[Federal Register Volume 83, Number 195 (Tuesday, October 9, 2018)]
[Proposed Rules]
[Pages 50610-50630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21799]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2018-0057; 4500030113]
RIN 1018-BD21
Endangered and Threatened Wildlife and Plants; 12-Month Petition
Finding and Threatened Species Status for Eastern Black Rail With a
Section 4(d) Rule
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
12-month petition finding on a petition to list the eastern black rail
(Laterallus jamaicensis jamaicensis) as an endangered or threatened
species under the Endangered Species Act of 1973 (Act), as amended.
After review of the best available scientific and commercial
information, we find that listing the eastern black rail is warranted.
Accordingly, we propose to list the eastern black rail, a bird
subspecies that occurs in as many as 35 States, the District of
Columbia, Puerto Rico, and several countries in the Caribbean and
Central America, as a threatened species under the Act. If we finalize
this rule as proposed, it would extend the Act's protections to this
subspecies and, accordingly, add this subspecies to the List of
Endangered and Threatened Wildlife. We also propose a rule under the
authority of section 4(d) of the Act that provides measures that are
necessary and advisable to provide for the conservation of the eastern
black rail. We have determined that designation of critical habitat for
the eastern black rail is not prudent at this time, but we are seeking
public comment on that determination.
DATES: We will accept comments received or postmarked on or before
December 10, 2018. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for
public hearings, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by November 23, 2018.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R4-ES-2018-0057,
which is the docket number for this rulemaking. Then, click the Search
button. On the resulting page, in the Search panel on the left side of
the screen, under the Document Type heading, click on the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment Now!''
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2018-0057, U.S. Fish and Wildlife
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Public Comments, below, for more information).
FOR FURTHER INFORMATION CONTACT: Tom McCoy, Field Supervisor, South
Carolina Ecological Services Field Office, 176 Croghan Spur Road, Suite
200, Charleston, SC 29407; telephone 843-727-4707; facsimile 843-300-
0204. Persons who use a telecommunications device for the deaf (TDD)
may call the Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if we determine that
a species is an endangered or threatened species throughout all or a
significant portion of its range, we are required to promptly publish a
proposal in the Federal Register and make a determination on our
proposal within 1 year. Listing a species as an endangered or
threatened species can only be completed by issuing a rule.
This rule proposes to list the eastern black rail (Laterallus
jamaicensis jamaicensis) as a threatened species and to provide
measures under section 4(d) of the Act that are tailored to our current
understanding of the conservation needs of the eastern black rail.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species based on any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that habitat loss and
destruction, sea level rise and tidal flooding, incompatible land
management, and increasing storm intensity and frequency are the
primary threats to this subspecies.
Peer review. We prepared a species status assessment report (SSA
report) for the eastern black rail. The SSA report represents a
compilation and assessment of the best scientific and commercial
information available concerning the status of the eastern black rail,
including the past, present, and future factors influencing the
subspecies (Service 2018, entire). We solicited independent peer review
of the SSA report by 10 individuals with expertise in rail biology and
ecology and in species modeling; we received comments from 5 of the 10
reviewers. The reviewers were generally supportive of our approach and
made suggestions and comments that strengthened our analysis. The SSA
report and other materials relating to this proposal can be found at
http://www.regulations.gov under Docket No. FWS-R4-ES-2018-0057.
Information Requested
Public Comments
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule. We particularly
seek comments concerning:
(1) The eastern black rail's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the subspecies,
including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the subspecies, its
habitat, or both.
[[Page 50611]]
(2) Factors that may affect the continued existence of the
subspecies, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to the eastern black rail and existing
regulations that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of the eastern black
rail, including the locations of any additional populations of this
subspecies.
(5) The reasons why areas should or should not be designated as
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et
seq.), including the possible risks or benefits of designating critical
habitat, including risks associated with publication of maps
designating any area on which this subspecies may be located, now or in
the future, as critical habitat. We specifically request information on
the threats of taking or other human activity, particularly by birders,
on the eastern black rail and its habitat, and the extent to which
designation might increase those threats, as well as the possible
benefits of critical habitat designation to the eastern black rail.
(6) Whether the measures outlined in the proposed section 4(d) rule
are necessary and advisable for the conservation and management of the
eastern black rail. We particularly seek comments concerning:
(a) Whether the provision related to the prescribed burn activities
should be revised to include additional spatial or temporal
restrictions or deferments, or additional best management practices;
(b) Whether the provision related to the haying, mowing, and
mechanical treatment activities should be revised to include additional
spatial or temporal restrictions or deferments;
(c) Whether the provision related to the grazing activities should
be revised to include spatial or temporal restrictions or deferments.
We also seek comment on the level of grazing density that is compatible
with eastern black rail occupancy; and
(d) Whether there are additional provisions the Service may wish to
consider for the section 4(d) rule in order to conserve, recover, and
manage the eastern black rail, such as limitations on road construction
and other infrastructure or construction activities, moist soil
management, or structural marsh management activities.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, South Carolina Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. We must receive requests within 45 days after
the date of publication of this proposed rule in the Federal Register
(see DATES, above). Such requests must be sent to the address shown in
FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on
this proposal, if requested, and announce the date, time, and place of
that hearing, as well as how to obtain reasonable accommodations, in
the Federal Register and local newspapers at least 15 days before the
hearing.
Peer Review
The purpose of peer review is to ensure that our listing
determination is based on scientifically sound data, assumptions, and
analyses. In accordance with our joint policy on peer review published
in the Federal Register on July 1, 1994 (59 FR 34270), we sought the
expert opinions of 10 appropriate and independent specialists with
expertise in eastern black rail ecology and modeling regarding the SSA
report (Service 2018, entire) that supports this proposed rule. We
received comments from 5 of the 10 peer reviewers.
Previous Federal Action
In April 2010, the Center for Biological Diversity (CBD) petitioned
the Service to list 404 aquatic, riparian, and wetland species from the
southeastern United States under the Act. The eastern black rail was
among these 404 species. On September 27, 2011, the Service published a
90-day finding that the petition presented substantial scientific or
commercial information indicating that listing may be warranted for 374
species, including the eastern black rail (76 FR 59836). On September
13, 2012, CBD filed a complaint against the Service for failure to
complete a 12-month finding for the eastern black rail. On April 25,
2013, the Service entered into a settlement agreement with CBD to
resolve the complaint; the court approved the agreement on April 26,
2013. The agreement specified that a 12-month finding for the eastern
black rail would be delivered to the Federal Register by September 30,
2018. This document serves as our 12-month finding on the April 2010
petition.
Background
A thorough review of the taxonomy, life history, and ecology of the
eastern black rail is presented in the SSA report (Service 2018,
entire).
Taxonomy and Species Description
The eastern black rail is a subspecies of black rail, which is a
member of the family Rallidae (rails, gallinules, and coots) in the
order Gruiformes (rails, cranes, and allies; American Ornithologists'
Union, 1998, p. 130). The eastern black rail is one of four recognized
subspecies of black rail. The California black rail (Laterallus
jamaicensis coturniculus) is the only other subspecies that occurs in
North America; its range does not overlap with the eastern black rail
Taylor and van Perlo 1998, p. 221; Clements et al. 2016, unpaginated).
The Birds of North America and Avibase both currently recognize the
eastern black rail as a valid subspecies (Eddleman et al. 1994,
unpaginated; Avibase 2003, unpaginated). We have no information
[[Page 50612]]
to suggest there is scientific disagreement about the eastern black
rail's taxonomy; therefore, we accept that the eastern black rail is a
valid taxon.
The black rail is the smallest rail in North America. Males and
females are similar in size, and adults are generally pale to blackish
gray, with a small blackish bill and bright red eyes. The eastern black
rail is larger (mean mass=35 grams) but has less brightly colored
plumage than the California black rail (mean mass = 29 grams) (Eddleman
et al. 1994, unpaginated).
The eastern black rail has four life stages: egg, chick, juvenile,
and adult; we discuss specifics of each of these life stages in detail
in our SSA report (Service 2018, pp. 8-12). Eastern black rail egg
laying and incubation primarily occur from May to August, with some
early nesting in March and April (Watts 2016, pp. 10-11; A. Moore and
J. Wilson 2018, unpublished data). The chick stage occurs from May
through September. The juvenile stage begins when a chick has fledged
and is independent from the parents. Eastern black rails reach the
sexually mature adult life stage the spring after hatch year. Adults
undergo a complete postbreeding molt each year between July and
September on the breeding grounds (Pyle 2008, p. 477; Hand 2017b, p.
15). During that time, individuals simultaneously lose all of their
wing flight feathers and tail flight feathers, and are unable to fly
for approximately 3 weeks (Flores and Eddleman 1991, pp. iii, 62-63;
Eddleman, Flores, and Legare 1994, unpaginated). We recognize that
there is latitudinal variability of these life-history events across
the range of the eastern black rail. The subspecies' lifespan is not
known.
The nature of migration for the eastern black rail is poorly
understood. Preliminary results suggest there are two populations of
eastern black rail in the south-central United States: A migratory
population breeding in Colorado and Kansas, and wintering in Texas; and
a non-migratory population living in Texas year-round (Butler 2017,
pers. comm.). Additionally, it is suspected that the northern U.S.
Atlantic coast population migrates and winters on the southern Atlantic
coast (e.g., the Carolinas and Florida) and also in the Caribbean and
Central America (Eddleman, Flores, and Legare 1994, unpaginated; Taylor
and van Perlo, 1998, pp. 221-222).
Distribution
The eastern black rail occupies portions of the eastern United
States (east of the Rocky Mountains), Mexico, Central America, and the
Caribbean. Individuals that are presumed to be the eastern black rail
have also been reported on occasion in Brazil. In the United States,
eastern black rails are found in both coastal and inland areas, but the
majority of detections are from coastal sites. In a recent assessment
of 23 States that comprise the primary area of the subspecies' range
within the contiguous United States (i.e., along the Atlantic and Gulf
Coasts), approximately 90 percent of documented breeding-season
occurrence records occurred at coastal locations (Watts 2016, p. 117).
Inland records accounted for less than 10 percent of total occurrences,
and more than 60 percent of the inland records occurred before 1950
(Watts 2016, p. 117). The eastern black rail has been reported to occur
throughout the Caribbean and Central America, and it has been
hypothesized that some birds may migrate from the coastal United States
to the Caribbean in the winter; however, the subspecies' distribution
is poorly understood (Taylor and van Perlo 1998, pp. 221-222). There
have been very few reports of eastern black rails in recent years from
the Caribbean and Central America. It is not certain whether this is
due to lack of survey effort, loss of habitat, predation, or a
combination of these.
See the figure, below, for a distribution map for the eastern black
rail. This figure shows the current areas where black rails are found
year-round and in the spring and summer. Shaded countries and U.S.
States are those that may have detections of eastern black rails;
however, detections in these countries or U.S. States may be few in
number and the bird may not be detected regularly, i.e., it may be
considered a vagrant or accidental migrant in these areas. The
individual detections in Central America, the Caribbean, and Brazil
occurred from 2011 to present.
BILLING CODE 4333-15-P
[[Page 50613]]
[GRAPHIC] [TIFF OMITTED] TP09OC18.000
BILLING CODE 4333-15-C
Habitat
Eastern black rails are found in a variety of salt, brackish, and
freshwater marsh habitats that can be tidally or non-tidally
influenced. Within these habitats, the birds occupy relatively high
elevations along heavily vegetated wetland gradients, with soils that
are moist or flooded to a shallow depth (Eddleman, Knopf, Meanley,
Reid, and Zembal 1988, p. 463; Nadeau and Conway 2015, p. 292). Eastern
black rails require dense vegetative cover that allows movement
underneath the canopy. Plant structure is considered more important
than plant species composition in predicting habitat suitability for
the subspecies (Flores and Eddleman 1995, pp. 357, 362). Occupied
habitat tends to be primarily composed of fine-stemmed emergent plants
(rushes, grasses, and sedges) with high stem densities and dense canopy
cover (Flores and Eddleman 1995, p. 362; Legare and Eddleman 2001, pp.
173-174). However, when shrub densities become too high, the habitat
becomes less suitable for eastern black rails. Soils are moist to
saturated (occasionally dry) and interspersed with or adjacent to very
shallow water (1 to 6 centimeters) (Legare and Eddleman 2001, pp. 173,
175). Eastern black rails forage on a variety of small (<1 centimeter
(cm) (0.39 inches (in))) aquatic and terrestrial invertebrates,
especially insects, and seeds (e.g.,
[[Page 50614]]
Typha, Scirpus, Spartina spp.) by gleaning or pecking at individual
items (Eddleman, Flores, and Legare 1994, unpaginated; Ehrlich, Dobkin,
and Wheye 1988, p. 102).
