Endangered and Threatened Wildlife and Plants; Reclassification of the Continental U.S. Breeding Population of the Wood Stork From Endangered to Threatened, 75947-75966 [2012-30731]

Download as PDF Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules you use a telecommunications device for the deaf (TDD), please call the Federal Information Relay Service (FIRS) at 800–877–8339, 24 hours a day, 7 days a week. SUPPLEMENTARY INFORMATION: DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R4–ES–2011–0020; 92220–1113–0000–C6] Executive Summary RIN 1018–AX60 Why We Need To Publish a Rule Endangered and Threatened Wildlife and Plants; Reclassification of the Continental U.S. Breeding Population of the Wood Stork From Endangered to Threatened • In September 2007, we completed a 5-year status review, which included a recommendation to reclassify the continental U.S. breeding population of the wood stork from endangered to threatened. • In May 2009, we received a petition to reclassify the continental U.S. breeding population of wood stork; the petition incorporated the Service’s 5year review as its sole supporting information. • On September 21, 2010, we published a 90-day finding that the petition presented substantial information indicating that reclassifying the wood stork may be warranted (75 FR 57426). • This proposed rule, in accordance with section 4(b)(3)(B) of the Endangered Species Act (Act), constitutes our 12-month finding on the petition we received. Fish and Wildlife Service, Interior. ACTION: Proposed rule and notice of petition finding. AGENCY: We, the U.S. Fish and Wildlife Service (Service or USFWS), propose to reclassify the continental United States (U.S.) breeding population of wood stork from endangered to threatened under the Endangered Species Act of 1973, as amended (Act). We find that the best available scientific and commercial data indicate that the endangered designation no longer correctly reflects the current status of the continental U.S. breeding population of the wood stork due to a substantial improvement in the species’ overall status. This proposed rule also constitutes our 12-month finding on the petition to reclassify the species. DATES: We will accept comments on this proposed rule received or postmarked on or before February 25, 2013. We must receive requests for a public hearing, in writing at the address shown in the FOR FURTHER INFORMATION CONTACT section, by February 11, 2013. ADDRESSES: You may submit comments by one of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments on Docket No. FWS–R4–ES–2011–0020. • U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R4– ES–2011–0020; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information). FOR FURTHER INFORMATION CONTACT: Field Supervisor, North Florida Ecological Services Field Office, 7915 Baymeadows Way, Suite 200, Jacksonville, FL 32256; telephone 904– 731–3336; facsimile 904–731–3045. If ebenthall on DSK5TPTVN1PROD with SUMMARY: VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 Summary of the Major Provisions of This Proposed Rule • We propose to reclassify the continental U.S. breeding population of wood stork from endangered to threatened. • This proposed rule constitutes our 12-month petition finding. • We determine that the continental U.S. breeding population of wood stork meets the criteria of a distinct population segment (DPS) under our 1996 DPS policy (61 FR 4722). • We propose to amend the List of Endangered and Threatened Wildlife (50 CFR 17.11(h)) to reflect that the U.S. wood stork DPS is found in the States of Florida, Georgia, South Carolina, North Carolina, Alabama, and Mississippi. The Basis for Our Action • The continental U.S. breeding population of wood stork was listed under the Act in 1984, prior to publication of the joint policy of the National Marine Fisheries Service and U.S. Fish and Wildlife Service (Services) regarding the recognition of distinct vertebrate population segments (61 FR 4722). We find that the continental U.S. breeding population of wood stork meets the discreteness and significance elements of the Services’ DPS policy and is a valid DPS. PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 75947 • When the continental U.S. breeding population of wood stork was listed in 1984, the population was known to occur only in Florida, Georgia, South Carolina, and Alabama. Based on new information about where the population is found and where nesting is occurring, the population is now known to occur in North Carolina and Mississippi in addition to Florida, Georgia, South Carolina, and Alabama. • The best available scientific and commercial data indicate that since the continental U.S. breeding population of wood stork was listed as endangered in 1984, the population has been increasing and its breeding range has expanded significantly. • Downlisting criteria from the recovery plan have been met or exceeded. We have had 3-year population averages of total nesting pairs of wood storks higher than 6,000 nesting pairs since 2003. However, the 5-year average number of nesting pairs is still below the benchmark of 10,000 nesting pairs identified in the recovery plan for delisting. In addition, productivity, even though variable, is sufficient to support a growing population. • As a result of continued loss, fragmentation, and modification of wetland habitats in parts of the wood stork’s range, we find that the continental U.S. wood stork DPS meets the definition