[Federal Register Volume 86, Number 55 (Wednesday, March 24, 2021)]
[Rules and Regulations]
[Pages 15602-15623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05646]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R1-ES-2018-0033; FXES111300000900000 178 FF09E42000]
RIN 1018-BC65
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of the California Condor in the
Pacific Northwest
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), are
establishing a nonessential experimental population (NEP) of the
California condor (Gymnogyps californianus) in the Pacific Northwest,
under section 10(j) of the Endangered Species Act of 1973, as amended
(Act). Establishment of this NEP will facilitate reintroduction of
California condors to the region and provide for allowable legal
incidental taking of the California condor within a defined NEP area.
The geographic boundaries of the NEP include northern California,
northwest Nevada, and Oregon. The best available data indicate that
reintroduction of the California condor into the Pacific Northwest is
biologically feasible and will promote the conservation of the species.
DATES: This final rule is effective April 23, 2021.
ADDRESSES: This final rule is available on http://www.regulations.gov
at Docket No. FWS-R1-ES-2018-0033 and on our website at https://ecos.fws.gov/ecp0/profile/speciesProfile?spcode=B002. Comments and
materials we received, as well as supporting documentation we used in
preparing this rule, are also available for public inspection at http://www.regulations.gov. Persons who use a telecommunications device for
the deaf (TDD) may call the Federal Relay Service at 1-800-877-8339.
FOR FURTHER INFORMATION CONTACT: Jesse D'Elia, Pacific Regional Office,
U.S. Fish and Wildlife Service, Ecological Services, 911 NE 11th Ave.,
Portland, OR 97232; telephone 503-231-6131. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act, a
population of a threatened or endangered species may be designated as
an experimental population prior to its reintroduction. Experimental
populations can only be designated by issuing a rule.
What this document does. This rule will designate California
condors (Gymnogyps californianus) reintroduced to the Pacific Northwest
as a nonessential experimental population on the List of Endangered and
Threatened Wildlife in title 50 of the Code of Federal Regulations at
50 CFR 17.11(h) with a rule issued under section 10(j) of the Act
(hereafter referred to as a ``10(j) rule'') at 50 CFR 17.84.
The basis for our action. Based on the best scientific and
commercial data available (in accordance with 50 CFR 17.81), we find
that releasing the California condors into the Pacific Northwest, with
the regulatory provisions in this final rulemaking, will further the
conservation of the species. The nonessential experimental population
status is appropriate for the reintroduced population because we have
determined that it is not essential to the continued existence of the
species in the wild.
In making our finding that this action will further the
conservation of the species, we evaluate any possible adverse effects
on extant California condor populations, the likelihood that any such
experimental population will become established and survive in the
foreseeable future, the relative effects that establishment of an
experimental
[[Page 15603]]
population will have on the recovery of the species, and the extent to
which the reintroduced population may be affected by existing or
anticipated Federal or State actions or private activities within or
adjacent to the experimental population area. This rule also identifies
the boundaries of the experimental population, explains our rationale
for why the population is not essential to the continued existence of
the species in the wild, describes management restrictions, protective
measures, or other special management concerns of that population, and
explains a process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species. In June 2016, a Memorandum of
Understanding (MOU) was finalized to assess the potential to recover
California condors in the Pacific Northwest and to work to seek funding
to support that effort if it proved feasible. The MOU currently has 16
signatories.
Peer review and public comment. We sought comments from three
objective and independent specialists (and received two responses) to
ensure that our findings are based on scientifically sound data,
assumptions, and analyses. As directed by the Service's Peer Review
Policy dated July 1, 1994 (59 FR 34270) and a recent memo updating the
peer review policy for listing and recovery actions (August 22, 2016),
we invited these peer reviewers to comment on our proposal. We also
considered all comments and information received during the public
comment period. All comments received during the peer review process
and the public comment period have either been incorporated throughout
this rule or addressed below in Summary of Comments and
Recommendations.
Background
On April 5, 2019, we published in the Federal Register a proposed
rule to establish a nonessential experimental population of the
California condor in the Pacific Northwest (84 FR 13587). The comment
period on the proposed rule was open for 60 days, through June 4, 2019.
Comments on the proposed rule are addressed below under Summary of
Comments and Recommendations.
Statutory and Regulatory Framework
The 1982 amendments to the Endangered Species Act of 1973 (ESA or
Act; 16 U.S.C. 1531 et seq.) included the addition of section 10(j),
which allows for the designation of reintroduced populations of listed
species as ``experimental populations.'' Under section 10(j) of the Act
and our regulations in title 50 of the Code of Federal Regulations (at
50 CFR 17.81), the Service may designate as an experimental population
a population of endangered or threatened species that has been or will
be released into suitable natural habitat outside the species' current
natural range (but within its probable historic range, absent a finding
by the Director of the Service in the extreme case that the primary
habitat of the species has been unsuitably and irreversibly altered or
destroyed).
Before authorizing the release as an experimental population
(including eggs, propagules, or individuals) of an endangered or
threatened species, and before authorizing any necessary transportation
to conduct the release, the Service must find by regulation that such
release will further the conservation of the species. 50 CFR 17.81(b).
In making such a finding the Service uses the best scientific and
commercial data available to consider:
(1) Any possible adverse effects on extant populations of a species
as a result of removal of individuals, eggs, or propagules for
introduction elsewhere (see Donor Stock Assessment and Effects on Donor
Population, below);
(2) The likelihood that any such experimental population will
become established and survive in the foreseeable future (see
Likelihood of Population Establishment and Survival and Addressing
Causes of Extirpation, below);
(3) The relative effects that establishment of an experimental
population will have on the recovery of the species (see Relationship
of NEP to Recovery Efforts, below); and
(4) The extent to which the introduced population may be affected
by existing or anticipated Federal or State actions or private
activities within or adjacent to the experimental population area (see
Likelihood of Population Establishment and Survival, below; National
Park Service (NPS) 2018, entire).
Further, as set forth in 50 CFR 17.81(c), all regulations
designating experimental populations under section 10(j) must provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location, actual
or anticipated migration, number of specimens released or to be
released, and other criteria appropriate to identify the experimental
population(s) (see Location and Boundaries of the NEP, below);
(2) A finding, based solely on the best scientific and commercial
data available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild (see Is the Experimental
Population Essential or Nonessential?, below);
(3) Management restrictions, protective measures, or other special
management concerns of that population, which may include but are not
limited to, measures to isolate and/or contain the experimental
population designated in the regulation from natural populations (see
Management, below); and
(4) A process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species (see Monitoring and
Evaluation, below).
Under 50 CFR 17.81(d), the Service must consult with appropriate
State fish and wildlife agencies, local governmental entities, affected
Federal agencies, and affected private landowners in developing and
implementing experimental population rules. To the maximum extent
practicable, 10(j) rules represent an agreement between the FWS, the
affected State and Federal agencies, and persons holding any interest
in land that may be affected by the establishment of an experimental
population.
Under 50 CFR 17.81(f), the Secretary may designate critical habitat
as defined in section 3(5)(A) of the Act for an essential experimental
population. No designation of critical habitat will be made for
nonessential populations. In those situations where a portion or all of
an essential experimental population overlaps with a natural population
of the species during certain periods of the year, no critical habitat
will be designated for the area of overlap unless implemented as a
revision to critical habitat of the natural population for reasons
unrelated to the overlap itself.
Any population determined by the Secretary to be an experimental
population will be treated as if it were listed as a threatened species
for purposes of establishing protective regulations with respect to
that population. The protective regulations adopted for an experimental
population will contain applicable prohibitions, as appropriate, and
exceptions for that population. 50 CFR 17.82.
Any experimental population designated for a listed species (1)
determined not to be essential to the survival of that species and (2)
not occurring within the National Park
[[Page 15604]]
System or the National Wildlife Refuge System will be treated for
purposes of section 7 (other than paragraph (a)(1) thereof) as a
species proposed to be listed under the Act as a threatened species. 50
CFR 17.83(a).
Any experimental population designated for a listed species that
either (1) has been determined to be essential to the survival of that
species or (2) occurs within the National Park System or the National
Wildlife Refuge System as now or hereafter constituted will be treated
for purposes of section 7 of the Act as a threatened species.
Notwithstanding the foregoing, any biological opinion prepared pursuant
to section 7(b) of the Act and any agency determination made pursuant
to section 7(a) of the Act will consider any experimental and
nonexperimental populations to constitute a single listed species for
the purposes of conducting the analyses under such sections. 50 CFR
17.83(b).
Legal Status
We listed the California condor as an endangered species under the
Endangered Species Preservation Act of 1966 (ESPA) on March 11, 1967
(32 FR 4001, March 11, 1967). This list was later codified in part 17
of title 50 in the U.S. Code of Federal Regulations (35 FR 16048,
October 13, 1970). With the passage of the Endangered Species Act of
1973 (ESA), those species previously listed in the Code of Federal
Regulations were directly incorporated into the Lists of Endangered and
Threatened Wildlife and Plants under the ESA, found at 50 CFR 17.11 and
17.12. In October 1996, we designated a nonessential experimental
population of the California condor in portions of northern Arizona,
southern Utah, and southern Nevada (61 FR 54044, October 16, 1996).
Therefore, the California condor is currently listed as an endangered
species wherever it is found, except in portions of northern Arizona,
southern Utah, and southern Nevada, where it is considered a
nonessential experimental population.
The California condor is protected by the State of California under
both the State Endangered Species Act and the California Fish and Game
Code as a Fully Protected species. It is also listed as a Sensitive
Species under California Forest Practice Rules. In September of 2018,
the State of California passed legislation that allows the California
Department of Fish and Wildlife (CDFW) to consider the content of any
final rules under section 10(j) of the Federal Endangered Species Act
for the California condor. This legislation (AB2640) allows the
Director of the CDFW to evaluate the final rule, and exempt take
associated with the rule if the Director finds the Service's final rule
would further the conservation of the species.
If we are compelled, through court order or other means, to change
the California condor's NEP status to essential, threatened, or
endangered, FWS would meet with the parties to the 2016 MOU to discuss
options on how to proceed, including the option of attempting to
capture and relocate all condors in the wild within the NEP. We would
make a fact-specific assessment of how to proceed based on the
information at that time, including whether there was general agreement
from the MOU partners that the condors should remain in the wild.
Changes in the legal status and/or removal of this population of
California condors will be made in compliance with any applicable
Federal rulemaking and other procedures.
Biological Information
Species Description
The California condor is one of seven New World vultures in the
Cathartidae family and the only extant species in the genus Gymnogyps
(Amadon 1977, pp. 413-414; Johnson et al. 2016, pp. 193, 197). It is
the largest of the North American vultures and the largest soaring land
bird on the continent with a wingspan of approximately 9.5 feet (ft)
(2.9 meters (m)) (Koford 1953, p. 3; Finkelstein et al. 2015,
Introduction, Appearance). Males weigh slightly more than females
(average weight of 19.4 pounds (lb) (8.8 kilograms (kg)) for males and
17.9 lb (8.1 kg) for females) and have slightly higher wing loading,
but otherwise there are no obvious differences in coloration or
morphology between the sexes (Finkelstein et al. 2015, Appearance).
California condors exhibit age-related coloration changes (Koford 1953,
p. 5; Snyder and Snyder 2000, pp. 14-19). Adults have black feathers
except for prominent white underwing linings and edges of the upper
secondary coverts. The head and neck of adults are mostly naked and
range in color from yellowish to reddish orange on the head to gray,
yellow, orange, and red on the neck (Koford 1953, pp. 4-5). The heads
of juveniles up to 3 years old are grayish-black, and their wing
linings are variously mottled or completely dark (Koford 1953, p. 5;
Snyder and Snyder 2000, pp. 14-19). During the third year, the head
develops yellow coloration, and the dark juvenile underwing linings are
gradually replaced with white adult feathers (Snyder and Snyder 2000,
pp. 15, 17). By the time individuals are 5 or 6 years of age, they are
essentially indistinguishable from adults, but full development of the
adult wing patterns may not be completed until 7 or 8 years of age
(Snyder and Snyder 2000, pp. 15, 17; Finkelstein et al. 2015,
Appearance).
As obligate scavengers (i.e., relying entirely on dead animals for
food), California condors have a number of physical and physiological
adaptations that accommodate their highly specialized diet, including:
(1) Large size, which is important for maintaining low-energy soaring
flight, and enduring long periods without food; (2) excellent eyesight,
which helps condors efficiently find food; (3) hooked bills and long
necks, which allow condors to access muscle tissue deep within a
carcass and to rip pieces of meat from a carcass; and (4) resistance to
bacterial toxins, which is necessary for species that rely on carcasses
(Snyder and Snyder 2005, pp. 7-31).
Historical Range
During the Pleistocene Epoch, the California condor was broadly
distributed in North America from southern British Columbia to Baja
California, and eastward throughout the southern United States and
northern Mexico to Florida (Koford 1953, p. 7; Brodkorb 1964, pp. 253-
254; Messing 1986, pp. 284-285; Steadman and Miller 1987, p. 423;
Snyder and Snyder 2005, p. 6; D'Elia and Haig 2013, p. 17). The extent
of its distribution along the east coast of North America during the
late Pleistocene also extended to the boreal forests of upstate New
York (Steadman and Miller 1987, pp. 416-423). The disappearance of the
California condor from its prehistoric range in North America east of
the Rocky Mountains occurred about 10,000-11,000 years ago coinciding
with the late-Pleistocene extinction of the North American megafauna
(Emslie 1987, pp. 768-770; Steadman and Miller 1987, pp. 422-425).
Analysis of stable isotopes in bone collagen suggests that the
California condor's persistence along the Pacific coast at the end of
the Pleistocene was at least partially due to the availability of
marine-derived carrion (Chamberlain et al. 2005, p. 16710; Fox-Dobbs et
al. 2006, p. 688).