Species Needs
The eastern black rail is a wetland dependent subspecies. While it
can be found in salt, brackish, and freshwater marshes that are tidally
or non-tidally influenced, it has a very specific niche habitat. It
requires dense herbaceous vegetation to provide shelter and cover and
areas for protected nest sites; it is not found in areas with woody
vegetation.
The bird requires shallow water or moist soil for its nesting
sites. Ideally, the water level is 1 to 6 cm (0.39 to 2.36 in),
although less than 3 cm (1.18 in) is ideal for foraging and chick
rearing. Water levels must be below the nests during egg laying and
incubation for nests to be successful. Eastern black rails require
elevated refugia with dense cover to survive high water events, because
juvenile and adult black rails prefer to walk and run rather than fly
and chicks are unable to fly. Eastern black rails fly little during the
breeding and wintering seasons--they prefer to remain on the ground,
running quickly through dense vegetation--and are considered secretive
because of this behavior. Having higher elevation areas with dense
vegetation allows the birds to escape flood events during the
flightless molt period, and provides shelter from predators.
Summary of Biological Status and Threats
We completed a comprehensive assessment of the biological status of
the eastern black rail, and prepared a report of the assessment (SSA
report; Service 2018, entire), which provides a thorough account of the
subspecies' overall viability. Below, we summarize the key results and
conclusions of the SSA report, which can be viewed under Docket No.
FWS-R4-ES-2018-0057 at http://www.regulations.gov.
To assess eastern black rail viability, we used the three
conservation biology principles of resiliency, representation, and
redundancy (together, ``the three Rs,'' (3Rs)) (Shaffer and Stein 2000,
pp. 306-310). Briefly, resiliency refers to the ability of a species to
withstand environmental and demographic stochasticity (for example, wet
or dry years); representation refers to the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate change); and redundancy refers to the ability of the species to
withstand catastrophic events (for example, hurricanes). In general,
the more redundant and resilient a species is and the more
representation it has, the more likely it is to sustain populations
over time, even under changing environmental conditions. Using these
principles, we identified the eastern black rail's ecological
requirements for survival and reproduction at the individual,
population, and subspecies levels, and described the beneficial and
risk factors influencing the subspecies' viability.
We delineated analysis units for the eastern black rail based on
environmental variables (aquifer permeability, slope, mean
precipitation, mean potential evapotranspiration, and percent sand in
soil). We used 8,281 point localities from combined datasets (i.e.,
eBird, Center for Conservation Biology, University of Oklahoma, and
additional research partners) from 1980 through 2017, to delineate the
analysis units for the eastern black rail. We named the analysis units
using standard topographic and ecological landmarks: New England, Mid-
Atlantic Coastal Plain, Appalachians, Southeast Coastal Plain,
Southwest Coastal Plain, Central Lowlands, and Great Plains. Based on
available data, we have concluded that the New England, Appalachians,
and Central Lowlands analysis units are effectively extirpated. While
these three analysis units historically did not support abundances of
the eastern black rail as high as the other four analysis units, an
evaluation of the current status information, including the paucity of
current records, negative survey results, and the demonstrated range
contraction throughout these areas, supports our conclusion that the
eastern black rail is effectively extirpated from these analysis units.
The remaining four analysis units, the Mid-Atlantic Coastal Plain,
Southeast Coastal Plain, Southwest Coastal Plain, and Great Plains,
have records of current populations of eastern black rails.
To assess resiliency, we analyzed occupancy within the analysis
units through the creation of a dynamic occupancy model. We used data
from repeated presence/absence surveys across the range of the eastern
black rail to estimate the probability of presence at a site and
related the occupancy probability to environmental covariates of
interest (wettest month precipitation, temperature range, annual mean
temperature, coldest month mean temperature, presence/absence of fire
ants, and State identification). The lower the occupancy probability in
an analysis unit, the less resiliency that analysis unit exhibits. We
found the four extant analysis units (Southeast Coastal Plain, Mid-
Atlantic Coastal Plain, Great Plains, and Southwest Coastal Plain) to
have very low occupancy probabilities ranging from 0.099 to 0.25. The
results also indicated fairly high site extinction probabilities with
accompanying low site persistence.
To assess representation, we used two metrics to estimate and
predict representative units that reflect the subspecies' adaptive
capacity: Habitat variability and latitudinal variability. The eastern
black rail exhibits adaptive potential by using similar habitat
elements within different wetland types (habitat variability) within
analysis units, i.e., higher elevation areas within wetlands with dense
vegetation, moist soils, and shallow flood depths (Eddleman, Knopf,
Meanley, Reid, and Zembal 1988, p. 463; Nadeau and Conway 2015, p.
292). Therefore, the subspecies shows a level of adaptive capacity by
using different wetland types that contain the required habitat
elements. Additionally, we used the metric of latitudinal variability
to reflect the eastern black rail's wide range across the contiguous
United States. To maintain existing adaptive capacity, it is important
to have resilient populations (analysis units) that exhibit habitat
variability and latitudinal variability to maintain adaptive capacity.
To assess redundancy, we evaluated the current distribution of
eastern black rail analysis units through their present-day spatial
locations. To have high redundancy, the eastern black rail would need
to have multiple resilient analysis units spread throughout its range.
Current Condition of Eastern Black Rail
Historically, the eastern black rail ranged across the eastern,
central, and southern United States; historical records also exist from
the Caribbean and Central America. It occupied multiple areas of
wetlands (including salt marshes, coastal prairies, and hay fields)
throughout the range; approximately 90 percent of documented breeding-
season occurrence records occurred at coastal locations and less than
10 percent were inland records, with more than 60 percent of the inland
records occurring before 1950 (Watts 2016, entire). The eastern black
rail also occupied multiple areas of wetlands within each analysis
unit. Within the northeastern United States, historical (1836-2010)
records document the eastern black rail as present during breeding
months from Virginia to Massachusetts, with 70 percent of historical
observations (773 records) in Maryland, Delaware, and New Jersey (Watts
2016, p. 22).
[[Page 50615]]
Maryland, Delaware, and New Jersey are considered historical
strongholds for eastern black rail in this region of the United States
(the Northeast) as well as across the subspecies' entire breeding range
(Watts 2016, p. 22), due to the total number and frequency of
observations reported over time. Virginia, New York, and Connecticut
account for an additional 21 percent of the historical records (235
records) from the Northeast (Watts 2016, p. 22). Recent (2011-2016)
records from the Northeast are low in number (64 records), with almost
all records restricted to outer coastal habitats (Watts 2016, pp. 22,
24). The distribution of the recent records points toward a substantial
southward contraction in the subspecies' range of approximately 450
kilometers (280 miles), with vacated historical sites from 33 counties
extending from the Newbury marshes in Massachusetts to Ocean County,
New Jersey (Watts 2016, pp. 24, 119). Further, the distribution of the
recent records has become patchy along the Atlantic coast, and an
evaluation of the records within the 15 counties still currently
occupied suggests an almost full collapse of the eastern black rail
population in the Northeast (Watts 2016, p. 24).
While the Appalachians and Central Lowlands analysis units
supported less habitat for eastern black rails compared to the more
coastal analysis units, interior occurrences were more common
historically. Current population estimates for States with a large area
occurring within the boundaries of the Appalachians analysis unit are
effectively zero (Watts 2016, p. 19). Within that unit, an estimated 0
to 5 breeding pairs currently occur in Pennsylvania, and no breeding
pairs are thought to occur in New York or West Virginia (Watts 2016, p.
19). Birds previously detected in the Appalachians analysis unit were
found in small depressional wetlands within active pastures; other
freshwater wetlands dominated by cattails, rushes, or sedges; and
drainage ditches (Watts 2016, pp. 48, 74). While these wetland types
still exist within the analysis unit and may support individuals or a
very low-density, scattered population (Watts 2016, pp. 48, 74), a
substantial amount of this kind of habitat has been lost primarily due
to the draining of freshwater wetlands for agricultural purposes. These
estimates likely hold true for the interior portions of the other
States within the Appalachians analysis unit (based on few current
detections). Similar losses of habitat have occurred in the Central
Lowlands analysis unit, and there are currently few detections of
eastern black rails across this unit. Moreover, the current detections
are not consistent from year to year even when habitat remains
suitable. For example, Indiana Department of Natural Resources surveys
for eastern black rails at multiple sites from 2010-2016 yielded one
detection at a single site previously known to support eastern black
rails (Gillett 2017, unpublished data).
In the Chesapeake Bay region, the distribution of eastern black
rail has contracted, and the counts of birds have declined. A series of
systematic surveys for eastern black rails has been conducted around
the Chesapeake Bay since the early 1990s (Watts 2016, pp. 59, 67).
Surveys estimated 140 individuals in the 1990-1992 survey period,
decreasing to 24 individuals in 2007, and only 8 individuals in 2014, a
decline of over 90 percent in less than 25 years (Watts 2016, p. 59; D.
Brinker, unpublished data). Of 328 points surveyed in Virginia in 2007,
15 birds were detected; a second round of surveys in 2014 yielded two
detections at 135 survey points (including all survey points with
positive occurrences in the 2007 survey effort), equating to an 85
percent decline over 7 years (Watts 2016, pp. 67, 71; Wilson et al.
2015, p. 3).
Historically, the eastern black rail was also present during
breeding months at inland and coastal locations throughout southeastern
coastal States (the Southeast), a region that included North Carolina,
South Carolina, Georgia, Florida, Tennessee, Mississippi, Alabama,
Louisiana, and Texas (Watts 2016, pp. 75-76). Of these States, Texas,
Florida, South Carolina, and North Carolina contained 89 percent of all
historical observations (734 records) (Watts 2016, p. 77). The other
States (Georgia, Tennessee, Mississippi, Alabama, and Louisiana) either
do not have a history of supporting eastern black rails consistently or
are considered to be on the peripheries of known breeding areas (Watts
2016, p. 77). Recently, there have been 108 records of eastern black
rails during the breeding season, and at a coarse view, the same four
southeastern States that substantially supported the subspecies
historically still support the subspecies (Watts 2016, pp. 77, 79).
However, North Carolina shows a severe decline in the number of
occupied sites, with only four properties occupied in 2014-2015, down
from nine in 1992-1993 (Watts 2016, p. 80). Additional surveys in 2017
yielded no new occupied sites in coastal North Carolina (B. Watts and
F. Smith 2017, unpublished data). South Carolina shows a limited
distribution, with two known occupied areas (Wiest 2018, pers. comm.)
and an estimated 50 to 100 breeding pairs, leaving Texas and Florida as
the current strongholds for the Southeast. At the time of the 2016
coastal assessment, it was surmised that coastal Georgia may support a
breeding population of unknown size (Watts 2016, pp. 93-95); however, a
coastwide survey in 2017 at 409 survey points in Georgia yielded no
detections of eastern black rails (B. Watts and F. Smith 2017,
unpublished data). In short, across the Atlantic and Gulf Coasts,
recent observations show poor presence inland and a widespread
reduction in the number of sites used across coastal habitats (Watts
2016, p. 79).
The history of the subspecies' distribution in the interior
continental United States is poorly known. Historical literature
indicates that a wide range of interior States were occupied by the
eastern black rail, either regularly or as vagrants (Smith-Patten and
Patten 2012, entire). Eastern black rails are currently vagrants
(casual or accidental) in Arkansas, Illinois, Indiana, Iowa, Michigan,
Minnesota, Missouri, Nebraska, New Mexico, Ohio, South Dakota, and
Wisconsin (Smith-Patten and Patten 2012, entire). Presently, eastern
black rails are reliably located within the Arkansas River Valley of
Colorado (presumed breeder in the State), and in southcentral Kansas in
Stafford, Finney, Franklin, Barton, and Riley Counties (confirmed
breeder in the State) (Butler, Tibbits, and Hucks 2014, p. 20; Smith-
Patten and Patten 2012, pp. 9, 17). In Colorado, the subspecies is
encountered in spring and summer at Fort Lyon Wildlife Area, Bent's Old
Fort, Oxbow State Wildlife Area, Bristol (Prowers County), and John
Martin Reservoir State Park (Smith-Patten and Patten 2012, p. 10). In
Kansas, eastern black rails are regularly present during the breeding
months at Quivira National Wildlife Refuge (NWR) and Cheyenne Bottoms
Wildlife Area (Smith-Patten and Patten 2012, p. 17), and at Cheyenne
Bottoms Preserve during wet years when habitat conditions are suitable
(Penner 2017, pers. comm.). In Oklahoma, occurrence mapping suggests
that this subspecies had at a maximum a patchy historical distribution
throughout the State.
Eastern black rail analysis units currently have low to no
resiliency in the contiguous United States (Service 2018, pp. 79-82).