of a threatened species under section 3 of the Act. Public Comments We intend that any final action resulting from this proposed rule will be as accurate and as effective as possible. Therefore, we are requesting comments from other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek information and comments concerning: (1) The historical and current status and distribution of the wood stork, its biology and ecology, and ongoing conservation measures for the species and its habitat. (2) Wood stork nesting colony location data (latitude/longitude in decimal degrees to confirm or improve our location accuracy); nest census counts and survey dates; years when a colony was active or not; years and dates when a colony was abandoned (fully or partially); and annual productivity rates (per total nest starts and per successful nests) and average chicks per nest estimates from continental U.S. colonies. (3) Current or planned activities within the geographic range of the E:\FR\FM\26DEP1.SGM 26DEP1 75948 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules continental U.S. breeding population of the wood stork that may impact or benefit the species, including any acquisition of large tracts of wetlands, wetland restoration projects, planned developments, roads, or expansion of agricultural or mining enterprises, especially those near nesting colonies and surrounding suitable foraging habitats. Prior to issuing a final rule on this proposed action, we will take into consideration all comments and additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses, will become part of the administrative record for the final rule. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. If you submit a comment via http:// www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the Web site. Please note that comments submitted to this Web site are not immediately viewable. When you submit a comment, the system receives it immediately. However, the comment will not be publicly viewable until we post it, which might not occur until several days after submission. If you mail or hand deliver hard copy comments that include personal identifying information, you may request at the top of your documents that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. To ensure that the electronic docket for this rulemaking is complete and all comments we receive are publicly available, we will post all hard copy comments on http:// www.regulations.gov. ebenthall on DSK5TPTVN1PROD with Public Hearing The Act (16 U.S.C. 1531 et seq.) provides for one or more public hearings on this proposal, if requested. We must receive your request for a public hearing within 45 days after the date of this Federal Register publication (see DATES). Such requests must be made in writing and addressed to the Field Supervisor (see FOR FURTHER INFORMATION CONTACT section above). Background Much of the basic biological information presented in this section is based upon existing literature published on the continental U.S. breeding population of the wood stork. This section summarizes information found in a large body of published literature VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 and reports, including the revised recovery plan for the continental U.S. breeding population of the wood stork (USFWS 1997), The Birds of North America Online species account for wood stork (Coulter et al. 1999), and the South Florida Multi-Species Recovery Plan (USFWS 1999). Taxonomy and Species Description The wood stork (Mycteria americana) is one of 19 species of storks that make up the family Ciconiidae (Coulter et al. 1999, p. 3). It is one of three species of storks found in the western hemisphere (Coulter et al. 1999, p. 3) and the only stork that breeds north of Mexico (Ogden 1990, p. B–3). The wood stork shows no obvious morphological differentiation across its range, and no subspecies have been proposed. The wood stork is a large, long-legged wading bird, with a head-to-tail length of 85–115 centimeters (cm) (33–45 inches (in)) and a wingspread of 150– 165 cm (59–65 in- or roughly 5 to 5.5 feet). The plumage is white, except for iridescent black primary and secondary wing feathers and a short black tail. Storks fly with their necks and legs extended. On adults, the rough, scaly skin of the head and neck is unfeathered and blackish in color, the legs are dark, and the feet are dull pink. The bill color is also blackish. Immature storks, up to the age of about 3 years, differ from adults in that their bills are yellowish or straw-colored and there are varying amounts of dusky feathers on the head and neck. During courtship and early nesting season, adults have pale salmon coloring under the wings, fluffy coverts (feathers under the base of a bird’s tail) that are longer than the tail, and toes that brighten to a vivid pink. Life Span Wood storks are considered a longlived species with delayed breeding, with first breeding generally occurring for 3- to 4-year old birds. The greatest recorded longevities are 17+ years for a wild adult wood stork caught and fitted with a satellite tag and leg bands in 1998, and recently documented at the Harris Neck nesting colony in 2011 (Larry Bryan, SREL, pers. comm., 2011), and 27.5 years for a captive bird (Brouwer et al. 1992, p. 132). Feeding The specialized feeding behavior of the wood stork involves tactilocation, also called grope feeding, where the stork uses its bill to find small fish. Wood storks feed primarily