Historical observations of California condors indicate that they
were widespread and locally abundant from southern British Columbia,
Canada, to Baja California, Mexico, during Euro-American colonization
(Koford 1953, pp. 8-19; Wilbur 1978, pp. 13, 72-85; Snyder and Snyder
2005, pp. 4-5; D'Elia and Haig 2013, pp. 38-59). At that time they were
apparently restricted to the
[[Page 15605]]
area west of the Rocky Mountains, with most observations occurring from
the Cascade Mountains and Sierra Nevada to the coast (Snyder and Snyder
2000, p. 12; D'Elia and Haig 2013, pp. 38-59). California condor
population declines and range contractions were concurrent with Euro-
American settlement of the West, with condors disappearing from the
Pacific Northwest in the early 1900s (D'Elia and Haig 2013, pp. 58-59),
and from Baja California by the end of the 1930s (Wilbur and Kiff 1980,
entire). By the middle of the 20th century, the species was reduced to
about 150 individuals limited to the mountains of southern California
(Snyder and Snyder 2000, pp. 81-82), and at the time we formally
classified them as an endangered species in 1967, the population had
further declined to an estimated 60 condors (Snyder and Snyder 2000,
pp. 82-83). Most probable causes of their historical decline include:
(1) Secondary poisoning from predator removal campaigns, (2) direct
persecution, and (3) lead poisoning from spent ammunition that
fragmented in animals condors later fed upon (D'Elia and Haig 2013, pp.
77-122).
Captive Breeding, Reintroduction Efforts, and Current Range
Due to concerns over the few remaining California condors and the
population's continued downward trend, beginning in 1983, we took all
condor eggs from the wild to the San Diego Wild Animal Park and Los
Angeles Zoo for artificial incubation to form a captive flock (Snyder
and Hamber 1985, p. 378; Snyder and Snyder 2000, pp. 278-293). By
taking all wild eggs and inducing multiple clutches and annual nesting,
the productivity of the population was increased several-fold, allowing
the captive population to grow rapidly (Snyder and Hamber 1985, p.
378). However, with the sudden loss of several wild California condors
in 1984 and 1985, it became necessary for us to capture the remaining
wild individuals to ensure the genetic viability of the species and
enhance the chances of the captive-breeding program's success (Snyder
and Snyder 2000, pp. 298-304). By 1987, the California condor existed
only in captivity, having suffered a severe population bottleneck and
loss of genetic diversity (Ralls and Ballou 2004, p. 225; D'Elia et al.
2016, pp. 707-708). Thus, the conservation of the species was dependent
upon captive breeding and releases back into the wild.
We first released captive-reared California condors in 1992 in
southern California, but because of behavioral problems exhibited by
these individuals we returned them all to captivity in early 1995
(Snyder and Snyder 2000, pp. 344-345). We reinitiated releases of
captive-reared and formerly wild California condors in southern
California in 1995, and additional release sites were established in
northern Arizona in 1996, central California near Big Sur in 1997,
Sierra de San Pedro M[aacute]rtir in Baja California, Mexico, in 2002,
Pinnacles National Park (formerly Pinnacles National Monument) in 2003,
and in the mountains near San Simeon, California, in 2015. Currently,
these release sites comprise four general release areas (central
California, southern California, Baja California, and Arizona/Utah) in
three condor populations (a population in central and southern
California--where individuals from each release area occasionally
intermingle--and independent populations in northern Arizona/southern
Utah and Baja California). The California condor is currently absent
from the northern portion of its historical range and remains reliant
on the release of captive-bred individuals for population growth (USFWS
2013, p. 14).
As of December 2019, there were 337 California condors in the wild,
divided among the four release areas: Central and southern California
(200 condors); northern Arizona and southern Utah (98 condors); and the
Sierra de San Pedro M[aacute]rtir release site in Baja California (39
condors) (USFWS 2019a, p. 1). There were also 181 California condors in
captivity (USFWS 2019a, p. 1) distributed among release sites, zoos,
and four captive-breeding facilities in the United States. Breeding
facilities include the Peregrine Fund's World Center for Birds of Prey,
the Oregon Zoo's Jonsson Center for Wildlife Conservation, the Los
Angeles Zoo, and the San Diego Zoo's Safari Park.
Despite population growth, the total number of wild California
condors is still relatively small and the species requires intensive
management for survival, including: (1) Monitoring a large proportion
of condors in the wild to track resource use, identify behavioral
problems, and detect mortalities; (2) biannual trapping for health
screening, to test blood samples for lead, inoculate for West Nile
virus, and to attach or replace wing tags and transmitters; (3) taking
injured or poisoned condors back into captivity temporarily to
administer treatment; and (4) nest observations and interventions to
maximize productivity in the wild (Walters et al. 2010, pp. 972, 976,
982-984; USFWS 2017, pp. 5-19).
Habitat Use and Movement Ecology
Along with our conservation partners, we have reintroduced
California condors to a variety of habitats, including coastal
mountains, old-growth forests, desert cliffs, and temperate montane
shrublands and grasslands. Within these habitats they can have enormous
home ranges (Meretsky and Snyder 1992, p. 321; Hunt et al. 2007, pp.
84-87; Romo et al. 2012, pp. 43-47; Rivers et al. 2014a, pp. 496-498)
and often use different portions of their range for nesting and
foraging (Meretsky and Snyder 1992, p. 329; Snyder and Snyder 2000, pp.
140-147; D'Elia et al. 2015, p. 96). Estimates of home range size
varied among release sites (95 percent confidence intervals for
southern California: 173,295-282,760 acres (ac) (70,130-114,429
hectares (ha)); Pinnacles National Park: 86,825-174,266 ac (35,137-
70,523 ha); and Big Sur: 42,613-90,495 ac (17,245-36,622 ha)), probably
as a result of geography, food availability (Rivers et al. 2014a, pp.
496-497, 500), years since the release program started, and flock size
(Bakker et al. 2017, p. 100).
Nesting habitat is generally characterized by steep, rugged terrain
(Wilbur 1978, p. 7; Snyder and Snyder 2000, p. 18; D'Elia et al. 2015,
pp. 94-95). Within these areas, nests have been documented in various
types of rock formations including crevices, overhung ledges, potholes,
and in cavities or broken tops of giant sequoia (Sequoia giganteus)
(Snyder et al. 1986, pp. 235-236) or coast redwood (Sequoia
sempervirens) trees (Burnett et al. 2013, pp. 478-479). Breeding adults
segregate themselves into nesting territories, rarely crossing into the
nesting territories of other California condors (Finkelstein et al.
2015, Behavior). California condors will generally use the same nesting
territory in successive years as long as pairs remain intact, but will
often switch nesting sites within that territory, regardless of whether
they fail or succeed in their nesting efforts (Snyder et al. 1986, p.
236).
California condors roost communally along rocky outcrops, steep
canyons, and in tall trees or snags near foraging grounds, water
sources, and nests (Koford 1953, pp. 35-36; Snyder and Snyder 2000, p.
167). California condors select roosts that offer winds or thermals
favorable for soaring flight (Poessel et al. 2018, pp. 48-50), good
peripheral visibility, where there is a long unobstructed space for
taking off downhill and for approaching the roost in flight, and areas
where there is some protection from high winds (Koford 1953, pp. 35-
36). There may be trade-
[[Page 15606]]
offs for condors between these factors and selecting roosts that
provide protection from predators (Poessel et al. 2018, pp. 48-50).
While at a roost, condors devote considerable time to preening,
sunning, and other maintenance activities (Snyder and Snyder 2000, p.
24).
California condors are obligate scavengers and obligate soaring
birds, making them reliant on the availability of sufficient food
resources and upward air movement (Ruxton and Houston 2004, p. 434,
Poessel et al. 2018, pp. 36-37). Foraging habitats generally have high
landscape productivity, moderate to steep slopes, sparse vegetation,
and updrafts necessary to keep California condors aloft (Rivers et al.
2014b, pp. 7-9; D'Elia et al. 2015, p. 96). In coastal areas condors
show strong selection for beaches, likely because of the relative
abundance of marine mammal carcasses (Rivers et al. 2014b, p. 8). A
feature of carrion is that dead animals are highly dispersed and
ephemeral (Ruxton and Houston 2004, p. 433). This exclusive food
resource has resulted in evolutionary pressure for condors to be large,
obligate soaring birds that forage socially (Ruxton and Houston 2004,
p. 433). Social foraging means the population is particularly
susceptible to contaminated food resources, as a contaminated carcass
can poison a large number of individuals in a single feeding (Green et
al. 2004, pp. 796-800; Green et al. 2008, pp. 6-9; Finkelstein et al.
2012, p. 11453; D'Elia and Haig 2013, p. 87).
As birds with a large wingspan that use soaring and gliding flight,
California condors can move long distances while expending minimal
energy (see Pennycuick 1969, pp. 542-545; Ruxton and Houston 2004, p.
435; Horvitz et al. 2014, pp. 676-678). Examples of exceptional flight
distances include: California condor movements between the central and
southern California flocks--a distance of approximately 150 miles (mi)
(241 kilometers (km)) (e.g., USFWS 2017, pp. 20-21); a condor released
at Pinnacles National Park flying to the southern Sierra Nevada and
back--a one-way distance of approximately 249 mi (400 km) (USFWS,
unpublished data); a condor released in the Sierra de San Pedro
M[aacute]rtir in Baja California, Mexico, traveling north to San Diego
County, a distance of approximately 140 mi (225 km) (Romo et al. 2012,
p. 44); and observations of condors released in northern Arizona
traveling to southern Wyoming, Colorado, and New Mexico, at distances
of approximately 340 mi (547 km), 400 mi (643 km), and 325 mi (523 km),
respectively. In addition, GPS telemetry data are now revealing that
California condors in southern California are beginning to regularly
travel 93-124 mi (150-200 km) away from core use areas (USFWS
unpublished data). As the populations continue to grow, the number of
long-distance flights is likely to increase.
To date, nests have been concentrated in a relatively limited area
around release sites when compared to exceptional flight distances. The
farthest nest documented from release sites in each release area is
approximately 47 mi (76 km) in central California, 57 mi (92 km) in
southern California, 62 mi (100 km) in Arizona/Utah, and 15 mi (24 km)
in Baja California. We expect that as flock size grows the population
will continue to expand and nest sites will eventually be located
farther from release sites.
Seasonal shifts in movements to foraging grounds occur with changes
in food availability, and perhaps as a result of social factors (e.g.,
traditional movements) (Meretsky and Snyder 1992, p. 328; Snyder and
Snyder 2000, pp. 145-147; Hunt et al. 2007, pp. 85-87). There are also
seasonal changes in home range, with larger home ranges in late summer
and fall compared to late fall and early winter (Rivers et al. 2014a,
pp. 497, 499).
Life Cycle
Breeding California condors form pairs in late fall or early winter
and visit various potential nest sites within their nesting territory
in January and February (Finkelstein et al. 2015, Breeding). Once pairs
are formed they tend to stay together year-round for multiple years
until one member of the pair dies (Snyder and Snyder 2000, p. 19).
However, the death of one member of a pair can trigger a chain reaction
with multiple pairs switching mates. This situation can occur because
each California condor that loses its mate represents a potentially
more desirable mate to individuals of lower rank in the social
hierarchy of the flock. Breeding California condors lay a single egg
between late January and early April (Finkelstein et al. 2015,
Breeding). The egg is incubated by both parents and hatches after
approximately 53-60 days (Snyder and Snyder 2000, p. 19). California
condor pairs that lose their egg early in the breeding season (February
through mid-April) will generally lay a replacement egg (Snyder and
Hamber 1985, p. 377). When a replacement egg is lost, it has
occasionally been followed by a third egg (Finkelstein et al. 2015,
Breeding).
Both parents share responsibilities for feeding the nestling
(Snyder and Snyder 2000, p. 19). Feeding, via regurgitation, usually
occurs daily for the first 2 months, then gradually diminishes in
frequency (Snyder and Snyder 2000, p. 197). As early as 6 weeks after
hatching, California condor chicks leave the nest cavity but remain in
the vicinity of the nest where they are fed by their parents (Snyder
and Snyder 2000, p. 201). The chick takes its first flight at about 5.5
to 6 months of age but does not become fully independent of its parents
until the following year (Snyder and Snyder 2000, pp. 201-202). Parents
occasionally continue to feed a fledgling even after it has begun to
make longer flights to foraging grounds (Koford 1953, p. 103; Snyder
and Snyder 2000, pp. 202-203).
Because of the long period of parental care, it was formerly
assumed that successful California condor pairs normally nested every
other year (Koford 1953, pp. 22-23). However, this pattern can vary,
depending mostly on the time of year that the nestling fledges. If a
nestling fledges relatively early (in late summer or early fall), its
parents can nest again in the following year, but late fledging may
inhibit nesting in the following year (Snyder and Hamber 1985, pp. 377-
378; Snyder and Snyder 2000, p. 19).
Once independent, juvenile California condors often associate with
one another on the foraging grounds and join adults and other juveniles
at communal roosts (Finkelstein et al. 2015, Breeding). In a study of
the remnant wild population in southern California (1982-1987),
Meretsky and Snyder (1992, pp. 324-325; 329-330) found that California
condors in their first 2 years after fledging were generally limited to
natal nest areas and adjacent foraging areas. Older juveniles would
forage more widely, but it was not until age 4 or 5 that condors
visited virtually all foraging and nesting areas within a given
population. However, more recent data from the reintroduced populations
show that fledglings under 1 year of age can be fully integrated into
the flock, foraging hundreds of miles from natal or release areas and
by 2 years of age some individuals have demonstrated the ability to
cover the flock's entire range (USFWS, unpublished data). This
difference between the remnant wild population in the 1980s and the
current population is likely a product of the larger size of the
current population, and the larger number of older California condors
that are available to serve as mentors to recently fledged condors.
