and opposed the provisions of
the rule that would allow for the lethal control of gray wolves. Some
commenters asked that we prohibit most forms of lethal take of gray
wolves in the NEP, with some supporting lethal take only in defense of
human life. Some commenters requested that the allowable take be more
liberal, while others felt that lethal control can lead to less public
respect and tolerance of wolves and may encourage more poaching. Some
commenters
[[Page 77017]]
recommended several nonlethal measures to manage depredating wolves.
Our response: The final rule recognizes that lethal take is a
management tool for the gray wolf that may be necessary in specific
situations, such as when nonlethal management actions are ineffective
and may not resolve conflict. Nonlethal tools may be appropriate and
effective in some situations, but their effectiveness depends on
various characteristics of the area and individual livestock
operations. For instance, many tools such as fladry (strips of fabric
mounted along fencelines to deter wolves), radioactivated guard boxes,
and electric fencing, are effective only in small, localized areas, and
innovative tools, such as diversionary feeding, range riding, and
hazing, have reduced wolf depredations in certain situations. We
anticipate that lethal removal will be used as a last resort to balance
conserving the species and preventing depredations.
Comment: Commenters noted that the regulations for depredation
(formerly called ``shoot-on-sight'' in the proposed rule) and
opportunistic and intentional harassment are too vague and that key
terms like ``harassing'' and ``molesting'' are not clearly defined.
Our response: In the final rule, we have clarified the definition
of ``in the act of attacking'' and provided examples of harassment
activities. Our definition is consistent with section 3 of the Act and
other section 10(j) rules. Additionally, the final rule now specifies
the requirements to qualify for a ``depredation'' (called ``shoot-on-
sight'' in the proposed rule) authorization. The terms ``take,''
``harm,'' and ``harass'' are defined in section 3 of the Act, so we
have not defined them in this rule.
Final Rule Issued Under Section 10(j) of the Act
Background
We provide detailed background information on gray wolves in the
lower 48 United States in a separate Gray Wolf Biological Report
(Service 2020, entire) and the 2020 final rule to delist the two
currently listed C. lupus entities under the Act (85 FR 69778, November
3, 2020). Information in these documents is relevant to reintroduction
efforts for gray wolves that may be undertaken in Colorado, and the
report can be found along with this rule at https://www.regulations.gov
in Docket No. FWS-R6-ES-2022-0100 (see Supplemental Documents). We
summarize relevant information from these documents below.
Species Description
Gray wolves are the largest wild members of the canid (dog) family,
with adults ranging in weight from 18 to 80 kilograms (40 to 175
pounds), depending on sex and geographic locale. Gray wolves are highly
territorial, social animals that live and hunt in packs. They are well
adapted to traveling fast and far in search of food, and to catching
and eating large mammals. In North America, they are primarily
predators of medium to large mammals, including deer, elk, and other
species, and are efficient at shifting their diet to take advantage of
available food resources (Service 2020, p. 6).
Historical and Current Range
Gray wolves have a broad circumpolar range. In the lower 48 United
States, the range and number of gray wolves declined significantly
during the 19th and 20th centuries primarily due to humans killing
wolves through poisoning, unregulated trapping and shooting, and
government-funded wolf extermination efforts (Service 2020, pp. 9-14).
When we first listed two subspecies of the gray wolf under the Act in
1974, gray wolves had been eliminated from most of their historical
range within the lower 48 United States. Outside of Alaska, wolves
occurred in only 2 places within the lower 48 United States: An
estimated 1,000 wolves persisted in northeastern Minnesota, and a
small, isolated group of about 40 wolves occurred on Isle Royale,
Michigan (Service 2020, pp. 12-14).
During the years since the species was reclassified in 1978, gray
wolves within the lower 48 United States expanded in distribution and
increased in number (Service 2020, pp. 10, 14). Gray wolves within the
lower 48 United States now exist primarily in two large, stable or
growing metapopulations in two separate geographic areas in the lower
48 United States--one in the western Great Lakes area of the Eastern
United States and one in the Western United States (figure 1) (Service
2020, p. 27). Subpopulations of gray wolves within each of these
metapopulations are well-connected as evidenced by documented movements
between States and high levels of genetic diversity (Service 2020, p.
27). The western Great Lakes metapopulation consists of more than 4,200
individuals broadly distributed across the northern portions of
Michigan, Minnesota, and Wisconsin (Service 2020, p. 27). This
metapopulation is also connected, via documented dispersals, to the
large and expansive population of about 12,000-14,000 wolves in eastern
Canada. As a result, gray wolves in the Great Lakes area do not
function as an isolated metapopulation of 4,200 individuals in 3
States, but rather as part of a much larger ``Great Lakes and Eastern
Canada'' metapopulation (Service 2020, pp. 27-28).
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Gray wolves in the Western United States are distributed across the
NRM and into western Oregon, western Washington, northern California,
and most recently in north-central Colorado (figure 1, above; Service
2020, p. 28). Based on the most current abundance estimates of gray
wolves, Idaho estimated 1,337 gray wolves inhabited the State as of
August 2022 (Idaho Department of Fish and Game (IDFG) 2023,
unpaginated), and Montana had an estimated 1,087 gray wolves at the end
of 2022 (Parks et al. 2023, pp. 9-11). In addition, the most recent
year-end minimum counts for 2022 indicated at least 338 gray wolves in
Wyoming, 216 wolves in Washington, 178 wolves in Oregon, and 18 in
California (California Department of Fish and Wildlife (CDFW) 2022,
unpaginated; Oregon Department of Fish and Wildlife (ODFW) 2023, p. 2;
Washington Department of Fish and Wildlife (WDFW) et al. 2023, pp. 2-3;
Wyoming Game and Fish Department (WGFD) et al. 2023, p. 3).
Until recently, only lone wolves had been confirmed in Colorado,
beginning with a dispersing individual that died in 2004 from a vehicle
collision (CPW 2023b, p. 4). A disperser from Wyoming was first
documented in north-central Colorado during the summer of 2019 and
paired up with another wolf during the winter of 2020-2021 (CPW 2023b,
p. 4). This pair produced offspring in spring 2021, becoming the first
documented reproductively active pack in Colorado in recent history.
However, as of June 2023, only two males from this pack remain in
Colorado (Eric Odell, pers. comm., CPW, June 26, 2023). The two
individual wolves do not meet the definition of a population of gray
wolves used by the Service for previous NEP designations in the NRM
(i.e., two breeding pairs successfully raising at least two pups for 2
consecutive years; Service 1994, appendix 8). In January of 2020, CPW
personnel also confirmed at least six wolves traveling together in
Moffatt County in northwestern Colorado (Service 2020, p. 9). Later
that year, CPW personnel documented only one wolf in that area, and, at
present, there is no indication that any wolf or wolves remain in that
part of Colorado. As such, we do not consider any gray wolves currently
found in Colorado to constitute a population.
Life Cycle
Gray wolves are highly territorial social animals and group
hunters, normally living in packs of 7 or fewer but sometimes attaining
pack sizes of 20 or more (Service 2020, p. 6). Wolves reach sexual
maturity at 1-4 years for males and 1-5 years for females (Mech et al.
2016, entire; Wikenros et al. 2021, entire) and, once paired with a
mate, may produce young annually until they are over 10 years old.
Litters are born from early April into May and can range from 1 to 11
pups but generally include 5 to 6 pups (Service 2020, p. 6). Normally a
pack has a single litter annually, however, multiple litters have been
documented in approximately 25 percent of packs annually in Yellowstone
National Park (Stahler et al.
[[Page 77019]]
2020, p. 52). Offspring usually remain with their parents for 10-54
months before dispersing (reviewed by Mech and Boitani 2003, p. 7;
Jimenez et al. 2017, p. 1).
Habitat Use
The gray wolf is highly adaptable and can successfully occupy a
wide range of habitats provided adequate prey (primarily ungulates)
exists and human-caused mortality is sufficiently regulated (Mech 2017,
pp. 312-315). Wolf packs typically occupy and defend a territory of 33
to more than 2,600 square kilometers (km\2\) (13 to more than 1,004
square miles (mi\2\)), with territories tending to be smaller at lower
latitudes (Mech and Boitani 2003, p. 163; Fuller et al. 2003, pp. 187-
188). The large variability in territory size is likely due to
differences in pack size; prey size, distribution, and availability;
lag time in population responses to changes in prey abundance; and
variation in prey vulnerability (e.g., seasonal age structure in
ungulates) (Mech and Boitani 2003, p. 163).
To identify areas of suitable wolf habitat in the conterminous
United States, researchers have used models that relate the
distribution of wolves to characteristics of the landscape. These
models have shown the presence of wolves is correlated with prey
availability and density, livestock density, road density, human
density, land ownership, habitat patch size, and forest cover
(Mladenoff et al. 1995, pp. 284-292; Mladenoff et al. 1999, pp. 41-43;
Carroll et al. 2003, entire; Carroll et al. 2006, p. 542; Oakleaf et
al. 2006, pp. 558-559; Hanley et al. 2018, pp. 6-8).
In the Western United States, habitat models have identified
suitable wolf habitat in the northern Rocky Mountains, southern Rocky
Mountains (including Colorado and Utah), the Cascade Mountains of
Washington and Oregon, and a small portion of the northern Sierra
Nevada (Bennett 1994, entire; Switalski et al. 2002, entire; Carroll et
al. 2003, entire; Carroll et al. 2006, entire; Larsen and Ripple 2006,
entire; Oakleaf et al. 2006, pp. 558-559; Maletzke et al. 2015, entire;
ODFW 2015, entire; Ditmer et al. 2022, entire). Large blocks of
suitable habitat have been identified in the central and southern Rocky
Mountains but are currently unoccupied, with the exception of
occasional dispersing wolves and two male wolves in north-central
Colorado.
Movement Ecology
Gray wolves rarely disperse before 10 months of age, and most
commonly disperse between 1-3 years of age (Gese and Mech 1991, p.
2949; Treves et al. 2009, entire; Jimenez et al. 2017, p. 589).
Generally, by the age of 3 years, most wolves will have dispersed from
their natal pack to locate social openings in existing packs or find a
mate and form a new pack (Service 2020, p. 7). Dispersers may become
nomadic and cover large areas as lone animals, or they may locate
unoccupied habitats and members of the opposite sex to establish their
own territorial pack (Jimenez et al. 2017, p. 589). Dispersal distances
in North America typically range from 65 to 154 kilometers (km) (40 to
96 miles) (Jimenez et al. 2017, p. 585), although dispersal distances
of several hundred kilometers are occasionally reported (Jimenez et al.
2017, p. 588). The ability to disperse long distances allows
populations of gray wolves to quickly expand and recolonize vacant
habitats provided rates of human-caused mortality are not excessive
(e.g., Mech 1995, pp. 272-273; Boyd and Pletcher 1999, entire; Treves
et al. 2009, entire; Jimenez et al. 2017, entire; Mech 2017, entire).
However, the rate of recolonization can be affected by the extent of
intervening unoccupied habitat between the source population and newly
colonized area, as Allee effects (reduced probability of finding a mate
at low densities) are stronger at greater distances from source
populations (Hurford et al. 2006, p. 250; Stenglein and Van Deelen
2016, entire).
Causes of Decline and Threats
Targeted extirpation programs and unregulated, human-caused
mortality was the primary factor that caused population declines of
gray wolves across the lower 48 States during the late 1800s and early
1900s. Although there are some places wolves are not likely to persist
long term due to high human or livestock densities, the regulation of
human-caused mortality has been a primary factor contributing to
increased wolf abundance and distribution in the lower 48 States.
Regulation of human-caused mortality has significantly reduced the
number of wolf mortalities caused by humans, and, although illegal and
accidental killing of wolves is likely to continue with or without the
protections of the Act, at current levels those mortalities have had
minimal impact on the abundance or distribution of gray wolves. The
high reproductive potential of wolves, and their innate behavior to
disperse and locate social openings or vacant suitable habitats, allows
populations of gray wolves to withstand relatively high rates of human-
caused mortality (Service 2020, pp. 8-9). See Historical and Current
Range and Habitat Use sections, above, for additional information.
Recovery Efforts to Date
Following our 1978 reclassification of the species under the Act,
our national wolf strategy focused on conservation of gray wolves in
three regions: the western Great Lakes; the NRM; and Mexican wolves in
the Southwest and Mexico. We drafted recovery plans and implemented
recovery programs for gray wolves in these three regions (Service 1987,
entire; Service 1992, entire; Service 2017, entire). The revised NRM
Wolf Recovery Plan established recovery criteria for wolves in three
recovery areas across Idaho, Montana, and Wyoming (Service 1987,
entire), while the Recovery Plan for the Eastern Timber Wolf (Service
1992, entire) addressed populations of gray wolves in the upper
Midwest. Mexican wolves have been listed separately as an endangered
subspecies of gray wolf since 2015 and are not addressed in this rule.
The currently listed entity of gray wolf, to which the Colorado NEP
belongs, includes all or parts of 44 States; this listed entity
encompasses populations of gray wolves in the Great Lakes States of
Minnesota, Michigan, and Wisconsin as well as wolves outside the
delisted NRM in the Western United States. We have not included gray
wolves outside the NRM and western Great Lakes in any recovery plan.
However, as noted above, the presence of gray wolves in California,
western Oregon, and western Washington, as well as the two remaining
wolves in Colorado, is a result of dispersal and recolonization from
core populations in the NRM in addition to reproduction and dispersal
from resident packs in these States and neighboring Canadian provinces.
There are no Federal recovery plans addressing wolf recovery in
western States outside of Idaho, Montana, and Wyoming. However, the
States of California, Colorado, Oregon, Washington, and Utah have
demonstrated a commitment to wolf conservation by developing management
plans or codifying laws and regulations that provide mechanisms to
regulate wolf mortality, similar to most other species of wildlife
managed under State authority. This includes the passage of a voter-led
initiative in Colorado calling specifically for the reintroduction of
gray wolves to the western portion of the State (Colorado Revised
Statute 33-2-105.8). At the end of 2022, 10 packs of gray wolves
(totaling at least 52 wolves and 6 breeding pairs) were
[[Page 77020]]
documented in western Washington where wolves are federally listed
(WDFW et al. 2023, p. 17). In the western two-thirds of Oregon, where
gray wolves are federally listed, there were a minimum of 38 wolves in
10 groups (ODFW defines a group as 2 or more wolves traveling together
(ODFW 2023, p. 4)); 4 of these groups were considered breeding pairs at
the end of 2022 (ODFW 2023, pp. 5-6). Wolves originating from Oregon
have also expanded their range into California, where a minimum of 18
wolves in 3 packs were documented at the end of 2022 (CDFW 2022,
entire).