on fish between 2 and 25 cm (1 and 10 in) in length (Kahl 1964, pp. 107–108; Ogden et al. 1976, pp. 325–327). Wood storks PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 also occasionally consume crustaceans, amphibians, reptiles, mammals, birds, and arthropods (Coulter et al. 1999, p. 7). Wood storks forage in a variety of shallow wetlands, wherever prey concentrations reach high enough densities, in water that is shallow and open enough for the birds to be successful in their hunting efforts (Ogden et al. 1978, pp. 15–17; Browder 1984, p. 94; Coulter and Bryan 1993, p. 59). Fish populations reach high numbers during the wet season, but become concentrated in increasingly restricted habitats as drying occurs. Typical foraging sites include freshwater marshes, swales, ponds, hardwood and cypress swamps, narrow tidal creeks or shallow tidal pools, and artificial wetlands (such as stock ponds; shallow, seasonally flooded, roadside or agricultural ditches; and impoundments) (Coulter and Bryan 1993, p. 59; Coulter et al. 1999, p. 5). The wetland foraging areas near a nesting colony play a vital role during the nesting season (Cox et al. 1994, p. 135). Nesting wood storks generally use foraging sites that are located within a 30- to 50-kilometer (km) (18- to 31-mile (mi)) flight range of the colony; successful colonies are those that have options to feed during a variety of rainfall and surface water conditions (Coulter 1987, p. 22; Bryan and Coulter 1987, p. 157; Coulter et al. 1999, pp. 17– 18; Herring 2007, p. 60; Bryan and Stephens 2007, p. 6; Meyers 2010, p. 5; Lauritsen et al. 2010, p. 3; Tomlinson 2009, p. 30). Early in the nesting season, the short-hydroperiod wetlands supply most of the forage, whereas later, the long-hydroperiod wetlands supply the prey needed to successfully fledge the offspring (Fleming et al. 1994, p. 754). Mating and Reproduction Wood storks are seasonally monogamous, probably forming a new pair bond every season. There is documented first breeding at 3 and 4 years old. Nest initiation varies geographically. Wood storks lay eggs as early as October and as late as June in Florida (Rodgers 1990, pp. 48–51). Wood storks in north Florida, Georgia, and South Carolina initiate nesting on a seasonal basis regardless of environmental conditions (USFWS 1997, p. 6). They lay eggs from March to late May, with fledging occurring in July and August. Historically, nest initiation in south Florida was in December and January; however, in response to the altered habitat conditions (wetland drainage, hydroperiod alteration) in south Florida, wood storks nesting in Everglades National Park and in the Big Cypress E:\FR\FM\26DEP1.SGM 26DEP1 ebenthall on DSK5TPTVN1PROD with Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules region of Florida have delayed initiation of nesting to February or March in most years since the 1970s. Colonies that start after January in south Florida risk having young in the nests when May– June rains flood marshes and disperse fish, which can cause nest abandonment. Females generally lay a single clutch of two to five eggs per breeding season, but the average is three eggs. Females sometimes lay a second clutch if nest failure occurs early in the season (Coulter et al. 1999, p. 11). Average clutch size may increase during years of favorable water levels and food resources. Incubation requires about 30 days and begins after the female lays the first one or two eggs. Nestlings require about 9 weeks for fledging, but the young return to the nest for an additional 3 to 4 weeks to be fed. Actual colony production measurements are difficult to determine because of the prolonged fledging period, during which time the young return daily to the colony to be fed. Wood storks experience considerable variation in production among colonies, regions, and years in response to local and regional habitat conditions and food availability (Kahl 1964, p. 115; Ogden et al. 1978, pp. 10–14; Clark 1978, p. 183; Rodgers and Schwikert 1997, pp. 84– 85). Several recent studies documented production rates to be similar to rates published between the 1970s and 1990s. Rodgers et al. (2008, p. 25) reported a combined production rate for 21 northand central-Florida colonies from 2003 to 2005 of 1.19 ± 0.09 fledglings per nest attempt (n = 4,855 nests). Rodgers et al. (2009, p. 3) also reported the St. Johns River basin production rate of 1.49 ± 1.21 fledglings per nest attempt (n = 3,058 nests) and for successful nests an average fledgling rate of 2.26 ± 0.73 fledglings per nest attempt (n = 2,105 nests) from 2004 to 2008. Bryan and Robinette (2008, p. 20) reported rates of 2.3 and 1.6 fledged young per nesting attempt in 2004 and 2005, respectively, for South Carolina and Georgia. Murphy and Coker (2008, p. 5) reported that since the wood stork was listed in 1984, South Carolina colonies averaged 2.08 young per successful nest with a range of 1.72 to 2.73. The Palm Beach County (PBC) Solid Waste Authority colony (M. Morrison, PBC, pers. comm., 2011) was documented with 0.75 fledgling per nesting attempt in 2010, with annual rates ranging from 0.11 to 1.49 (2003 to 2010). The Corkscrew Sanctuary colony in Naples, Florida (J. Lauritsen, Audubon, pers. comm., 2011), documented no nesting in 2010, but an VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 average of 2.29 fledglings per nesting attempt in 2009, with average annual rates ranging from 0.00 (abandonment) to 2.55 (2001–2010). Habitat