[[Page 15607]]
Demography and Threats
California condors are long-lived birds. In captivity, they can
live more than 50 years. Average age of first breeding is 8 years and 6
months for females and 9 years and 10 months for males (Mace 2017, pp.
240, 243). The oldest known breeding female was 38 years old (Mace
2017, p. 239).
Slow maturation and low reproductive rates in California condors
mean that low mortality rates are necessary for populations to be
stable or to grow (Mertz 1971, p. 448; Verner 1978, pp. 19-21; Meretsky
et al. 2000, pp. 960-961). Demographic models indicate that annual
adult mortality rates certainly must average <10 percent annually to
achieve stable or increasing populations (Verner 1978, pp. 19-21;
Meretsky et al. 2000, p. 961), and likely need to be <5 percent
(Meretsky et al. 2000, p. 961; Cade 2007, p. 2129; Woods et al. 2007,
p. 65; Walters et al. 2010, p. 974). Estimates of mortality rates in
the first decade of the release program in California and Arizona--when
individuals treated for lead poisoning were considered mortalities--
were between 17-35 percent, greatly exceeding the mortality rates
needed for a self-sustaining stable population (Meretsky et al. 2000,
p. 963). Currently, populations in the wild are only viable as a result
of augmentation through ongoing captive-breeding and release efforts,
in concert with intensive monitoring and management to reduce mortality
(Green et al. 2008; Finkelstein et al. 2012, p. 11452; USFWS 2013, pp.
27-30).
The primary threat to the viability of the California condor is
lead poisoning from spent ammunition left in gut-piles or carcasses of
animals that condors feed upon (Meretsky et al. 2000, p. 963; Church et
al. 2006, p. 6148; Cade 2007, entire; Woods et al. 2007, pp. 73-75;
Green et al. 2008, p. 9; Walters et al. 2010, pp. 993-994; Finkelstein
et al. 2012, pp. 11452-11453; Rideout et al. 2012, pp. 108-109; Kelly
et al. 2015, pp. 395-398; Bakker et al. 2017, pp. 101-103). Without
intensive management of the impacts from this threat, which includes
periodic trapping for health exams, monitoring blood lead levels, and
treatment if necessary, the wild populations would trend toward
extinction (Woods et al. 2007, p. 65; Green et al. 2008, pp. 8-9;
Walters et al. 2010, pp. 993-994; Finkelstein et al. 2012, pp. 11452-
11453). In the absence of this threat, California condor populations
would likely grow and become self-sustaining, without the need for
intensive management (Woods et al. 2007, p. 65; Green et al. 2008, p.
9; Finkelstein et al. 2012, pp. 11452-11453).
Several laws and voluntary programs to reduce the threat from lead
ammunition have been enacted. The State of California instituted a
restriction on the use of lead ammunition for hunting within the range
of the California condor in southern and central California in July
2008 (Ridley-Tree Condor Preservation Act 2008, entire). The geographic
and regulatory scope of this restriction was expanded with Assembly
Bill 711 (AB711) that was signed into law in October 2013. AB711
amended section 3004.5 of the California Fish and Game Code, relating
to hunting. The law, which restricts the use of lead ammunition for
taking wildlife, has been phased in; the final phase, which went into
effect in July 2019, enacted a State-wide ban of lead ammunition for
all take of wildlife. Nevada also has a regulation mandating the use of
nontoxic shot on all Nevada Wildlife Management Areas (NAC 503.183). In
addition to these laws and regulations, voluntary lead-reduction
programs are in place in California, Oregon, Nevada, Arizona, and Utah.
While these voluntary programs vary by State, actions under these
programs have included: (1) Surveys to understand attitudes toward lead
reduction; (2) outreach to hunters at sportsman shows, hunter education
classes, and in the field; (3) coordination with hunter constituency
groups; and (4) targeted vouchers for free non-lead ammunition (Sieg et
al. 2009, pp. 344-345; Chase and Rabe 2015, pp. 2-3; AGFD 2017, web
page, UDWR 2017, web page, ODFW 2017, web page; Huntingwithnonlead.org
2017, web page; nonleadpartnership.org, web page).
Other threats to California condors include: Rangeland conversion,
wind energy development, collision with and electrocution from
powerlines, predation, disease, inadequacy of existing regulatory
mechanisms, shooting, microtrash ingestion, pesticides, and habituation
to humans. A full description of these threats, and efforts to abate
them, are provided in our most recent status review for the California
condor (USFWS 2013, entire).
Relationship of NEP to Recovery Efforts
We published a California condor recovery plan in 1974 (USFWS 1975,
entire), and revised the plan in 1980 (USFWS 1980, entire), 1984 (USFWS
1984, entire), and 1996 (USFWS 1996, entire). To date, recovery efforts
have focused on reintroduction and recovery in the southern portion of
the species' historical range (see Captive Breeding and Reintroduction
Efforts, above). Recovery criteria for removing the California condor
from the endangered species list were not provided in the 1996 revision
to the recovery plan, as its primary focus was keeping the species from
going extinct. At the time the 1996 revised recovery plan was written,
there were only 17 California condors in the wild (USFWS 1996, p. 9)
and we could not anticipate at that time all actions that would be
necessary for full recovery. We recently clarified why it remains
impracticable to incorporate delisting criteria for the California
condor in the recovery plan (USFWS 2019b). The overall strategy for
recovery outlined in the 1996 recovery plan was to focus on: (1)
Increasing reproduction in captivity to provide condors for release,
(2) the release of condors to the wild, (3) minimizing condor mortality
rates, (4) maintaining habitat for condor recovery, and (5)
implementing condor information and education programs (USFWS 1996, p.
21). While the recovery plan did not have delisting criteria, it
included as criteria for reclassifying (or downlisting) to a threatened
species an objective of establishing at least two, preferably more,
self-sustaining disjunct wild populations in order to reduce the risks
to the overall population and to facilitate genetic and demographic
management (USFWS 1996, p. 24).
The 1996 revised recovery plan does not provide specific recovery
targets or actions for the Pacific Northwest, but our 1980 recovery
plan recommended surveys of Oregon, Washington, and California to
identify potential habitat for future releases into unoccupied portions
of the historical range (USFWS 1980, p. 50). Recent habitat modeling
has revealed large areas of potentially suitable nesting, roosting, and
feeding habitats in the Pacific Northwest (D'Elia et al. 2015, pp. 95-
96). Although criteria for full recovery were not provided in our
latest recovery plan revision (USFWS 1996, entire), increasing the
global population of the California condor and expanding its geographic
distribution among the ecosystems it once occupied are, on first
principles, consistent with efforts to recover the species.
An existing population model based on published demographic rates
(Bakker et al. 2017, entire) was used to simulate statewide California
condor population growth in California over the next 30 years (2018-
2048), assessing scenarios with and without the allocation of some of
the available captive-bred individuals to a new geographically disjunct
flock (Bakker and Finkelstein 2018, entire).
[[Page 15608]]
Preliminary model simulations suggest that allocating captive-bred
individuals to a new, geographically disjunct flock, which is expected
to have lower survival and reproduction compared to the existing
flocks, may reduce the population growth of condors in California.
Model simulations reinforce the importance of increasing captive chick
production and releases to the wild. The number of chicks produced in
the captive program and released to the wild has been variable over
time, but continues to drive population growth in the wild due to the
high chick and juvenile survivorship attainable in a captive setting
and to ongoing mortality in the free-flying population combined with
the long generational gap between chick stage and breeding age
(approximately 6-8 years) in California condors (Finkelstein et al.
2012, entire; Bakker et al. 2017, entire; Bakker and Finkelstein 2018,
entire).
The California Condor Recovery Program is currently proposing to
increase the number of captive-produced condors for release into the
wild, and would continue to allocate the number of chicks to each
release site necessary to maintain positive population growth at each
site, to the extent practicable. Continuing to grow the wild population
of California condors while reestablishing them in an unoccupied
portion of their historical range is consistent with our overall
strategy to recover the species.
In summary, an NEP in the Pacific Northwest would establish an
additional population in the United States, beyond the minimum of two
populations envisioned for downlisting to a threatened species. This
population would contribute to the conservation of the species by:
Further reducing the risk that any one catastrophic event would affect
a large proportion of the species (increasing the population
redundancy); increasing the global population of the species
(increasing resiliency); and expanding the geographic distribution of
the species among ecosystems (increasing representation by expanding
the ecological settings in which the species occurs).
Is the experimental population essential or nonessential?
When we establish experimental populations under section 10(j) of
the Act, we must determine whether such a population is essential to
the continued existence of the species in the wild. Although the
experimental population will contribute to the recovery of the
California condor, it is not essential to the continued existence of
the species in the wild. California condors are currently distributed
among three disjunct and intensively managed populations in California,
Arizona and Utah, and Baja California, Mexico. Management at these
sites includes: Monitoring individuals with VHF or GPS/GSM
transmitters; biannual trapping for health screenings; vaccination for
West Nile virus; aversive conditioning to power poles prior to release;
chelation therapy to treat California condors with elevated blood-lead
levels; and nest observations, entries, and interventions to maximize
productivity in the wild (Walters et al. 2010, pp. 972, 976, 982-984;
Romo et al. 2012, pp. 28-56; Southwest Condor Review Team 2017, pp. 4-
21; USFWS 2017, pp. 5-19). In addition, there are ongoing releases of
captive California condors into each of the wild populations. Releases
are carefully coordinated among sites to ensure a healthy age
structure, sex ratio, and distribution of founder genomes (Ralls and
Ballou 2004, pp. 221-225). As a result of the continued release of
condors and the coordination among release programs, the populations of
wild California condors continue to grow (USFWS 2018, p. 6).
In addition to the three wild populations, there is also a sizable
captive population at four breeding facilities, which are distributed
in California, Oregon, and Idaho (see Biological Information, above).
The breeding facilities are secure facilities, not open to the public,
where California condors are kept under 24-hour surveillance by condor
keepers or video cameras. The captive population is given extensive
care and deaths and injuries are rare, with a captive annual survival
rate after the first month of life of 0.989 percent (95 percent
confidence interval: 0.984-0.992) (Bakker et al. 2017, p. 97). In
addition, the geographic separation of the four breeding facilities
protects the captive population from the threat of extinction due to a
single catastrophic event.
The captive population was formed with only 13 apparent genetic
founders that comprised three genetic clans (Geyer et al. 1993, p. 573;
Ralls and Ballou 2004, p. 219; Pryor and Ralls 2016, p. 3). Genetic
management, which includes control of all captive matings, has been
implemented to minimize the loss of remaining genetic diversity and
ensure this remaining genetic diversity is well distributed among the
captive-breeding facilities and reintroduction sites (Ralls et al.
2000, p. 152; Ralls and Ballou 2004, p. 226; Pryor and Ralls 2016, p.
2). California condors released within the experimental population
would come from a mixture of the founder clans represented in the
captive population and would not represent a unique genetic lineage of
California condors. Therefore, loss of this population would not
represent a substantive change in the genetic diversity or genetic
viability of the worldwide population of California condors.
This reintroduction project will further the recovery of the
California condor by attempting to establish another wild population in
an unoccupied portion of the species' historical range. However, for
the reasons stated above, California condors released into the Pacific
Northwest are not essential to the survival of the species in the wild.
Therefore, as required by 50 CFR 17.81(c)(2), we find that the
experimental population is not essential to the continued existence of
the species in the wild, and we designate the experimental population
in the Pacific Northwest as a nonessential experimental population
(NEP).
Location and Boundaries of the NEP
Section 10(j) of the Act requires that an experimental population
be geographically separate from wild populations of the same species.
Considering a number of factors (as described in detail, below), we
drew the NEP area to include a portion of northern California,
northwestern Nevada, and all of Oregon. The western boundary of the NEP
is the Submerged Lands Act boundary line along the Pacific coast. The
southern boundary of the NEP is formed by an east-west line from
California's Submerged Lands Act boundary to Hare Creek; Hare Creek
from the Pacific Ocean to its junction with California State Route 1;
north to the junction of State Route 1 and State Route 20; east along
California State Route 20 to where it meets Interstate 80; and
Interstate 80 from its intersection with California State Route 20 to
U.S. Route 95 in Nevada. The eastern boundary of the NEP is U.S. Route
95 in Nevada to the State boundary of Oregon and then east and north
along Oregon's southern and eastern boundaries, respectively. The
northern boundary of the NEP is the northern State boundary of Oregon.
All highway boundaries are inclusive of the entire highway right of
way. See map below and in the Environmental Assessment (NPS et al.
2018, Figure 2, p. 5).
The last California condor specimen collected within the NEP area
was in 1892 along Yager Creek in Humboldt County, California (Smith
1916, p. 205; D'Elia and Haig 2013, pp. 39-46). Although there were a
few reported
[[Page 15609]]
California condor sightings up to 1925 in the area we are proposing to
designate an NEP, since then there have been no credible sightings of
condors in the wild in this area, or anywhere north of San Francisco
(D'Elia and Haig 2013, pp. 58-59). Given that almost all released
California condors are actively tracked with electronic transmitters,
we are confident that there are no wild condors in the NEP.
The location of the primary reintroduction site is the Bald Hills
of Redwood National Park, an area proximal to suitable nesting and
feeding habitat. Ten potential release sites were identified by the
Yurok Tribe, and the primary release site was selected following
careful consideration of site suitability, logistics, threats and
hazards, cultural resources, and suitability of adjacent lands (Yurok
Tribe 2020, entire). The release site will be situated in grassland
habitat above a redwood forest with sufficient topography to allow
young California condors to more easily achieve flight. Redwood forests
in the vicinity of the release site, as well as proximal mountain
ranges (Oregon Coast Range, Klamath-Siskiyou Mountains, and the
Northern Coast Range in California) are expected to provide ample
roosting and nesting habitat. Inland valleys and mountaintop prairies,
in conjunction with a proximal coastline, are expected to provide a
mixture of sufficient terrestrial and marine feeding areas and food
resources. Landscape-scale models indicate that the amount and
characteristics of habitat in the region compare favorably to other
portions of the historical range (D'Elia et al. 2015, pp. 95-96).