In addition to gray wolves found in the western States outside of
the delisted NRM population, the Great Lakes metapopulation, consisting
of more than 4,200 wolves, is broadly distributed across Minnesota,
Michigan, and Wisconsin (Erb and Humpal 2022, entire; Wisconsin
Department of Natural Resources (WI DNR) 2022, entire; Michigan
Department of Natural Resources (MI DNR) 2023, entire). Recently, both
Michigan and Minnesota updated their State wolf management plans (MI
DNR 2022, entire; Minnesota Department of Natural Resources 2023,
entire). The WI DNR recently revised their draft wolf management plan
and will present it to their Natural Resource Board in October 2023 to
determine next steps to finalize the plan (WI DNR 2023, entire).
The NRM Wolf Recovery Plan was approved in 1980 (Service 1980, p.
i) and revised in 1987 (Service 1987, p. i). The recovery goal for the
NRM was reevaluated and, when necessary, modified as new scientific
information warranted (Service 1987, p. 12; Service 1994, appendices 8
and 9; Fritts and Carbyn 1995, p. 26; Bangs 2002, p. 1; 73 FR 10514,
February 27, 2008; 74 FR 15123, April 2, 2009). The Service's resulting
recovery goal for the NRM population of gray wolves was 30 or more
breeding pairs, defined as an adult male and an adult female wolf that
have produced at least 2 pups that survived until December 31 of the
year of their birth during the previous breeding season (Service 1994),
comprising at least 300 wolves equitably distributed among Idaho,
Montana, and Wyoming for 3 consecutive years, with genetic exchange
(either natural or, if necessary, agency managed) between
subpopulations. To provide a buffer above these minimum recovery
levels, each State was to manage for at least 15 breeding pairs and 150
wolves in midwinter (77 FR 55530 at 55538-55539, September 10, 2012; 74
FR 15123 at 15132, April 2, 2009). For additional information on NRM
wolf recovery goals, see 74 FR 15123 (April 2, 2009) at pp. 15130-15135
and references therein.
Wolves in the NRM distinct population segment (DPS) have recovered
and were delisted. The NRM population achieved its numerical and
distributional recovery goals at the end of 2000 (Service et al. 2008,
table 4). The temporal portion of the recovery goal was achieved in
2002 when the numerical and distributional recovery goals were exceeded
for the third successive year (Service et al. 2008, table 4). In 2009,
we concluded that gray wolves in the NRM far exceeded recovery goals.
We also concluded that the NRM population: (1) Had at least 45
reproductively successful packs and 450 individual wolves each winter
(near the low point in the annual cycle of a wolf population); (2) was
equitably distributed within the 250,000-km\2\ (100,000-mi\2\) area
containing 3 areas of large core refugia (National Parks, wilderness
areas, large blocks of remote secure public land) and at least 170,228
km\2\ (65,725 mi\2\) of suitable wolf habitat; and (3) was genetically
diverse and had demonstrated successful genetic exchange through
natural dispersal and human-assisted migration management between all 3
core refugia (74 FR 15123, April 2, 2009). Gray wolves in the NRM
remain well above the recovery goals established for this region (see
Historical and Current Range, above).
Reintroduction
To date, purposeful reintroduction of gray wolves to Colorado has
not occurred; current wolf occupancy in Colorado is the result of
natural wolf dispersal from the NRM population (Service 2020, pp. 15-
19, 28; see Historical and Current Range, above). The reintroduction of
gray wolves in Idaho and Wyoming in the 1990s contributed to achieving
the recovery goals for the NRM population in 2002 (Service et al.
2008). For additional details on NRM reintroduction efforts, please see
our biological report (Service 2020, entire) and Release Procedures in
this document, below.
Regulatory Framework
Section 9 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the prohibitions afforded to
threatened and endangered species. Section 9 of the Act prohibits take
of endangered wildlife. ``Take'' is defined by the Act as harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt
to engage in any such conduct. Section 7 of the Act outlines the
procedures for Federal interagency cooperation to conserve federally
listed species and protect designated critical habitat. It mandates
that all Federal agencies use their existing authorities to further the
purposes of the Act by carrying out programs for the conservation of
listed species. It also requires that Federal agencies, in consultation
with the Service, ensure that any action they authorize, fund, or carry
out is not likely to jeopardize the continued existence of a listed
species or result in the destruction or adverse modification of
designated critical habitat. Section 7 of the Act does not affect
activities undertaken on private land unless they are authorized,
funded, or carried out by a Federal agency.
The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included
the addition of section 10(j), which allows for populations of listed
species planned to be reintroduced to be designated as ``experimental
populations.'' The provisions of section 10(j) were enacted to
ameliorate concerns that reintroduced populations will negatively
impact landowners and other private parties, by giving the Secretary of
the Interior greater regulatory flexibility and discretion in managing
the reintroduced species to encourage recovery in collaboration with
partners, especially private landowners. Under section 10(j) of the
Act, and our implementing regulations at 50 CFR 17.81, the Service may
designate as an experimental population a population of an endangered
or threatened species that will be released into habitat that is
capable of supporting the experimental population outside the species'
current range. Under section 10(j) of the Act, we determine whether or
not an experimental population is essential to the continued existence
of the species based on the best available science. Our regulations
define an essential population as one whose loss would be likely to
appreciably reduce the likelihood of the survival of the species in the
wild. All other experimental populations are to be classified as
``nonessential'' (50 CFR 17.80(b)).
We treat any population determined by the Secretary to be an
experimental population as if we had listed it as a threatened species
for the purposes of establishing protective regulations with respect to
that population (50 CFR 17.82). The designation as an experimental
population and treatment as a threatened species allows us to develop
tailored ``take'' prohibitions that are necessary and advisable to
provide for the conservation of the species. The protective regulations
[[Page 77021]]
adopted for an experimental population will contain applicable
prohibitions, as appropriate, and exceptions for that population,
allowing us discretion in devising management programs to provide for
the conservation of the species.
Section 7(a)(2) of the Act requires that Federal agencies, in
consultation with the Service, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or adversely modify its critical habitat. For the
purposes of section 7 of the Act, we treat an NEP as a threatened
species when the population is located within a National Wildlife
Refuge or unit of the National Park Service (50 CFR 17.83; see 16
U.S.C. 1539(j)(2)(C)(i)). When NEPs are located outside of a National
Wildlife Refuge or National Park Service unit, for the purposes of
section 7, we treat the population as proposed for listing and only
sections 7(a)(1) (50 CFR 17.83) and 7(a)(4) (50 CFR 402.10) of the Act
apply (50 CFR 17.83). In these instances, NEPs provide additional
flexibility in managing the nonessential population because Federal
agencies are not required to consult with us under section 7(a)(2).
Section 7(a)(1) requires all Federal agencies to use their authorities
to carry out programs for the conservation of listed species. Section
7(a)(4) requires Federal agencies to confer (rather than consult) with
the Service on actions that are likely to jeopardize the continued
existence of a species proposed to be listed. As a result, NEPs provide
additional flexibility in managing the nonessential population.
Section 10(j)(2)(C)(ii) of the Act states that critical habitat
shall not be designated for any experimental population that is
determined to be nonessential. Accordingly, we cannot designate
critical habitat in areas where we establish an NEP.
Before authorizing the release as an experimental population of any
population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Service must find by
regulation that such release will further the conservation of the
species. In making such a finding the Service uses the best scientific
and commercial data available to consider:
(1) Any possible adverse effects on extant populations of a species
as a result of removal of individuals, eggs, or propagules for
introduction elsewhere (see Effects on Wild Populations, below);
(2) The likelihood that any such experimental population will
become established and survive in the foreseeable future (see
Likelihood of Population Establishment and Survival, below);
(3) The relative effects that establishment of an experimental
population will have on the recovery of the species (see Effects of the
NEP on Recovery Efforts, below);
(4) The extent to which the introduced population may be affected
by existing or anticipated Federal or State actions or private
activities within or adjacent to the experimental population area (see
Likelihood of Population Establishment and Survival, below); and
(5) When an experimental population is being established outside of
its historical range, any possible adverse effects to the ecosystem
that may result from the experimental population being established.
Furthermore, as set forth at 50 CFR 17.81(c), all regulations
designating experimental populations under section 10(j) of the Act
must provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location, actual
or anticipated migration, number of specimens released or to be
released, and other criteria appropriate to identify the experimental
population (see Experimental Population and Experimental Population
Regulation Requirements, below);
(2) A finding, based solely on the best scientific and commercial
data available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild (see Is the Experimental
Population Essential or Nonessential?, below);
(3) Management restrictions, protective measures, or other special
management concerns for that population, which may include, but are not
limited to, measures to isolate, remove, and/or contain the
experimental population designated in the regulations from
nonexperimental populations (see Management Restrictions, Protective
Measures, and Other Special Management, below); and
(4) A process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species (see Review and Evaluation of
the Success or Failure of the NEP, below).
Under 50 CFR 17.81(e), the Service must consult with appropriate
State fish and wildlife agencies, affected Tribal governments, local
governmental entities, affected Federal agencies, and affected private
landowners in developing and implementing experimental population
rules. To the maximum extent practicable, section 10(j) rules represent
an agreement between the Service, the affected State and Federal
agencies, Tribal governments, local governments, and persons holding
any interest in land or water that may be affected by the establishment
of an experimental population.
Experimental Population
We are designating this NEP at the request of CPW, to facilitate
their planned reintroduction of gray wolves to the State per the
requirements of Proposition 114 (now codified as Colorado Revised
Statute 33-2-105.8), which directs the CPW Commission to take the steps
necessary to reintroduce gray wolves to lands west of the Continental
Divide by December 31, 2023.
Reintroduction Areas and Release Sites
The NEP area is the entire State of Colorado. This scale is
appropriate, given that CPW has proposed a discrete release area
(figure 2), and gray wolves have high dispersal ability (Jimenez et al.
2017, p. 582). Furthermore, gray wolves released on the west side of
the Continental Divide may move to locations beyond the western portion
of the State, including east of the Continental Divide. Within the
statewide NEP designation, CPW proposes to release gray wolves obtained
from the delisted NRM population (Idaho, Montana, eastern Oregon,
eastern Washington, Wyoming) at multiple sites west of the Continental
Divide. Individual release sites will be located on private or State
lands with high habitat suitability and low wolf-livestock conflict
risk based on models developed by Ditmer et al. (2022, entire). All
release sites will be located west of the Continental Divide (Colorado
Revised Statute 33-2-105.8) (figure 2). CPW proposes to release a total
of 10 to 15 wolves at a 50:50 sex ratio each year during winter for 3
to 5 years (CPW 2023b, p. 20), although exact numbers and sex ratios
may vary due to factors associated with capture from source populations
(CPW 2023b, Appendix B, p. B-34). After initial releases are completed,
CPW will monitor the success of reintroduction efforts and document
wolf abundance and distribution annually to evaluate progress toward
meeting State wolf recovery objectives (CPW 2023b, p. 22).
[[Page 77022]]
[GRAPHIC] [TIFF OMITTED] TR08NO23.024
Release Procedures
CPW officials plan to capture wild gray wolves in cooperating
States in the Western United States where wolves are federally delisted
(Montana, Idaho, Wyoming, the eastern third of Washington and Oregon,
and north-central Utah) using a combination of net gunning, helicopter
darting, or trapping. Wolf captures will be conducted in accordance
with approved protocols specific to each jurisdiction from which donor
wolves are to come. Animals will be a mix of sex and age classes, with
a sex ratio of 50:50 preferred, and ideally donor animals will be
unrelated and of dispersing age (2 years and older). Each wolf selected
for transport will be photographed, examined to evaluate condition and
to obtain biological measurements and samples, tested for diseases,
vaccinated for a wide variety of diseases, and treated for internal and
external parasites. Additionally, wolves will be fitted with either a
global positioning system (GPS) or a very high frequency (VHF) radio
transmitter as well as other markers to assist with individual
identification. Captured animals will be transported to Colorado in
large, aluminum crates (similar to those used for wolf reintroduction
in the NRM) by aircraft, ground transportation, or a mix of techniques,
with a goal of releasing captured animals as quickly as possible to
minimize time in captivity and capture-related stress. All animals will
be ``hard released'' (released shortly after transport to
reintroduction sites with no preconditioning; CPW 2021b, pp. 19-21)
during winter (November through March), with no acclimation time
between capture, transport, and release. The Final Report on Wolf
Restoration Logistics Recommendations developed by the Colorado Wolf
Restoration and Management Plan Technical Working Group (CPW 2021b,
entire) provides additional details regarding the proposed release
procedures.
Reintroduction Site Management
As noted in Reintroduction Areas and Release Sites and Release
Procedures above, the CPW plans to ``hard release'' gray wolves on
State or private lands within a discrete release area (figure 2,
above). Given that gray wolves released in this manner are more likely
to disperse immediately from the release site rather than remain
together at the site (CPW 2021b, entire), CPW does not plan to
implement any special management practices at individual release sites.
For additional information, please see the State of Colorado's Final
Report on Wolf Restoration Logistics Recommendations (CPW 2021b,
entire).
How will the NEP further the conservation of the species?
Under 50 CFR 17.81(b), before authorizing the release as an
experimental population, the Service must find by regulation that such
release will further the conservation of the species. We explain our
rationale for making our finding below. In making such a finding, we
must consider effects on donor populations, the likelihood of
establishment and survival of the experimental population, the effects
that establishment of the experimental population will have on recovery
of the species, and the extent to which the
[[Page 77023]]
experimental population will be affected by Federal, State, or private
activities.