Wood storks use a wide variety of freshwater and estuarine wetlands for nesting, feeding, and roosting throughout their range and thus are dependent upon a mosaic of wetlands for breeding and foraging. For nesting, wood storks generally select patches of medium to tall trees as nesting sites, which are located either in standing water such as swamps, or on islands surrounded by relatively broad expanses of open water (Ogden 1991, p. 43). Colony sites located in standing water must remain inundated throughout the nesting cycle to protect against predation and nest abandonment. A wood stork tends to use the same colony site over many years, as long as the site remains undisturbed, and sufficient feeding habitat remains in the surrounding wetlands. Wood storks may abandon traditional wetland sites if changes in water management result in water loss from beneath the colony trees. Typical foraging sites include a mosaic of shallow water wetlands. Several factors affect the suitability of potential foraging habitat for wood storks. Foraging habitats must provide both a sufficient density and biomass of forage fish and other prey and have vegetation characteristics that allow storks to locate and capture prey. Calm water, about 5 to 40 cm (2 to 16 in) in depth, and free of dense aquatic vegetation, is preferred (Coulter and Bryan 1993, p. 61). During nesting, these areas must also be sufficiently close to the colony to allow storks to deliver prey to nestlings efficiently. Hydrologic and environmental characteristics have strong effects on fish density, and these factors may be some of the most significant in determining foraging habitat suitability. Alterations in the quality and amount of foraging habitats in the Florida Everglades and extensive drainage and land conversions throughout south Florida led to the initial decline of the wood stork nesting population. Since listing under the Act, wood stork nesting and winter counts appear to be increasing slightly in south Florida and the Everglades (Newman 2009, p. 51; Alvarado and Bass 2009, p. 40), but the timing and location of nesting has changed in response to alterations in hydrology and habitat (Ogden 1994, p. 566). The overall distribution of the PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 75949 breeding population of wood storks is also in transition. The wood stork appears to have adapted to changes in habitat in south Florida in part by nesting later, nesting in colonies in the interior Everglades system (Ogden 1994, p. 566), and by expanding its breeding range north into Georgia, South Carolina, and North Carolina (Brooks and Dean 2008, p. 58). Distribution The wood stork occurs in South America from northern Argentina, eastern Peru, and western Ecuador, north into Central America, Mexico, Cuba, Hispaniola, and the southern United States. The breeding range includes the southeastern United States in North America, Cuba and Hispaniola in the Caribbean, and southern Mexico through Central America (Figure 1). In South America, the breeding range is west of the Andes south from Colombia to western Ecuador, east of the Andes from Colombia south through the Amazonas in Brazil to eastern Peru, northern Bolivia and northern Argentina east to the Atlantic coast through Paraguay, Uruguay, and north to the Guianas (Figure 1; Coulter et al. 1999, p. 2). The winter range in Central and South America is not well studied, but wood storks are known to occur yearround as a resident throughout the breeding range. At the time of listing in 1984, the range of the continental U.S. breeding population of wood storks was Florida, Georgia, South Carolina, and Alabama. Breeding was restricted primarily to peninsular Florida (22 colonies in 1983), with only four colonies occurring in Georgia and South Carolina. The current breeding range includes peninsular Florida (48 colonies in 2010), the coastal plain and large river systems of Georgia (21 colonies) and South Carolina (13 colonies), and southern North Carolina (1 colony). The breeding range also extends west to south-central Georgia and the panhandle of Florida to the Ochlockonee River system. The nonbreeding season range includes all of Florida; the coastal plains and large river systems of Alabama, Georgia, South Carolina; and southern North Carolina and eastern Mississippi. Wood storks are not true migrants, but some individuals do undergo lengthy inter-regional travel in response to resource availability (Coulter et al. 1999, p. 3; Bryan et al. 2008, p. 39). Generally, wood storks disperse following breeding. E:\FR\FM\26DEP1.SGM 26DEP1 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules As the rainy season begins in May in south Florida and the Everglades, postbreeding wood storks, fledglings, and juveniles disperse throughout peninsular Florida and many move northward along the coastlines and coastal plain of Georgia, South Carolina, North Carolina and westward along large river basins in Alabama and eastern Mississippi. Individuals from northern Florida, Georgia, and South Carolina colonies also disperse across VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 the coastal plain and coastal marshes in the southeast United States in July to August after the breeding season. Most wood storks in this population winter in south and central Florida and along the coast of peninsular Florida, Georgia, and South Carolina. These inter-regional movements have been documented through color