The Great Plains, Southwest Coastal Plain, and Southeast Coastal Plain
analysis units have low resiliency based on the dynamic occupancy model
results, which indicate very low occupancy
[[Page 50616]]
probabilities in each modeled analysis unit: 0.25 in the Southwest
Coastal Plain, 0.13 in the Great Plains, and 0.099 in the Southeast
Coastal Plain. The Mid-Atlantic Coastal Plain analysis unit currently
exhibits very low resiliency for the eastern black rail. It supports
fewer birds and has fewer occupied habitat patches than the Southeast
Coastal Plain analysis unit. The remaining three analysis units, New
England, Appalachians, and Central Lowlands, currently demonstrate no
resiliency. These three units historically did not support abundances
of the eastern black rail as high as the other four analysis units.
There are currently insufficient detections to model these units;
recent detections (2011 to present) are fewer than 20 birds for each
analysis unit. An evaluation of current status information yields that
eastern black rails are effectively extirpated from portions of the New
England, Appalachians, and Central Lowlands analysis units that were
once occupied. Lastly, resiliency is unknown for the Central America
and Caribbean portion of the eastern black rail's range. However, the
sparsity of historical and current records, including nest records,
indicates that resiliency outside of the contiguous United States is
likely low. All recent sightings in Central America and the Caribbean
have been of adult eastern black rails; there are no reports of nests,
chicks, or juveniles.
To assess current representation, we evaluated both habitat
variability and latitudinal variability. When considering habitat
variability, we determined the eastern black rail has a level of
adaptive potential by using similar habitats elements (i.e., higher
elevation areas within wetlands with dense vegetation, moist soils, and
shallow flood depth) within different wetland types within analysis
units. However, there may be unknown factors that influence and affect
the eastern black rail's use of wetland habitat, as not all apparently
suitable wetland habitat is currently occupied. While the New England,
Appalachians, and Central Lowlands analysis units have experienced
wetland habitat loss and fragmentation, wetland habitats continue to be
present on the landscape. However, the eastern black rail is not being
found in these three analysis units. Historically, the eastern black
rail had a wide distribution and exhibited latitudinal variability.
However, as discussed above, three of the analysis units (New England,
Appalachians, and Central Lowlands) are effectively extirpated, and,
therefore, this latitudinal variability (higher latitudes) has
effectively been lost to the subspecies. Therefore, even though the
eastern black rail still occurs at varying latitudes, we conclude that
the subspecies currently has reduced representation across its range.
Despite having a wide distribution, the eastern black rail
currently has low redundancy across its range. With the loss of three
analysis units in upper latitudes of the range, the subspecies has
reduced ability to withstand catastrophic events, such as hurricanes
and tropical storms, which could impact the lower latitudinal analysis
units. Given the lack of habitat connectivity, and patchy and localized
distribution, it would be difficult for the subspecies to recover from
a catastrophic event in one or more analysis units.
Risk Factors for Eastern Black Rail
The Act directs us to determine whether any species is an
endangered species or a threatened species because of any factors
affecting its continued existence. Under section 4(a)(1) of the Act, we
may list a species based on (A) The present or threatened destruction,
modification, or curtailment of its habitat or range; (B)
overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence.
We reviewed the potential risk factors (i.e., threats or stressors)
that are affecting the eastern black rail now and into the future. In
this proposed rule, we will discuss in detail only those threats that
we conclude are driving the status and future viability of the species.
The primary threats to eastern black rail are: (1) Habitat
fragmentation and conversion, resulting in the loss of wetland habitats
across the range (Factor A); (2) sea level rise and tidal flooding
(Factors A and E); (3) incompatible land management practices (i.e.,
fire management, grazing, and haying/mowing) (Factors A and E); and (4)
stochastic events (e.g., extreme flooding, hurricanes) (Factor E).
Human disturbance, such as birders using playback calls of black rail
vocalizations (Factor B), is also a concern for the species. Additional
stressors to the species (including oil and chemical spills and
environmental contaminants (Factor E); disease, specifically West Nile
virus (Factor C); and altered food webs resulting from invasive species
(fire ants, feral pigs, mongoose, and exotic reptiles) introductions
(Factor C)) are discussed in the SSA report (Service 2018, entire).
However, although these additional stressors may be having localized
impacts, they are not the primary drivers of the status of the
subspecies, and so we do not discuss them in detail in this document.
We also reviewed the conservation efforts being undertaken for the
subspecies. No existing regulatory mechanisms adequately address these
threats to the eastern black rail such that it does not warrant listing
under the Act (Factor D).
Habitat Fragmentation and Conversion
The eastern black rail is a wetland-dependent bird requiring dense
emergent cover and extremely shallow water depths (less than 6 cm) over
a portion of the wetland-upland interface to support its resource
needs. Grasslands and their associated palustrine (freshwater) and
estuarine wetland habitats have experienced significant loss and
conversion since European settlement (Bryer, Maybury, Adams, and
Grossman 2000, p. 232; Noss, LaRoe, III, and Scott 1995, pp. 57-76, 80-
84; Hannah, Carr, and Lankerani 1995, pp. 137, 151). Approximately 50
percent (greater than 100 million acres) of the wetlands in the
conterminous United States have been lost over the past 200 years; the
primary cause of this loss was conversion for agricultural purposes
(Dahl T. E. 1990, p. 9). Wetland losses for the States within the
eastern black rail's historical range have been from 9 percent to 90
percent, with a mean of 52 percent (Dahl T. E. 1990, p. 6). Similarly,
most of the native grassland/prairie habitats associated with eastern
black rail habitat have been lost since European settlement (Sampson
and Knopf 1994, pp. 418-421).
The eastern black rail also uses the transition zone (ecotone)
between emergent wetlands and upland grasslands. These transitional
areas are critical to eastern black rails, as they provide refugia
during high-water events caused by precipitation or tidal flooding.
These habitat types have also experienced significant declines over
time (Sampson and Knopf 1994, pp. 418-421), with many areas within the
eastern black rail's historical range losing over 90 percent of their
prairie habitat. Most of this loss can be attributed to agricultural
conversion (Sampson and Knopf 1994, pp. 419-420). Many of the
freshwater wetlands associated with these grasslands were emergent and
ephemeral in nature, and would have supported eastern black rails. For
example, in Texas, between the 1950s and 1990s, 235,000 acres, or 29
percent, of freshwater wetlands within Gulf coastal prairie were
converted primarily to agriculture. This value does not include the
numbers of
[[Page 50617]]
upland prairie acres that were also converted (Moulton, Dahl, and Dahl
1997, entire).
Despite regulatory efforts to minimize the loss of wetland
habitats, losses and alterations continue to occur to habitats occupied
by the eastern black rail. Marshes continue to face substantial impacts
from dikes, impoundments, canals, altered freshwater inflows, erosion,
relative sea level rise, tidal barriers, tropical storm events, and
other natural and human-induced factors (Adam 2002, entire; Turner
1990, entire; Kennish 2001, entire; Gedan et al. 2009, entire; Tiner
2003, p. 513). Estuarine emergent wetland losses are mostly
attributable to conversion to open water through erosion (Dahl and
Stedman 2013, p. 37), while freshwater emergent wetland losses appear
to be the result of development (Dahl and Stedman 2013, p. 35). Because
the rail is a wetland-dependent subspecies, the loss and alteration of
palustrine and estuarine wetlands and associated grassland habitats
have a negative impact.
Within the range of the eastern black rail, land use in the United
States has affected and continues to affect groundwater and surface
water resources (Johnston 1997, entire; McGuire 2014, pp. 1-2, 7, 9;
Juracek and Eng 2017, pp. 1, 11-16; Barfield 2016, pp. 2-4). The
conversion of wetland habitat, largely for agricultural use, was
mentioned above. However, habitat conversion and land use directly and
indirectly affect water resources, largely tied to the interaction of
groundwater and surface water resources (Glazer and Likens 2012,
entire; Sophocleous 2002, entire; Tiner R. W. 2003, p. 495; U.S.
Geological Survey (USGS) 2016a, unpaginated; Konikow L. F. 2015,
entire).
Where groundwater resources are hydraulically connected to surface
water resources, these connections can either be unconfined (water
table) or confined (springs) aquifers. In unconfined aquifers,
locations can support surface features such as wetlands or riparian
habitats where groundwater is located near the land surface (Haag and
Lee 2010, pp. 16-19, 21-24). Lowering of groundwater through
withdrawals via wells or ditches can cause wetlands to shrink or become
dry. Withdrawals of confined aquifers can lead to the drying of springs
and associated wetland habitats (Weber and Perry 2006, p. 1255; Metz
2011, p. 2). In the central and southcentral United States, high
groundwater use, largely attributed to cropland irrigation and other
human activities, may affect the long-term sustainability of water
resources, including causing wetland loss (McGuire 2014, entire;
Juracek 2015, entire; Juracek and Eng 2017, entire; Juracek, Eng,
Carlisle, and Wolock 2017, entire; Perkin et al. 2017, entire).
Human modifications to the environment have led to significant
changes in vegetation. Some of these modifications include water
withdrawals and the construction of levees, drainage canals, and dams.
Changes to native vegetation can result in changes to the structure of
the habitat (e.g., conversion from emergent to scrub-shrub wetlands,
wetland into upland habitat, or vice-versa), as well as the
introduction of invasive plant species (e.g., Phragmites australis;
Crain, Gedan, and Dionne 2009, p. 157). Given the narrow habitat
preferences of the eastern black rail (i.e., very shallow water and
dense emergent vegetation), small changes in the plant community can
easily result in habitat that is not suitable for the subspecies.
Subsidence (lowering of the earth's surface) is caused by the
withdrawal of liquids from below the ground's surface, which relieves
supporting hydraulic pressure of liquids by the long-term compression
of unconsolidated, geologically deposited sediments, or by other
geologic processes (Day et al. 2011, p. 645; Karegar, Dixon, and
Engelhart 2016, p. 3129; White and Tremblay 1995, entire). Localized
subsidence can occur with groundwater withdrawals where withdrawal
rates are greater than the aquifer recharge rates (White and Tremblay
1995, pp. 794-804; Morton, Bernier, and Barras 2006, p. 271) or where
liquids associated with hydrocarbon extraction have caused the lowering
of ground elevations (Morton, Bernier, and Barras 2006, p. 263). On the
Atlantic coast, an area of rapid subsidence exists between Virginia and
South Carolina, where the rate of subsidence has doubled due to
increased groundwater withdrawals (Karegar, Dixon, and Engelhart 2016,
pp. 3131-3132). An extreme example of subsidence in the United States
is along the Gulf of Mexico coast, where both subsurface liquid
withdrawal and sediment consolidation have significant influence on
coastal wetland habitats (Turner 1990, pp. 93-94, 96, 98; Morton,
Bernier, and Barras 2006, entire; White and Tremblay 1995, pp. 795-
804). Subsidence combined with sea level rise is referred to as
relative sea level rise, and the Gulf of Mexico has the highest
relative sea level rise rates in the conterminous United States,
leading to significant losses in wetland habitats (NOAA 2018,
unpaginated).
Subsidence can affect the eastern black rail and its habitat in
both fresh and tidal wetlands. Vegetated wetland habitats used by the
eastern black rail can be converted to unvegetated open water or
mudflats through drowning of vegetation or erosion from increased wave
energy. Locations with higher subsidence rates can experience increased
tidal flooding sooner than areas with lower subsidence rates. The
effect of increased tidal flooding will change black rail habitat over
time (i.e., marsh migration) but can have direct impacts on black rail
reproduction when flooding occurs during the breeding season.
Extensive drainage features have been created or modified in the
United States, primarily to reduce flooding to protect agricultural
land or infrastructure. These include excavation of drainage ditches,
channelization of rivers and streams, construction of levees and berms,
tidal restrictions, and diversions of waterways. Extensive areas of
Florida were channelized in an effort to drain wetlands in the early
1900s (Renken et al. 2005, pp. 37-56). Most, if not all, of the coastal
plain in Texas contains existing drainage features that were either
created or modified to reduce flooding of agricultural lands and
associated communities. These features can reduce or eliminate the
hydroperiod to sustain associated wetlands by removing water rapidly
off the landscape (Blann, Anderson, Sands, and Vondracek 2009, pp. 919-
924). In glaciated geographies such as the Midwest, drain tiles and
other methods have been used to drain wetlands to improve conditions
for agricultural production (Blann, Anderson, Sands, and Vondracek
2009, pp. 911-915). Approximately 90 percent of the salt marshes on the
northeast United States coast have been ditched to control mosquitoes
(Bourn and Cottam 1950, p. 15; Crain, Gedan, and Dionne 2009, pp. 159-
161). Ditching increases the area of the marsh that is inundated as
well as drained (Crain, Gedan, and Dionne 2009, p. 160; Daiber 1986, in
Crain et al. 2009, p. 160).
Levees have been constructed in flood-prone areas to minimize
damage to crops and local communities. Levees can modify the duration,
intensity, and frequencies of hydroperiods associated with riparian and
tidal wetlands and thus change the nature and quality of wetland
habitat, including that used by marsh-dependent species (Kennish 2001,
p. 734; Adam 2002, p. 46; Walker, Coleman, Roberts, and Tye 1987, pp.