Effects on Wild Populations
Our regulations at 50 CFR 17.81 require that we consider any
possible adverse effects on extant populations of a species as a result
of removal of individuals, eggs, or propagules for introduction
elsewhere. The preferred donor population for the reintroduction of
gray wolves to Colorado is the delisted NRM population. Gray wolves in
these States are managed by State fish and wildlife agencies and
Tribes. These wolves are an appropriate source for the Colorado
reintroduction because they share similarities in habitat and preferred
prey; one of the wolves in Colorado dispersed from the NRM population;
and the NRM population reached numerical, spatial, and temporal
recovery goals by the end of 2002 (Service 2020, p. 15; see Recovery
Efforts to Date, above). The NRM wolf population continues to
demonstrate stable to slightly increasing demographic trends with an
estimated 1,337 wolves in Idaho as of August 2022 and slightly more
than 1,800 wolves in Montana, Oregon, Washington, and Wyoming at the
end of 2022 (IDFG 2023, unpaginated; ODFW 2023, p. 2; Parks et al.
2023, pp. 9-11; WDFW et al. 2023, pp. 2-3; WGFD et al 2023, p. 3).
Further, the NRM population is part of a larger metapopulation of
wolves that encompasses all of Western Canada (Service 2020, p. 29).
Given the demonstrated resilience and recovery trajectory of the NRM
population and limited number of animals that will be captured for
translocation, we expect negative impacts to the donor population to be
negligible.
Likelihood of Population Establishment and Survival
In our findings for designation of an NEP, we must consider if the
reintroduced population will become established and survive in the
foreseeable future. In this portion of the preamble, we address the
likelihood that populations introduced into the NEP will become
established and survive. In defining the experimental population
boundary, we attempted to encompass the area where the population is
likely to become established in the foreseeable future. The term
``foreseeable future'' appears in the Act in the statutory definition
of ``threatened species.'' However, the Act does not define the term
``foreseeable future.'' Similarly, our implementing regulations
governing the establishment of an NEP under section 10(j) of the Act
use the term ``foreseeable future'' (50 CFR 17.81(b)(2)) but do not
define the term. However, our implementing regulations at 50 CFR
424.11(d) set forth a framework for evaluating the foreseeable future
on a case-by-case basis.
The term foreseeable future extends only so far into the future as
we can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. While we use the term ``foreseeable future'' here in a
different context (to determine the likelihood of population
establishment and to establish boundaries for identification of the
experimental population), we apply a similar conceptual framework.
Analysis of the foreseeable future uses the best scientific and
commercial data available and should consider the timeframes applicable
to the relevant effects of release and management of the species and to
the species' likely responses in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
For the purposes of this rule, we define the foreseeable future for
our evaluation of the likelihood of survival and establishment as
approximately 13 years, which reflects 3 wolf generations of
approximately 4-4.5 years per generation (vonHoldt et al. 2008, p. 257;
Mech et al. 2016, pp. 1,6), and the time horizon within which we can
reasonably forecast population expansion of gray wolves in Colorado
given the results of previous reintroduction efforts of gray wolves in
the NRM. This timeframe is also similar to the amount of time it took
wolves to begin recolonizing areas outside of the core of the NRM
(Idaho, Montana, and Wyoming) in Oregon and Washington (Service 2020,
p. 28).
In evaluating the likelihood of establishment and survival of this
NEP in the foreseeable future, we considered the extent to which causes
of extirpation in the NEP area have been addressed, habitat suitability
and prey availability within the NEP area, and existing scientific and
technical expertise and experience with reintroduction efforts. As
discussed below, we expect that gray wolves will become established
during this time span, given the species' adaptability and dispersal
ability.
Addressing Causes of Extirpation Within the Experimental Population
Area
Investigating the causes for the extirpation of gray wolves is
necessary to understand whether we are sufficiently addressing threats
to the species in the NEP so that reintroduction efforts are likely to
be successful. The International Union for the Conservation of Nature's
Guidelines for Reintroduction and Other Conservation Translocations
(IUCN 2013, p. 4) identifies several criteria to consider prior to
undertaking a reintroduction, including ``strong evidence that the
threat(s) that caused any previous extinction have been correctly
identified and removed or sufficiently reduced.'' Wolves depend on
abundant prey (primarily ungulates) and can successfully colonize and
occupy a wide range of habitats as long as human-caused mortality is
adequately managed (Mech 2017, pp. 312-315). Historical wolf declines
in Colorado resulted from purposeful efforts to eradicate the species
by State and Federal authorities, primarily due to conflicts with
domestic livestock production (Service 2020, pp. 9-14; see Habitat Use
and Causes of Decline and Threats, above, for additional information).
In 2004, CPW created a Wolf Management Working Group, largely in
response to dispersal of wolves from the NRM population to Colorado and
other western States. The working group developed a series of
recommendations for wolf management in Colorado, including recognition
of the ecological value of wolves and an intent to accept their
presence in Colorado (Colorado Wolf Management Working Group 2004, p.
3). The recommendations of the Wolf Management Working Group were
formally adopted by the Colorado Wildlife Commission in 2005 and were
reaffirmed by the CPW Commission in 2016 (85 FR 69778 at 69837,
November 3, 2020).
The State of Colorado currently classifies the gray wolf as an
endangered species; this classification regulates take. The State of
Colorado expanded its conservation efforts for gray wolves through the
passage of Proposition 114 (now codified as Colorado Revised Statute
33-2-105.8), which directs the CPW Commission to take the steps
necessary to reintroduce gray wolves to lands west of the Continental
Divide by December 31, 2023. Colorado Revised Statute 33-2-105.8 calls
for the development and implementation of a Colorado Wolf Restoration
and Management Plan, which was finalized
[[Page 77024]]
and approved by the CPW Commission in May 2023 (CPW 2023b, entire). The
plan follows a phased approach whereby the conservation status of gray
wolves is linked with numerical and temporal population targets (CPW
2023b, pp. 24-25). Although agency-directed lethal control may be used
to mitigate conflicts with specific individual wolves and/or packs that
repeatedly depredate livestock, purposeful eradication of wolves in
Colorado is no longer a tool used for wolf management. Lethal control
may consist of removing wolves that repeatedly depredate on livestock,
whereas purposeful eradication likely involves removal of all wolves
within the State. Based on the elimination of purposeful eradication,
and the fact that gray wolves are protected under State and Federal
laws, we do not anticipate the original cause of wolf extirpation from
Colorado to be repeated.
Habitat Suitability/Prey Availability
Excluding occasional dispersing wolves and two known individual
wolves presently in north-central Colorado, large blocks of gray wolf
habitat in the central and southern Rocky Mountains are not currently
occupied by gray wolves. Models developed to assess habitat suitability
and the probability of wolf occupancy indicate that Colorado contains
adequate habitat to support a population of gray wolves, although the
number of wolves that the State could support varies among the models.
One model estimated that the State could support between 407 and 814
wolves based on prey and habitat availability (Bennett 1994, pp. 112,
275-280).
Carroll et al. (2003, entire) examined multiple models to evaluate
suitable wolf habitat, occupancy, and the probability of wolf
persistence given various landscape changes and potential increases in
human density in the southern Rocky Mountains, which includes portions
of southeastern Wyoming, Colorado, and northern New Mexico. Using a
resource selection function (RSF) model developed for wolves in the
Greater Yellowstone Ecosystem and projecting it to Colorado, Carroll et
al. (2003, pp. 541-542) identified potential wolf habitat across north-
central and northwest Colorado and the southwestern part of the State.
RSF model predictions indicate that Colorado could support an estimated
1,305 wolves with nearly 87 percent of wolves occupying public lands in
the State. Carroll et al. (2003, entire) also used a dynamic model that
incorporated population viability analysis to evaluate occupancy of
gray wolves and persistence based on current conditions as well as
potential changes resulting from increased road and human densities in
the future. The dynamic model based on current conditions predicted
similar distribution and wolf population estimates as the RSF model;
however, as predicted, as road and human densities increased in
Colorado, the availability of suitable habitat and the estimated number
of wolves that habitat could support declined (Carroll et al. 2003, pp.
541-543).
An analysis similar to that of Carroll et al. (2003, entire) was
conducted for the entirety of the Western United States and indicated
that high-quality wolf habitat exists in Colorado and Utah, but that
wolves recolonizing Colorado and Oregon would be most vulnerable to
landscape changes because these areas lack, and are greater distances
from, large core refugia (Carroll et al. 2006, pp. 33-36). The authors
proposed that habitat improvements, primarily in the form of road
removal or closures, could mitigate these effects (Carroll et al. 2006,
p. 36). Switalski et al. (2002, pp. 12-13) and Carroll et al. (2003, p.
545) also cautioned that model predictions may be inaccurate because
they did not account for the presence of livestock and the potential
use of lethal removal to mitigate conflicts, which could affect the
long-term persistence of wolves in some areas (Mech et al. 2019,
entire).
Recognizing the limitations of wolf habitat suitability models that
do not account for the presence of livestock, Ditmer et al. (2022,
entire) used voting records for proposition 114 in Colorado to quantify
and map an index of tolerance for wolves and combined it with spatially
explicit data on livestock distributions and land ownership to predict
wolf conflict risk in Colorado (Ditmer et al. 2022, p. 1). Conflict
risk was juxtaposed with estimates of wolf ecological suitability
developed using seasonal prey densities along with environmental and
anthropogenic features that influence wolf habitat use (Ditmer et al.
2022, p. 1) to predict areas of high habitat suitability and increased
conflict risk in summer and winter for gray wolves across Colorado. The
models predicted over 58 million acres (23 million hectares) of
potential suitable gray wolf habitat occurs on the western slope of
Colorado. Approximately 56 percent of this total, or 32.5 million acres
(13.2 million hectares) was considered suitable seasonal wolf habitat
that contained high ecological suitability and low conflict risk
(Ditmer et al. 2022, p. 11). However, approximately 14 percent, or 8.3
million acres (3.4 million hectares), the majority of which occurs in
the northern part of the western slope of Colorado, were identified as
being potential conflict hotspots where significant overlap between
ecological suitability and conflict risk was predicted (Ditmer et al.
2022, pp. 9-11).
Wolves can successfully occupy a wide range of habitats provided
adequate prey exists (Mech 2017, pp. 312-315). Wolves in the Western
United States rely on habitats containing large prey such as mule deer,
elk, and moose (Smith et al. 2010, entire). CPW manages wild ungulate
populations, such as moose, elk, bighorn sheep, and mule deer, etc.,
using herd management plans, which establish population objective
minimums and maximums for each ungulate herd in the State (CPW 2020,
entire). The herd management plans consider both biological and social
factors when setting herd objective ranges (CPW 2020, entire). Like
other Western States, mule deer in Colorado have declined due to a
multitude of factors since the 1970s to a statewide post-hunt
population estimate of 416,430 animals in 2021, which was well below
the target statewide population objective of 484,100. In 2021, of 54
mule deer herds in Colorado, 18 were below their population objective
minimum with the western part of the State being the most affected. In
contrast, elk populations in Colorado are stable with a 2021 post-hunt
population estimate of 308,920 elk. Although 34 of 42 elk herds are
within or above the population objective range, the ratio of calves per
100 cows (a measure of overall herd fitness) has been on the decline in
some southwestern herd units (CPW 2020, p. 7).
Moose are not native to Colorado so, to create hunting and wildlife
viewing opportunities, CPW transplanted moose to the State beginning in
1978. Since then, they transplanted moose on four other occasions
through 2010. The 2021 post-hunt moose population was estimated at
3,510 animals and continues to increase as moose expand into new areas
of Colorado. In summary, while deer and elk numbers are down from their
peak populations in some parts of Colorado, they still number in the
hundreds of thousands of individuals, and the State is actively
managing populations to meet objectives (CPW 2020, entire). Introduced
moose provide an additional potential food resource for wolves in some
parts of the State. Therefore, wolf habitat and prey are suitable and
abundant within the NEP area and would support population establishment
and survival.
[[Page 77025]]
Reintroduction Expertise/Experience/Track Record
Conservation efforts to reintroduce gray wolves to the NRM began in
1995, with the reintroduction of wolves to portions of Idaho and
Wyoming and the continued natural recolonization of wolves in
northwestern Montana. Following their release, wolves rapidly increased
in abundance and distribution in the region due to natural reproduction
and the availability of high-quality, suitable wolf habitat in the NRM.
Between 1995 and 2008, populations of gray wolves in the NRM increased
an average of 24 percent annually, reaching 1,655 wolves by the end of
2008 (Service et al. 2016, table 6b), while total mortality averaged
approximately 16 percent annually between 1999 and 2008 (Service et al.
2000-2009, entire). Wolf numbers and distribution in Idaho, Montana,
and Wyoming stabilized after 2008 as suitable habitat became
increasingly saturated (74 FR 15123 at 15160, April 2, 2009).
Between 2009 and 2015, when gray wolves were managed primarily
under State authority due to delisting (73 FR 10514, February 27, 2008;
74 FR 15123, April 2, 2009; 76 FR 25590, May 5, 2011; 77 FR 55530,
September 10, 2012), Idaho, Montana, and Wyoming began to manage wolves
with the objective of reversing or stabilizing population growth while
continuing to maintain populations well above Federal recovery targets
for the NRM population. During this period, States began to use public
harvest as a management tool to achieve State-specific management
objectives. As a result, during those years when legal harvest
occurred, total wolf mortality in the NRM increased to an average of 29
percent of the minimum known population (Service et al. 2010-2016,
entire), while population growth declined to an average of
approximately 1 percent annually (Service et al. 2010-2016, entire).
Although this mortality rate was significantly higher than mortality
rates during the previous decade, the NRM population demonstrated an
ability to sustain itself, consistent with scientific information
demonstrating that the species' reproductive and dispersal capacity can
compensate for a range of mortality rates (Service 2020, pp. 8-9).
As of 2015, the final year of a combined NRM wolf count at the end
of federally required post-delisting monitoring in Idaho and Montana,
wolves in the NRM remained well above minimum recovery levels with a
minimum known population of 1,704 wolves distributed across Idaho,
Montana, and Wyoming. An additional 177 wolves were documented in the
NRM portions of Oregon and Washington at the end of 2015. Wolves in the
NRM continue to remain above minimum recovery levels, demonstrating
availability of technical expertise to successfully reintroduce gray
wolf populations. For more information regarding the success of
reintroduction efforts in the NRM, please see Recovery Efforts to Date,
above.