marking, banding, radiotelemetry and satellite-telemetry studies (Comer et al. 1987, p. 165; Ogden 1996, p. 34; Coulter et al. 1999, p. 4; Savage PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 et al. 1999, p. 65; Bryan et al. 2008, pp. 39–41). Wood storks are seasonal visitors in Texas, Louisiana, the lower Mississippi Valley, and California. These are post breeders and juveniles from Central America (Rechnitzer 1956, p. 431; Coulter et al. 1999, pp. 4–5). Bryan et al. (2008, pp. 39–40) suggest that wood storks observed in western Mississippi and Louisiana originate from Central America, and wood storks found in eastern Mississippi originate E:\FR\FM\26DEP1.SGM 26DEP1 EP26DE12.000</GPH> ebenthall on DSK5TPTVN1PROD with 75950 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules from the continental U.S. population. Behaviorally, wood storks are not predisposed to travel across the open waters like the Gulf of Mexico, as they use thermals for soaring flight for longdistance movements. The lack of thermals over open water restricts movements back and forth across the Gulf of Mexico from Florida to Central and South America or the Caribbean. thought to be decreasing, the decline is not thought to be sufficiently rapid to reach critical thresholds to threaten the species (BirdLife 2009: A ‘‘vulnerable’’ population exhibits a >30% decline over 10 years or three generations). Population size estimates for South America range from 50,000– 100,000 wood storks (Byers et al. 1995) and approximately 48,000–70,000 wood storks in Central and North America (Kushlan et al. 2002). Rangewide Status and Demographics The continental U.S. wood stork population decline between 1930 and 1978 is attributed to reduction in the food base necessary to support breeding colonies, which is thought to have been related to loss of wetland habitats and changes in hydroperiods (Ogden and Nesbitt 1979, p. 521; Ogden and Patty 1981, p. 97; USFWS 1997, p. 10; Coulter et al. 1999, p. 18). The continental U.S. breeding population is considered regionally endangered by IUCN due to habitat degradation (IUCN 2011). Ogden (1978, p. 143) concluded the continental U.S. wood stork breeding population in the 1930s was probably less than 100,000 individuals, or between 15,000 and 20,000 pairs. The estimated continental U.S. population of breeding wood storks throughout the southeastern United States declined from 15,000–20,000, to about 10,000 pairs in 1960, to a low of 2,700–5,700 pairs between 1977 and 1980 (Ogden et al. 1987, p. 752). The low of 2,700 nesting pairs was documented in 1978, during the severe drought when many At the global level, the International Union for Conservation of Nature (IUCN) classifies the wood stork as a species of ‘‘least concern.’’ This is due to the apparent demographic stability documented in its large range that encompasses portions of North, Central, and South America (IUCN 2010, p. 1). Bryan and Borkhataria (2010, p. 2) compiled and summarized the conservation status for wood storks in Central and South America and provide the following description with regard to the rangewide status of the wood stork: The IUCN Red List/BirdLife International listing classifies the wood stork as a species of ‘‘least concern’’ for its entire range (BirdLife International 2008, 2009). This classification is based on breeding/resident range size, population trends, population size. This classification is due in part to an extremely large global breeding range (estimated at 14,000,000 km2) and a moderately small to large population estimate (38,000–130,000 birds). Although the species’ global population trend is 75951 wood storks likely did not breed. In the initial 26-year period of listing under the Act (1984 to 2010), 17 surveys of all known nesting colonies of the wood stork in the continental U.S. population’s breeding range (Florida, Georgia, South Carolina, and North Carolina) were completed. Eleven of those resulted in counts exceeding 6,000 pairs. Seven of those higher counts occurred during the past 10 years (2002, 2003, 2004, 2006, 2008, 2009, and 2010, Table 1, Service 2010). Two counts of over 10,000 pairs have occurred during the past 5 years, and the count of 12,720 pairs in 2009 is the highest on record since the early 1960s. This population estimate along with a conservative estimate of 4,000 pre-breeding age birds suggest 30,000 storks were inhabiting the United States in 2009 (Bryan and Borkhataria 2010, p. 2). From 2009 to 2011 there was a decline in observed wood storks likely due to drought. It should be noted that the wood stork is a long-lived species that demonstrates considerable variation in nesting population numbers in response to changing hydrological conditions. This long reproductive lifespan allows wood storks to tolerate reproductive failure in some years, and naturally occurring events have undoubtedly always affected the breeding success of this species, causing breeding failures and variability in annual nesting (USFWS 1997, p. 11) and productivity. TABLE 1—WOOD STORK NESTING DATA IN THE SOUTHEASTERN UNITED STATES (SERVICE 2011). TOTAL ebenthall on DSK5TPTVN1PROD with YEAR 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... FLORIDA Nesting Pairs Colonies 9,752 5,310 5,263 2,695 4,648 5,063 4,442 3,575 5,983 6,245 5,193 .................. .................. .................. .................. .................. 4,073 .................. 6,729 5,768 7,853 .................. .................. .................. 