197-198; Bryant and Chabreck 1998, p. 421; Kuhn, Mendelssohn, and Reed
1999, p. 624). They also facilitate the movement patterns of
mesopredators and improve their access to wetland
[[Page 50618]]
habitats (Frey and Conover 2006, pp. 1115-1118). Navigation channels
and their management have had extensive impacts to tidal wetlands
(e.g., in Louisiana). These channels can modify the vegetation
community of associated wetlands and can increase the frequency of
extreme high tide or high flow events by providing a more direct
connection to the influencing water body (Turner 1990, pp. 97-98;
Kennish 2001, pp. 734-737; Bass and Turner 1997, pp. 901-902). Tidal
restrictions, such as water control structures, bridges, and culverts
built for the purposes of flood protection, restricting salt water
intrusion, and modification of vegetation, have also affected coastal
salt marshes.
All of these alterations to drainage affect the hydrology, sediment
and nutrient transport, and salinities of wetland habitats used by the
eastern black rail, which in turn affect the habitat's composition and
structure. These changes can lead to instability in the duration and
intensity of hydroperiods, affect associated vegetation communities,
and impact the ability of marsh habitats to adapt to changing
conditions. This ultimately affects the ability of the habitat to
support populations of the eastern black rail, by exposing eastern
black rails to unsuitable water regimes or converted habitats.
Sea Level Rise and Tidal Flooding
Representative concentration pathways (RCPs) are the current set of
scenarios used for generating projections of climate change; for
further discussion, please see the SSA report (Service 2018, entire).
Recent studies project global mean sea level rise to occur within the
range of 0.35 to 0.95 meters (m) (1.14 to 3.11 feet (ft)) for RCP 4.5,
and within the range of 0.5 to 1.3 m (1.64 to 4.27 ft) for RCP 8.5, by
2100 (Sweet et al. 2017, p. 13). The Northeast Atlantic and western
Gulf of Mexico coasts are projected to have amplified relative sea
level rise greater than the global average under almost all future sea
level rise scenarios through 2100 (Sweet et al. 2017, p. 43).
Sea level rise will amplify coastal flooding associated with both
high tide floods and storm surge (Buchanan, Oppenheimer, and Kopp 2017,
p. 6). High tide flooding currently has a negative impact on coastal
ecosystems and annual occurrences of high tide flooding have increased
five- to ten-fold since the 1960s (Reidmiller et al. 2018, p. 728). In
addition, extreme coastal flood events are projected to increase in
frequency and duration, and the annual number of days impacted by
nuisance flooding is increasing, along the Atlantic and Gulf Coasts
(Sweet et al. 2017, p. 23). Storm surges from tropical storms will
travel farther inland.
Along the Texas Gulf Coast, relative sea level rise is twice as
large as the global average (Reidmiller et al. 2018, p. 969). Over the
past 100 years, local sea level rise has been between 12.7 to 43.2 cm
(5 to 17 in), resulting in an average loss of 73 hectares (180 acres)
of coastline per year, and future sea level rise is projected to be
higher than the global average (Reidmiller et al. 2018, p. 972; Runkle
et al. 2017b, p. 4). In South Carolina, sea level has risen by 3.3 cm
(1.3 in) per decade, nearly double the global average, and the number
of tidal flood days has increased (Runkle et al. 2017c, p. 4).
Projected sea level rise for South Carolina is higher than the global
average, with some projections indicating sea level rise of 1.2 m (3.9
ft) by 2100 (Runkle et al. 2017c, p. 4). The number of tidal flood days
are projected to increase and are large under both high and low
emissions scenarios (Runkle et al. 2017c, p. 4). Similarly, in Florida,
sea level rise has resulted in an increased number of tidal flooding
days, which are projected to increase into the future (Runkle et al.
2017a, p. 4).
Even with sea level rise, some tidal wetlands may persist at
slightly higher elevations (i.e., ``in place'') for a few decades,
depending on whether plant primary productivity and soil accretion
(which involves multiple factors such as plant growth and decomposition
rates, build-up of organic matter, and deposition of sediment) can keep
pace with the rate of sea level rise, thus avoiding ``drowning''
(Kirwan, Temmerman, Skeehan, Guntenspergen, and Fagherazzi 2016,
entire). Under all future projections, however, the rate of sea level
rise increases over time (Sweet, Horton, Kopp, LeGrande, and Romanou
2017, pp. 342-345). A global analysis found that in many locations salt
marsh elevation change did not keep pace with sea level rise in the
last century and even less so in the past two decades, and concluded
that the rate of sea level rise in most areas will overwhelm the
capacity of salt marshes to persist (Crosby et al. 2016, entire). Under
this analysis, based on RCP 4.5 and RCP 8.5 scenarios and assuming
continuation of the average rate of current accretion, projected marsh
drowning along the Atlantic coast at late century (2081-2100) ranges
from about 75 to 90 percent (Crosby et al. 2016, p. 96, figure 2). The
accretion balance (reported accretion rate minus local sea level rise)
is negative for all analyzed sites in the Louisiana Gulf Coast and for
all but one site in the mid-Atlantic area (figures 3c and 3d in Crosby
et al. 2016, p. 97); both of these areas are part of the range of the
eastern black rail.
Sea level rise will reduce the availability of suitable habitat for
the eastern black rail and overwhelm habitat persistence. Sea level
rise and its effects (e.g., increased flooding and inundation, salt
water intrusion) may affect the persistence of coastal or wetland plant
species that provide habitat for the eastern black rail (Morris,
Sundareshwar, Nietch, Kjerfve, and Cahoon 2002, p. 2876; Warren and
Niering 1993, p. 96). Increased high tide flooding from sea level rise,
as well as the increase in the intensity and frequency of flooding
events, will further impact habitat and directly impact eastern black
rails through nest destruction and egg loss (Sweet et al. 2017, pp. 35-
44).
Land Management Practices (Fire Management, Haying and Mowing, and
Grazing)
Fire Management
Fire suppression has been detrimental to habitats used by the
eastern black rail by allowing encroachment of woody plants. Without
fire or alternate surrogate methods of disturbing woody vegetation such
as mowing, the amount of preferred habitat for eastern black rails is
expected to decrease in some regions, such as coastal Texas (Grace et
al. 2005, p. 39). Therefore, prescribed (controlled) fire can maintain
habitat for this subspecies at the desired seral stage (intermediate
stages of ecological succession).
While fire is needed for the maintenance of seral stages for
multiple rail species, the timing and frequency of the burns, as well
as the specific vegetation types targeted, can lead to undesirable
effects on rail habitats in some cases (Eddleman et al. 1988, pp. 464-
465). Burning salt marshes during drought or while the marshes are not
flooded can result in root damage to valuable cover plants (Nyman and
Chabreck 1995, p. 138). Controlled burning of peat, or accumulated
organic litter, when marshes are dry has resulted in marsh conversion
to open water due to the loss of peat soils. Variations in soil type
supporting the same plant species may lead to differing recovery times
post-burn, and therefore potentially unanticipated delays in the
recovery of black rail habitat (McAtee, Scifres, and Drawe 1979, p.
375). Simply shifting the season of burn may alter plant species
dominance and the associated structure available to the eastern black
rail, as is seen with spring fire conversion of chairmaker's bulrush
[[Page 50619]]
(Schoenoplectus americanus) to salt meadow cordgrass (Spartina patens)
(Nyman and Chabreck 1995, p. 135).
Prescribed fire that occurs during critical time periods for the
subspecies (i.e., mating, egg-laying and incubation, parental care, and
flightless molt) leads to mortality of eggs, chicks, juveniles, and
molting birds. Fall and winter burns are more likely to avoid
reproductive season impacts (Nyman and Chabreck 1995, p. 138).
Fire pattern can have profound effects on birds. Controlled burns
can result in indirect rail mortality, as avian predators attracted to
smoke are able to capture rails escaping these fires (Grace et al.
2005, p. 6). Because eastern black rails typically prefer concealment
rather than flight to escape threats, the birds may attempt to escape
to areas not affected by fire, such as wetter areas or adjacent areas
not under immediate threat. Ring, expansive, or rapidly moving fires
are therefore not conducive to rail survival (Grace et al. 2005, p. 9;
Legare, Hill, and Cole 1998, p. 114). On the other hand, controlled
burns designed to include unburned patches of cover may positively
influence eastern black rail survival. For example, burning 90 percent
of a 2,400-ac marsh in Florida resulted in direct mortality of at least
39 eastern black rails, whereas a mosaic of unburned vegetation patches
0.1 to 2.0 ac in size facilitated eastern black rail survival during a
1,600-ac controlled burn (Legare, Hill, and Cole 1998, p. 114).
Prescribed fires that include patches of unburned habitat scattered
throughout provide escape cover for wildlife, including, but not
limited to, eastern black rails (Legare, Hill, and Cole 1998, p. 114).
Unburned strips of vegetation bordering the inside perimeters of burn
units also are believed helpful as escape cover from both fire and
avian predators (Grace et al. 2005, p. 35). Coastal marshes that are
burned in staggered rotations to create a mosaic of different seral
stages or are burned less frequently will continue to provide cover for
marsh species, such as the eastern black rail (Block et al. 2016, p.
16).
Haying and Mowing
Haying and mowing are used throughout the range of the eastern
black rail. Haying and mowing maintain grasslands by reducing woody
vegetation encroachment. These practices can have detrimental impacts
to wildlife when used too frequently or at the wrong time of year. For
example, at Quivira NWR in Kansas, haying at a frequency of once or
twice per year resulted in no occupancy of hayed habitats by eastern
black rails during the following year (Kane 2011, pp. 31-33). Further,
haying or mowing timed to avoid sensitive stages of the life cycle
(nesting and molt period) would be less detrimental to eastern black
rails (Kane 2011, p. 33). Mowing during the spring or summer will
disrupt reproductive efforts of migratory birds. Eastern black rails
reproduce from approximately mid-March through August, and mowing
during this time period disturbs eastern black rail adults and can
potentially crush eggs and chicks. As with fire, when mowing is
alternated to allow areas of unmown habitat at all times, the site can
continue to support cover-dependent wildlife.
Grazing
Cattle grazing occurs on public and private lands throughout the
range of the eastern black rail. Because eastern black rails occupy
drier areas in wetlands and require dense cover, these birds are
believed to be more susceptible to grazing impacts than other rallids
(Eddleman, Knopf, Meanley, Reid, and Zembal 1988, p. 463). Based on
current knowledge of grazing and eastern black rail occupancy, the
specific timing, duration, and intensity of grazing will result in
varying impacts to the eastern black rail and its habitat. Light-to-
moderate grazing may be compatible with eastern black rail occupancy
under certain conditions, while intensive or heavy grazing is likely to
have negative effects on eastern black rails and the quality of their
habitat. It may benefit black rail habitat (or at least not be
detrimental) when herbaceous plant production is stimulated (Allen-
Diaz, Jackson, Bartolome, Tate, and Oates 2004, p. 147) and the
necessary overhead cover is maintained. In Kansas, eastern black rails
were documented in habitats receiving rotational grazing during the
nesting season that preserved vegetation canopy cover (Kane 2011, pp.
33-34). Black rails occur in habitats receiving light-to-moderate
grazing (i.e., Kane 2011; Richmond, Tecklin, and Beissinger 2012;
Tolliver 2017). These results suggest that such grazing is an option
for providing disturbance, which may promote black rail occupancy.
However, cattle grazing at high intensities may not favor black rail
occupancy, as heavy grazing, or overgrazing, reduces the wetland
vegetation canopy cover (Richmond, Chen, Risk, Tecklin, and Bessinger
2010, p. 92).
In addition to the loss of vegetation cover and height (Kirby,
Fessin, and Clambey 1986, p. 496; Yeargan 2001, p. 87; Martin J. L.
2003, p. 22; Whyte and Cain 1981, p. 66), intensive grazing may also
have direct negative effects on eastern black rails by livestock
disturbing nesting birds or even trampling birds and nests (Eddleman,
Knopf, Meanley, Reid, and Zembal 1988, p. 463). Heavy disturbance from
grazing can also lead to a decline in eastern black rail habitat
quality.
Stochastic Events (Extreme Weather Events)
Extreme weather effects, such as storms associated with frontal
boundaries or tropical disturbances, can also directly affect eastern
black rail survival and reproduction, and can result in direct
mortality. Tropical storms and hurricanes are projected to increase in
intensity and precipitation rates along the North Atlantic coast and
Gulf Coast (Kossin et al. 2017, pp. 259-260; Bender et al. 2010, p.
458). The frequency of Category 4 and 5 tropical storms is predicted to
increase despite an overall decrease in the number of disturbances
(Bender et al. 2010, pp. 457-458). Storms of increased intensity, which
will have stronger winds, higher storm surge, and increased flooding,
cause significant damage to coastal habitats by destroying vegetation
and food sources, as well as resulting in direct mortality of birds.