Based on the success of past gray wolf reintroduction efforts in
the NRM where biological recovery was achieved within 7 years, the
availability of suitable wolf habitat and adequate wild ungulate prey
in the NEP (see Habitat suitability/prey availability, above), the
demonstrated resiliency of gray wolves in the United States, and the
development of a comprehensive Gray Wolf Restoration and Management
Plan in Colorado, the best available scientific data indicate that the
reintroduction of gray wolves into suitable habitat in Colorado
supports the likely success of establishment and survival of the
reintroduced population, and the experimental population has a high
likelihood of becoming established within the foreseeable future.
Effects of the NEP on Recovery Efforts
We are designating an experimental population of gray wolf in
Colorado to support CPW's planned effort to reintroduce gray wolves to
the State of Colorado and to further the conservation of the currently
listed 44-State entity. CPW developed a Gray Wolf Restoration and
Management Plan for the reintroduction and management of gray wolves in
the State, with the goal of restoring the species to Colorado in a
phased approach to the point where it no longer needs protection under
State statute (CPW 2023b, entire). This management plan focuses on the
primary threat to gray wolf populations, which is human-caused
mortality (e.g., Fuller et al. 2003, entire; Mech 2017, pp. 311-312;
Hill et al. 2022, entire).
As noted in Recovery Efforts to Date, above, populations of gray
wolves in the 44-State listed entity number more than 4,300 individuals
and occupy portions of California, Michigan, Minnesota, Oregon,
Washington, and Wisconsin (CDFW 2022, unpaginated; Erb and Humpal 2022,
unpaginated; WI DNR 2022, p. 4; ODFW 2023, p. 2; WDFW et al. 2023, pp.
2-3). Two gray wolves are currently known to be present in Colorado,
and they do not currently meet our definition of a gray wolf
population, which is two breeding pairs of gray wolves that each
successfully raise at least two young to December 31 of their birth
year for 2 consecutive years (Service 1994). As explained above in
Recovery Efforts to Date, there is no recovery plan that addresses the
entire currently listed entity. In the absence of a recovery plan, we
evaluate how the experimental population will contribute to the
conservation of the species by considering the conservation biology
principles of redundancy, resiliency, and representation.
Reintroduction efforts in Colorado will provide additional
redundancy and representation for the 44-State listed entity.
Redundancy is the ability for the species to withstand catastrophic
events, for which adaptation is unlikely, and is associated with the
number and distribution of populations. Representation is the ability
of a species to adapt to changes in the environment and is associated
with its ecological, genetic, behavioral, and morphological diversity.
Once established, the reintroduction in the NEP will improve redundancy
by increasing the number of populations at the southern extent of the
currently occupied range and representation by increasing the
ecological diversity of the habitats occupied by the listed entity. For
these reasons, reintroduction efforts undertaken by CPW will increase
the redundancy and representation, and hence viability, of the
currently listed 44-State entity (e.g., Smith et al. 2018).
Previous NEP designations have conserved and recovered gray wolves
in other regions of the United States, particularly in the NRM.
Additional management flexibility, relative to the mandatory
prohibitions covering nonessential experimental species under the Act,
is expected to help address local, State, and Tribal concerns about
wolf-related conflicts in Colorado, similar to those experienced in
other NRM States. Addressing these concerns proactively may result in
greater human acceptance of gray wolves and other species of concern.
Based on past modeling efforts, it has been estimated that Colorado
could biologically support approximately 400 to 1,200 wolves (Bennett
1994, pp. 112, 275-280; Carroll et al. 2006, p. 33), but due to social
constraints that could limit the distribution of wolves in the State
(Ditmer et al. 2022, p. 12), the total number of wolves that Colorado
could support may be slightly lower. Nonetheless, this action will
contribute to the conservation of the listed entity by increasing
redundancy and representation.
[[Page 77026]]
Actions and Activities in Colorado That May Affect Introduced Gray
Wolves
A large proportion of Colorado is composed of publicly owned
Federal lands (approximately 36 percent; Congressional Research Service
2020). Public lands include National Forests, National Parks, National
Monuments, and National Wildlife Refuges, which comprise approximately
63 percent of all public lands in Colorado. In addition, the Bureau of
Land Management manages approximately 35 percent of public land in
Colorado, much of which is located in the western portion of the State
where reintroduction efforts for gray wolves will take place (figure 2,
above). Although much of this public land is largely unavailable and/or
unsuitable for intensive development and contains an abundance of wild
ungulates, livestock grazing does occur on public lands in Colorado,
which may increase the potential for mortality of gray wolves from
lethal control of chronically depredating packs. However, in both
Minnesota and the northern Rocky Mountains, lethal control of
depredating wolves has had little effect on wolf distribution and
abundance (Service 2020, p. 22; 85 FR 69778 at 69842, November 3,
2020).
Humans sparsely inhabit most of the NEP area containing suitable
habitat for gray wolves. However, the NEP area contains human
infrastructure and activities that pose some risk to success of the
NEP. Risks include wolves killed as a result of mistaken identity,
accidental capture during animal damage control activities, and high-
speed vehicular traffic. Human-caused mortality includes both
controllable and uncontrollable sources of mortality. Controllable
sources of mortality are discretionary, can be limited by the managing
agency, and include permitted take, recreational harvest, and direct
agency control. Sources of mortality that will be difficult to limit,
or may be uncontrollable, occur regardless of population size and
include things such as natural mortalities, illegal take, and
accidental deaths (e.g., vehicle collisions, capture-related
mortalities) (85 FR 69778, November 3, 2020). Although the effects of
uncontrollable sources of mortality may be greatest for wolf
populations that are small in size, which is most likely to occur
during the early phases of recovery in Colorado, based on experiences
with wolf recovery in the NRM (where uncontrollable sources of
mortality were also present) and the availability of suitable habitat
in Colorado, we expect that these sources of mortality will have
minimal effect on gray wolf population growth and persistence in the
State. If population levels and controllable sources of mortality are
adequately regulated, the life-history characteristics of wolf
populations provide natural resiliency to relatively high levels of
human-caused mortality (85 FR 69778, November 3, 2020).
In conjunction with previous reintroduction efforts, implementation
of this final rule reflects continuing success in recovering gray
wolves through longstanding cooperative and complementary programs by
several Federal, State, and Tribal agencies. In particular, the
stakeholder engagement process developed by CPW in support of its Gray
Wolf Restoration and Management Plan (CPW 2023b, entire) development is
broadly based and includes a diverse array of stakeholders in the
State, which has helped to address potential adverse effects to gray
wolves through Federal, State, or private actions. Therefore, Federal,
State, or private actions and activities in Colorado that are ongoing
and expected to continue are not likely to have significant adverse
effects on gray wolves within the NEP area.
Experimental Population Regulation Requirements
Our regulations at 50 CFR 17.81(c) include a list of what we should
provide in regulations designating experimental populations under
section 10(j) of the Act. We explain what our regulations include and
provide our rationale for those regulations, below.
Means To Identify the Experimental Population
Our regulations require that we provide appropriate means to
identify the experimental population, which may include geographic
locations, number of individuals to be released, anticipated movements,
and other information or criteria. The Colorado NEP area encompasses
the entire State. As discussed below, we conclude that after initial
releases, any gray wolves found in Colorado will, with a high degree of
likelihood, have originated from and be members of the NEP. However, we
recognize that absent identifying tags or collars, it may be very
difficult for members of the public to easily determine the origin of
any individual gray wolf. Therefore, we will use geographic location to
identify members of the NEP. As such, any gray wolf within the State of
Colorado will be considered part of the NEP regardless of its origin.
Similarly, any wolf outside of the State will take on the status of
that location. For example, a wolf moving from Wyoming into Colorado
will take on the NEP status, whereas a wolf moving from Colorado into
Wyoming will take on a not-listed status, or endangered status if it
moves into any other adjacent State.
By the end of 2022, a minimum count of two wolves were known to
occupy Colorado and do not constitute a population (see Historical and
Current Range, above). While an adult female wolf dispersed from
Wyoming to Colorado in 2019 to form half of the first reproductively
active pack in the State in recent history, the origins of her mate are
unknown. It is likely the male dispersed from the Greater Yellowstone
area (approximately 480 km (300 miles) north and west of their current
location), but his exact origin is uncertain (CPW 2021a, entire). The
mean dispersal distance of male wolves in the NRM is 98.1 km (60 miles)
(Jimenez et al. 2017, p. 585). The nearest known pack in Wyoming is
more than 200 km (124 miles) from the Colorado border, which is more
than two times the average dispersal distance for gray wolves. In
addition, Wyoming manages gray wolves in northwestern Wyoming via a
trophy management area, which restricts the number of gray wolves that
can be harvested in that area. The southern extent of the trophy
management area generally coincides with the southern extent of the
gray wolf current range in the NRM (figure 1, above). Outside of the
trophy management area, wolves are managed as predators and can be
harvested at any time without a license and with no harvest limit. Gray
wolf packs are unlikely to persist long term in portions of Wyoming
where they are designated as predatory animals (85 FR 69778, November
3, 2020), which further limits the ability for individuals to enter
Colorado from Wyoming.
Despite these challenges, it is possible that gray wolves
dispersing from the NRM population could successfully enter the NEP.
However, these movements would likely be infrequent given the NEP's
distance from existing populations, and the normal dispersal distances
for gray wolves. Additionally, the small numbers of individuals likely
to occupy the NEP following the release and the sizable distances
between populations makes any potential interaction between individuals
or a merging of populations highly unlikely. Further, even if gray
wolves from the NRM or other populations were to disperse into the NEP,
the presence of one or a few individual dispersing gray wolves would
not constitute a population, as described above.
[[Page 77027]]
Therefore, gray wolves reintroduced into Colorado will be wholly
geographically separate from the delisted portion of the NRM population
as well as the remainder of the currently listed 44-State entity. Based
on this geographic separation, we conclude that any gray wolves found
in Colorado after the initial release will, with a high degree of
likelihood, be members of the NEP; therefore, we conclude that
geographic location is an appropriate means to identify members of the
NEP.
As noted in Release Procedures, above, CPW plans to fit individual
animals reintroduced to the Colorado NEP with GPS collars or a mix of
GPS and VHF collars, with GPS preferred in the early stages of the
reintroduction effort. Reintroduced wolves fitted with radio telemetry
collars and other identifiable marks prior to release will enable CPW
to determine if animals within Colorado are members of the reintroduced
NEP and not extant wolves from other populations (e.g., the delisted
NRM population). However, as reintroduced wolves begin to reproduce and
disperse from Colorado packs, wolf abundance and distribution will
increase in Colorado and the ability to capture and mark a high
proportion of the population will decline. Given the challenges
associated with marking a high number of wolves as the population
increases and the distance from known packs in Wyoming and other
populations of gray wolves, we will consider all gray wolves found in
the State of Colorado to be members of the NEP.
Is the experimental population essential or nonessential?
When we establish experimental populations under section 10(j) of
the Act, we must determine whether or not that population is essential
to the continued existence of the species. This determination is based
solely on the best scientific and commercial data available. Our
regulations (50 CFR 17.80(b)) state that an experimental population is
considered essential if its loss would be likely to appreciably reduce
the likelihood of survival of that species in the wild. We are
designating the population of gray wolves in Colorado as nonessential
for the following reason.
Populations of gray wolves within the 44-state listed entity
include the Great Lakes metapopulation and growing populations in
California, Oregon, and Washington. Multiple large, growing, or stable
metapopulations of gray wolves inhabiting separate and ecologically
diverse areas ensure that the survival of the listed species does not
rely on any single population. Therefore, the loss of the Colorado NEP
would not be likely to appreciably reduce the likelihood of survival of
the species in the wild, and we find that the Colorado NEP is not
essential to the continued existence of the species.
Management Restrictions, Protective Measures, and Other Special
Management
We have included management measures to address potential conflicts
between wolves and humans and wolves and livestock. Management of the
nonessential experimental population would allow gray wolves in the NEP
to be hazed, killed, or relocated by the Service or our designated
agent(s) for livestock depredations. Under special conditions, the
public may harass or kill wolves in the act of attacking livestock
(defined below). We have also included an exception to allow nonlethal
and lethal management of gray wolves that are having an unacceptable
impact to ungulate herds or populations on Tribal lands (defined
below). This exception requires a science-based proposal that must, at
a minimum, include the following information: (1) the basis of ungulate
population or herd management objectives; (2) data indicating that the
ungulate herd is below management objectives; (3) what data indicate
that wolves are a major cause of the ungulate population decline; (4)
why wolf removal is a warranted solution to help restore the ungulate
herd to management objectives; (5) the level and duration of wolf
removal being proposed; (6) how ungulate population response to wolf
removal will be measured and control actions adjusted for
effectiveness; and (7) demonstration that attempts were and are being
made to address other identified major causes of ungulate herd or
population declines or of Tribal government commitment to implement
possible remedies or conservation measures in addition to wolf removal.
The proposal must be subjected to both public and peer review prior
to it being finalized and submitted to the Service for review. At least
three independent peer reviewers with relevant expertise in the subject
matter that are not staff of the Tribe submitting the proposal must be
used to review the proposal. Upon Service review, and before wolf
removals can be authorized, the Service will evaluate the information
provided by the requesting Tribe and provide a written determination to
the requesting Tribal game and fish agency on whether such actions are
scientifically based and warranted.
As the lead agency for reintroduction efforts for gray wolves in
Colorado, CPW will coordinate with the Service on releases, monitoring,
and other tasks as needed to ensure successful reintroduction of the
species to the State. Definitions pertaining to special management
provisions are listed below:
Depredating wolves--Gray wolves that have been confirmed by the
Service or our designated agent as having depredated on livestock at
least once within the last 30 days, and are routinely present and
present a significant risk to the health and safety of livestock.
Designated agent--An employee of a Federal, State, or Tribal agency
that is authorized or directed by the Service to conduct gray wolf
management consistent with this rule.