In defining the experimental population boundary, we attempted to
encompass the area where the population is likely to become established
in the foreseeable future. The term ``foreseeable future'' appears in
the Act in the statutory definition of ``threatened species.'' The Act
does not define the term ``foreseeable future.'' However, our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
foreseeable future extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
While we use the term ``foreseeable future'' here in a different
context (to establish boundaries for identification of the experimental
population), we apply a similar conceptual framework. Analysis of the
foreseeable future uses the best scientific and commercial data
available and should consider the timeframes applicable to the relevant
effects of release and management of the species and to the species'
likely responses in view of its life-history characteristics. Data that
are typically relevant to assessing the species' biological response
include species-specific factors such as lifespan, reproductive rates
or productivity, certain behaviors, and other demographic factors. For
the purposes of this rule, we define the foreseeable future as
approximately 20 years, the time horizon within which we can reasonably
forecast California condor population expansion given the number of
years of data we have on condor movements from release sites in
southern and central California (25 years in southern California and 23
years central California). We expect that the contribution of the
experimental population toward recovery of the California condor will
be evident during this time span, although we recognize that
establishing a self-sustaining population of condors in the region may
take longer given the species' extremely low reproductive rates. We
established the experimental population boundary large enough to
account for expansion over time as the introduced population begins to
breed in the wild, and to assist in identifying any individuals
belonging to the NEP. When possible, we used recognizable features on
the landscape, legal land descriptions, or administrative boundaries to
demark this experimental population boundary. We included the entire
State of Oregon to ensure that any California condors originating from
the releases at Redwood National Park and flying north into Oregon are
recognized as members of the NEP and are covered by the NEP
regulations.
Information we considered in drawing our NEP boundary included
California condor movement data from existing release sites, and the
location of the closest existing condor population, as well as input
from State wildlife agencies. Movement data indicate that, after 20
years of releasing California condors, most individuals remain within
approximately 124 mi (200 km) of their release site--although
exceptional flight distances occasionally occur and the existing
populations continue to expand as flock size increases. The closest
California condor release site to the Bald Hills release site is at
Pinnacles National Park, approximately 350 mi (563 km) to the south.
The proposed release site is approximately 124 mi (200 km) from the
nearest edge of the experimental population boundary, and the southern
edge of the experimental population boundary is approximately 112 mi
(180 km) from the northern extent of the closest endangered population
of California condors. Thus, the southern boundary of the NEP
approximates a mid-point between the nearest population in central
California and the proposed release site at Redwood National Park. The
farthest documented nesting pair of California condors from any release
site since the inception of the captive-breeding program was
approximately 62 mi (100 km), while most nests are within 47 mi (75 km)
of their release site of origin. Given our definition of foreseeable
future and the information from existing release sites, we anticipate
that California condors initially released at Redwood National Park--
with the exception of occasional exceptional flights--would remain
within the experimental population boundary over the first 20 years of
reintroductions. If a reintroduction of California condors in northern
California is successful, it is possible that some individuals from the
NEP may eventually move outside of the NEP area. It is also possible
that California condors from the other California release sites may
enter this NEP. We expect that these movements, if they occur, would be
infrequent in the foreseeable future given the size of the NEP, the
NEP's distance from existing populations, and observed California
condor movements at other release areas over the last two decades.
Further, we find that the interaction of individuals among the NEP and
existing endangered populations and the merging of these populations
are even more unlikely to occur in the foreseeable future given the
distance between the populations and the small number of California
condors likely to occupy the NEP. Even if California condors
occasionally moved into or out of the NEP, the presence of one or a few
individual dispersing condors would not constitute a ``population'' and
any individuals dispersing into or out of the experimental population
area would be treated as if they were part of the population at the
location where they are found (See Wyoming Farm Bureau Federation v.
Babbitt, 199 F.3d 1224, 1234-6, FN 5 (10th Cir. 2000) (finding the
Secretary reasonably exercised his management authority under section
10(j) in defining the experimental wolf population by location)). Based
on definitions of ``population'' used in other experimental population
rules
[[Page 15610]]
(e.g., 59 FR 60252, November 22, 1994 (gray wolves), 71 FR 42298, July
26, 2006 (Northern aplomado falcons)), we consider a population to
require a minimum of two successfully reproducing California condor
pairs over multiple breeding cycles. Using this definition of a
population, the best available information suggests that the population
of California condors formed from releases in Redwood National Park is
likely to be wholly separate from other populations of California
condors for the foreseeable future.
Likelihood of Population Establishment and Survival
The best available scientific data indicate that the reintroduction
of California condors into suitable habitat in Redwood National Park is
biologically feasible and would promote the conservation of the
species. Along with our numerous recovery partners, we have over 25
years of experience breeding and releasing California condors into the
wild at several release areas across various ecosystems. Release
techniques are well established, as are protocols for managing released
California condors. Based on our collective knowledge gained from these
efforts, we anticipate California condors will become successfully
established for the following reasons:
(1) Landscape-scale modeling indicates the NEP may have some of the
most extensive nesting, roosting, and feeding habitats remaining within
the historical range in California, Oregon, and Washington (D'Elia et
al. 2015, pp. 95-97). California condors are habitat generalists and
have been successfully reintroduced to a variety of ecosystems,
including the mountain foothills of southern California, coastal
forests of central California, high desert and canyon lands in
northeastern Arizona and mountainous areas in Baja California, Mexico.
This species is flexible in its diet, eating carrion of many different
species of wildlife and livestock. Therefore, we do not anticipate
climate change effects on habitat will negatively impact our ability to
reestablish a population of this species in the Pacific Northwest.
(2) A site-specific habitat evaluation, which considered site
suitability, logistics, threats and hazards, cultural resources, and
suitability of adjacent lands, found the release site to have
suitability ratings similar to existing release sites (Yurok Tribe
2020, entire).
(3) The causes for California condor extirpation from the region
are either no longer active or are being addressed through a mixture of
regulatory and proactive voluntary conservation measures (see
Addressing Causes of Extirpation, below).
(4) The extent of effects of existing and proposed actions and
activities within the NEP on the reintroduced population have been
evaluated in an environmental assessment and are compatible with
conservation of the California condor (NPS et al. 2018, entire).
(5) The reintroduced population will receive ongoing demographic
support from a managed captive population and an active field
monitoring and management program (Similar population support has
allowed population growth and establishment at all of the other
California condor release sites).
(6) The reintroduced population will be integrated with the
California Condor Recovery Program to ensure that California condors
released in Redwood National Park have an appropriate sex ratio and
age-structure and include representatives of the founder genomes.
(7) There is broad institutional and partner support for a
California condor reintroduction in Redwood National Park and Yurok
ancestral territory.
On June 14, 2016, a Memorandum of Understanding between 16 parties
was finalized. The purpose of the MOU was to formalize an agreement to
assess the potential to recover California condors in the Pacific
Northwest and to work to seek funding to support that effort if it
proved feasible. Signatories to the MOU included the U.S. Fish and
Wildlife Service, National Park Service (NPS), Bureau of Land
Management, Yurok Tribe, California Department of Fish and Wildlife
(CDFW), California Department of Parks and Recreation (CDPR), Oregon
Department of Fish and Wildlife (ODFW), Oregon Zoo, Sequoia Park Zoo,
Ventana Wildlife Society, Oakland Zoo, Pacific Gas and Electric
Company, Pacific Power Company, Green Diamond Resource Company, and
Hells Canyon Preservation Council. In 2018, the U.S. Forest Service
also signed this MOU.
Based on all of these considerations, we anticipate that
reintroduced California condors are likely to become established and
persist within the NEP.
Addressing Causes of Extirpation
Investigating the causes for decline and extirpation of California
condors is necessary to understand whether the threats have been
sufficiently curtailed such that reintroduction efforts are likely to
be successful. Evaluation of various hypotheses for the extirpation of
California condors in the Pacific Northwest revealed that secondary
poisoning related to predator control and extermination campaigns,
direct persecution, and possibly lead poisoning from spent ammunition
were the primary causes (D'Elia and Haig 2013, pp. 119-122). Two of
these primary drivers of regional extirpation--predator poisoning and
direct persecution--are no longer the primary threats to the California
condor. According to the most comprehensive assessment of California
condor deaths from 1992 through 2009, of the 76 deaths where a
definitive cause was determined, there were no confirmed cases of
secondary poisoning related to predator control (although there was one
possible case involving glycol toxicosis) and only five cases of
condors directly persecuted by gunshot or arrow (Rideout et al. 2012,
pp. 108, 110).
Based on multiple lines of evidence, the primary threat to the
recovery of the California condor is lead poisoning from spent
ammunition (see Biological Information, above). Regulations banning
lead ammunition for taking wildlife in California are in effect (see
Biological Information, above). In addition, voluntary efforts to
reduce lead exposure in wildlife are ongoing in Oregon and Nevada (see
Biological Information, above). Finally, the reintroduction program
will carefully monitor the population and conduct regular health checks
to evaluate whether reintroduced California condors are being exposed
to lead, the rate of exposure, and how this situation compares to other
portions of the species' range. When necessary, California condors with
elevated lead levels will be treated for lead poisoning. While the
threat from lead ammunition is still present in the experimental
population area, it is being addressed through a mixture of regulatory
and proactive voluntary measures (see Biological Information, above);
therefore, we will not request further regulation of lead ammunition
for this experimental population. Sources of mortality will be
carefully monitored, and if high mortality rates are preventing the
establishment of a self-sustaining population, we will work with our
conservation partners to implement additional voluntary measures to
address threats, as we have at other California condor release sites.
If a formal evaluation indicates the project is experiencing a 40
percent or greater mortality rate over multiple years or released
California condors are not finding food on their own, serious
consideration will be given to terminating the project.
[[Page 15611]]
Release Procedures
Release procedures at Redwood National Park are described in the
environmental assessment (NPS et al. 2018, pp. 23-28) and would be
similar to those at existing release sites. Procedures include: (1) The
use of an onsite release pen where California condors are kept for a
short period of time prior to release; (2) tracking of all released
condors via telemetry (VHF and GPS/GSM); and (3) supplying condors with
proffered food at the release site to allow for repeated trappings to
monitor health and replace transmitters.
In general, a new cohort of captive-reared California condors will
be released annually. The size of each release group will depend on the
number of California condors in captivity available for release, but
annual releases will likely involve up to six condors. California
condors hatched in captivity will be raised by their parents or a
condor look-alike hand puppet until they are approximately 6 months to
1 year old. They will then be placed with other California condors in a
single large pen so they will form social bonds and undergo aversion
training to power poles. The young California condors will be
transported to the release site at Redwood National Park when they are
approximately 1.5 to 2 years old. At the release site they will be
placed in a flight pen and will remain there for an acclimation period
of approximately 3 months.
Biologists will remain near the release pen, observing the young
California condors' behavior and guarding against predators or other
disturbance. After the initial adjustment period, California condors
will be released from the flight pen. Any release candidate showing
signs of physical or behavioral problems will not be released. A small
area of NPS land will be closed to recreational activity to protect the
California condors in or around the release facility. Carcasses will be
provided at the release site, as supplemental food for newly released
California condors, and as necessary, to attract condors for periodic
trapping to check their health and swap-out transmitters.
All California condors released to the wild will be marked to allow
identification of individuals. Current methods for doing this include
placing electronic transmitters (e.g., Argos, GSM (Global System for
Mobile communication), and VHF transmitters) and wing markers on the
wings of each California condor. The movements and behavior of each
California condor will be monitored remotely using electronic
transmitters and ground observations. Aerial tracking will be used to
find lost individuals, and telemetry flights will be coordinated with
the appropriate land management agencies. Our methods for identifying
and monitoring individuals will be adaptive and may change as
technology improves.
We will endeavor to maintain an even sex-ratio across a range of
age-classes in the released population. Adult California condors unfit
for release may be transported to the release site and kept in the pen
as mentors for the acclimating cohort. Adjustments will be made in
release cohort structure annually based on availability from captive-
breeding facilities, genetics, sex-ratio, and age.
Donor Stock Assessment and Effects on Donor Population
The donor population for the reintroduction of California condors
to Redwood National Park is the captive population of California
condors. Although the captive population is located at four breeding
facilities, these facilities cooperate to manage the entire wild
population and captive population as a single entity, exchanging
California condors and condor eggs among the facilities as necessary
for population and genetic management (Ralls and Ballou 2004, p. 216).
As of December 2019, there were 181 California condors in
captivity, and the size of the captive population has been relatively
stable over the last 5 years, with end-of-year counts ranging from 167
to 181 during this time period (USFWS 2020, p. 5). With the assistance
of the captive-breeding program, the total population of California
condors increased from 370 condors in 2010 to 518 condors in 2019
(USFWS 2020, p. 5).
The donor population is carefully managed to ensure its long-term
viability. Annual reviews of breeding, captive pairings, genetic
health, and demographic factors are undertaken to ensure that captive-
releases will not be detrimental to the stability of the captive flock.
In addition, the captive-breeding program has capacity to pair
additional captive California condors to increase reproductive output
as they become available for breeding and to replace senescent condors.
This could be done through multiple clutching, the use of non-breeding
adults to serve as foster parents, and/or puppet rearing. Given the
careful management of the donor population, the ability to increase its
productivity, and the relatively small number of California condors
that will be released at Redwood National Park annually, impacts to the
donor population are expected to be negligible.
Management
The Service, NPS, and the Yurok Tribe will plan and manage the
reintroduction of California condors at Redwood National Park. In
addition, these agencies will carefully collaborate on releases,
monitoring, condor care and behavior management, nest observations and
interventions, coordination with landowners and land managers, public
awareness, and other tasks necessary to ensure successful
reintroduction of the species (Yurok Tribal, 2020, entire). A few
specific management considerations related to the experimental
population are addressed below.