For example, Hurricane Harvey flooded San Bernard NWR in Texas with
storm surge, which was followed by runoff flooding from extreme
rainfall. This saltmarsh, occupied by eastern black rails, was
inundated for several weeks (Woodrow 2017, pers. comm.). Increases in
storm frequency, coupled with sea level rise, may result in increased
predation exposure of adults and juveniles if they emerge from their
preferred habitat of dense vegetation (Takekawa et al. 2006, p. 184).
Observations show predation upon California black rails during high
tides when the birds had minimal vegetation cover in the flooded marsh
(Evens and Page 1986, p. 108).
Weather extremes associated with climate change can have direct
effects on the eastern black rail, leading to reduced survival of eggs,
chicks, and adults. Indirect effects on the eastern black rail are
likely to occur through a variety of means, including long-term
degradation of both inland and coastal wetland habitats. Other indirect
effects may include loss of forage base of wetland-dependent organisms.
Warmer and drier conditions will most likely reduce overall habitat
quality for the eastern black rail. Because eastern black rails
tolerate a narrow range of water levels and variation within those
water levels, drying as a result of extended droughts may result in
habitat becoming unsuitable, either on a permanent or
[[Page 50620]]
temporary basis (Watts 2016, p. 120). Extreme drought or flooding
conditions may also decrease bird fitness or reproductive success by
reducing the availability of the invertebrate prey base (Davidson L. M.
1992a, p. 129; Hands, Drobney, and Ryan 1989, p. 5). Lower rates of
successful reproduction and recruitment lead to further overall
declines in population abundance and resiliency to withstand stochastic
events such as extreme weather events. The vulnerability of the eastern
black rail to the effects of climate change depends on the degree to
which the subspecies is susceptible to, and unable to cope with,
adverse environmental changes due to long-term weather trends and more
extreme weather events.
Human Disturbance
Human disturbance can stress wildlife, resulting in changes in
distribution, behavior, demography, and population size (Gill 2007, p.
10). Activities such as birding, birdwatching, and hiking, have been
shown to disturb breeding and nesting birds. Disturbance may result in
nest abandonment, increased predation, and decreased reproductive
success, and in behavioral changes in non-breeding birds. Singing
activity of male birds declines in sites that experience human
intrusion, although the response varies among species and level of
intrusion (Gutzwiller et al. 1994, p. 35). At the Tishomingo NWR in
Oklahoma, recreational disturbances of migratory waterbirds accounted
for 87 percent of all disturbances (followed by natural disturbances
(10 percent) and unknown disturbances (3 percent)) (Schummer and
Eddleman 2003, p. 789).
Many birders strive to add rare birds to their ``life list,'' a
list of every bird species identified within a birder's lifetime.
Locations of rare birds are often posted online on local birding forums
or eBird, leading to an increased number of people visiting the
location in an attempt to see or hear the bird. Due to its rarity, the
eastern black rail is highly sought after by birders (Beans and Niles
2003, p. 96). Devoted birders may go out of their way to add an eastern
black rail to their life list (McClain 2016, unpaginated). The efforts
of birders to locate and identify rare birds, such as the eastern black
rail, can have both positive and negative impacts on the bird and its
habitat. Birders play an especially important role in contributing to
citizen science efforts, such as the eBird online database, and have
helped further our understanding of species' distributions and avian
migration ecology in crucial ways (Sullivan et al. 2014, entire).
Birders have provided valuable location information for eastern black
rails that might have otherwise gone undetected and have made these
records publicly available (see eBird's black rail account; eBird 2017,
unpaginated).
While amateur and professional birding have made important
contributions to our understanding of rare species like the eastern
black rail, some birders may be more likely to pursue a sighting of a
rare bird, as they may perceive the benefits of observing the bird to
outweigh the impacts to the bird (Bireline 2005, pp. 55-57). As a
result, methods may be employed to increase the likelihood of observing
a rare bird, including the use of vocalized calls or audio recordings,
as is the case for eastern black rails, or approaching birds in order
to get a sighting (Beans and Niles 2003, p. 96; Bireline 2005, p. 55).
These methods have the potential to disturb nesting birds or trample
nests or eggs, and may lead to increased predation (Beans and Niles
2003, p. 96).
With the prevalence of smartphones, the use of playback calls has
increased as recordings of birds are readily available on the internet,
and birding websites and geographic site managers (State, Federal, or
nongovernmental organizations) often provide guidance on the use of
playback calls (Sibley 2001, unpaginated). The American Birding
Association's Code of Birding Ethics encourages limited use of
recordings and other methods of attracting birds, and recommends that
birders never use such methods in heavily birded areas or for
attracting any species that is endangered, threatened, of special
concern, or rare in the local area (American Birding Association 2018,
unpaginated). While most birders likely follow these ethical
guidelines, using playback calls of eastern black rail vocalizations in
attempts to elicit responses from the birds and potentially lure them
into view is commonly done outside of formal eastern black rail surveys
(see comments for eastern black rail detections on eBird; eBird 2017,
unpaginated). Due to the rarity of the eastern black rail, a few cases
of trespassing are known from people looking for the bird. Trespassing
has been documented on private lands and in areas on public lands
specifically closed to the public to protect nesting eastern black
rails (Hand 2017, pers. comm.; Roth 2018, pers. comm.). Trespassing may
not only disturb the bird, but can also result in trampling of the
bird's habitat, as well as of eggs and nests. Some State resource
managers and researchers have expressed concern that releasing
locations of eastern black rail detections may increase human
disturbance and harassment of the subspecies.
Synergistic Effects
It is likely that several of these stressors are acting
synergistically or additively on the subspecies. The combination of
multiple stressors may be more harmful than a single stressor acting
alone. For the eastern black rail, a combination of stressors result in
habitat loss, reduced survival, reduced productivity, and other
negative impacts on the subspecies. Sea level rise, coupled with
increased tidal flooding, results in the loss of the high marsh habitat
required by the subspecies. Land management activities, such as
prescribed burning, that occur in these habitats will further
exacerbate impacts, especially if conducted during sensitive life-
history periods (nesting, brood-rearing, or flightless molt). If these
combined stressors occur too often within and across generations, they
will limit the ability of the subspecies to maintain occupancy at
habitat sites, which would become lost or unsuitable for the subspecies
and limit its ability to colonize other previously occupied sites or
new sites. For example, tidal marshes in Dorchester County, Maryland,
in the Chesapeake Bay (specifically the areas of Blackwater NWR and
Elliott Island) served as a former stronghold for the eastern black
rail. These marshes have and continue to experience marsh erosion from
sea level rise, prolonged flooding, a lack of a sufficient sediment
supply, and land subsidence, as well as habitat destruction from nutria
(now eradicated) and establishment of the invasive common reed
(Phragmites australis). On Elliott Island, high decadal counts of
eastern black rails have declined from the hundreds in the 1950s to the
single digits in recent years (one eastern black rail detected from
2012-2015, and zero in 2016) (Watts 2016, p. 61).
Regulations and Conservation Efforts
Federal Protections
The Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703 et seq.)
provides specific protection for the eastern black rail, which is a
migratory bird under the statute. The MBTA makes it illegal, unless
permitted by Federal regulation, ``by any means or in any manner, to
pursue, hunt, take, capture, kill, attempt to take, capture, or kill,
possess, offer for sale, sell, offer to barter, barter, offer to
purchase, purchase, deliver for shipment, ship, export, import, cause
to be shipped, exported, or imported, deliver for transportation,
transport or cause to be transported, carry or cause
[[Page 50621]]
to be carried, or receive for shipment, transportation, carriage, or
export, any migratory bird, [or] any part, nest, or egg of any such
bird . . . '' (16 U.S.C. 703(a)). Through issuance of permits for
scientific collecting of migratory birds, the Service ensures that best
practices are implemented for the careful capture and handling of
eastern black rails during banding operations and other research
activities. However, the December 22, 2017, Solicitor's Opinion,
Opinion M-37050, concludes that consistent with the text, history, and
purpose of the MBTA, the statute's prohibitions on pursuing, hunting,
taking, capturing, killing, or attempting to do the same apply only to
direct and affirmative actions that have as their purpose the taking or
killing of migratory birds, their nests, or their eggs. Therefore, take
of an eastern black rail, its chicks, or its eggs that is incidental to
another lawful activity does not violate the MBTA. Furthermore, the
MBTA does not address the major stressors affecting the eastern black
rail, which include habitat alteration and sea level rise. Given that
only intentional take is prohibited under the MBTA and the habitat-
based stressors to the black rail are not regulated, this law does not
provide sufficient substantive protections to the eastern black rail.
Section 404 of the Clean Water Act (CWA; 33 U.S.C. 1251 et seq.)
and section 10 of the Rivers and Harbors Appropriation Act of 1899 (33
U.S.C. 403) are intended to protect jurisdictional wetlands from
excavation and filling activities. The U.S. Army Corps of Engineers, in
conjunction with the U.S. Environmental Protection Agency, administers
permits that require avoidance, minimization and compensation for
projects affecting wetlands. Projects that cannot avoid impacts to
wetlands must compensate for their impacts through a restoration
enhancement or preservation action for the equivalent functional loss.
Mitigation banks are often used, in which actions at a specific
location compensate for impacts in a considerably wider service area.
However, the wetland types affected are not always the same types that
are restored or enhanced, and there is considerable uncertainty that
current mitigation practices would support the presence of black rails.
State Protections
The black rail is listed as endangered under State law by seven
States within the subspecies' range: Delaware, Illinois, Indiana,
Maryland, New Jersey, New York, and Virginia. The species was formerly
listed as endangered in Connecticut, but was considered extirpated
during the last listing review based on extant data and was
subsequently delisted. Protections are afforded to wildlife listed as
either endangered or threatened by a State, but those protections vary
by State. Although we have no information as to the effectiveness of
these State regulations as they pertain to the conservation of the
eastern black rail, one benefit of being State-listed is to bring
heightened public awareness of the bird's existence.
In Delaware, the importation, transportation, possession, or sale
of any endangered species or parts of endangered species is prohibited,
except under license or permit (title 7 of the Delaware Code, sections
601-605). Illinois also prohibits the possession, take, transport,
selling, and purchasing, or giving, of a listed species, and allows
incidental taking only upon approval of a conservation plan (Illinois
Compiled Statutes, chapter 520, sections 10/1-10/11). Indiana prohibits
any form of possession of listed species, including taking,
transporting, purchasing, or selling, except by permit (title 14 of the
Indiana Code, article 22, chapter 34, sections 1-16 (I.C. 14-22-34-1
through 16)). Listed species may be removed, captured, or destroyed
only if the species is causing property damage or is a danger to human
health (I.C. 14-22-34-16). Similar prohibitions on the possession of a
listed species in any form, except by permit or license, are in effect
in Maryland (Code of Maryland, Natural Resources, section 10-2A-01-09),
New Jersey (title 23 of the New Jersey Statutes, sections 2A-1 to 2A-
15), New York (New York's Environmental Conservation Law, article 11,
title 5, section 11-0535; title 6 of the New York Codes, Rules and
Regulations, chapter I, part 182, sections 182.1-182.16), and Virginia
(Code of Virginia, title 29.1, section 29.1, sections 563-570 (29.1-
563-570)). Violations of these statutes typically are considered
misdemeanor, generally resulting in fines or forfeiture of the species
or parts of the species and the equipment used to take the species.
Some States also have provisions for nongame wildlife and habitat
preservation programs (e.g., title 7 of the Delaware Code, sections
201-204; Code of Maryland, Natural Resources, section 1-705). For
example, in Maryland, the State Chesapeake Bay and Endangered Species
Fund (Code of Maryland, Natural Resources, section 1-705) provides
funds to promote the conservation, propagation, and habitat protection
of nongame, threatened, or endangered species.
Black rail is listed as a ``species in need of conservation'' in
Kansas, which requires conservation measures to attempt to keep the
species from becoming a State-listed endangered or threatened species
(Kansas Department of Wildlife, Parks and Tourism 2018, unpaginated).
Black rail also is listed as a species of ``special concern'' in North
Carolina and requires monitoring (North Carolina Wildlife Resources
Commission 2014, p. 6). The species is identified as a ``species of
greatest conservation need'' in 19 State wildlife action plans as of
2015 (U.S. Geological Survey (USGS) 2017, unpaginated). However, no
specific conservation measures for black rail are associated with these
listings, and most are unlikely to address habitat alteration or sea
level rise.