The State of Colorado and Tribes within the State with wolf
management plans also may become designated agents by submitting a
request to the Service to establish a memorandum of agreement (MOA)
under this rule. Once accepted by the Service, the MOA may allow the
State of Colorado or Tribes within the State to assume lead authority
for wolf conservation and management within their respective
jurisdictions and to implement the portion of their State or Tribal
wolf management plans that does not exceed the exceptions provided in
this rule. The Service oversight (aside from Service law enforcement
investigations) under an MOA is limited to monitoring compliance with
this rule, issuing written authorizations for wolf take on reservations
without wolf management plans, and an annual review of the State or
Tribal program to ensure consistency with this rule. Under either a
cooperative agreement or an MOA, no management outside the provisions
of this rule is allowed unless we solicit additional public comment,
and this rule is modified accordingly.
Incidental take--Experimental population rules contain specific
prohibitions and exceptions regarding the taking of individual animals
under the Act. These rules are compatible with most routine human
activities in the NEP area (e.g., resource monitoring, invasive species
management, and research; see How Will the NEP Further the Conservation
of the Species? above). Section 3(19) of the Act defines ``take'' as
``to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or to attempt to engage in any such conduct.'' ``Incidental
take'' is further defined as take that is incidental to, and
[[Page 77028]]
not the purpose of, the carrying out of an otherwise lawful activity.
See table 1 below for additional details on incidental take of gray
wolves within the NEP area.
Intentional harassment--The deliberate and pre-planned harassment
of wolves, including by less-than-lethal munitions that are designed to
cause physical discomfort and temporary physical injury but not death.
The term does not apply if there is evidence of unusual attractants or
artificial or intentional feeding.
Interagency consultation--For purposes of section 7(a)(2) of the
Act, section 10(j) of the Act and our regulations (at 50 CFR 17.83)
provide that nonessential experimental populations are treated as
species proposed for listing under the Act except on National Park
Service and National Wildlife Refuge System lands, where they are
treated as threatened species for the purposes of section 7(a)(2) of
the Act. Where actions may affect gray wolves within units of the
National Wildlife Refuge system or National Park Service in Colorado
the Service will coordinate with the National Park Service and National
Wildlife Refuge system to address their section 7(a)(2) obligations.
In the act of attacking--The actual biting, wounding, grasping, or
killing of livestock or working dogs, or chasing, molesting, or
harassing by wolves that would indicate to a reasonable person that
such biting, wounding, grasping, or killing of livestock or dogs is
likely to occur at any moment. This definition does not apply if there
is evidence of unusual attractants or artificial or intentional
feeding.
Landowner--An owner or lessee of private land, or their immediate
family members, or the owner's employees, contractors, or volunteers
who are currently employed to actively work on that private land. In
addition, the owners (or their employees or contractors) of livestock
that are currently and legally grazed on that private land and other
leaseholders on that private land (such as outfitters or guides who
lease hunting rights from private landowners), are considered
landowners on that private land for the purposes of this regulation.
Private land, under this rule, also includes all non-Federal land and
land within Tribal reservations. Individuals legally using Tribal lands
are considered landowners for the purposes of this rule.
Livestock--Cattle, sheep, pigs, horses, mules, goats, domestic
bison, and herding and guarding animals (alpacas, llamas, donkeys, and
certain breeds of dogs commonly used for herding or guarding
livestock). Livestock excludes dogs that are not being used for
livestock guarding or herding.
Livestock producer--A person who is actively engaged in farming/
ranching and receives income from the production of livestock.
Non-injurious--Does not cause either temporary or permanent
physical damage or death.
Opportunistic harassment--Harassment without the conduct of prior
purposeful actions to attract, track, wait for, or search out the wolf.
Opportunistic harassment includes scaring wolves with noise (e.g.,
yelling or shooting firearms into the air), movement (e.g., running or
driving toward the wolf), or objects (e.g., throwing a rock at a wolf
or releasing bear pepper spray).
Private land--All land other than that under Federal Government
ownership and administration and including Tribal reservations.
Public land--Federal land such as that administered by the National
Park Service, U.S. Fish and Wildlife Service, Bureau of Land
Management, USDA Forest Service, Bureau of Reclamation, Department of
Defense, or other agencies with the Federal Government.
Public land permittee--A person or that person's employee who has
an active, valid Federal land-use permit to use specific Federal lands
to graze livestock or operate as an outfitter or guiding business that
uses livestock. This definition does not include private individuals or
organizations who have Federal permits for other activities on public
land such as collecting firewood, mushrooms, antlers, or Christmas
trees, or logging, mining, oil or gas development, or other uses that
do not require livestock. In recognition of the special and unique
authorities of Tribes and their relationship with the U.S. Government,
for the purposes of this rule, the definition includes Tribal members
who legally graze their livestock on ceded public lands under
recognized Tribal treaty rights.
Relocation--Capture and movement to another location within the
NEP.
Remove--Place in captivity or kill.
Research--Scientific studies resulting in data that will lend to
enhancement of the survival of gray wolves.
Rule--``This rule'' in the regulatory text refers to the NEP
regulations.
Tribal land--any lands where title is either held in trust by the
United States for the benefit of an Indian Tribe or individual Indian
or held by an Indian Tribe or individual Indian subject to restrictions
by the United States against alienation (i.e., sale or transfer).
Unacceptable impact--Tribally determined decline in a wild ungulate
population or herd, where wolf predation is a major cause of the
population or herd not meeting established Tribal management goals on
Tribal land. The Tribal determination must be peer-reviewed and
reviewed and commented on by the public prior to a final, written
determination by the Service that an unacceptable impact has occurred
and that wolf removal will benefit the affected ungulate herd or
population.
Working dogs--Guard or herding dogs used in livestock production.
Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or
other evidence of physical damage caused by a wolf or wolves.
Table 1--Allowable Forms of Take for Gray Wolves in the Colorado NEP
Area
------------------------------------------------------------------------
Description of provision in the
Take provision experimental population rule
------------------------------------------------------------------------
Take in defense of human life..... Any person may take a wolf in
defense of the individual's life or
the life of another person. The
unauthorized taking of a wolf
without demonstration of an
immediate and direct threat to
human life may be referred to the
appropriate authorities for
prosecution.
Agency take of wolves determined The Service, or our designated
to be a threat to human life and agents, may promptly remove (that
safety. is, place in captivity or kill) any
wolf determined by the Service or
designated agent to be a threat to
human life or safety.
Opportunistic harassment.......... Anyone may conduct opportunistic
harassment of any gray wolf in a
non-injurious manner at any time.
Opportunistic harassment must be
reported to the Service or our
designated agent within 7 days.
[[Page 77029]]
Intentional harassment............ After the Service, or our designated
agent, has confirmed wolf activity
on private land or on a public land
grazing allotment, the Service or
our designated agent may issue
written take authorization valid
for not longer than 1 year to any
landowner or public land permittee
to intentionally harass wolves in a
nonlethal, injurious manner. The
harassment must occur in the area
and under the conditions as
specifically identified in the
written take authorization.
Intentional harassment must be
reported to the Service or a
designated agent within 7 days.
This exception does not apply if
there is evidence of unusual
attractants or artificial or
intentional feeding.
Taking wolves ``in the act of Consistent with State or Tribal
attacking'' livestock on PRIVATE requirements, any landowner may
land. take (injure or kill) a gray wolf
in the act of attacking (wounding,
harassing, molesting, or killing)
livestock or working dogs on their
private land. Any wolf taken in the
act must be reported to the Service
or our designated agent within 24
hours. We will allow additional
reasonable time if access to the
site is limited. The carcass of any
wolf taken and surrounding area
must not be disturbed in order to
preserve physical evidence that the
livestock or working dogs were
recently attacked by a wolf or
wolves. The Service or our
designated agent must be able to
confirm that the livestock or dog
were wounded, harassed, molested,
or killed by a wolf or wolves. The
taking of any wolf without such
evidence may be referred to the
appropriate authorities for
prosecution. This exception to the
prohibition on take does not apply
if there is evidence of unusual
attractants or artificial or
intentional feeding.
Taking wolves ``in the act of Consistent with State or Tribal
attacking'' livestock on PUBLIC requirements, any livestock
land. producer and public land permittee
who is legally using public land
under a valid Federal land-use
permit may take a gray wolf in the
act of attacking their livestock or
working dogs on the person's
allotment or other area authorized
for their use without prior written
authorization from the Service. The
Service or our designated agent
must be able to confirm that the
livestock or working dogs were
wounded, harassed, molested, or
killed by a wolf or wolves. The
carcass of any wolf taken and the
area surrounding it must not be
disturbed to preserve physical
evidence that the take was
conducted according to this rule.
Any person legally present on
public land may immediately take a
wolf that is in the act of
attacking the individual's stock
animal or working dog, provided
conditions noted in taking of
wolves in the act on private land
are met. Any take or method of take
on public land must be consistent
with the rules and regulations on
those public lands. Any lethal or
injurious take must be reported to
the Service or a designated agent
within 24 hours. We will allow
additional reasonable time if
access to the site is limited. This
exception to the prohibition on
take does not apply if there is
evidence of unusual attractants or
artificial or intentional feeding.
Additional taking by private At the Service's or our designated
citizens on their PRIVATE land. agents' direction, the Service or
designated agent may issue a
``depredation'' written take
authorization of limited duration
(45 days or less) to a landowner or
their employees to take up to a
specified (by the Service or our
designated agent) number of wolves
on their private land if: (1) The
landowner has had at least one
depredation by wolves on livestock
that has been confirmed by the
Service or our designated agent
within the last 30 days; and (2)
the Service or our designated agent
has determined that depredating
wolves are routinely present on the
private land and present a
significant risk to the health and
safety of livestock; and (3) the
Service or our designated agent has
authorized lethal removal of wolves
from that same private land. These
authorizations may be terminated at
any time once threats have been
resolved or minimized. Any lethal
or injurious take must be reported
to the Service or a designated
agent within 24 hours. We will
allow additional reasonable time if
access to the site is limited. This
exception does not apply if there
is evidence of unusual attractants
or artificial or intentional
feeding.
Additional taking by grazing At the Service's or our designated
permittees on PUBLIC land. agents' direction, the Service or
designated agent may issue a
``depredation'' written take
authorization of limited duration
(45 days or less) to a public land
grazing permittee to take up to a
specified (by the Service or our
designated agent) number of wolves
on that permittee's active
livestock grazing allotment if: (1)
The grazing allotment has had at
least one depredation by wolves on
livestock that has been confirmed
by the Service or our designated
agent within the last 30 days; and
(2) the Service or our designated
agent has determined that
depredating wolves are routinely
present on that allotment and
present a significant risk to the
health and safety of livestock; and
(3) the Service or our designated
agent has authorized lethal removal
of wolves from that same allotment.
These authorizations may be
terminated at any time once threats
have been resolved or minimized.
Any take or method of take on
public land must be consistent with
the rules and regulations on those
public lands. Any lethal or
injurious take must be reported to
the Service or a designated agent
within 24 hours. We will allow
additional reasonable time if
access to the site is limited. This
exception does not apply if there
is evidence of unusual attractants
or artificial or intentional
feeding.
Agency take of wolves that The Service or our designated agent
depredate livestock. may carry out harassment, nonlethal
control measures, relocation,
placement in captivity, or lethal
control of depredating wolves. The
Service or our designated agent
will consider: (1) Evidence of
wounded livestock or working dogs
or remains of livestock or working
dogs that show that the injury or
death was caused by wolves, or
evidence that wolves were in the
act of attacking livestock or
working dogs; (2) the likelihood
that additional wolf-caused losses
or attacks may occur if no control
action is taken; (3) evidence of
unusual attractants or artificial
or intentional feeding of wolves;
and (4) evidence that animal
husbandry practices recommended in
approved allotment plans and annual
operating plans were followed.
Incidental take................... Any person may take a gray wolf if
the take is incidental to an
otherwise lawful activity, if
reasonable due care was practiced
to avoid such taking, and such
taking is reported within 24 hours.
We will allow additional reasonable
time if access to the site is
limited. Shooting a wolf as a
result of mistaking it for another
species is not considered
incidental take and may be referred
to the appropriate authorities for
prosecution.
Permits for recovery actions that Permits are available and required,
include take of gray wolves. except as otherwise allowed by this
rule, for scientific purposes,
enhancement of propagation or
survival, educational purposes, or
other purposes consistent with the
Act (50 CFR 17.32).
[[Page 77030]]
Additional taking provisions for Any Service employee or our
agency employees and our designated agent may take a gray
designated agents. wolf from the NEP: (1) For take
related to the release, tracking,
monitoring, recapture, and
management for the NEP; (2) to aid
or euthanize sick, injured, or
orphaned wolves or transfer to a
licensed veterinarian for care; (3)
to dispose of a dead specimen; (4)
to salvage a dead specimen that may
be used for scientific study; (5)
to aid in law enforcement
investigations involving wolves
(collection of specimens for
necropsy, etc.); or (6) to remove
wolves with abnormal physical or
behavioral characteristics, as
determined by the Service or our
designated agent, to prevent these
gray wolves from passing on or
teaching those traits to other
wolves.
Take of gray wolves that are This would allow nonlethal and/or
contributing to unacceptable lethal management of gray wolves
impacts to wild ungulate that are having an unacceptable
populations or herds on Tribal impact to wild ungulate herds or
land. populations on Tribal lands. This
exception requires Tribes to
develop a science-based proposal
that must, at a minimum, include
the following information: (1) the
basis of ungulate population or
herd management objectives; (2)
data indicating that the ungulate
herd is below management
objectives; (3) data indicating
that wolves are a major cause of
the ungulate population decline;
(4) why wolf removal is a warranted
solution to help restore the
ungulate herd to management
objectives; (5) the level and
duration of wolf removal being
proposed; (6) how ungulate
population response to wolf removal
will be measured and control
actions adjusted for effectiveness;
and (7) demonstration that attempts
were and are being made to address
other identified major causes of
ungulate herd or population
declines or of Tribal government
commitment to implement possible
remedies or conservation measures
in addition to wolf removal. The
proposal must be subjected to both
public and peer review prior to it
being finalized and submitted to
the Service for review. At least
three independent peer reviewers
with relevant expertise in the
subject matter that are not staff
of the Tribe submitting the
proposal must be used to review the
proposal. Upon Service review, and
before wolf removals can be
authorized, the Service will
evaluate the information provided
by the requesting Tribe and provide
a written determination to the
requesting Tribal game and fish
agency on whether such actions are
scientifically based and warranted.