(a) Incidental Take: Experimental population special rules contain
specific prohibitions and exceptions regarding the taking of individual
animals. These special rules are compatible with most routine human
activities in the expected reestablishment area. Section 3(19) of the
Act defines ``take'' as ``to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct.'' ``Incidental take'' is further defined as take that is
incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity. By adopting the 10(j) rule, most incidental take of
California condors within the experimental population area is allowed,
provided that the take is unintentional and not due to negligent
conduct. However, habitat alteration (e.g., removing trees, erecting
structures, altering the nest structure or perches near the nest) or
significant visual or noise disturbance (e.g., tree felling, chainsaws,
helicopter overflights, concrete cutters, fireworks, explosives) within
656 ft (200 m) of an occupied nest are prohibited. Excluded from this
prohibition are emergency fuels treatment activities by Federal, State,
and local agencies and Tribes to reduce the risk of catastrophic
wildfire and emergency response services. Activities such as ranching
and use of existing roads and trails within the 656-ft (200 m) buffer
area around an occupied nest would not be considered a significant
visual or noise disturbance. For the purposes of this rule, an occupied
California condor nest is defined as a nest that is: (1) Attended by a
breeding pair of condors, (2) occupied by a condor egg, or (3) occupied
or attended by a <1-year-old condor.
The 656-ft (200 m) buffer is meant to serve to minimize visual and
auditory impacts associated with human activities near nest sites. We
chose a 656-ft (200 m) buffer after considering
[[Page 15612]]
buffer distances used for other raptors, which varied widely from 162
to 5,249 ft (50-1,600 m) (Richardson and Miller 1997, pp. 635-636;
Romin and Muck 2002; USFWS 2007, p. 13), as well as past
recommendations on buffer distances for California condor nests, which
ranged from 0.5 to 1.5 mi (0.8-2.4 km) (Carrier 1973, pp. 71-73). This
variation is likely the result of differences in environmental setting,
species-specific responses, status of the species at the time of the
recommended buffer, the nature of the disturbance, and the purpose of
the buffer. It is important to note that historical California condor
buffer distances of 0.5 to 1.5 mi (0.8-2.4 km) were based on anecdotal
observations of a small number of condor nests in a declining
population, and were necessarily conservative given the context of a
nearly extinct species. The nest buffer for this rule is smaller than
those earlier recommendations because of new information suggesting
that nesting California condors may be more tolerant of disturbance
than previously believed (see below). We also accounted for the fact
that we are establishing this population as a nonessential experimental
population. Therefore, our buffer distance around nests may be less
conservative than our recommended buffer distances from nests where
California condors are listed as endangered.
While species-specific responses to disturbance have not been
formally studied for the California condor, observations in the 1950s
and 1960s found that once a condor nest is started, it will not be
abandoned unless the egg or chick is lost or the parents killed (Sibley
1969, p. 8). In addition, recent observations have documented
successful nests within 0.5 mi (0.8 km) from active oil and gas
operations and within 656 ft (200 m) of busy highways, hiking trails,
and forestry practices such as operating chainsaws and chippers (A.
Welch, NPS, pers. comm. 2015). One nest in a giant sequoia tree was
successful despite being ``right on the edge'' of a clearcut operation
(which ceased only 3 weeks prior to egg laying) and only about 656 ft
(200 m) from, and in direct view of, an intermittently used dirt road
(Snyder et al. 1986, p. 238).
Although the best available information suggests that California
condors may not be as susceptible to disturbance as we thought in the
1960s-1980s, flushing of condors from nests has been documented due to
disturbance and this activity has the potential to result in the egg
breaking if the adult that is flushed is incubating the egg (Sibley
1969, p. 8). It is also possible that prolonged or repeated
disturbances may cause nest failure (Sibley 1969, p. 15). To minimize
the chances of nest or egg destruction and to preserve the structural
integrity of habitat around nests while minimizing impacts to
stakeholders, we are prohibiting habitat alteration or significant
visual or noise disturbance within 656 ft (200 m) of occupied nests,
with the exceptions noted above.
Existing and proposed activities and land uses surrounding the park
that could potentially result in incidental take include wind power,
utility transmission lines, mining, commercial timber production,
ranching operations, and recreational activities (NPS et al. 2018). As
noted above in our evaluation of the likelihood of population
establishment and survival, we determined that the extent of effects of
these activities within the NEP is compatible with conservation of the
California condor. We expect few restrictions on these activities
because most incidental take, including take associated with lead
ingestion, is not prohibited. Some activities, such as those associated
with habitat alteration or significant visual or noise disturbance
within 656 ft (200 m) of an occupied nest, would be prohibited, as
described above. However, because (1) the number of individuals
initially released would be small, (2) California condors nest only on
cliffs and in large tree cavities, (3) California condors tend to nest
in less accessible and remote areas, and (4) the nests would be
dispersed rather than concentrated in a particular area, we expect
impacts to existing and proposed activities to be minimal (NPS et al.
2018). For the reasons stated above, it is unlikely that a condor would
nest within areas with ongoing timber harvest operations, as only about
0.5 percent of harvestable timber on private lands within the study
area are likely to contain suitable nesting trees. (NPS 2018). Once the
condor chick has fledged, activities could resume, so any prohibitions
on activities would be temporary in nature.
(b) Interagency Consultation: For purposes of section 7 of the Act,
section 10(j) of the Act and our regulations (50 CFR 17.83) provide
that nonessential experimental populations are treated as species
proposed for listing under the Act except on National Park System and
National Wildlife Refuge System lands, where they are treated as
threatened species for the purposes of section 7 of the Act.
(c) Special Handling: USFWS, NPS, CDPR, CDFW, ODFW, Nevada
Department of Wildlife (NDOW), and Yurok Tribe Natural Resource
Division employees, and authorized agents acting on their behalf, may
handle California condors for scientific purposes; to relocate or haze
California condors to avoid conflict with human activities; for
recovery purposes; to aid sick or injured California condors; and to
salvage dead California condors. However, non-Service or other non-
authorized personnel will need to acquire permits from the Service and
the appropriate State or Tribal agency for these activities. Protocols
for management and monitoring have been developed based on decades of
experience from releasing condors in other areas (Yurok Tribe 2020,
entire). Management and monitoring practices covered by these protocols
include holding and releasing condors, monitoring, condor care and
behavior management, nest observations and interventions, and other
tasks necessary to ensure successful reintroduction of the species
(Yurok Tribe 2020, entire). These protocols are designed to be adaptive
and will be updated periodically as new information is acquired.
Management and monitoring activities (see Yurok Tribe 2020) by any
employee or agent of the Service, National Park Service, Yurok Tribe
Natural Resource Division, CDPR, CDFW, NDOW, or ODFW who is designated
and trained for such purposes, when acting in the course of official
duties, will be exempt from take prohibitions.
(d) Public Awareness and Cooperation: During January 2017, in
cooperation with the Yurok Tribe and Redwood National Park, we
conducted five NEPA scoping meetings on the proposed action of
reintroducing California condors to the Pacific Northwest, with the
possibility of designating the reintroduced population as an NEP. We
notified a comprehensive list of stakeholders of the meetings including
affected Federal and State agencies, Native American Tribes, local
governments, landowners, nonprofit organizations, and other interested
parties. The comments we received were included in the formulation of
alternatives considered in the NEPA process, and were considered in
formulating proposed experimental population regulations for California
condors within the NEP. We opened a 60-day comment period on our
proposed regulations and EA, with another round of notifications to our
comprehensive list of stakeholders. We also held public meetings in
Portland, OR, Medford, OR, Klamath, CA, and Arcata, CA during the
public comment period.
[[Page 15613]]
Monitoring and Evaluation
In cooperation with conservation partners, we will monitor
movements, habitat use, and survival of all released California condors
(NPS et al. 2018, pp. 23-28). Monitoring individual movements will
allow field staff to identify potential problem-behaviors and to
capture, relocate, or haze individual California condors for their
safety. It will also allow us to detect any California condors that
move outside of the experimental population area. Trapping will occur
at the release site to allow for hands-on physical exams of
individuals, replacement of faulty or aging transmitters, marking
growing feathers, sampling feathers marked previously for lead history
construction, and drawing blood for immediate testing of circulating
blood lead levels and laboratory analysis for other contaminants of
interest including, but not limited to, organophosphates and
anticoagulant rodenticides. We will also attempt to determine the
cause-of-death for all condor mortalities so we can look for emergent
patterns and evaluate whether additional management interventions are
necessary.
Annual reports that summarize monitoring and management activities
will be collaboratively developed by the Yurok Tribe, NPS, and USFWS.
We will evaluate the reintroduction program to determine whether to
continue or terminate reintroductions every 5 years as part of our 5-
year status review for the species.
Summary of Comments and Recommendations
In the proposed rule published on April 5, 2019 (84 FR 13587), we
requested that all interested parties submit written comments on the
proposal by June 4, 2019. In addition, in accordance with our joint
policy on peer review published in the Federal Register on July 1, 1994
(59 FR 34270) and updated guidance issued on August 22, 2016 (USFWS
2016, entire), we solicited peer review of our proposed rule from three
knowledgeable individuals with scientific expertise in California
condor ecology and management. We received responses from two of the
peer reviewers. We also contacted appropriate Federal and State
agencies, Tribes, scientific experts and organizations, and other
interested parties and invited them to comment on the proposal. In
addition, on May 7-9, 2019, we held public meetings on the proposal in
Portland, OR; Medford, OR; Arcata, CA; and, Klamath, CA.
We reviewed all comments received from the public, States, Tribes,
and peer reviewers for substantive issues and new information regarding
the establishment of an experimental population of California condors
in the Pacific Northwest. Substantive comments are addressed in the
following summary and have been incorporated into the final rule as
appropriate. Any substantive changes incorporated into the final rule
are summarized in the Summary of Changes from the Proposed Rule
section, below.
Peer Review Comments
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinion from three knowledgeable
individuals with scientific expertise in the species' biology, habitat,
and raptor reintroductions in general. We received responses from two
of the peer reviewers.
Both peer reviewers expressed support for the reintroduction with
an associated 10(j) rule and agreed the action is likely to contribute
to the conservation of the species. We incorporated specific updated
information, comments, and suggestions from peer reviewers into the
final rule as described in our responses, below.
Comment: One peer reviewer pointed out that, in our proposed rule,
we stated that predator-poisoning was no longer a primary threat to
condors. The reviewer notes that another form of poisoning, from
anticoagulant rodenticides, remains a serious concern for wildlife in
northern California and may pose a greater threat than in central and
southern California condor populations.
Response: Predator-poisoning campaigns targeting large predators,
like gray wolves and grizzly bears, are fundamentally different from
the use of anticoagulant rodenticides that are primarily targeting
small rodents. Nevertheless, we acknowledge that condors released in
northern California may be exposed to rodenticides. We do not yet know
the rate of exposure or whether this exposure will have a significant
effect on condor demographic rates. It is currently unclear whether
exposure rates will be higher, lower, or the same as observed in other
parts of the condor's range, or whether their exposure rates will be
comparable to exposure rates in other surrogate avian scavengers. As
stated in the final rule, we will be conducting regular physical exams
of condors and will attempt to determine cause-of-death for all condors
that die and whose bodies are available for necropsy. If exposure to
anticoagulant rodenticides is a significant factor affecting population
growth, we will adapt our management accordingly.
Comment: One peer reviewer noted that, in our proposed rule, we
mention the lead ammunition ban in California and the efforts being
taken in Oregon to get hunters to voluntarily switch to non-lead
alternatives. They asked whether Nevada, part of which is included in
the NEP boundary, would be undertaking any outreach for voluntary
effort to curb lead ammunition use.
Response: NDOW has implemented some voluntary measures to encourage
hunters to switch to non-lead ammunition. In 2015, NDOW collaborated
with the North American Non-lead Partnership to train hunter education
instructors about non-lead ammunition. Non-lead ammunition outreach is
now included in all hunter education training in Nevada. In addition,
Nevada also has a regulation mandating the use of nontoxic shot on all
Nevada Wildlife Management Areas (NAC 503.183).
Comment: One peer reviewer noted that the nest buffer of 200 m is
somewhat less conservative that what has previously been recommended,
but, given the evidence presented and the fact that this is being
designated as an NEP, they thought that the buffer size was a
reasonable starting point. This reviewer suggested providing a
mechanism for expanding the buffer, under certain circumstances. The
other peer reviewer stated that the 200 m buffer around nests seemed
risky. They suggested starting with a larger buffer, with the option of
making it smaller in certain circumstances.
Response: The 656 ft (200 m) buffer distance around occupied nests
is intended to provide some protection to condor eggs and nestlings. We
recognize that, in certain situations, noise or habitat disturbance
outside of this buffer may cause harassment, or even harm, to an
individual condor. We expect these instances to be extremely rare given
the small number of anticipated breeding condors in the foreseeable
future and the vastness of the landscape they will occupy. For the
reasons articulated in this final rule (see Management, above), we find
that a 656 ft. (200 m) buffer distance provides a reasonable balance
between protection of condors and limiting the impact of this
reintroduction effort on landowners.
Comment: One peer reviewer asked about the timing of our program
review and how that relates to the timing of the Service's 5-year
status review of the species. As the last California condor 5-year
review was completed in 2013, they were concerned that our review
periods would not be aligned.
[[Page 15614]]
Response: We will informally review the status of the
reintroduction program on an annual basis. We intend to release key
information from this informal annual review (e.g., population size,
number of releases, number of deaths) to the public. Our formal status
review of the reintroduction program, where we will assess whether we
should continue or discontinue the reintroduction program in the
Pacific Northwest, will likely occur within the first 5 years of the
program. The review cycles will be aligned from that point forward.
Based on our experiences releasing California condors in other areas,
we caution that evaluating whether or not the program is successful--
and therefore, whether it should continue--will take at least two
decades (i.e., several 5-year review cycles).