Other Conservation Efforts
The Atlantic Coast Joint Venture (ACJV) recently decided to focus
efforts on coastal marsh habitat and adopted three flagship species,
one being the eastern black rail, to direct conservation attention in
this habitat. As part of this initiative, the ACJV Black Rail Working
Group has drafted population goals for the eastern black rail and is
developing habitat delivery options within the Atlantic Flyway. In
addition, the ACJV is coordinating the development of a ``saltmarsh
conservation business plan.'' The business plan will identify stressors
to Atlantic and Gulf Coast tidal marshes and the efforts needed to
conserve these habitats to maintain wildlife populations. The business
plan is expected to be completed in late 2018.
The Gulf Coast Joint Venture (GCJV) has had the eastern black rail
listed as a priority species since 2007 (Gulf Coast Joint Venture
2005). As a priority species, the black rail is provided consideration
during the review of North American Wetland Conservation grant
applications (Vermillion 2018, pers. comm.). Although detailed planning
for the eastern black rail is not yet complete, the subspecies is
considered in coastal marsh habitat delivery efforts discussed by GCJV
Initiative Teams. Eastern black rails are believed to benefit from a
plethora of coastal marsh habitat delivery efforts of GCJV partners,
including projects authorized under the North American Wetland
Conservation Act (16 U.S.C. 4401 et seq.), the Coastal Wetlands
Planning, Protection and Restoration Act (16 U.S.C. 3951 et seq.), and
the Service's Coastal Program, as well as management actions on State
and Federal refuges and wildlife
[[Page 50622]]
management areas. Eastern black rails will benefit when projects
conserve, enhance, or restore suitable wetland habitat and when
management practices, such as the timing of prescribed burns and brush-
clearing activities, are compatible with the life history of the
subspecies.
In November 2016, the Texas Parks and Wildlife Department, in
partnership with the Texas Comptroller's Office, initiated the Texas
Black Rail Working Group (Shackelford 2018, pers. comm.). The main
purpose of the group is to provide a forum for collaboration between
researchers and stakeholders to share information about what is known
about the species, identify information needs, and support conservation
actions (see discussion under Critical Habitat, below).
Future Scenarios
As discussed above, we define viability as the ability of a species
to sustain populations in the wild over time. To help address
uncertainty associated with the degree and extent of potential future
stressors and their impacts on the eastern black rail's needs, we
applied the 3Rs using five plausible future scenarios. We devised these
five scenarios by identifying information on the primary stressors
anticipated to affect the subspecies into the future: habitat loss, sea
level rise, groundwater loss, and incompatible land management
practices. These scenarios represent a realistic range of plausible
future scenarios for the eastern black rail.
We used the results of our occupancy model to create a dynamic
site-occupancy, projection model that allowed us to explore future
conditions under these scenarios for the Mid-Atlantic, Great Plains,
Southeast Coastal Plain, and Southwest Coastal Plain analysis units. We
did not project future scenarios for the New England, Appalachian, or
Central Lowlands analysis units because, as discussed earlier in this
document, we consider these analysis units to be currently effectively
extirpated and do not anticipate that this will change in the future.
Our projection model incorporated functions to account for changes in
habitat condition (positive and negative) and habitat loss over time.
The habitat loss function was a simple reduction in the total number of
possible eastern black rail sites at each time step in the simulation
by a randomly drawn percentage that was specified under different
scenarios to represent habitat loss due to development or sea level
rise. We used the change in ``developed'' land cover from the National
Land Cover Database (NLCD 2011) to derive an annual rate of change in
each region, and we used National Oceanic and Atmospheric
Administration (NOAA) climate change and sea level rise projections to
estimate probable coastal marsh habitat loss rates; storm surge was not
modeled directly (Sweet et al., 2017, p. entire; Parris, et al., 2012,
p. entire). In the Great Plains analysis unit, we used ground water
loss rates, instead of sea level rise data, to represent permanent
habitat loss in the region. The overall groundwater depletion rate was
based on the average over 108 years (1900-2008) (Konikow L.F., 2013, p.
entire).
Our five scenarios reflected differing levels of sea level rise and
land management, and the combined effects of both. These future
scenarios forecast site occupancy for the eastern black rail out to
2100, with time steps at 2043 and 2068 (25 and 50 years from present,
respectively). Each scenario evaluates the response of the eastern
black rail to changes in three primary risks we identified for the
subspecies: habitat loss, sea level rise, and land management (grazing,
fire, and haying). The trends of urban development and agricultural
development remain the same, i.e., follow the current trend, for all
five scenarios. We ran 5,000 replicates of the model for each scenario.
For a detailed discussion of the projection model methodology and the
five scenarios, please refer to the SSA report (Service 2018, entire).
The model predicted declines in all analysis units across all five
plausible future scenarios. Specifically, they predicted a high
probability of complete extinction for all four analysis units under
all five scenarios by 2068. The model predicted that, depending on the
scenario, the Southeast Coastal Plain and Mid-Atlantic Coastal Plain
analysis units would reach complete extinction between 35 and 50 years
from the present; the Great Plains analysis unit would reach complete
extinction between 15 to 25 years from the present; and the Southwest
Coastal Plain analysis unit would reach complete extinction between 45
to 50 years from the present. Most predicted occupancy declines were
driven by habitat loss rates that were input into each scenario. The
model results exhibited little sensitivity to changes in the habitat
quality components in the simulations for the range of values that we
explored. For a detailed discussion of the model results for the five
scenarios, please refer to the SSA report (Service 2018, entire).
Under our future scenarios, the Mid-Atlantic Coastal Plain, Great
Plains, Southwest Coastal Plain, and Southeast Coastal Plain analysis
units generally exhibited a consistent downward trend in the proportion
of sites remaining occupied after the first approximately 25 years for
all scenarios. Given that most of the predicted declines in eastern
black rail occupancy were driven by habitat loss rates, and future
projections of habitat loss are expected to continue and be exacerbated
by sea level rise or groundwater loss, resiliency of the four remaining
analysis units is expected to decline further. We expect all eastern
black rail analysis units to have no resiliency by 2068, as all are
likely to be extirpated by that time. We have no reason to expect the
resiliency of eastern black rail outside the contiguous United States
to improve in such a manner that will substantially contribute to its
viability within the contiguous U.S. portion of the subspecies' range.
Limited historical and current data, including nest records, indicate
that resiliency outside of the contiguous United States will continue
to be low into the future, or decline if habitat loss or other threats
continue to impact these areas.
We evaluated representation by analyzing the latitudinal
variability and habitat variability of the eastern black rail. Under
our future scenarios, the Great Plains analysis unit is projected to be
extinct within the next 15 to 25 years, which will result in the loss
of that higher latitudinal representative unit for the subspecies. In
addition, the three remaining analysis units (Mid-Atlantic Coastal
Plain, Southwest Coastal Plain, and Southeast Coastal Plain) are
predicted to decline and reach extinction within the next 50 years.
Thus, the subspecies' representation will continue to decline.
The eastern black rail will have very limited redundancy in the
future. The Great Plains analysis unit will likely be extirpated in 15
to 25 years, leading to further reduction in redundancy and resulting
in only coastal populations of the eastern black rail remaining. Having
only coastal analysis units remaining (and with even lower resiliency
than at present) will further limit the ability of the eastern black
rail to withstand catastrophic events, such flooding from hurricanes
and tropical storms.
Please refer to the SSA report (Service 2018, entire) for a more
detailed discussion of our evaluation of the biological status of the
eastern black rail, the influences that may affect its continued
existence, and the modeling efforts undertaken to further inform our
analysis.
[[Page 50623]]
Determination
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the eastern black rail. We propose to list the species as a
threatened species throughout its range given the threats acting upon
the subspecies currently and into the future.
When viewing historical occurrences on the State level compared to
what is known of present distribution, the range contraction (from
Massachusetts to New Jersey) and site abandonment (patchy coastal
distribution) noted by Watts (2016, entire) appear to be occurring
throughout the eastern United States. Over the past 10 to 20 years,
reports indicate that populations have declined by 75 percent or
greater. North of South Carolina, occupancy has declined by 64 percent
and the number of birds detected has declined by 89 percent, equating
to a 9.2 percent annual rate of decline (Watts 2016, p. 1). In relative
terms, regional strongholds still exist for this subspecies; however,
the best available scientific data suggest that the remaining
strongholds support a relatively small total population size: an
estimated 1,299 individuals on the upper Texas coast within protected
areas prior to Hurricane Harvey, and an estimated 355 to 815 breeding
pairs on the Atlantic Coast from New Jersey to Florida (including the
Gulf Coast of Florida). There are no current population estimates from
the interior States (Colorado, Kansas, or Oklahoma), although there are
consistent populations of eastern black rails at Quivira NWR in Kansas
and at least four sites in Colorado where the subspecies is encountered
in the spring and summer. We have no information to indicate that the
eastern black rail is present in large numbers in the Caribbean or
Central America.
Based on our review of the available science, we identified the
current threats to eastern black rail. Habitat loss and degradation
(Factor A) as a result of sea level rise along the coast and ground and
surface water withdrawals are having a negative impact on the eastern
black rail now and will continue to impact this subspecies into the
future. Incompatible land management techniques (Factor E), such as the
application of prescribed fire, haying, mowing, and grazing, have
negative impacts on the bird and its habitat, especially when conducted
at sensitive times, such as the breeding season or the flightless molt
period. Stochastic events (Factor E), such as flood events and
hurricanes, can have significant impacts on populations and the
subspecies' habitat. For example, the impacts of Hurricane Harvey on
the Texas coastal populations of eastern black rail likely caused
direct mortality as well as short-term habitat loss, as the hurricane
occurred during the flightless molt period and resulted in the habitat
being flooded for a long period of time. Human disturbance (Factor B)
to the eastern black rail occurs throughout the bird's range and is
driven by the bird's rarity and interest by the birding community to
add this bird to individual life lists.
As we consider the future risk factors to the eastern black rail,
we recognize that a complex interaction of factors have synergistic
effects on the subspecies as a whole. In coastal areas, sea level rise,
as well as increasing storm frequency and intensity and increased flood
events (which are both associated with high tides and storms), will
have both direct and indirect effects on the subspecies. Extensive
patches of high marsh required for breeding are projected to be lost or
converted to low marsh as a result of sea level rise. Demand for
groundwater is increasing, which will reduce soil moisture and surface
water, and thus negatively impact wetland habitat. We expect to see
localized subsidence, which can occur when groundwater withdrawal rates
are greater than the aquifer recharge rates. Also, warmer and drier
conditions (associated with projected drought increases) will reduce
overall habitat quality for the eastern black rail. Further,
incompatible land management (such as fire application and grazing)
will continue to negatively impact the subspecies throughout its range,
especially if done during the breeding season or flightless molt
period.
These stressors contribute to the subspecies' occupancy at sites
and thus its population numbers. Some stressors have already resulted
in permanent or long-term habitat loss, such the historical conversion
of habitat to agriculture, while other factors may only affect sites
temporarily, such as a fire or annually reduced precipitation. Even
local but too frequent intermittent stressors, such as unusual high
tides or prescribed fire, can cause reproductive failure or adult
mortality, respectively, and thus reduce eastern black rail occupancy
at a site and the ability of a site to allow for successful
reproduction of individuals to recolonize available sites elsewhere.
While these intermittent stressors allow for recolonization at sites,
recolonization is based on productivity at other sites within a
generational timescale for the subspecies. If these stressors,
combined, occur too often within and across generations, they limit the
ability of the subspecies to maintain occupancy at habitat sites and
also limit its ability to colonize other previously occupied sites or
new sites.
It is likely that several of these stressors are acting
synergistically on the subspecies. Sea level changes, together with
increasing peak tide events and higher peak flood events, wetland
subsidence, past wetland filling and wetland draining, and incompatible
land management (e.g., prescribed fire and grazing), all limit the
ability of the eastern black rail to persist in place or to shift to
newly lightly flooded, ``just-right'' areas as existing habitats are
impacted. These interacting threats all conspire to limit the ability
of this subspecies to maintain and expand populations now and in the
foreseeable future.
Our estimates of future resiliency, redundancy, and representation
for the eastern black rail are further reduced from the current
condition, consistent with this analysis of future threats. Currently,
three analysis units are effectively extirpated, and four analysis
units that continue to support populations of the eastern black rail
all have low levels of resiliency. Given the projected future decreases
in resiliency for these four analysis units, the eastern black rail
will become more vulnerable to extirpation from ongoing threats,
consequently resulting in concurrent losses in representation and
redundancy. The range of plausible future scenarios of the eastern
black rail all predict extirpation for all four analysis units by mid-
century (2068) with the Great Plain analysis unit blinking out within
15 to 25 years (depending on the scenario). In short, our analysis of
the subspecies' current and future conditions show that the population
and habitat factors used to determine the resiliency, representation,
and redundancy for the subspecies will continue to decline so that it
is likely to become in danger of extinction throughout its range within
the foreseeable future.
The term foreseeable future extends only so far as the Services can
reasonably rely on predictions about the future in making
determinations about the future conservation status of the species.