------------------------------------------------------------------------
Review and Evaluation of the Success or Failure of the NEP
CPW plans to use ground and aerial monitoring techniques to
document wolf reproductive success, abundance, and distribution in
Colorado post-release. This information will be summarized in an annual
report by CPW that describes wolf conservation and management
activities that occurred in Colorado each calendar or biological year
to evaluate progress toward achieving the State of Colorado's
downlisting and recovery criteria. A copy of the report will be
submitted annually to the Service by June 30th and posted on CPW's
website. The annual report may include, but not be limited to, post-
release wolf movements and behavior; wolf minimum counts or abundance
estimates; reproductive success and recruitment; territory use and
distribution; cause-specific wolf mortalities; and a summary of wolf
conflicts and associated management activities to minimize wolf
conflict risk. For additional details, please see CPW 2021b (entire)
and Release Procedures, above.
The Service will evaluate Colorado's wolf reintroduction and
management program in an annual summary report. Additionally, 5 years
after the last reintroductions are completed, the Service will evaluate
whether the wolf population is meeting the State's recovery goals and
conservation of the species. During this evaluation, we will assess the
reintroduction program and coordinate with CPW if it is determined that
modifications to reintroduction protocols are necessary. We believe
that 5 years after the reintroductions is a reasonable timeline for
this evaluation because that timeline would allow for evaluation of the
success of the management program and of wolf population growth and
abundance in order to assess progress toward achieving the State of
Colorado's recovery goals. If modifications to wolf monitoring and
management activities are needed, the Service will coordinate closely
with CPW to ensure progress toward achieving recovery goals while
concurrently minimizing wolf-related conflicts in Colorado.
Other Considerations
Above, we considered potential effects of the release on wild
populations of the delisted NRM potential donor populations. We also
considered potential effects of the release on the Mexican wolf. The
number of gray wolves in Colorado could continue to grow and expand,
which could increase the likelihood that gray wolves in Colorado
disperse far enough south to encounter Mexican wolves. The timing and
extent of any potential future contact are uncertain and difficult to
project, but if contact were to occur, interbreeding is a concern for
the Mexican wolf. If gray wolves come to occupy Mexican wolf recovery
areas, these physically larger wolves are likely to dominate smaller
Mexican wolves and quickly occupy breeding positions, as will their
hybrid offspring. Hybrid population(s) thus derived will not contribute
towards recovery of Mexican wolves because they will significantly
threaten integrity of the listed entity (Odell et al. 2018, entire).
However, potential inbreeding would be unlikely to have significant
effects on the gray wolf, given the narrow geographic range in which
such contact would likely occur relative to the species' overall range.
Additionally, we do not intend to initiate or allow adaptive
introgression between gray wolves and Mexican wolves as part of the
genetic management of Mexican wolves (87 FR 39357, July 1, 2022). To
help minimize interactions and protect Mexican wolf genetic integrity,
we have simultaneously issued a section 10(a)(1)(A) permit to be held
by the Service, which would authorize our designated agents to assist
in the capture and return of wolves originating from the Colorado NEP.
Findings
Based on the best scientific and commercial data available (in
accordance with 50 CFR 17.81), we find that releasing gray wolves into
the State of Colorado with the regulatory provisions in this rulemaking
will further the conservation of the species in the currently listed
44-State entity. The NEP status is appropriate for the introduced
population; the potential loss of the experimental population would not
appreciably reduce the likelihood of the survival of the species in the
44-State listed entity since more than 4,600 wolves are distributed
across at least 6 different States in the Western
[[Page 77031]]
United States and the western Great Lakes.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order (E.O.) 14094 reaffirms the principles of E.O. 12866
and E.O. 13563 and states that regulatory analysis should facilitate
agency efforts to develop regulations that serve the public interest,
advance statutory objectives, and are consistent with E.O. 12866, E.O.
13563, and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this final rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget will review all significant rules. OIRA
has determined that this rule is not significant.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever a Federal agency is
required to publish a notice of rulemaking for any proposed or final
rule, it must prepare, and make available for public comment, a
regulatory flexibility analysis that describes the effect of the rule
on small entities (i.e., small businesses, small organizations, and
small government jurisdictions). However, no regulatory flexibility
analysis is required if the head of an agency certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. SBREFA amended the Regulatory Flexibility Act to
require Federal agencies to provide a statement of the factual basis
for certifying that a rule will not have a significant economic impact
on a substantial number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term ``significant economic impact'' is meant to apply
to a typical small business firm's business operations.
This rule is modeled after previous NEP designations in Idaho,
Montana, and Wyoming that contributed to the recovery of gray wolves
while allowing for the control and management of wolves that caused
conflicts and economic impacts on livestock producers. The majority of
gray wolves in the Western United States are part of the NRM
population, which is no longer protected under the Act. Despite
increased incidences of human-caused mortality in the NRM population
after delisting, this population is stable to increasing.(Service 2020,
pp. 14-19; 85 FR 69778, November 3, 2020).
The State of Colorado has recognized the utility of NEP
designations in reintroducing gray wolves while addressing the concerns
of local, State, and Tribal governments, as well as private entities,
and engaged in an extensive stakeholder outreach process to develop a
State management plan with broad-based support (CPW 2022). This
process, which involved a Stakeholder Advisory Group comprising a
diverse array of stakeholders such as agricultural producers, hunting
guides, wolf conservation advocates, and other interests and a
Technical Working Group comprising gray wolf experts, assisted in the
formulation of an impact-based management matrix and the overall
Colorado Gray Wolf Management and Restoration Plan.
The reduced restrictions on taking depredating wolves (see
definition above under Management Restrictions, Protective Measures,
and Other Special Management) in this rule, relative to endangered
species that receive the full protections of sections 7 and 9 of the
Act, will make the management of wolves easier and more effective, thus
reducing the economic losses that result from depredation of wolves on
livestock and guard animals and working dogs. Furthermore, a State
program to compensate livestock producers who experience livestock
losses caused by wolves is being developed and will be implemented upon
CPW Commission approval. As a point of reference, compensation for
livestock losses in Montana in 2021 totaled $103,815.95 (Parks et al.
2022, p. 19), and compensation in Wyoming for 2022 totaled $187,382.00
(WGFD et al. 2023, pp. 24). The potential effect on livestock producers
in western States is very small, but more flexible wolf management will
provide benefits to stakeholders and livestock producers by providing
options to protect assets.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period on the
proposed rule (88 FR 10258, February 17, 2023) that may pertain to our
consideration of the probably incremental economic impacts of this NEP
designation. Based on this information, we affirm our certification
that this NEP designation under section 10(j) of the Act will not have
a significant economic impact on a substantial number of small
entities, and a regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects ``to the extent
permitted by law'' when undertaking actions identified as significant
energy actions (66 FR 28355, May 22, 2001). E.O. 13211 defines a
``significant energy action'' as an action that (i) is a significant
regulatory action under E.O. 12866 (or any successor order, including
most recently E.O. 14094 (88 FR 21879, April 11, 2023)); and (ii) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This rule is not a significant
regulatory action under E.O. 12866 or 14094. Therefore, this action is
not a significant energy action, and there is no requirement to prepare
a statement of energy effects for this action.
[[Page 77032]]
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This rule will not produce a Federal mandate of $100 million or
greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This NEP designation
for gray wolves in Colorado would not impose any additional management
or protection requirements on the States or other entities. In general,
a Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7).
``Federal intergovernmental mandate'' includes a regulation that
``would impose an enforceable duty upon State, local, or Tribal
governments'' with two exceptions. It excludes ``a condition of Federal
assistance.'' It also excludes ``a duty arising from participation in a
voluntary Federal program,'' unless the regulation ``relates to a then-
existing Federal program under which $500,000,000 or more is provided
annually to State, local, and Tribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; Aid to Families with Dependent Children work programs; Child
Nutrition; Food Stamps; Social Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care, Adoption Assistance, and
Independent Living; Family Support Welfare Services; and Child Support
Enforcement. ``Federal private sector mandate'' includes a regulation
that ``would impose an enforceable duty upon the private sector, except
(i) a condition of Federal assistance or (ii) a duty arising from
participation in a voluntary Federal program.''
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it would not impose a cost of $100
million or more in any given year on local or State governments or
private entities and it would not place additional requirements on any
city, county, or other local municipalities. Therefore, a small
government agency plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
determined that this rule will not have significant implications
concerning taking of private property by the Federal Government. This
rule will substantially advance a legitimate government interest
(conservation of a listed species) and will not present a bar to all
reasonable and expected beneficial use of private property.
Additionally, because of the regulatory flexibility provided by NEP
designations under section 10(j) of the Act, the increased flexibility
provided by this rule for State or Tribal-led gray wolf management will
reduce regulatory restrictions on private lands and will result in
minor positive economic effects for a small percentage of livestock
producers. Therefore, we conclude that this rulemaking for the gray
wolf does not pose significant taking implications.
Federalism--Executive Order 13132
In accordance with Executive Order 13132, this rule does not have
significant federalism effects. This rule will not have substantial
direct effects on the States, on the relationship between the States
and the Federal Government, or on the distribution of power and
responsibilities among the various levels of government. CPW requested
that we undertake this rulemaking to support the conservation of wolves
in the 44-State entity and in Colorado and to provide increased take
authority to resolve gray wolf conflicts, which will assist with
conservation of the species. No intrusion on State policy or
administration is expected; roles or responsibilities of Federal or
State governments will not change; and fiscal capacity will not be
substantially affected. This rule operates to maintain the existing
relationship between the States and the Federal Government and is being
undertaken at the request of CPW. We cooperated with CPW and other
State agencies in the preparation of this rule. Therefore, this rule
does not have significant federalism effects or implications to warrant
the preparation of a federalism assessment pursuant to the provisions
of Executive Order 13132.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule would not
unduly burden the judicial system and would meet the requirements of
sections (3)(a) and (3)(b)(2) of the Order. We are designating the NEP
in accordance with the provisions of the Act. To assist the public in
understanding the NEP, this rule presents the areas of the NEP on a map
and the rule provides several options for the interested public to
obtain more detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule contains existing and new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. The OMB previously reviewed the new information
collection requirements contained in this rulemaking related to the
establishment of an NEP of the gray wolf (Canis lupus) in the State of
Colorado, under section 10(j) of the ESA and assigned OMB Control
Number 1018-0189. OMB has previously approved the information
collection requirements associated with permitting requirements
associated with native endangered and threatened species, and
experimental populations, and assigned OMB Control Number 1018-0094,
``Federal Fish and Wildlife Permit Applications and Reports--Native
Endangered and Threatened Species; 50 CFR parts 10, 13, and 17''
(expires January 31, 2024).
Experimental populations established under section 10(j) of the
Act, as amended, require information collection and reporting to the
Service. We will collect information on the gray wolf NEP to help
further the recovery of the species and to assess the success of the
reintroduced populations. There are no forms associated with this
information collection. The respondents notify us when an incident
occurs, so there is no set frequency for collecting the information.
Other Federal agencies provide us with the vast majority of the
information on experimental populations under cooperative agreements
for the conduct of the recovery programs. However, the public also
provides some information to us. The new information collection
[[Page 77033]]
requirements identified below require approval by OMB:
1. Appointment of designated agent--A designated agent is an
employee of a Federal, State, or Tribal agency that is authorized or
directed by the Service to conduct gray wolf management. A prospective
designated agent submits a letter to the Service requesting designated
agent status. The letter includes a proposal for the work to be
completed, a list of individuals that may perform the work, and a
resume (or similar) demonstrating qualifications of each individual to
competently perform the work. The Service will then respond to the
requester with a letter authorizing them to complete the work.
2. Request for written take authorization--After receiving
confirmation of wolf activity on private land or on a public land
grazing allotment, we or the designated agent may issue written take
authorization valid for not longer than 1 year, with appropriate
conditions, to any landowner or public land permittee to intentionally
harass wolves. The harassment must occur in the area and under the
conditions as specifically identified in the written take
authorization.
3. Request for ``depredation'' written take authorization--The
Service or designated agent may issue a ``depredation'' written take
authorization of limited duration (45 days or fewer) to a landowner or
their employees, or to a public land grazing permittee, to take up to a
specified (by the Service or our designated agent) number of wolves.
4. Reporting requirements--Except as otherwise specified in this
rule or in an authorization, any take of a gray wolf must be reported
to the Service, or our designated agent as follows (additional
reasonable time will be allowed if access to the site is limited):
a. Lethal take must be reported within 24 hours. We will allow
additional reasonable time if access to the site is limited.
b. Opportunistic or intentional harassment must be reported within
7 days.
c. Gray wolves taken into captivity for care or to be euthanized
must be reported to the Service within 24 hours, or as soon as
reasonably appropriate.
5. Annual report--To evaluate progress toward achieving State
downlisting and delisting criteria, CPW will summarize monitoring
information in an annual report. The report, due by June 30 of each
year, will describe wolf conservation and management activities that
occurred in Colorado for as long as the gray wolf is federally listed
during any portion of a calendar or biological year. The annual report
will include, but not be limited to:
post-release wolf movements and behavior;
wolf minimum counts or abundance estimates;
reproductive success and recruitment;
territory use and distribution;
cause-specific wolf mortalities; and
a summary of wolf conflicts and associated management
activities to minimize wolf conflict risk.
6. Recovery or reporting of dead individuals and specimen
collection from experimental populations--This type of information is
for the purpose of documenting incidental or authorized scientific
collection. Specimens are to be retained or disposed of only in
accordance with directions from the Service. Most of the contacts with
the public deal primarily with the reporting of sightings of
experimental population animals, or the inadvertent discovery of an
injured or dead individual.