Comment: One peer reviewer suggested that we should provide
mechanisms for cancelling the program if a sufficient number of condors
are killed or lost for reasons that cannot be alleviated due to the
experimental NEP status.
Response: As stated in the proposed rule, and in this final rule,
if a formal evaluation indicates the project is experiencing a 40
percent or greater mortality rate over multiple years or released
California condors are not finding food on their own, we would evaluate
options, including discontinuing releases, capturing and removing
condors from the NEP area, and whether to remove the NEP designation
and regulations. If we proposed removal of the regulations, we would
provide an opportunity for public review and comment.
Comment: One peer reviewer expressed concern over whether
establishing a new population would impact the viability of existing
populations. They also asked us to describe how the captive facilities
will increase production and questioned whether funding and support
would be available to accomplish that work.
Response: In our proposed rule, and in this final rule, we provide
information on a preliminary demographic analysis that shows existing
populations are likely to continue to grow even when breeding
facilities are producing California condor chicks at less than existing
capacity. The condor program has a long history of cooperation among
partner institutions, and we have broad support among these
institutions for establishment of a new release site in the Pacific
Northwest. Likewise, the condor program is funded by a wide variety of
partners and sources which are expected to continue to be able to
support the existing breeding facilities capacity. Decisions on
allocation of condor chicks are made in collaboration with these
partner institutions and geneticists. Given the available information
on condor demography and the strength and longevity of our
partnerships, we are confident that captive-breeding facilities will
continue to produce sufficient numbers of California condors to ensure
the viability of existing populations and the success of a new
reintroduction program in the Pacific Northwest.
Comment: One peer reviewer stated success of the reintroduction
program was not defined. They requested that we included an explicit
definition of success or remove the term from the final rule.
Response: The ultimate goal of any conservation reintroduction is
to establish a self-sustaining wild population. We will evaluate, every
5 years, whether the program is progressing toward achieving that goal.
Based on our experience, estimates of mortality rates in the first
decade of the release programs at existing sites in California and
Arizona were between 17-35 percent. Since we expect it will take many
years to achieve our ultimate goal of a self-sustaining wild
population, we will consider success to be the continued progress
toward achieving that goal. As stated in the final rule, if we observe
a 40 percent or greater mortality rate over multiple years, or released
California condors are not finding food on their own, serious
consideration will be given to terminating the project.
Comment: One peer reviewer asked whether there might be threats
unique to northern California or Oregon, that are not threats in the
current range of the California condor.
Response: We are not aware of any threats to the California condor
that are unique to the Pacific Northwest. We will closely monitor the
health of released condors and address any novel threats, should they
emerge.
Comment: One peer reviewer stated that he thought the scientific
and biological components of the proposed rule were excellent and
clearly described. He also provided several technical corrections and
edits related to condor biology and management.
Response: We thank the reviewer for his comments and, as
appropriate, have incorporated corrections.
Public Comments
Comment: Condors should be removed from the field if designation of
a nonessential population changes recreational activities that were
legal at the time of the designation, specifically hunting and
recreational shooting. Other activities that should be protected in
this manner include ranching, timber harvest activities, mining,
environmental remediation and restoration, power operations,
transportation for both inter- and intra-state commerce, currently in-
place endangered species recovery plans, and housing development in
cities. Commenters suggested that removing condors from the field
should also be included if a sufficient number of individuals are lost
during the program.
Response: This rule exempts almost all incidental take of
California condors. Significant noise or visual disturbance or habitat
alteration within 656 ft (200 m) of occupied nests are prohibited.
Excluded from this prohibition are emergency fuels treatment activities
by Federal, State, and local agencies and Tribes to reduce the risk of
catastrophic wildfire and emergency response services. Activities such
as ranching and use of existing roads and trails within the 656 ft (200
m) buffer area around an occupied nest would not be considered a
significant visual or noise disturbance. Thus, this rule provides
substantial assurances that there will be minimal (if any) impacts to
the activities the commenter mentions. As stated in the proposed rule,
and in this final rule, if a formal evaluation indicates the project is
experiencing a 40 percent or greater mortality rate over multiple years
or released California condors are not finding food on their own,
serious consideration will be given to terminating the project.
Comment: Commenters asked for clarification on how the 10(j) rule
would address condors that leave the NEP area. One commenter suggested
that the rule should require condors that leave the designated NEP
boundary to be recaptured and returned, which would address the
requirement that this population be geographically disjunct from other
populations and result in better survival of birds that leave the NEP
area.
Response: California condors that fly outside of the NEP area will
be evaluated on a case-by-case basis. We do not require the relocation
of condors that leave the NEP area. We will consider recapture if a
condor moves outside of the NEP and is observed--by an individual
trained in condor biology and behavior--exhibiting signs of illness,
obvious distress, or exhibits behavior indicating it is at increased
risk of harm. While this population is likely to be wholly separate
from other condor populations for the foreseeable future, we do not
intend to actively
[[Page 15615]]
preclude the eventual connectivity of condor populations.
Comment: Commenters stated that the 10(j) designation should
eliminate the proposed exemptions for electric utilities and wind farms
because these companies could use other resources/structures (e.g.,
geofencing) to meet the 10(j) requirements. Commenters also stated that
the voluntary actions undertaken by the utility owners may not be
adequate to protect the NEP.
Response: The primary reason to designate a population as
experimental is to engender support for reintroducing an endangered
species by more surgically applying the necessary protections of the
ESA. Based on known mortalities in other portions of the condor's
range, deaths from electric utilities and wind turbines are not the
primary threats to condor demographic rates. We will work with electric
utilities and wind farm developers and operators to minimize and avoid
impacts to condors. As noted in the proposed rule, PG&E has developed
and is implementing a plan to minimize take of condors throughout the
range of the species. The Service is working with wind energy companies
in other parts of the species' range to minimize risk of condor
collision with turbines.
Comment: Commenters stated that the 10(j) rule should increase the
level and enforcement of penalties.
Response: Section 11 of the ESA addresses civil and criminal fines
and penalties associated with violations of the provisions of the ESA
and permits issued under the ESA. Any enforcement actions under the ESA
will be subject to the maximum fines and penalties outlined in this
statute, as those amounts have been adjusted pursuant to Federal law.
The current penalty amounts are in 50 CFR 11.33, as adjusted this year
(85 FR 10310, February 24, 2020). Enforcement actions and any ensuing
penalties for violations of the ESA are based on the facts of each
case.
Comment: The California condor should not be established as an NEP
without assurances that hunting and recreational shooting would
continue. Commenters indicated that a ``special rule'' should be in
place to ensure that hunting and/or recreational shooting are not
affected.
Response: Incidental take of California condors associated with
legal and non-negligent hunting and recreational shooting is not
prohibited within the NEP, provided such take is unintentional and non-
negligent. Habitat alteration and significant visual and noise
disturbance within 656 ft (200 m) of an occupied nest is prohibited.
Excluded from this prohibition are emergency fuels treatment activities
by Federal, State, and local agencies and Tribes to reduce the risk of
catastrophic wildfire and emergency response services.
Comment: The 10(j) rule as written is too permissive and should be
revised to start with full protection and note where protections do not
apply.
Response: ESA section 10(j) rules are intended to promote recovery
of threatened and endangered species, while reducing the impact of
reintroductions on stakeholders. For the reasons articulated in the
preamble (see Management, above), we find that the special regulations
will provide the appropriate balance of species protection and reduced
impact to stakeholders.
Comment: Commenters expressed concern that reducing protections for
the California condor would establish a new baseline for policymaking
in the future.
Response: We evaluate the need for an experimental population
designation and associated 10(j) rules on a case-by-case basis. After
carefully reviewing the best available information and coordinating
with our State and Tribal partners, Federal land managers, local
landowners, and other conservation partners, we have determined that a
California condor reintroduction in this area would not have the
necessary support without an experimental population designation. This
is not the first nonessential experimental population of the California
condor and, therefore, is not precedent-setting. Furthermore, nothing
in this rule establishes a new baseline for future policy decisions on
achieving condor recovery as this rule applies only to this population.
Comment: Several commenters were concerned about potential impacts
on land use and socioeconomics in Nevada. One commenter suggested that
take of condors should not be deemed negligent where there have been
infrequent or inconsistent occurrences of the species in a given
project area or where a given instance of take is the first occurrence.
Response: Although the northwestern corner of Nevada is included in
the NEP boundary, the best available information on habitat suitability
and landscape connectivity suggests that this area is unlikely to
become occupied by condors in the foreseeable future. We included
northwestern Nevada within the NEP to provide assurances to Nevada that
in the unlikely event California condors travel to this area, they
would be treated as nonessential experimental animals under the Act.
While we do not expect condors to occupy northwestern Nevada within the
foreseeable future, we are exempting incidental take from otherwise
lawful activities within the NEP, including this area, as long as such
take is unintentional and non-negligent. We decline to exempt negligent
take, even if the species is infrequently observed in an area.
California condors are easily identified and should not be mistaken for
any animal that can be legally harvested, killed, captured, wounded, or
harassed. Habitat alteration or significant visual or noise disturbance
within 656 ft (200 m) of an occupied nest are prohibited. Excluded from
this prohibition are emergency fuels treatment activities by Federal,
State, and local agencies and Tribes to reduce the risk of catastrophic
wildfire and emergency response services. These exemptions and
regulations are expected to minimize impacts on land use and
socioeconomics in the remote event condors occupy northwestern Nevada.
Comment: One commenter requested clarification on the proposed
timeline of the stipulations in the rule, specifically asking about the
20-year timeframe noted in the rule.
Response: This rule will remain in place unless it is rescinded
through formal rulemaking. The 20-year timeframe in this rule refers to
the time horizon over which we can reasonably forecast California
condor population expansion to define the boundary of the experimental
population. It also provides a time horizon over which we analyzed the
likelihood the population will become established and survive in the
NEP. We chose 20 years based on the number of years of data we have on
condor movements from release sites in southern and central California.
We expect that the contribution of the experimental population toward
recovery of the California condor will be evident during this time
span, although we recognize that establishing a self-sustaining
population of condors in the region may take longer given the species'
extremely low reproductive rate.
Comment: One commenter asked for further clarification on how a
decision would be made to remove condors from the field in the event
that the FWS was compelled by a court order to change the protection
status of the population, asking if it would be based on votes of
participating parties or would MOU signatories have any type of veto
power.
Response: While FWS would ultimately be responsible for determining
how to proceed and ensuring any changes in the legal status and/or
removal of this population of
[[Page 15616]]
California condors are made in compliance with any applicable Federal
rulemaking and other procedures, we would carefully consider input from
partners. The MOU signatories include a range of agencies, conservation
partners, and stakeholders with interests that represent a wide variety
of interests associated with land management activities. FWS would meet
with all of the 17 partners to the MOU to discuss the options on how to
proceed, including the option of attempting to capture and relocate all
the condors in the wild. We would discuss the consequences of each
option with the MOU partners and would make a fact-specific assessment
of how to proceed based on the information at that time, including
whether there was general agreement from the MOU partners that the
condors should remain in the wild. FWS does not intend to hold a formal
vote, and none of the MOU signatories would hold veto power.
Comment: Commenters requested that additional activities exempt
from take prohibitions be specifically stated in the rule, including
existing authorized uses of private and public lands; administrative
and emergency functions carried out by local, State, or Federal
government; and normal agricultural practices.
Response: We have clarified that the activities provided by the
commenters are also exempt from incidental take prohibitions, provided
the take is unintentional and the activities are lawful. Please see the
Management section above for these changes.
Comment: Commenters requested that our 10(j) rule include more
specific language stating that the construction, operation, and
maintenance of wind energy and electric transmission facilities would
not constitute take. To address this concern, they suggested paragraph
(i)(2) be amended to remove the term ``non-negligent'' and to
specifically add electric transmission and distribution and wind
generation facilities.
Response: Construction, operation, and maintenance of wind energy
and electric transmission facilities may result in take of California
condors. However, by issuing this rule, we are exempting such
incidental take (provided it is lawful and non-negligent) from the
prohibitions of the ESA. We decline to remove the term ``non-
negligent'' as we do not intend to exempt negligent take from the
prohibitions of the ESA.
Comment: One commenter asked that the phrase ``unavoidably and
unintentionally'' used in the 10(j) rule be further clarified. The
following clarification was proposed: ``[t]ake that occurs unavoidably
and unintentionally is that which occurs despite reasonable care and is
not done on purpose.''
Response: The commenter's interpretation of ``unavoidably and
unintentionally'' is consistent with how we intend its use in this
rule. We have updated the final rule to include this clarification.
Comment: Commenters noted concern with how take is defined in the
10(j) rule and felt that how it is defined would open various parties
to charges of non-permitted incidental take. They noted that logging
companies, NPS, and others could be exposed to liability under the
current definition because the rule is not clear on the complex
interactions of terrain as part of the current regulatory overlay of
different species and habitat conservation plans.
Response: By adopting the 10(j) rule, most incidental take of
California condors within the experimental population area is allowed,
provided that the activity is otherwise lawful and the take is
unintentional and not due to negligent conduct. Habitat alterations and
significant visual or noise disturbance within 656 ft (200 m) of an
occupied nest are prohibited. Excluded from this prohibition are
emergency fuels treatment activities by Federal, State, and local
agencies and Tribes to reduce the risk of catastrophic wildfire and
emergency response services. Activities such as ranching and use of
existing roads and trails within the 656 ft (200 m) buffer area around
an occupied nest would not be considered a significant visual or noise
disturbance.
Comment: Some commenters suggested that the proposed 10(j) boundary
is too large and that it should be reduced to the Klamath Siskiyou
bioregion. They noted that because of the time it would take birds to
leave the currently proposed region, they should have the full
protection of the ESA once they leave.