Those predictions can be in the form of extrapolation of population or
threat trends, analysis of how threats will affect the status of the
species, or assessment of future events that will have a significant
new impact on the species. The foreseeable future described here, uses
the best available data and takes into account considerations such as
the species' life
[[Page 50624]]
history characteristics, threat projection timeframes, and
environmental variability, which may affect the reliability of
projections. We also considered the time frames applicable to the
relevant threats and to the species' likely responses to those threats
in view of its life history characteristics. The foreseeable future for
a particular status determination extends only so far as predictions
about the future are reliable.
In cases where the available data allow for quantitative modelling
or projections, the time horizon for such analyses does not necessarily
dictate what constitutes the ``foreseeable future'' or set the specific
threshold for determining when a species may be in danger of
extinction. Rather, the foreseeable future can only extend as far as
the Service can reasonably explain reliance on the available data to
formulate a reliable prediction and avoid reliance on assumption,
speculation, or preconception. Regardless of the type of data available
underlying the Service's analysis, the key to any analysis is a clear
articulation of the facts, the rationale, and conclusions regarding
foreseeability.
We identify the foreseeable future for the eastern black rail to be
25 to 50 years from the present. We consider 25 to 50 years
``foreseeable'' in this case because this timeframe includes
projections from our modeling efforts and takes into account the
threats acting upon the eastern black rail and its habitat and how we
consider the eastern black rail will respond to these threats in the
future. For all five plausible scenarios, all analysis units exhibited
a consistent downward trend in the proportion of sites remaining
occupied after the first 25 years (by 2043), with extirpation for all
analysis units by 2068. The Great Plains analysis unit is predicted to
be extirpated by 2043. Given that future projections of habitat loss
are expected to continue and be exacerbated by sea level rise and tidal
flooding, resiliency of the four remaining analysis units is expected
to decline further over the next 25 to 50 years.
Under the Act, the term ``species'' includes any subspecies of fish
or wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature.
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species that ``is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' We find that the eastern
black rail is likely to become endangered throughout all of its range
within the foreseeable future. The eastern black rail meets the
definition of threatened because it is facing threats across its range
that have led to reduced resiliency, redundancy, and representation.
Although the eastern black rail is not in danger of extinction
throughout its range at present, we expect the subspecies to continue
to decline into the future. We did not find that it is currently in
danger of extinction throughout its range. Although the eastern black
rail has experienced reductions in its numbers and seen a range
contraction, this subspecies is still relatively widespread. It
continues to maintain a level of representation in four analysis units,
which demonstrates continued latitudinal variability across its range.
These four analysis units are spread throughout most of the subspecies'
range, providing for some level of redundancy. Although the resiliency
in the four currently occupied analysis units is low, Florida and Texas
remain strongholds for the subspecies in the Southeast and Southwest.
The current condition of the subspecies still provides for resiliency,
redundancy, and representation such that it is not at risk of
extinction now throughout its range.
Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. Because we have determined that the
eastern black rail is likely to become an endangered species within the
foreseeable future throughout its range, we find it unnecessary to
proceed to an evaluation of potentially significant portions of the
range. Where the best available information allows the Services to
determine a status for the species rangewide, that determination should
be given conclusive weight because a rangewide determination of status
more accurately reflects the species' degree of imperilment and better
promotes the purposes of the statute. Under this reading, we should
first consider whether listing is appropriate based on a rangewide
analysis and proceed to conduct a ``significant portion of its range''
analysis if, and only if, a species does not qualify for listing as
either endangered or threatened according to the ``all'' language. We
note that the court in Desert Survivors v. Department of the Interior,
No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not
address this issue, and our conclusion is therefore consistent with the
opinion in that case.
Therefore, on the basis of the best available scientific and
commercial information, we propose to list the eastern black rail as a
threatened species in accordance with sections 3(20) and 4(a)(1) of the
Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies; private
organizations; and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act calls for the Service to develop
and implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from the Lists of Endangered and Threatened Wildlife and Plants
(``delisting''), and methods for monitoring recovery progress. Recovery
plans also establish a framework for agencies to coordinate their
recovery efforts and provide estimates of the cost of implementing
recovery tasks. Recovery teams
[[Page 50625]]
(composed of species experts, Federal and State agencies,
nongovernmental organizations, and stakeholders) are often established
to develop recovery plans. When completed, the recovery outline, draft
recovery plan, and the final recovery plan will be available on our
website (http://www.fws.gov/endangered), or from our South Carolina
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the U.S. States and territories of
Alabama, Arkansas, Colorado, Connecticut, Delaware, Florida, Georgia,
Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland,
Massachusetts, Mississippi, Missouri, Nebraska, New Hampshire, New
Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Puerto
Rico, Rhode Island, South Carolina, Tennessee, Texas, Virginia, U.S.
Virgin Islands, and West Virginia would be eligible for Federal funds
to implement management actions that promote the protection or recovery
of the eastern black rail. Information on our grant programs that are
available to aid species recovery can be found at: http://www.fws.gov/grants.
Although the eastern black rail is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this subspecies. Additionally, we
invite you to submit any new information on this subspecies whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the eastern black rail's habitat that
may require conference or consultation or both as described in the
preceding paragraph include management and any other landscape-altering
activities on Federal lands administered by the U.S. Fish and Wildlife
Service and National Park Service; issuance of section 404 Clean Water
Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of
Engineers; and construction and maintenance of roads or highways by the
Federal Highway Administration.
Provisions of Section 4(d) of the Act
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to threatened wildlife.
Under section 4(d) of the Act, the Secretary of the Interior has the
discretion to issue such regulations as he deems necessary and
advisable to provide for the conservation of threatened species. The
Secretary also has the discretion to prohibit, by regulation with
respect to any threatened species of fish or wildlife, any act
prohibited under section 9(a)(1) of the Act.
The regulations at 50 CFR 17.31(a) provide that the prohibitions
set forth for endangered wildlife at 50 CFR 17.21 also apply to
threatened wildlife, except as discussed below. The regulations at 50
CFR 17.21, which codify the prohibitions in section 9(a)(1) of the Act,
make it illegal for any person subject to the jurisdiction of the
United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the
course of commercial activity; or sell or offer for sale in interstate
or foreign commerce endangered wildlife. It is also illegal to possess,
sell, deliver, carry, transport, or ship any such wildlife that has
been taken illegally. To the extent the section 9(a)(1) prohibitions
apply only to endangered species, this proposed rule would apply those
same prohibitions to the eastern black rail.
Instead of generally applying the same prohibitions to threatened
wildlife that apply to endangered wildlife, in accordance with section
4(d) of the Act, the Service may instead develop a protective
regulation (``4(d) rule'') that is specific to the conservation needs
of any threatened species. Such a regulation would contain all of the
protections applicable to that species (50 CFR 17.31(c)); this may
include some of the general prohibitions and exceptions set forth at 50
CFR 17.31 and 17.32, but would also include species-specific
protections that may be more or less restrictive than the general
provisions at 50 CFR 17.31.
For the eastern black rail, the Service has developed a proposed
4(d) rule that is tailored to the specific threats and conservation
needs of this subspecies. The proposed 4(d) rule contains specific
prohibitions and exceptions to those prohibitions. It would not remove
or alter in any way the consultation requirements under section 7 of
the Act.
Proposed 4(d) Rule for the Eastern Black Rail
Under this proposed 4(d) rule, the following activities would be
prohibited unless otherwise noted:
Fire Management Activities
Prescribed fire can be used to re-initiate succession and seral
sequencing on public and private lands, which is important to ensure
suitable habitat for the eastern black rail. However, the application
of prescribed fire should avoid burning during the nesting, brood
rearing, and flightless molt periods (mid-March through September 30)
where eastern black rails are present. Prescribed fire that takes place
during critical time periods for the subspecies (i.e., mating, egg-
laying, and incubation; parental care; and flightless molt) will lead
to mortality of eggs, chicks, juveniles, and molting birds. We
recognize that there is latitudinal variability of these life-history
events across the range of the eastern black rail. For example, in
Texas, eastern black rails begin to nest in March, whereas in
[[Page 50626]]
Kansas and Colorado, nesting begins around May 1. Therefore, the timing
of prohibitions would coincide with when the eastern black rail is
using the habitat for breeding and nesting, and with the flightless
molt period.
We realize that prohibiting prescribed fire during the months these
activities take place may conflict with land management goals, for
example, the use of prescribed fire to control shrub or tree
encroachment and improve habitat suitability for species such as the
eastern black rail. However, prescribed fire during this period will
reduce survival of eggs, chicks, juveniles, and adults and will reduce
recruitment of individuals into the next generation. Opportunities to
reach management goals still remain available during a significant
period of the year.
For prescribed fires outside of the nesting, brood rearing, and
flightless molt period, best management practices (BMPs) can minimize
the take of eastern black rails. Therefore, we propose to allow
prescribed burns that follow identified BMPs; this would not adversely
affect the likelihood of survival of the eastern black rail in occupied
areas that are burned. BMPs include:
The application of prescribed fire should avoid perimeter
fires, ring fires, or fires that have long, unbroken boundaries that
prevent species dependent on dense cover from escaping a fire.
Prescribed fire should be employed to move slowly across a
tract. Fast fires can cause significant mortality for eastern black
rails.
Prescribed fire should be applied in a patchy manner or
with small patches to allow eastern black rails a place of refuge.
Patches can be small but numerous enough to support multiple eastern
black rails.
This provision of the proposed 4(d) rule for fire management
activities would promote conservation of the eastern black rail by
encouraging continued management of the landscape in ways that meet
management needs while simultaneously ensuring the continued survival
of the eastern black rail and providing suitable habitat.
Haying, Mowing, and Other Mechanical Treatment Activities
Haying and mowing can maintain grasslands by reducing woody
vegetation encroachment and also for the production of forage for
livestock. Mechanical treatment activities include disking (using a
disk harrow or other tool) and brush clearing (using a variety of tools
that may be attached to a tractor or a stand-alone device). While these
practices are used to enhance eastern black rail habitat, when done at
the wrong time, they can impact recruitment and survival.
Haying, mowing, and mechanical treatment activities in emergent
wetlands should be avoided during the nesting, brood rearing, and
flightless molt periods (mid-March through September 30) where eastern
black rail are present. We define emergent wetlands as areas where
``emergent plants--i.e., erect, rooted, herbaceous hydrophytes,
excluding mosses and lichens--are the tallest life form with at least
30 percent areal coverage. This vegetation is present for most of the
growing season in most years. These wetlands are usually dominated by
perennial plants'' (Federal Geographic Data Committee 2013, p. 33). For
more information on emergent wetlands, please visit the Service's
National Wetlands Inventory website: https://www.fws.gov/wetlands/.
Haying, mowing, and mechanical treatment activities in emergent
wetlands that take place during critical time periods for the
subspecies (i.e., mating, egg-laying, and incubation; parental care;
and flightless molt) will lead to disturbance of nesting birds;
destruction of nests; and mortality of eggs, chicks, juveniles, and
adults. As discussed above, we recognize that there is latitudinal
variability of these life-history events across the range of the
eastern black rail. Therefore, the timing of prohibitions would
coincide with when the eastern black rail is using the habitat for
breeding and nesting, and with the flightless molt period.
We recognize mowing or mechanical treatment activities may need to
be used for maintenance requirements to ensure safety and operational
needs for existing infrastructure, and understand that these
maintenance activities may need to take place during the nesting,
brooding, or post-breeding molt period. These include maintenance of
existing fire breaks, roads, transmission corridors rights-of-way, and
fence lines. These activities are an exception to this prohibition.
We do not propose to prohibit mowing, haying, or mechanical treat
activities outside of the nesting, brood rearing, and flightless molt
time periods. However, we encourage land managers to employ voluntary
BMPs outside of these time periods. BMPs for haying, mowing, and
mechanical treatment activities include avoidance of emergent wetlands;
providing untreated (i.e., unmown or avoided) areas that provide
refugia for species dependent on dense cover, such as the eastern black
rail; and using temporary markers to identify where birds occur, for
example wetland areas, so that these areas may be avoided.
This provision of the proposed 4(d) rule for haying, mowing, and
mechanical treatment activities in emergent wetlands would promote
conservation of the eastern black rail by prohibiting activities that
would reduce survival and limit recruitment during the period when
breeding and flightless molt takes place.
Grazing Activities
Based on current knowledge of grazing and eastern black rail
occupancy, the specific timing, duration, and intensity of grazing will
result in varying impacts to the eastern black rail and its habitat.
Light-to-moderate grazing may be compatible with eastern black rail
occupancy under certain conditions, while intensive or heavy grazing is
likely to have negative effects on eastern black rails and the quality
of their habitat. Grazing densities should allow for the maintenance of
the dense vegetative cover required by the eastern black rail.
Intensive or heavy grazing should be avoided during the nesting,
brood rearing, and flightless molt periods (mid-March through September
30) in emergent wetlands where eastern black rail are present.