7. Proposal--Take of Gray Wolves on Tribal Lands (NEW in Final
Rule)--The exception to allow take of gray wolves that are contributing
to unacceptable impacts to wild ungulate population or herds on Tribal
land requires Tribes to develop a science-based proposal that must, at
a minimum, include the following information:
The basis of ungulate population or herd management
objectives;
Data indicating that the ungulate herd is below management
objectives;
Data indicating that wolves are a major cause of the
ungulate population decline;
Why wolf removal is a warranted solution to help restore
the ungulate herd to management objectives;
The level and duration of wolf removal being proposed;
How ungulate population response to wolf removal will be
measured and control actions adjusted for effectiveness; and
Demonstration that attempts were and are being made to
address other identified major causes of ungulate herd or population
declines or of Tribal government commitment to implement possible
remedies or conservation measures in addition to wolf removal. The
proposal must be subjected to both public and peer review prior to it
being finalized and submitted to the Service for review. At least three
independent peer reviewers with relevant expertise in the subject
matter that are not staff of the Tribe submitting the proposal must be
used to review the proposal. Upon Service review, and before wolf
removals can be authorized, the Service will evaluate the information
provided by the requesting Tribe and provide a written determination to
the requesting Tribal game and fish agency on whether such actions are
scientifically based and warranted.
We will use the information described above to assess the
effectiveness of control activities and develop means to reduce
problems with livestock where depredation is a problem. Service
recovery specialists use the information to determine the success of
reintroductions in relation to established recovery plan goals for the
threatened and endangered species involved.
Title of Collection: Endangered and Threatened Wildlife,
Experimental Populations--Colorado Gray Wolf (50 CFR 17.84).
OMB Control Number: 1018-0189.
Form Numbers: None.
Type of Review: New.
Respondents/Affected Public: Individuals; private sector; and
State/local/Tribal governments.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: Annually for annual report and on occasion
for other requirements.
Total Estimated Annual Non-Hour Burden Cost: None.
----------------------------------------------------------------------------------------------------------------
Number of Total
Number of annual Total annual annual
Requirement annual responses responses Average completion time burden
respondents each hours
----------------------------------------------------------------------------------------------------------------
Appointment of Designated Agent:
Individuals...................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Private Sector................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Request for Written Take
Authorization:
Individuals...................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
[[Page 77034]]
Private Sector................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Request for ``Depredation'' Written
Take Authorization:
Individuals...................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Private Sector................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Reporting Requirement--Lethal Take:
Individuals...................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Private Sector................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Reporting Requirement--Opportunistic
or Intentional Harassment:
Individuals...................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Private Sector................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Reporting Requirement--Captivity for
Care or to be Euthanized:
Individuals...................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Private Sector................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Annual Report:
Individuals...................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Private Sector................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Notification--Recovery or Reporting
of Dead Specimen and Specimen
Collection:
Individuals...................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Private Sector................... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
Proposal--Take of Gray Wolves on
Tribal Lands (NEW in Final Rule):
State/Local/Tribal Gov't......... 1 1 1 30 min (reporting); 30 1
min (recordkeeping).
--------------------------------------------------------------------------
Totals....................... 25 .......... 25 ........................ 25
----------------------------------------------------------------------------------------------------------------
As part of our continuing effort to reduce paperwork and respondent
burdens, we invite the public and other Federal agencies to comment on
any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) How might the agency minimize the burden of the collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of response.
We will accept and consider all public comments concerning the
information collection requirements received in response to this final
rule. Send your written comments and suggestions on this information
collection to the Service Information Collection Clearance Officer,
U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803 (mail); or [email protected] (email).
Please reference ``OMB Control Number 1018-BG79'' in the subject line
of your comments.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have prepared a final environmental impact statement (FEIS)
pursuant to the National Environmental Policy Act of 1969 (NEPA; 42
U.S.C. 4321 et seq.) in connection with this rule to designate the
Colorado nonessential experimental population of gray wolves. The
purpose of the FEIS is to identify and disclose the environmental
consequences resulting from the designation of the gray wolf in
Colorado. The FEIS is an outgrowth of the public scoping process we
conducted from July 21, 2022, to August 22, 2022, and the public and
peer review comments we received on the draft environmental impact
statement (DEIS) (see 88 FR 10318, February 17, 2023), and our February
17, 2023, proposed rule (88 FR 10258). We used the FEIS, which we
announced in the Federal Register on September 19, 2023 (88 FR 64399),
to inform our final decision for this rulemaking.
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 federally recognized
Tribes on a government-to-government basis. We have considered possible
effects of this rule on federally recognized Indian Tribes. In
accordance with Secretaries'
[[Page 77035]]
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. In July 2022, we sent notification letters to the
Native American Tribes within and adjacent to the NEP about this rule,
and to determine their interest in participating in Tribal consultation
under Secretaries' Order 3206 for this action. We invited the Ute
Mountain Ute and the Southern Ute Indian Tribes to serve as cooperating
agencies in the development of the environmental impact statement. In
October 2022, we provided an informational webinar to the interested
Tribes and in January 2023, we participated in government-to-government
consultation with the Southern Ute Indian Tribe. In February 2023, we
participated in an informational meeting with the Ute Mountain Ute
Indian Tribe. If future activities resulting from this rule may affect
Tribal resources, the Service will communicate and consult on a
government-to-government basis with any affected Native American Tribes
in order to find a mutually agreeable solution.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Colorado Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the
Colorado Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
Accordingly, we hereby 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, in paragraph (h), by revising the entry for
``Wolf, gray'' under Mammals in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status and applicable
rules
----------------------------------------------------------------------------------------------------------------
Mammals
* * * * * * *
Wolf, gray...................... Canis lupus....... U.S.A.: All of AL, AR, E 32 FR 4001, 3/11/
CA, CT, DE, FL, GA, 1967; 41 FR
IA, IN, IL, KS, KY, 24062, 6/14/1976;
LA, MA, MD, ME, MI, 43 FR 9607, 3/9/
MO, MS, NC, ND, NE, 1978; 73 FR
NH, NJ, NV, NY, OH, 75356, 12/11/
OK, PA, RI, SC, SD, 2008; 74 FR
TN, TX, VA, VT, WI, 47483, 9/16/2009;
and WV; and portions 80 FR 9218, 2/20/
of AZ, NM, OR, UT, and 2015; 50 CFR
WA as follows: 17.95(a).\CH\
(1) Northern AZ (that
portion north of the
centerline of
Interstate Highway
40);.
(2) Northern NM (that
portion north of the
centerline of
Interstate Highway
40);.
(3) Western OR (that
portion of OR west of
the centerline of
Highway 395 and
Highway 78 north of
Burns Junction and
that portion of OR
west of the centerline
of Highway 95 south of
Burns Junction);
(4) Most of UT (that
portion of UT south
and west of the
centerline of
Interstate Highway 84
and that portion of UT
south of Interstate
Highway 80 from Echo
to the UT/WY
Stateline); and
(5) Western WA (that
portion of WA west of
the centerline of
Highway 97 and Highway
17 north of Mesa and
that portion of WA
west of the centerline
of Highway 395 south
of Mesa); Mexico.
Wolf, gray [Colorado XN]........ Canis lupus....... U.S.A. (CO)............ XN 88 FR [Insert
Federal Register
page where the
document begins],
11/8/2023; 50 CFR
17.84(n).\10j\
Wolf, gray...................... Canis lupus....... U.S.A. (MN)............ T 43 FR 9607, 3/9/
1978; 50 CFR
17.40(d);\4(d)\
50 CFR
17.95(a).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 77036]]
0
3. Amend Sec. 17.84 by adding paragraph (n) to read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(n) Wolf, gray (Canis lupus). (1) Purpose. The regulations in this
paragraph (n) set forth the provisions of a rule to establish an
experimental population of gray wolves. The Service finds that
establishment of an experimental population of gray wolves as described
in this paragraph (n) will further the conservation of the species.
(2) Determinations. The gray wolves identified in paragraph (n)(3)
of this section constitute a nonessential experimental population (NEP)
under Sec. 17.81(c)(2). These wolves will be managed in accordance
with the provisions of this rule in the boundaries of the NEP area
within the State of Colorado or any Tribal reservation found in the
State that has a wolf management plan, as further provided in this
rule. Furthermore, the State of Colorado or any Tribe within the State
that has a wolf management plan consistent with this rule can request
to assume the lead authority for wolf management under this rule within
the borders of the NEP area in the State or reservation as set forth in
paragraph (n)(10) of this section.
(3) Designated area. The Colorado NEP area encompasses the entire
State of Colorado. All gray wolves found in the wild within the
boundary of the Colorado NEP area are considered nonessential
experimental animals. Any gray wolf that is outside the Colorado NEP
area, with the exception of wolves in the States of Idaho, Minnesota,
Montana, Wyoming, and portions of the States of Oregon, Washington, and
Utah, is considered endangered. Any wolf originating from the Colorado
NEP area and dispersing beyond its borders may be managed by the wolf
management regulations established for that area or may be returned to
the Colorado NEP area.
(4) Definitions. Key terms used in this rule have the following
meanings:
Depredating wolves--Gray wolves that have been confirmed by the
Service or our designated agent as having depredated on livestock at
least once within the last 30 days, and are routinely present and
present a significant risk to the health and safety of livestock.
Designated agent--An employee of a Federal, State, or Tribal agency
that is authorized or directed by the Service to conduct gray wolf
management consistent with this rule.
Intentional harassment--The deliberate and pre-planned harassment
of wolves, including by less-than-lethal munitions that are designed to
cause physical discomfort and temporary physical injury but not death.
In the act of attacking--The actual biting, wounding, grasping, or
killing of livestock or working dogs or chasing, molesting, or
harassing by wolves that would indicate to a reasonable person that
such biting, wounding, grasping, or killing of livestock or working
dogs is likely to occur at any moment.
Landowner--Any of the following entities:
(A) An owner or lessee of private land, or their immediate family
members, or the owner's employees, contractors, or volunteers who are
currently employed to actively work on that private land.
(B) The owners, or their employees or contractors, of livestock
that are currently and legally grazed on private land and herding and
guarding animals (such as alpacas, llamas, or donkeys) and other
leaseholders on private land, such as outfitters or guides who lease
hunting rights from private landowners.
(C) Individuals legally using Tribal lands in the State of
Colorado.
Livestock--Cattle, sheep, pigs, horses, mules, goats, domestic
bison, and herding and guarding animals (alpacas, llamas, donkeys, and
certain breeds of dogs commonly used for herding or guarding
livestock). Livestock excludes dogs that are not being used for
livestock guarding or herding.
Livestock producer--A person who is actively engaged in farming/
ranching and receives income from the production of livestock.
Non-injurious--Does not cause either temporary or permanent
physical damage or death.
Opportunistic harassment--Harassment without the conduct of prior
purposeful actions to attract, track, wait for, or search out the wolf.
Opportunistic harassment includes scaring wolves with noise (e.g.,
yelling or shooting firearms into the air), movement (e.g., running or
driving toward the wolf), or objects (e.g., throwing a rock at a wolf
or releasing bear pepper spray).
Private land--All land other than that under Federal Government
ownership and administration and including Tribal reservations.
Public land--Federal land such as that administered by the National
Park Service, U.S. Fish and Wildlife Service, Bureau of Land
Management, Bureau of Reclamation, U.S. Department of Agriculture's
Forest Service, Department of Defense, or other agencies within the
Federal Government.
Public land permittee--A person or that person's employee who has
an active, valid Federal land-use permit to use specific Federal lands
to graze livestock or operate an outfitter or guiding business that
uses livestock and Tribal members who legally graze their livestock on
ceded public lands under recognized Tribal treaty rights. This term
does not include private individuals or organizations who have Federal
permits for other activities on public land such as collecting
firewood, mushrooms, antlers, or Christmas trees, logging, mining, oil
or gas development, or other uses that do not require livestock.
Relocation--Capture and movement to another location.
Remove--Place in captivity or kill.
Research--Scientific studies resulting in data that will lend to
enhancement of the survival of the gray wolf.
Rule--The regulations in this paragraph (n).
Tribal land--Any lands where title is either held in trust by the
United States for the benefit of an Indian Tribe or individual Indian
or held by an Indian Tribe or individual Indian subject to restrictions
by the United States against alienation (i.e., sale or transfer).
Unacceptable impact--Tribally determined decline in a wild ungulate
population or herd where wolf predation is a major cause of the
population or herd not meeting established Tribal management goals on
Tribal land. The Tribal determination must be peer-reviewed and
reviewed and commented on by the public prior to a final, written
determination by the Service that an unacceptable impact has occurred
and that wolf removal will benefit the affected ungulate herd or
population.
Working dogs--Guard or herding dogs typically used in livestock
production.
Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or
other evidence of physical damage caused by a wolf.
(5) Allowable forms of take of gray wolves. Take of gray wolves in
the experimental population is allowed without a permit only in these
specific circumstances: opportunistic harassment; intentional
harassment; take in defense of human life; take to protect human
safety; take by designated agents to remove depredating wolves;
incidental take; take under any previously authorized permits issued by
the Service; take per authorizations for employees of designated
agents; take for research purposes; and take to protect livestock
animals and working dogs. Consistent with the requirements of the State
or
[[Page 77037]]
Tribe, take is allowed on private land. Take on public land is allowed
as specified in paragraph (n)(5)(iv)(A) of this section. Other than as
expressly provided by the regulations in this rule, all other forms of
take are considered a violation of section 9 of the Act. Any wolf or
wolf part taken legally must be turned over to the Service unless
otherwise specified in this rule. Any take of wolves must be reported
as set forth in paragraph (n)(6) of this section.
(i) Opportunistic harassment. Anyone may conduct opportunistic
harassment of any gray wolf in a non-injurious manner at any time.
Opportunistic harassment must be reported to the Service or a
designated agent within 7 days as set forth in paragraph (n)(6) of this
section.
(ii) Intentional harassment. After we or a designated agent have
confirmed wolf activity on private land or a public land grazing
allotment, we or the designated agent may issue written take
authorization, with appropriate conditions, valid for not longer than 1
year to any landowner or public land permittee to intentionally harass
wolves. The harassment must occur in the area and under the conditions
as specifically identified in the written take authorization.