7,768 .................. 5,582 27 17 25 18 24 25 22 22 25 29 23 .................. .................. .................. .................. .................. 37 .................. 43 47 54 .................. .................. .................. 71 .................. 44 VerDate Mar<15>2010 06:27 Dec 22, 2012 Nesting Pairs Jkt 229001 Colonies 9,610 5,294 5,125 2,595 3,800 4,766 4,156 3,420 5,600 5,647 4,562 ** ** ** ** ** 2,440 ** 4,262 3,588 5,523 ** ** ** 6,109 ** 3,246 24 16 21 16 22 20 19 18 22 25 30 .................. .................. .................. .................. .................. 25 .................. 29 26 31 .................. .................. .................. 51 .................. 23 PO 00000 Frm 00046 GEORGIA Nesting Pairs Colonies 142 16 138 100 55 297 275 135 363 576 557 648 506 311 543 709 969 1,091 1,661 1,468 1,501 1,480 1,379 1,665 1,139 566 1,162 Fmt 4702 SOUTH CAROLINA Sfmt 4702 3 1 4 2 2 5 2 2 2 3 5 4 5 4 6 10 9 9 11 14 17 18 15 15 13 7 12 NORTH CAROLINA Nesting Pairs Colonies Nesting Pairs Colonies .................. .................. .................. .................. .................. .................. 11 20 20 22 74 120 194 179 376 536 664 475 806 712 829 953 917 1,093 520 1,236 1,174 .................. .................. .................. .................. .................. .................. 1 1 1 1 1 3 3 3 3 6 3 3 3 7 6 7 8 10 8 11 9 .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. E:\FR\FM\26DEP1.SGM 26DEP1 75952 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules TABLE 1—WOOD STORK NESTING DATA IN THE SOUTHEASTERN UNITED STATES (SERVICE 2011).—Continued TOTAL YEAR 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 ..... ..... ..... ..... ..... ..... ..... ..... ..... ..... Nesting Pairs FLORIDA Colonies 7,855 8,813 8,379 5,572 11,279 4,406 6,118 12,720 8,149 9,579 Nesting Pairs 70 78 93 73 82 55 73 86 94 88 GEORGIA Colonies 5,463 5,804 4,726 2,304 7,216 1,553 1,838 9,428 3,828 5,292 46 49 63 40 48 25 31 54 51 45 Nesting Pairs SOUTH CAROLINA Colonies 1,256 1,653 1,596 1,817 1,928 1,054 2,292 1,676 2,708 2,160 NORTH CAROLINA Nesting Pairs Nesting Pairs Colonies .................. .................. .................. 32 125 192 149 134 220 96 .................. .................. .................. 1 1 1 1 1 1 1 14 18 17 19 21 15 25 19 28 19 Colonies 1,136 1,356 2,057 1,419 2,010 1,607 1,839 1,482 1,393 2,031 10 11 13 13 13 14 16 12 14 23 ** No survey data available for North and Central Florida. ebenthall on DSK5TPTVN1PROD with Previous Federal Action On February 28, 1984, the Service published a final rule listing the continental U.S. breeding population of the wood stork as endangered under the Act, due primarily to the loss of suitable feeding habitat, particularly in south Florida, and a declining population (49 FR 7332). The endangered status covers wood storks in the States of Alabama, Florida, Georgia, and South Carolina (the known range of the continental U.S. breeding population at the time of listing). We developed a recovery plan in 1986 for the continental U.S. breeding population of the wood stork. The recovery plan was revised on January 27, 1997, and addressed existing and new threats and species needs. We published a notice in the Federal Register on November 6, 1991 (56 FR 56882) that we were conducting a 5-year review for all endangered and threatened species listed before January 1, 1991, including the wood stork. The notice indicated that if significant data were available warranting a change in a species’ classification, we would propose a rule to modify the species’ status. We did not recommend a change in the wood stork’s listing classification under the Act at that time. On September 27, 2006 (71 FR 56545), we published a notice in the Federal Register that we were initiating another 5-year status review for the wood stork. We solicited information from the public concerning the status of the species, including the status and trends of threats to the species under section 4(a)(1) of the Act. We completed the 5year status review on September 27, 2007. Completed in accordance with section 4(c)(2) of the Act, the 5-year status review contains a detailed description of the species’ natural history and status, including information on distribution and VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 movements, behavior, population status and trends, and factors contributing to the status of the continental U.S. breeding population. It also presents a detailed analysis of the five factors that are the basis for determination of a species’ status under section 4(a)(1) of the Act. A copy of the 5-year status review is available on our Web site (http://www.fws.gov/ecos/ajax/docs/ five_year_review/doc1115.pdf) and includes a recommendation to reclassify the continental U.S. breeding population of the wood stork from endangered to threatened. We received a petition to reclassify the continental U.S. breeding population of the wood stork as threatened on May 28, 2009, from the Pacific Legal Foundation on behalf of the Florida Homebuilders Association. The petition presented the Service’s 2007 5-year status review as its sole supporting information. The petition incorporated the status review by reference, including a summary of the five-factor analysis contained in the status review, which included a recommendation to reclassify the species. We found that the petition presented substantial information