Intensive or heavy grazing that takes place during critical time
periods for the subspecies (i.e., mating, egg-laying and incubation;
parental care; and flightless molt) will lead to disturbance of nesting
birds, as well as possible destruction of nests and mortality of eggs
and chicks due to trampling. As discussed above, we recognize that
there is latitudinal variability of these life-history events across
the range of the eastern black rail. Therefore, the timing of
prohibitions would coincide with when the eastern black rail is using
the habitat for breeding or nesting, and with the flightless molt
period. We propose to limit this prohibition to public lands, given our
knowledge of where grazing activities and the presence of eastern black
rails overlap.
Although we are not proposing to prohibit year-round light to
moderate grazing, or intensive grazing outside of the nesting season,
we do recommend that land managers follow voluntary BMPs to provide for
additional conservation of the eastern black rail and its habitat. BMPs
to avoid negative impacts to the eastern black rail from grazing
activities include the use of fences to exclude grazing from emergent
wetland areas during the breeding and flightless molt periods, and
rotational grazing practices so that a mosaic
[[Page 50627]]
pattern of cover density is present across fenced tracts of land.
This provision of the proposed 4(d) rule for grazing activities
would promote conservation of the eastern black rail by encouraging
land managers to continue managing the landscape in ways that meet
their needs while simultaneously providing suitable habitat for the
eastern black rail.
Other Forms of Take
Protecting the eastern black rail from direct forms of take, such
as physical injury or killing, whether incidental or intentional, will
help preserve and recover the remaining populations of the subspecies.
Protecting the eastern black rail from indirect forms of take, such as
harm that results from habitat degradation, will likewise help preserve
the subspecies' populations and also decrease synergistic, negative
effects from other stressors impeding recovery of the subspecies. We
propose to extend the Act's section 9(a)(1)(A), 9(a)(1)(D), 9(a)(1)(E),
and 9(a)(1)(F) prohibitions to the eastern black rail throughout its
range.
We may issue permits to carry out otherwise prohibited activities
involving threatened wildlife under certain circumstances. Regulations
governing permits are codified at 50 CFR 17.32. With regard to
threatened wildlife, a permit may be issued for the following purposes:
for scientific purposes, to enhance propagation or survival, for
economic hardship, for zoological exhibition, for educational purposes,
for incidental taking, or for special purposes consistent with the
purposes of the Act. There are also certain statutory exemptions from
the prohibitions, which are found in sections 9 and 10 of the Act.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined at section 3 of the Act, means to use and
the use of all methods and procedures that are necessary to bring an
endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12), require that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time the species is determined to be endangered or threatened. Our
regulations (50 CFR 424.12(a)(1)) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
human activity, and identification of critical habitat can be expected
to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
Increased Degree of Threat to the Eastern Black Rail
Designation of critical habitat requires the publication of maps
and a narrative description of specific critical habitat areas in the
Federal Register. We are concerned that designation of critical habitat
would more widely announce the exact location of eastern black rails
(and highly suitable habitat) to overzealous birders and further
facilitate disturbance. As discussed above, the eastern black rail is
highly sought after by the birding community due to its rarity. We
anticipate that listing the eastern black rail under the Act will
further interest in this bird and increase the likelihood that eastern
black rails will be sought out for birders' ``life lists'' and general
birding trips.
Eastern black rails are unique in they are extremely secretive;
they walk or run under dense vegetation and are rarely seen in flight.
They are generally detected by employing playback calls. As the eastern
black rail is difficult to see, birders generally record an eastern
black rail on their life list by documenting the bird's call. Because
the eastern black rail is highly sought after, birders will play calls
repeatedly to garner a response and sometimes to lure a bird in an
attempt to see the individual. The constant playing of a call to the
bird for days, if not weeks, at a time is a form of harassment to the
bird. The use of playback calls has been documented to alter the
behavior of eastern black rails, resulting in a threats display that
includes spreading the wings and charging the tape recorder (Taylor and
Van Perlo 1998, p. 223; Eddleman, Flores, and Legare 1994,
unpaginated). The American Birding Association Code of Birding Ethics
[[Page 50628]]
states that birders should limit the use of recordings and other
methods of attracting birds, and never use such methods for attracting
listed or rare species; however, the singular method used to detect
eastern black rails is by playback calls (as opposed to passive
listening) and a listing designation is unlikely to abate this
disturbance.
The eastern black rail is highly vulnerable to disturbance,
especially during the brooding and nesting season. Birders attempting
to see or hear the bird by using vocalized calls or recordings has the
potential to disturb nesting birds and to trample nests or eggs, and
may lead to increased predation (Beans and Niles 2003, p. 96). We
believe that the threat of disturbance will be exacerbated by the
publication of maps and descriptions outlining the specific locations
of this secretive bird in the Federal Register and local newspapers.
Identification and publication of critical habitat may also
increase the likelihood of inadvertent or purposeful habitat
destruction. As discussed above, trespassing has been documented on
private lands and in areas on public lands specifically closed to the
public to protect nesting eastern black rails (Roth 2018, pers. comm.;
Hand 2017, pers. comm.). Trespassing may not only disturb the bird, but
can also result in trampling of the bird's habitat, as well as eggs and
nests. State resource managers and researchers are concerned that
releasing locations of eastern black rail detections may increase human
disturbance and harassment to the subspecies. Trespassing on private
land is also a concern, as it likely results in increased harassment to
the rails and to the private landowners who are providing habitat to
the rails (Hand 2017, pers. comm.). We recognize with the advent of
eBird that locations of rare birds, including the eastern black rail,
are widely distributed and readily available if those location data are
posted to this website. Given the eastern black rail's rarity and near
grail-like status in the birding community, when a location has been
published on eBird, birders often flock to the site in large numbers in
an attempt to see or hear the bird. For example, in June 2010, an
eastern black rail was detected at the Parker River NWR in
Massachusetts, and the detection was posted on eBird (eBird 2018,
unpaginated). On June 2, a birder posted on eBird that he assembled
with a group of 34 birders to hear the one or two eastern black rails
at the site (eBird 2018, unpaginated). On June 4, another birder posted
that he waited more than 2 hours with about 50 other individuals to
hear the eastern black rail call (eBird 2018, unpaginated). On June 8,
a birder noted that about 30 people heard the eastern black rail (eBird
2018, unpaginated). The 2010 record is the only eastern black rail
occurrence recorded in eBird for this specific coordinate location and
demonstrates the great interest an eastern black rail generates among
the birding community.
To minimize harmful disturbances, eBird identifies a list of birds
it considers ``sensitive species.'' This list is developed in
collaboration with partners to identify birds for which demonstrable
harm, such as targeted capture, targeted hunting, or targeted
disturbance of nests or individual birds from birders or photographers,
may occur from publicly posting location records. In most cases, these
birds identified as ``sensitive species'' are species that have been
listed by a local entity or that appear on the International Union for
Conservation of Nature (IUCN) Red List. These birds have a customized
display in eBird that omits checklist details, such as date and
location, among other restrictions. While researchers have access to
this information, the general public is not able to view more specific
information on the record. Although the eastern black rail is not
currently on eBird's ``sensitive species'' list, given the increased
risk of harassment to the eastern black rail from posting location
data, we will request that it be added if we list the subspecies.
We acknowledge that general location information is provided within
this proposed rule, and more-specific location information can be found
through other sources. However, we maintain that designation of
critical habitat would more widely publicize the potential locations of
the eastern black rail and its habitat, and lead to an increased threat
of disturbance to the bird from birders. We believe that identification
and advertisement of critical habitat may exacerbate the threat of
disturbance, thus making sensitive areas more vulnerable to purposeful
harmful impacts from humans. Certain life stages, including eggs,
chicks, nesting/brooding adults, and adults experiencing the flightless
molt period, are particularly vulnerable. Identification and
publication of detailed critical habitat information and maps would
likely increase exposure of sensitive habitats and increase the
likelihood and severity of threats to both the subspecies and its
habitat. Identification and publication of critical habitat may lead to
increased attention to the subspecies, or increased attempts to observe
or hear it.
Benefits to the Subspecies From Critical Habitat Designation
Under our regulations at 50 CFR 424.12(a)(1)(i), this finding that
designating critical habitat is likely to increase the threat of
disturbance to the subspecies provides a sufficient basis for making a
not-prudent finding. As demonstrated by the use of the word ``or'' in
50 CFR 424(a) between subsections (1)(i) and (1)(ii), the regulations
do not require that we also determine that designating critical habitat
would not be beneficial to the subspecies.
Summary
Based on the above discussion, we preliminarily conclude that the
designation of critical habitat is not prudent, in accordance with 50
CFR 424.12(a)(1), because the eastern black rail and its habitat face a
threat by overzealous birders, and designation can reasonably be
expected to increase the degree of these threats to the subspecies and
its habitat by making location information more readily available.
However, we seek public comment on threats of taking or other human
activity, including the impacts of birders to the eastern black rail
and its habitat, and the extent to which designation might increase
those threats.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
[[Page 50629]]
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act, need not be prepared in connection with
listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. Although we have no records of the
eastern black rail occurring on tribal lands, the range of the eastern
black rail overlaps with tribal lands.
References Cited
A complete list of references cited in this proposed rule is
available on the internet at http://www.regulations.gov and upon
request from the South Carolina Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Species Assessment Team, U.S. Fish and Wildlife Service.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by adding an entry for ``Rail, eastern black''
to the List of Endangered and Threatened Wildlife in alphabetical order
under BIRDS to read as set forth below:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
BIRDS
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Rail, eastern black............. Laterallus Wherever found.... T............ [Federal Register
jamaicensis citation when
jamaicensis. published as a final
rule]; 50 CFR
17.41(f).\4d\
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.41 by adding a paragraph (f) to read as follows:
Sec. 17.41 Special rules--birds.
* * * * *
(f) Eastern black rail (Laterallus jamaicensis jamaicensis). (1)
Prohibitions. The following activities are prohibited:
(i) Purposeful take of an eastern black rail, including capture,
handling, or other activities.
(ii) Prescribed burn activities that result in the incidental take
of eastern black rails when the activity occurs:
(A) During the nesting, brooding, or post-breeding flightless molt
period; or
(B) Outside of the nesting, brooding, or post-breeding flightless
molt period, unless best management practices that minimize effects of
the prescribed burn on the eastern black rail are employed. Examples of
best management practices include employing slow burn fires, limiting
the block of land burned to ensure suitable dense cover habitat remains
for the eastern black rail, employing patch or refugia techniques to
allow for eastern black rails to survive or escape fire, and avoiding
the use of ring fires or perimeter fires.
(iii) Mowing, haying, and mechanical treatment activities in
emergent wetlands that result in the incidental take of eastern black
rails when the activity occurs during the nesting, brooding, or post-
breeding flightless molt period, except in accordance with paragraph
(f)(2)(iii) of this section.
(iv) Grazing activities on public lands that result in the
incidental take of eastern black rails when the activity:
(A) Occurs during the nesting, brooding, or post-breeding
flightless molt period;
(B) Involves intensive or high-density grazing that occurs on
suitable occupied eastern black rail habitat; and
(C) Does not support the maintenance of appropriate dense
vegetation cover for the eastern black rail.
(v) Possession and other acts with unlawfully taken eastern black
rails. It is unlawful to possess, sell, deliver, carry, transport, or
ship, by any means whatsoever, any eastern black rail that was taken in
violation of section 9(a)(1)(B) and 9(a)(1)(C) of the Act or State
laws.
(vi) Import and export of the eastern black rail.
(vii) Delivery, receipt, carry for transport, or shipment in
interstate or
[[Page 50630]]
foreign commerce, by any means whatsoever, and in the course of a
commercial activity, of any eastern black rail.
(viii) Sale or offer for sale in interstate or foreign commerce of
any eastern black rail.
(2) Exceptions from prohibitions. (i) All of the provisions of
Sec. 17.32 apply to the eastern black rail.
(ii) Any employee or agent of the Service, of the National Marine
Fisheries Service, or of a State conservation agency that is operating
a conservation program for the eastern black rail pursuant to the terms
of a cooperative agreement with the Service in accordance with section
6(c) of the Act, who is designated by his agency for such purposes,
may, when acting in the course of his official duties, take eastern
black rails.
(iii) Mowing or mechanical treatment activities in emergent
wetlands that:
(A) Occur during the nesting, brooding, or post-breeding flightless
molt period; and
(B) Are maintenance requirements to ensure safety and operational
needs for existing infrastructure. Existing infrastructure may include
existing fire breaks, roads, transmission corridor rights-of-way, and
fence lines.
* * * * *
Dated: September 20, 2018.
James W. Kurth,
Deputy Director, U.S. Fish and Wildlife Service, Exercising the
Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2018-21799 Filed 10-5-18; 8:45 am]
BILLING CODE 4333-15-P