Response: Experimental population boundaries are generally drawn to
encompass the likely movements of the reintroduced population within
the foreseeable future. However, they do not need to tightly
circumscribe that area, and boundaries may be drawn larger to provide
assurances to concerned stakeholders that individuals from a
reintroduced experimental population will not be treated as a fully
ESA-listed species. Given long-distance movements observed at other
release sites, it is unlikely that condors reintroduced to Redwood
National Park will limit their movements to the Klamath-Siskiyou
bioregion in the foreseeable future.
Comment: Commenters requested that the application of the 10(j)
stipulation in the Sheldon National Wildlife Refuge be clarified.
Response: Although the northwestern corner of Nevada (where Sheldon
National Wildlife Refuge is located) is included in the NEP boundary,
the best available information on habitat suitability and landscape
connectivity suggests that this area is unlikely to become occupied by
condors in the foreseeable future. We included northwestern Nevada
within the NEP to provide assurances to Nevada that in the unlikely
event California condors travel to this area, they would be treated as
nonessential experimental animals under the Act. The 10(j) rule would
apply on National Wildlife Refuges, including Sheldon National Wildlife
Refuge. However, experimental populations in National Wildlife Refuges
and National Parks are treated as a threatened species for the purposes
of section 7 of the ESA (but not under section 9 of the ESA) and
consultation requirements of section 7(a)(2) of the ESA would apply.
Comment: Commenters suggested the exception for fuels management be
limited to emergency fire response or fuel treatment. They noted that
there is no need to risk disturbance to active condor nests in a non-
emergency situation.
Response: We agree and have updated the rule accordingly.
Comment: Commenters asked if the existing program has the funding
and capacity in terms of number of available birds to add a release
site at the park.
Response: The Condor Recovery Program is based on a broad long-term
partnership between FWS and many other partners. Funding for this
program does not rely entirely on FWS funds, as many partners have
other sources of funding to help run the program. In fact, a majority
of the funding for the program comes from outside partners. In 2017,
FWS started to work with our partners to increase the capacity at the
existing breeding facilities in order to provide more captive-reared
birds for release to the wild. Based on these efforts, we expect to
have additional birds available for release at Redwood National Park,
without impacting our releases at the other release sites.
Comment: Commenters stated that the condor recovery program could
be mismanaged and suggested that condors may have a better chance of
surviving if released at an existing site, rather than a new site.
Response: Along with our partners, we have over a quarter century
of experience in raising condors in
[[Page 15617]]
captivity and releasing them into the wild. Individuals managing the
proposed release site have experience at existing release sites and
will be assisted by the recovery program as needed. We intend to
monitor and manage the population consistent with monitoring and
management efforts at existing release sites. While we acknowledge that
survival rates may increase with the length of time a release site has
been active (Bakker et al. 2017), we also must weigh this information
against the opportunity to reintroduce condors to this portion of its
historic range, which would have long-term benefits to the overall
conservation goals of this species. We have determined that
establishing a new population--the first in the northern half of the
species' historical range--is worth the possibility of slightly lower
survival rates in the early years of the new reintroduction site.
Comment: Commenters noted that landowners should be advised when
monitored birds have fledged so that they can comply with the proposed
standards for buffers around occupied nest sites.
Response: As part of the condor reintroduction program, monitoring
will occur through various methods, as described in the Monitoring and
Evaluation section of this rule. Field crews will, to the best of their
ability, notify adjacent landowners when occupied nest sites are
identified. NPS, FWS, and the Yurok Tribe have coordinated with many
surrounding landowners and land managers throughout the planning
process and remain committed to working with our partners and neighbors
during project implementation.
Comment: Commenters asked during which year of the program we would
review reintroduction efforts.
Response: We will informally review the status of the
reintroduction program on an annual basis. We intend to release key
information from this informal annual review (e.g., population size,
number of releases, number of deaths) to the public. Our formal status
review of the reintroduction program, where we will assess whether we
should continue or discontinue the reintroduction program in the
Pacific Northwest, will likely occur within the first 5 years of the
program. The review cycles will be aligned from that point forward.
Based on our experiences releasing California condors in other areas,
we caution that evaluating whether or not the program is successful--
and, therefore, whether it should continue--could take at least two
decades (i.e., several 5-year review cycles).
Comment: Commenters suggested that the proposed rule include
language that allows buffers to expand if needed.
Response: The 656-ft (200-m) buffer distance around occupied nests
is intended to provide some protection to condor eggs and nestlings. We
recognize that, in certain situations, noise or habitat disturbance
outside of this buffer may cause harassment, or even harm, to an
individual condor. We expect these instances to be extremely rare,
given the small number of anticipated breeding condors in the
foreseeable future and the vastness of the landscape they will occupy.
For the reasons articulated in this final rule (see Management, above),
we find that a 656-ft (200-m) buffer distance provides a reasonable
balance between protection of condors and limiting the impact of this
reintroduction effort on landowners.
Comment: Commenters suggested further research regarding preventing
condor mortality from power lines.
Response: Over the last 28 years, there have been 18 incidents of
condor electrocutions. FWS has worked with two major utility companies
in California to minimize risk of future incidents. PG&E has recently
completed a California Condor Conservation Strategy to reduce risk of
electrocution and collisions of condors throughout its service area in
California. In addition, PG&E has been working with partners in the
condor recovery program to train chicks bred in captivity to avoid
landing on power poles once they are released. These efforts continue
to reduce the risk of electrocutions in the wild population.
Comment: Commenters stated that the statistics of condor survival
in the wild are skewed because some carcasses are returned from the
field in such a way that it makes it difficult to determine the cause
of mortality.
Response: It is not possible to determine the cause of death for
every condor that dies in the wild, as some carcasses are not located,
and some have decayed to the point that the cause of death is
indeterminable. The information the FWS provides to the public
acknowledges that the data is limited to birds that we have been able
to retrieve and determine the cause of death. However, given the large
sample of condors for which cause of death has been determined (n =
185), it is likely that our data on mortality sources are
representative of the mortality sources in the population.
Comment: Commenters questioned statements that describe the
historical range of the California condor and note the causes of
California condor decline. They note that the condor's preferred
nesting habitats were not in areas that settlers would have normally
used and, if direct persecution occurred, it was most likely related to
condors feeding on livestock. They also noted that when game is shot,
the carcass is usually retrieved, making lead poisoning from ammunition
unlikely.
Response: The probable causes for condor declines being related to
direct persecution, indirect poisoning, and lead poisoning are well
documented (D'Elia and Haig 2013). Condors can travel great distances
from their nesting areas to feed and were documented on numerous
occasions by early explorers and settlers. Condors are obligate
scavengers and are not livestock predators; however, it is true that
some settlers killed condors under the mistaken belief that condors
might harm their livestock. In addition, there is ample historical
evidence of numerous condors being shot for no purpose at all. While
hunters usually retrieve game, misplaced shots may wound animals, and
these individuals may carry lead fragments in their tissues until they
die and the lead becomes available to scavengers. Further, many hunters
field-dress game, leaving nonedible gut piles that can contain lead
fragments. Finally, varmint hunters, typically targeting nongame
animals such as ground squirrels and coyotes, shoot animals and leave
carcasses in the field.
Comment: Commenters made suggestions for adding tribal governments
to the list of entities able to take condors during the course of
recovery activities, modifying the fuels management exception to just
emergency response activities, and clarifying that the Yurok Tribe
Natural Resource Division is the responsible agency.
Response: We thank the commenters for the suggestions and have
updated the rule accordingly.
Comment: Commenters questioned if non-lead outreach efforts and
efforts for the voluntary switch to non-lead ammunition would occur in
Nevada.
Response: NDOW has implemented some voluntary measures to encourage
hunters to switch to non-lead ammunition. In 2015, NDOW collaborated
with the North American Non-lead Partnership to train hunter education
instructors about non-lead ammunition. Non-lead ammunition outreach is
now included in all hunter education training in Nevada. In addition,
Nevada also has a regulation mandating the use of nontoxic shot on all
Nevada Wildlife Management Areas (NAC 503.183).
Comment: Commenters stated that past studies show that the lead
ammunition ban would not be effective
[[Page 15618]]
in reducing the rates of lead in California condors because there are
other sources of lead in the environment. They requested that the NEP
include a special rule protecting all aspects of hunting, including use
of all types of ammunition.
Response: There is consensus, based on decades of scientific
research, that lead ammunition is the primary source of lead toxicosis
in California condors. While other sources of lead (e.g., lead paint)
exist in the environment, instances of these sources poisoning
California condors are extremely rare compared to poisoning from lead
ammunition. This rule does not restrict lawful hunting and does not
mandate the use any specific type of ammunition.
Comment: Commenters stated that condors can be exposed to many
contaminants. Contaminants of concern included mercury, anticoagulant
rodenticides, DDT, and heavy metals from mining activities. Commenters
stated there should be further study of the threats of emerging
chemicals on condors and suggested that current statistics may
underestimate the mortality resulting from these sources because the
cause of death for many birds is undetermined. They also suggested that
exposure to these chemicals may be considered ``take'' under the
proposed rule.
Response: While we cannot determine the cause of death for every
individual condor, our mortality data indicate that, of the known
causes of death, contaminants (not including lead), make up a very
small proportion of deaths (USFWS 2020, p. 3). Nevertheless, we intend
to monitor the health of released condors and assess contaminant loads
in condors during health screenings and when we retrieve deceased
condors in the field. We welcome additional research into exposure
rates and impacts of contaminants on condor demography. In this rule,
we are exempting incidental take associated with lawful activities that
is non-negligent and unintentional. Habitat alteration and significant
visual and noise disturbance within 656 ft (200 m) of an occupied nest
are prohibited. Use of pesticides in compliance with EPA labels would
not be prohibited within the NEP, whereas, use of pesticides out of
compliance with EPA labels that results in take would be a violation of
the ESA.
Comment: Comments expressed specific concerns about the use of
rodenticides in illegal marijuana growing sites. They requested that
the 10(j) designation include a plan for rapid response if
contamination related to mortalities occur.
Response: As at existing release sites, field crews will closely
monitor released condors and perform regular heath checks. If we detect
toxicants are making condors sick or causing mortality, we will attempt
to address the source(s) of contamination as rapidly as possible.
Comment: Commenters expressed concern regarding the establishment
of a new wind project near Cape Mendocino and the potential impact that
project could have on the reintroduced population of condors.
Response: To date, after more than 20 years of releasing California
condors in areas with extensive wind energy development, we have not
observed a single condor mortality from collisions with wind turbines.
In addition, the amount of wind energy development (existing and
proposed) is far less than the existing wind energy development in
occupied condor habitat in southern and central California.
Nevertheless, we recognize that poorly sited wind energy infrastructure
can pose a threat to condors. Project proponents for wind projects in
northern California have publicly expressed a willingness to work with
the condor program and implement technology that can shut down turbines
if a monitored condor flies close to a facility. We will seek to
cooperate with energy producers for all existing and proposed energy
projects in the region.
Summary of Changes From Proposed Rule
In the final rule we have:
Clarified that fuels treatments that are considered an
emergency are exempt from the prohibited actions within 656 ft (200 m)
of occupied nests.
Added Tribal and local governments to the list of entities
that are exempt from the prohibitions within 656 ft (200 m) of occupied
nests when conducting emergency fuels treatments to reduce the risk of
catastrophic wildfire.
Added an exemption to the prohibitions within 656 ft (200
m) of occupied nests for responses to wildfire or other emergencies.
Clarified that activities such as ranching and use of
existing roads and trails would not be considered a significant visual
or noise disturbance occurring within 656 ft (200 m) of an occupied
nest.
Clarified that we use the phrase ``unavoidably and
unintentionally'' to mean take that is not done on purpose and that
occurs despite exerting reasonable care to avoid take.
Provided, in response to comments, additional examples of
otherwise lawful activities that are exempt from incidental take
prohibitions.
Provided, in response to comments, additional examples of
specific activities that would be prohibited around occupied nests.
Changed, at the request of the Yurok Tribe, the entity
that may take condors to aid in their recovery from the Yurok Wildlife
Department to the Yurok Tribe Natural Resource Division.
Findings
Based on the best scientific and commercial data available (in
accordance with 50 CFR 17.81), we find that releasing the California
condors into Redwood National Park with the regulatory provisions in
this final rulemaking will further the conservation of the species. The
nonessential experimental population status is appropriate for the
reintroduced population because we have determined that it is not
essential to the continued existence of the species in the wild.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
60 et seq.), whenever a Federal agency is required
[[Page 15619]]
to publish a notice of rulemaking for any proposed or final rule, it
must prepare, and make available for public comment, a regulatory
flexibility analysis that describes the effect of the rule on small
entities (i.e., small businesses, small organizations, and small
government jurisdictions). However, no regulatory flexibility analysis
is required if the head of an agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities. SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule will not have a significant economic impact on a
substantial number of small entities. We certify that this rule would
not have a significant economic effect on a substantial number of small
entities. The following discussion explains our rationale.
The areas that would be affected under this rule include the
release site at Redwood National Park and areas where individual
California condors are likely to disperse. Because of the regulatory
flexibility for Federal agency actions provided by the NEP designation
and the exemption for incidental take in the rule (with a minor
exception around occupied nests), we do not expect this rule to have
significant effects on any activities within Federal, State, or private
lands within the NEP. In regard to section 7(a)(2) of the Act, the
population would be treated as proposed for listing, and Federal action
agencies are not required to consult on their activities, except on
National Wildlife Refuges and National Park System lands, where the NEP
is treated as a threatened species for the purposes of section 7 of the
Act.
Section 7(a)(4) of the Act requires Federal agencies to confer
(rather than consult) with the Service on actions that are likely to
jeopardize the continued existence of a species proposed for listing.