indicating that reclassifying the continental U.S. breeding population of the wood stork to threatened may be warranted. We published a notice announcing our 90-day finding and initiation of the species’ status review in the Federal Register on September 21, 2010 (75 FR 57426). Current Federal Action Section 4(b)(3)(B) of the Act requires that for any petition to revise the Lists of Endangered and Threatened Wildlife and Plants (Lists) that presents substantial information, we must make a finding within 12 months of the date of the receipt of the petition, on whether the requested action is (a) Not warranted, (b) warranted, or (c) PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 warranted but precluded from immediate proposal by other pending proposals of higher priority and expeditious progress is being made to add qualified species to the Lists. This proposed rule constitutes our 12-month finding that the action sought by the May 28, 2009, petition is warranted. Distinct Vertebrate Population Segment Analysis On February 7, 1996, we published in the Federal Register our ‘‘Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act’’ (DPS Policy) (61 FR 4722). For a population to be listed under the Act as a distinct vertebrate population segment, three elements are considered: (1) The discreteness of the population segment in relation to the remainder of the species to which it belongs; (2) the significance of the population segment to the species to which it belongs; and (3) the population segment’s conservation status in relation to the Act’s standards for listing, (i.e., is the population segment, when treated as if it were a species, endangered or threatened). The Act defines ‘‘species’’ to include ‘‘* * * any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature’’ (16 U.S.C. 1532(16)). The best available scientific information supports recognition of the continental U.S. breeding population of the wood stork as a distinct vertebrate population segment. We discuss the discreteness and significance of the population segment within this section; the remainder of the document discusses the status of the continental U.S. wood stork DPS. Discreteness The DPS policy states that a population segment of a vertebrate species may be considered discrete if it E:\FR\FM\26DEP1.SGM 26DEP1 ebenthall on DSK5TPTVN1PROD with Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation; or (2) It is delimited by international governmental boundaries between which significant differences exist in control of exploitation, management of habitat, conservation status, or regulatory mechanisms that are significant in light of section 4(a)(1)(D) of the Act. Globally, wood storks occur only in the Western Hemisphere and are comprised of a mosaic of breeding populations in North, Central, and South America, and the Caribbean, each with unique nesting sites, foraging areas, and seasonal movement patterns in response to regional environmental factors. Historically, wood storks nested in all Atlantic and Gulf coastal United States from Texas to South Carolina (Bent 1926; Cone and Hall 1970; Dusi and Dusi 1968; Howell 1932; Oberholser 1938; Oberholser and Kincaid 1974; Wayne 1910), although the colonies outside Florida formed irregularly and contained few birds (Ogden and Nesbitt 1979, p. 512). Currently, the continental U.S. breeding population of wood storks is documented only in Mississippi, Alabama, Florida, Georgia, South Carolina, and North Carolina. The continental U.S. wood stork population represents the northernmost extent of the wood stork’s range and the only population breeding in the continental United States (USFWS 1997, p. 1; Coulter et al. 1999, pp. 2–3) The continental U.S. population’s breeding range is separated by the Strait of Florida from the nearest nesting population, which is located in Cuba, 151 km (94 mi); it is approximately 965 km (600 mi) over the Gulf of Mexico from the nearest North American nesting colony, which breeds in southern Mexico. However, wood storks are not behaviorally predisposed to travel across the open ocean. Wood storks use thermals for soaring flight for long-distance movements. The lack of thermals over water may restrict movements from Florida to the Caribbean or to Mexico and Central and South America (Coulter et al. 1999, p. 4). The available evidence does not suggest that wood storks have crossed the Florida Straits between the Caribbean islands and the United States or crossed the Gulf of Mexico to or from Central and South America. VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 Lengthy inter- and intra-regional movements, related to food availability, to the wetlands of the Mississippi River Basin and adjacent coastal plain river basins have been documented from both the continental U.S. population and Central American wood storks (Coulter et al. 1999, p. 5; Bryan et al. 2008, pp. 40–41). These studies suggest postbreeding dispersal occurs along the coastal plain, not across the Gulf of Mexico, and that wood storks observed in eastern Mississippi originate from the southeast United States, and those observed in western Mississippi and Louisiana originate from Central America. A small percentage of wood storks from both the United States and Central America apparently overlap during this post-breeding season dispersal within Mississippi. There may be some small but unknown level of mixing between continental U.S. and Central American breeding populations in