Intentional harassment must be reported to the Service or a designated
agent(s) within 7 days as set forth in paragraph (n)(6) of this
section. The provisions in this paragraph (n)(5)(ii) do not apply if
there is evidence of unusual attractants or artificial or intentional
feeding.
(iii) Take by landowners on their private land. Landowners may take
wolves on their private land in the following two additional
circumstances:
(A) Consistent with State or Tribal requirements, any landowner may
take a gray wolf in the act of attacking livestock or working dogs on
private land (owned or leased), provided that there is no evidence of
intentional baiting, feeding, or deliberate attractants of wolves. To
preserve physical evidence that the livestock or working dogs were
recently attacked by a wolf or wolves, the carcass of any wolf taken
and surrounding area must not be disturbed. The Service or designated
agent must be able to confirm that the livestock or dogs were wounded,
harassed, molested, or killed by wolves. The take of any wolf without
such evidence of a direct and immediate threat may be referred to the
appropriate authorities for prosecution.
(B) The Service or designated agent may issue a ``depredation''
written take authorization of limited duration (45 days or fewer) to a
landowner or their employees to take up to a specified (by the Service
or our designated agent) number of wolves on their private land if:
(1) The landowner has had at least one depredation by wolves on
livestock that has been confirmed by the Service or our designated
agent within the last 30 days; and
(2) The Service or our designated agent has determined that
depredating wolves routinely occur on the private land and present a
significant risk to the health and safety of livestock; and
(3) The Service or our designated agent has authorized lethal
removal of wolves from those same private lands.
(4) The authorizations set forth by this paragraph (n)(5)(iii)(B)
may be terminated at any time once threats have been resolved or
minimized.
(iv) Take on public land. Consistent with State or Tribal
requirements, any livestock producer and public land permittee (see
definitions in paragraph (n)(4) of this section) who is legally using
public land under a valid Federal land-use permit may, without prior
written authorization, take a gray wolf in the act of attacking
livestock or working dogs on the person's allotment or other area
authorized for the person's use.
(A) The Service or designated agent must be able to confirm that
the livestock or working dog was wounded, harassed, molested, or killed
by a wolf or wolves. To preserve physical evidence that the take was
conducted according to this rule, the carcass of any wolf taken and the
area surrounding it should not be disturbed. Any person legally present
on public land may immediately take a wolf that is in the act of
attacking the individual's livestock animal or working dog, provided
conditions described in paragraph (n)(5)(iii)(A) of this section for
private land (i.e., ``in the act of attacking'') are met. Any take or
method of take on public land must be consistent with the laws and
regulations on those public lands.
(B) The Service or our designated agent may issue a ``depredation''
written take authorization of limited duration (45 days or fewer) to a
public land grazing permittee to take up to a specified (by the Service
or our designated agent) number of wolves on that permittee's active
livestock grazing allotment if all of the following situations occur:
(1) The grazing allotment has had at least one depredation by
wolves on livestock that has been confirmed by the Service or our
designated agent within the last 30 days; and
(2) The Service or our designated agent has determined that
depredating wolves routinely occur on that allotment and present a
significant risk to the health and safety of livestock; and
(3) The Service or our designated agent has authorized lethal
removal of wolves from that same allotment.
(4) The authorizations set forth by this paragraph (n)(5)(iv)(B)
may be terminated at any time once threats have been resolved or
minimized.
(5) Any take or method of take on public land must be consistent
with the rules and regulations on those public lands.
(v) Agency take of wolves that depredate livestock. The Service or
our designated agent may carry out harassment, nonlethal control
measures, relocation, placement in captivity, or lethal control of
depredating wolves. The Service or our designated agent will consider:
(A) Evidence of wounded livestock or working dogs or remains of
livestock or working dogs that show that the injury or death was caused
by wolves, or evidence that wolves were in the act of attacking
livestock or working dogs;
(B) The likelihood that additional wolf-caused losses or attacks
may occur if no control action is taken;
(C) Any evidence of unusual attractants or artificial or
intentional feeding of wolves; and
(D) Evidence that animal husbandry practices recommended in
approved allotment plans and annual operating plans were followed.
(vi) Take in defense of human life. Any person may take a gray wolf
in defense of the individual's life or the life of another person. The
taking of a wolf without an immediate and direct threat to human life
may be referred to the appropriate authorities for prosecution.
(vii) Take to protect human safety. The Service or our designated
agent may promptly remove any wolf that we or our designated agent
determines to be a threat to human life or safety.
(viii) Incidental take. Take of a gray wolf is allowed if the take
is accidental and/or incidental to an otherwise lawful activity and if
reasonable due care was practiced to avoid such take and such take is
reported within 24 hours as set forth at paragraph (n)(6) of this
section. We may refer incidental take that does not meet these
provisions to the appropriate authorities for prosecution. Shooters
have the responsibility to identify their target before shooting.
Shooting a wolf as a result of mistaking it for another species is not
considered incidental take and may be referred to the appropriate
authorities for prosecution.
[[Page 77038]]
(ix) Take under permits. Any person with a valid permit issued by
the Service under 50 CFR 17.32, or our designated agent, may take
wolves in the wild, pursuant to terms of the permit.
(x) Additional take authorization for agency employees. When acting
in the course of official duties, any employee of the Service or a
designated agent may take a wolf, when necessary, in regard to the
release, tracking, monitoring, recapture, and management of the NEP or
to:
(A) Aid or euthanize a sick, injured, or orphaned wolf and transfer
it to a licensed veterinarian for care;
(B) Dispose of a dead specimen;
(C) Salvage a dead specimen that may be used for scientific study;
(D) Aid in law enforcement investigations involving wolves
(collection of specimens for necropsy, etc.); or
(E) Remove wolves with abnormal physical or behavioral
characteristics, as determined by the Service or our designated agent,
from passing on or teaching those traits to other wolves.
(F) Such take must be reported to the Service as set forth in
paragraph (n)(6) of this section, and specimens are to be retained or
disposed of only in accordance with directions from the Service.
(xi) Take of gray wolves that are contributing to unacceptable
impacts to wild ungulate populations or herds on Tribal land. This
exception requires Tribes to develop a science-based proposal that
must, at a minimum, include the following information:
(A) The basis of ungulate population or herd management objectives;
(B) Data indicating that the ungulate herd is below management
objectives;
(C) Data indicating that wolves are a major cause of the ungulate
population decline;
(D) Why wolf removal is a warranted solution to help restore the
ungulate herd to management objectives;
(E) The level and duration of wolf removal being proposed;
(F) How ungulate population response to wolf removal will be
measured and control actions adjusted for effectiveness; and
(G) Demonstration that attempts were and are being made to address
other identified major causes of ungulate herd or population declines
or of Tribal government commitment to implement possible remedies or
conservation measures in addition to wolf removal.
(H) The proposal described in this paragraph (n)(5)(xi) must be
subjected to both public and peer review prior to being finalized and
submitted to the Service for review. Peer review must include at least
three independent peer reviewers with relevant expertise in the subject
matter who are not staff of the Tribe submitting the proposal. Before
wolf removals can be authorized, the Service will evaluate the
information in the proposal and provide a written determination to the
requesting Tribal game and fish agency on whether such actions are
scientifically based and warranted.
(xii) Take for research purposes. Permits are available and
required, except as otherwise allowed by this rule, for scientific
purposes, enhancement of propagation or survival, educational purposes,
or other purposes consistent with the Act (50 CFR 17.32). Scientific
studies should be reasonably expected to result in data that will lead
to development of sound management of the gray wolf and to enhancement
of its survival as a species.
(6) Reporting requirements. Except as otherwise specified in this
rule or in an authorization, any take of a gray wolf must be reported
to the Service or our designated agent as follows: Lethal take must be
reported within 24 hours, and opportunistic or intentional harassment
must be reported within 7 days. We will allow additional reasonable
time if access to the site is limited.
(i) Report any take of wolves, including opportunistic harassment
or intentional harassment, to U.S. Fish and Wildlife Service, Colorado
Ecological Services Field Office Supervisor (134 Union Boulevard, Suite
670, Lakewood, Colorado 80225; [email protected]), or a Service-
designated agent of another Federal, State, or Tribal agency.
(ii) Unless otherwise specified in this paragraph (n), any wolf or
wolf part taken legally must be turned over to the Service, which will
determine the disposition of any live or dead wolves.
(7) Prohibitions. Take of any gray wolf in the NEP is prohibited,
except as provided in paragraphs (n)(5) and (8) of this section.
Specifically, the following actions are prohibited by this rule:
(i) No person shall possess, sell, deliver, carry, transport, ship,
import, or export by any means whatsoever, any wolf or part thereof
from the experimental population taken in violation of the regulations
in this paragraph (n) or in violation of applicable State or Tribal
fish and wildlife laws or regulations or the Act.
(ii) It is unlawful for any person to attempt to commit, solicit
another to commit, or cause to be committed any offense defined in this
paragraph (n).
(8) Monitoring. Gray wolves in the NEP area will be monitored by
radio telemetry or other standard wolf population monitoring techniques
as appropriate. Any animal that is sick, injured, or otherwise in need
of special care may be captured by authorized personnel of the Service
or our designated agent and given appropriate care. Such an animal will
be released back into its respective area as soon as possible, unless
physical or behavioral problems make it necessary to return the animal
to captivity or euthanize it. If a gray wolf is taken into captivity
for care or is euthanized, it must be reported to the Service within 24
hours or as soon as reasonably appropriate.
(9) Review and evaluation of the success or failure of the NEP.
Radio transmitters, remote cameras, surveys of roads and trails to
document wolf sign, and other monitoring techniques will be used to
document wolf reproductive success, abundance, and distribution in
Colorado post-release.
(i) To evaluate progress toward achieving State downlisting and
delisting criteria, the State of Colorado will summarize monitoring
information in an annual report. The report, due by June 30 of each
year, will describe wolf conservation and management activities that
occurred in Colorado for as long as the gray wolf is federally listed
during any portion of a calendar or biological year. The annual report
may include, but not be limited to: post-release wolf movements and
behavior; wolf minimum counts or abundance estimates; reproductive
success and recruitment; territory use and distribution; cause-specific
wolf mortalities; and a summary of wolf conflicts and associated
management activities to minimize wolf conflict risk.
(ii) To assess the reintroduction program, the Service will
evaluate Colorado's wolf reintroduction and management program in a
summary report each year that wolf reintroductions occur in the State
and for a minimum of 5 years after reintroductions are complete. If the
Service determines that modifications to reintroduction protocols and
wolf monitoring and management activities are needed, the Service will
coordinate closely with the State to ensure progress toward achieving
their State recovery goals while concurrently minimizing wolf-related
conflicts in Colorado.
(10) Memorandum of Agreement (MOA). The State of Colorado or any
Tribe within the State, subject to the terms of this rule, may request
an MOA from the Service to take over lead management responsibility and
authority to implement this rule by managing the nonessential
experimental gray wolves in the State or on a Tribal reservation, and
implement all parts of
[[Page 77039]]
their State or Tribal plan that are consistent with this rule, provided
that the State or Tribe has a wolf management plan approved by the
Service.
(i) The State or Tribal request for wolf management under an MOA
must demonstrate:
(A) That authority and management capability reside in the State or
Tribe to conserve the gray wolf throughout the geographical range of
the experimental population within the State of Colorado or within the
Tribal reservation;
(B) That the State or Tribe has an acceptable conservation program
for the gray wolf, throughout the NEP area within the State or Tribal
reservation, including the requisite authority and capacity to carry
out that conservation program;
(C) Exactly what parts of the State or Tribal plan the State or
Tribe intends to implement within the framework of this rule; and
(D) That the State or Tribal management progress will be reported
to the Service on at least an annual basis so the Service can determine
if State or Tribal management was conducted in full compliance with
this rule.
(ii) The Service will approve such a request upon a finding that
the applicable criteria are met and that approval is not likely to
jeopardize the continued existence of the gray wolf.
(iii) If the Service approves the request, the Service will enter
into an MOA with the State or Tribe.
(iv) An MOA for State or Tribal management as provided in this rule
may allow the State of Colorado or any Tribe within the State to become
designated agents and lead management of the nonessential experimental
gray wolf population within the borders of their jurisdictions in
accordance with the State's or Tribe's wolf management plan, except
that:
(A) The MOA may not provide for any form of management inconsistent
with the protection provided to the species under this rule, without
further opportunity for appropriate public comment and review and
amendment of this rule.
(B) The MOA cannot vest the State of Colorado or any Tribe within
the State with any authority over matters concerning section 4 of the
Act (determining whether a species warrants listing).
(C) In the absence of a Tribal wolf management plan or cooperative
agreement, the MOA cannot vest the State of Colorado with the authority
to issue written authorizations for wolf take on reservations. The
Service will retain the authority to issue these written authorizations
until a Tribal wolf management plan is developed.
(D) The MOA for State or Tribal wolf management must provide for
joint law enforcement responsibilities to ensure that the Service also
has the authority to enforce the State or Tribal management program
prohibitions on take.
(E) The MOA may not authorize wolf take beyond that stated in the
rule but may be more restrictive.
(v) The authority for the MOA will be the Act, the Fish and
Wildlife Act of 1956 (16 U.S.C. 742a-742j), and the Fish and Wildlife
Coordination Act (16 U.S.C. 661-667e), and any applicable treaty.
(vi) In order for the MOA to remain in effect, the Service must
find, on an annual basis, that the management under the MOA is not
jeopardizing the continued existence of the gray wolf in the NEP. The
Service or State or Tribe may terminate the MOA upon 90 days' notice
if:
(A) Management under the MOA is likely to jeopardize the continued
existence of the gray wolf in the NEP;
(B) The State or Tribe has failed materially to comply with this
rule, the MOA, or any relevant provision of the State or Tribal wolf
management plan;
(C) The Service determines that biological circumstances within the
range of the gray wolf indicate that delisting the species is
warranted; or
(D) The States or Tribes determine that they no longer want the
wolf management authority vested in them by the Service in the MOA.
* * * * *
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-24514 Filed 11-7-23; 8:45 am]
BILLING CODE 4333-15-P