However, because the NEP is, by definition, not essential to the
survival of the species, conferring will likely never be required for
the California condor population within the NEP area. Further, the
results of a conference are advisory in nature and do not restrict
agencies from carrying out, funding, or authorizing activities. Section
7(a)(1) of the Act requires Federal agencies to use their authorities
to carry out programs to further the conservation of listed species,
which would apply on any lands within the NEP areas. On National
Wildlife Refuges and National Park System lands within the NEP, the
California condor would be treated as a threatened species for the
purposes of section 7 of the Act. As a result, and in accordance with
our regulations, some modifications to proposed Federal actions within
National Wildlife Refuges and National Park System lands may occur to
benefit the California condor, but we do not expect projects to be
substantially modified because these lands are already administered in
a manner that is compatible with California condor conservation.
This rule broadly authorizes incidental take of the California
condor within the NEP area. The regulations implementing the Act define
``incidental take'' as take that is incidental to, and not the purpose
of, the carrying out of an otherwise lawful activity, such as
agricultural activities and other rural development, camping, hiking,
hunting, vehicle use of roads and highways, and other activities in the
NEP areas that are in accordance with Federal, Tribal, State, and local
laws and regulations. Intentional take for purposes other than
authorized data collection or recovery purposes would not be
authorized. Intentional take for research or recovery purposes would
require a section 10(a)(1)(A) recovery permit under the Act.
The principal activities on private property near the proposed
release site are recreation, timber production, agriculture, and
activities associated with private residences. The presence of the
California condor will not significantly affect the use of lands for
these purposes because--with a minor exception around occupied condor
nests--there will be no new or additional economic or regulatory
restrictions imposed upon States, non-Federal entities, or private
landowners due to the presence of the California condor (NPS, 2018).
Therefore, this rulemaking is not expected to have any significant
adverse impacts to activities on private lands within the NEP area.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(1) This rule would not ``significantly or uniquely'' affect small
governments. We have determined and certify pursuant to the Unfunded
Mandates Reform Act, 2 U.S.C. 1502 et seq., that, if adopted, this
rulemaking would not impose a cost of $100 million or more in any given
year on local or State governments or private entities. A Small
Government Agency Plan is not required. Small governments would not be
affected because the NEP designation would not place additional
requirements on any city, county, or other local municipalities.
(2) This rule would not produce a Federal mandate of $100 million
or greater in any year (i.e., it is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act). This NEP designation
for the California condor would not impose any additional management or
protection requirements on the States or other entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. When reintroduced populations of
federally listed species are designated as nonessential experimental
populations, the Act's regulatory requirements regarding the
reintroduced population are significantly reduced. This rule would
allow for the taking of reintroduced California condors when such take
is incidental to an otherwise legal activity, with a minor exception
that incidental take resulting from habitat alteration and significant
visual or noise disturbance within 656 ft (200 m) of occupied condor
nests is prohibited.
A takings implication assessment is not required because this rule:
(1) Would not effectively compel a property owner to suffer a physical
invasion of property, and (2) would not deny all economically
beneficial or productive use of the land or aquatic resources. This
rule would substantially advance a legitimate government interest
(conservation and recovery of a listed species) and would not present a
barrier to all reasonable and expected beneficial uses of private
property.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, we have considered
whether this rule has significant Federalism effects and have
determined that a Federalism assessment is not required. This rule
would not have substantial direct effects on the States, on the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. In keeping with Department of the Interior policy, we
requested information from and coordinated development of this rule
with the affected resource agencies in California, Nevada, and Oregon.
Achieving the recovery goals for this species will contribute to its
eventual delisting and return to State management. No intrusion on
State policy or administration is expected, roles or responsibilities
of Federal or
[[Page 15620]]
State governments would not change, and fiscal capacity would not be
substantially directly affected. The rule operates to maintain the
existing relationship between the State and the Federal Government and
is being undertaken in coordination with the States of California,
Nevada, and Oregon. We have cooperated with CDFW, the NDOW, and ODFW in
the preparation of this final rule. Therefore, this rule does not have
significant Federalism effects or implications to warrant the
preparation of a Federalism assessment pursuant to the provisions of
Executive Order 13132.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988 (February 7, 1996, 61 FR
4729), the Office of the Solicitor has determined that this rule would
not unduly burden the judicial system and would meet the requirements
of sections (3)(a) and (3)(b)(2) of the Order.
Paperwork Reduction Act
This rule does not contain any new collection of information that
requires approval by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has
previously approved the information collection requirements associated
with permitting and reporting requirements associated with native
endangered and threatened species, and experimental populations, and
assigned the following OMB Control Numbers:
1018-0094, ``Federal Fish and Wildlife Permit Applications
and Reports--Native Endangered and Threatened Species; 50 CFR 10, 13,
and 17'' (expires 03/31/2021), and
1018-0095, ``Endangered and Threatened Wildlife,
Experimental Populations, 50 CFR 17.84'' (expires 9/30/2023).
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
National Environmental Policy Act
In compliance with all provisions of the National Environmental
Policy Act of 1969 (NEPA), we have analyzed the impact of this final
rule. In cooperation with the NPS and the Yurok Tribe, we have prepared
an environmental assessment on this action and have made it available
for public inspection (see ADDRESSES).
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 229511), Executive Order 13175, and the Department
of the Interior Manual Chapter 512 DM 2, we have coordinated closely
with the Tribal governments near the release site throughout the
development of this rule. In collaboration with the NPS, we extended an
invitation for government-to-government consultation to all federally
recognized Tribes in the NEP area, have formally met with tribes that
have requested government-to-government consultation, and have fully
considered information and comments received through the consultation
process. We have also considered all comments received from Tribes and
tribal members during the public comment period.
Energy Supply, Distribution, or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This rule is not
expected to significantly affect energy supplies, distribution, and
use. Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
References Cited
A complete list of all references cited in this final rule is
available online at http://www.regulations.gov in Docket No. FWS-R1-ES-
2018-0033 or upon request from the Pacific Region Office (see FOR
FURTHER INFORMATION CONTACT).
Author
The primary author of this final rule is Jesse D'Elia of the
Pacific Regional Office (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we are amending part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entry for ``Condor,
California'' under BIRDS in the List of Endangered and Threatened
Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Common name Scientific name Where listed Status Listing citations and applicable rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Birds
* * * * * * *
Condor, California............ Gymnogyps U.S.A. only, except where listed as an E 32 FR 4001, 3/11/1967; 61 FR 54045, 10/16/
californianus. experimental population. 1996; 50 CFR 17.95(b)\CH\.
Condor, California............ Gymnogyps U.S.A. (specific portions of Arizona, Nevada, XN 61 FR 54045, 10/16/1996; 50 CFR 17.84(j)
californianus. and Utah)--see Sec. 17.84(j). \10j\.
Condor, California............ Gymnogyps U.S.A. (Oregon, and specific portions of XN 86 FR [Insert Federal Register page where the
californianus. northern California and northwest Nevada)-- document begins], 3/24/2021; 50 CFR 17.84(i)
see Sec. 17.84(i). \10j\.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 15621]]
0
3. Amend Sec. 17.84 by adding paragraph (i) to read as follows:
Sec. 17.84 Special rules--vertebrates.
* * * * *
(i) California condor (Gymnogyps californianus).
(1) Where is the California condor designated as a nonessential
experimental population (NEP)? The NEP area for the California condor
is within the species' historical range in northern California,
northwestern Nevada, and Oregon.
(i) The western boundary of the NEP is the Submerged Lands Act
boundary line along the Pacific coast. The southern boundary of the NEP
is formed by: An east-west line from California's Submerged Lands Act
boundary to Hare Creek; Hare Creek from the Pacific Ocean to its
junction with California State Route 1; north to the junction of State
Route 1 and State Route 20; east along California State Route 20 to
where it meets Interstate 80; and Interstate 80 from its intersection
with California State Route 20 to U.S. Route 95 in Nevada. The eastern
boundary of the NEP is U.S. Route 95 in Nevada to the State boundary of
Oregon and then east and north along Oregon's southern and eastern
boundaries, respectively. The northern boundary of the NEP is the State
boundary between Oregon and Washington. All highway boundaries are
inclusive of the entire highway right of way.
(ii) Map follows:
BILLING CODE 4333-15-P
[[Page 15622]]
[GRAPHIC] [TIFF OMITTED] TR24MR21.003
BILLING CODE 4333-15-C
(iii) We are designating the experimental population area to
accommodate the potential future movements of a wild population of
California condors. The released population is expected to remain in
the experimental area for the foreseeable future (approximately 20
years) due to the geographic extent of the designation.
(iv) We do not intend to change the status of this nonessential
population unless:
(A) The California condor is recovered and subsequently removed
from the list
[[Page 15623]]
in Sec. 17.11(h) in accordance with the Act; or
(B) The reintroduction is not successful and the regulations in
this paragraph (i) are revoked.
(v) Legal actions or other circumstances may compel a change in
this nonessential experimental population's legal status to essential,
threatened, or endangered, or compel the Service to designate critical
habitat for the California condors within the experimental population
area defined in this rule. If this happens, all California condors will
be removed from the area and this experimental population rule will be
withdrawn, unless the participating parties in the reintroduction
effort agree that the condors should remain in the wild. Changes in the
legal status and/or removal of this population of California condors
will be made in compliance with any applicable Federal rulemaking and
other procedures.
(vi) We will not designate critical habitat for this NEP, as
provided by 16 U.S.C. 1539(j)(2)(C)(ii).
(2) What take of the California condor is allowed in the NEP area?
(i) Throughout the California condor NEP, you will not be in violation
of the Act if you unavoidably and unintentionally take a California
condor (except as noted in paragraph (i)(3)(ii) of this section),
provided such take is non-negligent, incidental to a lawful activity
(i.e., not done on purpose), and you report the take as soon as
possible as provided under paragraph (i)(2)(iii) of this section. The
phrase ``unavoidably and unintentionally'' means take that occurs
despite the exertion of reasonable care to avoid take. Examples of
activities that will not violate the take prohibitions of this section
include, but are not limited to: Legal hunting of species other than
condors; recreational shooting; ranching; farming; existing authorized
uses of private and public lands; driving; recreational activities; and
administrative and emergency functions carried out by local, State, or
Federal government agencies.
(ii) Any person with a valid permit issued by the Service under
Sec. 17.32 may take California condors in the wild in the experimental
population area, pursuant to the terms of the permit. Additionally, any
employee or agent of the Service, National Park Service, Yurok Tribe
Natural Resource Division, California Department of Parks and
Recreation, California Department of Fish and Wildlife, Nevada
Department of Wildlife, or Oregon Department of Fish and Wildlife who
is designated and trained for such purposes, when acting in the course
of official duties, may take a California condor within the NEP area if
such action is necessary:
(A) For scientific purposes;
(B) To relocate or haze California condors within the experimental
population area to improve California condor survival or recovery;
(C) To relocate California condors that have moved outside the
experimental population area;
(D) To transport California condors to and from veterinary
facilities or captive-breeding facilities;
(E) To address conflicts with ongoing or proposed activities in an
attempt to improve California condor survival;
(F) To aid a sick, injured, or orphaned California condor;
(G) To salvage a dead specimen that may be useful for scientific
study;
(H) To dispose of a dead specimen; or
(I) To aid in law enforcement investigations involving the
California condor.
(iii) Any take pursuant to paragraphs (i)(2)(i), (i)(2)(ii)(F),
(i)(2)(ii)(G), or (i)(2)(ii)(H) of this section must be reported as
soon as possible to the California Condor Field Coordinator, California
Condor Recovery Office, 2493 Portola Road, Suite A, Ventura, California
93003, (805/644-5185), who will determine the disposition of any live
or dead specimens.
(3) What take of the California condor is not allowed in the NEP
area? For the purposes of this rule, an occupied California condor nest
is defined as a nest that is attended by a breeding pair of condors,
occupied by a condor egg, or occupied or attended by a condor less than
1 year of age.
(i) Except as expressly allowed in paragraph (i)(2) of this
section, all of the provisions of Sec. 17.31(a) and (b) apply to the
California condor in areas identified in paragraph (i)(1) of this
section, and any manner of take not described under paragraph (i)(2) of
this section is prohibited in the NEP.
(ii) Habitat alteration (e.g., removing trees, erecting structures,
altering the nest structure or perches near the nest) within 656 ft
(200 m) of an occupied nest is prohibited, except for emergency fuels
treatment activities by Federal, State, Tribal, or local government
agencies to reduce the risk of catastrophic wildfire or during
responses to wildfire or other emergencies.
(iii) Significant visual or noise disturbance (e.g., tree felling,
chainsaws, helicopter overflights, concrete cutters, fireworks,
explosives) within 656 ft (200 m) of an occupied nest is prohibited,
except for emergency fuels treatment activities by Federal, State,
Tribal, or local government agencies to reduce the risk of catastrophic
wildfire or during responses to wildfire or other emergencies.
Activities such as ranching and use of existing roads and trails would
not be considered a significant visual or noise disturbance.
(iv) You must not possess, sell, deliver, carry, transport, ship,
import, or export, by any means whatsoever, any California condor or
part thereof from the experimental population taken in violation of
this paragraph (i) or in violation of applicable tribal or State laws
or regulations or the Act.
(v) It is unlawful for you to attempt to commit, solicit another to
commit, or cause to be committed, any take of the California condor,
except as expressly allowed in paragraph (i)(2) of this section.
(4) How will the effectiveness of this reintroduction be monitored?
The status of the reintroduction project will receive an informal
review on an annual basis, and we will evaluate the reintroduction
program to determine whether to continue or terminate reintroductions
every 5 years as part of our 5-year status review for the species.
(i) This evaluation will include, but will not be limited to: A
review of management issues; California condor movements and post-
release behavior; assessment of food resources and dependence of
California condors on supplemental food; fecundity of the population;
causes and rates of mortality; project costs; public acceptance; and
progress toward establishing a self-sustaining population.
(ii) If a formal evaluation indicates the project is experiencing a
40 percent or greater mortality rate over multiple years or released
California condors are not finding food on their own, serious
consideration will be given to terminating the project.
* * * * *
Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-05646 Filed 3-23-21; 8:45 am]
BILLING CODE 4333-15-P