Mississippi (Bryan et al. 2008, pp. 40–41; R. Borkhataria, University of Florida, pers. comm., 2010). However, based upon satellite-telemetry studies (e.g., Hylton 2004; Hylton et al. 2006; Bryan et al. 2008; Borkahatria 2009; Lauritsen 2010) and other marking studies, mixing appears negligible. Based on the above information, if the continental U.S. population were extirpated, it is our assessment that repopulation from the Central American wood storks would not be sufficient to replenish the depleted population in the foreseeable future. Genetic data support the conclusion that wood storks occurring in the southeastern United States function as one population. Stangle et al. (1990, p. 15) employed starch gel electrophoretic techniques to examine genetic variation in Florida wood stork colonies. The study did not indicate significant allozyme differences within or between colonies. Van Den Bussche et al. (1999, p. 1083) used a combination of DNA or allozyme approaches and found low levels of genetic variability and allelic diversity within Georgia and Florida colonies, suggesting one population of wood storks in the southeastern United States. A genetic comparison using mtDNA between continental U.S. and Brazilian wood storks (the north and south ends of the geographic range) reveals that either a demographic decline or a recent evolutionary bottleneck reduced the levels of mitochondrial DNA (mtDNA) variability of the continental U.S. population (Lopes et al. 2011, p. 1911). The genetic structuring assessment revealed nonsignificant differentiation between the continental U.S. and Brazilian wood PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 75953 storks, indicating that either the populations were only recently separated or that gene flow continues to occur at low levels, and the haplotype network analysis indicated low levels of gene flow between populations that were closely related in the past (Lopes et al. 2011, p. 1911). Genetic studies indicate that there are nonsignificant differences between continental U.S. and Brazilian wood storks. However, satellite tracked movements of U.S. and Central American wood storks indicate that U.S. and Brazilian birds likely do not interbreed (Hylton 2004; Hylton et al. 2006; Bryan et al. 2008; Borkahatria 2009; Lauritsen 2010). Based on the genetic information, we conclude that a past demographic decline has led to the reduced levels of genetic variability in all populations of wood stork that were studied, that continental U.S. and other populations were only recently separated, that the southeastern U.S. populations act as a single population, and there is negligible or very low gene flow between populations in the United States and Brazil. Consequently, we conclude based on the best available information that the continental U.S. breeding population of the wood stork is markedly separated from wood stork populations in the Caribbean, Mexico, Central America, and South America based on physical separation and wood stork dispersal behavior. Significance The DPS policy states that populations that are found to be discrete will then be examined for their biological or ecological significance to the taxon to which they belong. This consideration may include evidence that the loss of the population would create a significant gap in the range of the taxon. The continental U.S. breeding population of the wood stork represents the northernmost portion of the species’ range in the world (Coulter et al. 1999, p. 2) and the only population breeding in the United States. Loss of this population would result in a significant gap in the extent of the species’ range. Because the nearest populations in the Caribbean and North America would not likely be able to naturally repopulate the continental U.S. breeding population if it were extirpated, wood storks would no longer breed in the Everglades and in the salt and fresh water wetlands of Florida, Georgia, South Carolina, and North Carolina. Maintaining a species throughout its historical and current range helps ensure the species’ population viability and reduce impacts to species as a whole due to localized stochastic E:\FR\FM\26DEP1.SGM 26DEP1 75954 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules events. Therefore, we find that loss of continental U.S. breeding population of the wood stork, whose range has expanded to include Mississippi and North Carolina (USFWS 2007, p. 11), would constitute a significant gap in the range of the species as a whole. ebenthall on DSK5TPTVN1PROD with Summary Based on the above analysis, we conclude that the continental U.S. breeding population of wood storks meets both the discreteness and significance elements of the 1996 DPS policy. Therefore, we recognize this population as a valid DPS. Recovery Actions We published the original recovery plan for the continental U.S. breeding population of wood stork on September 9, 1986, and revised it on January 27, 1997 (Service 1997). The recovery plan identifies four primary recovery actions for the continental U.S. breeding population of the wood stork. Speciesfocused recovery tasks include: (1) Protect currently occupied habitat, (2) restore and enhance habitat, (3) conduct applied research necessary to accomplish recovery goals, and (4) increase public awareness. These primary recovery actions have been initiated. Many of the actions listed under these categories are of high priority to implement and are ongoing. Recovery Task (1): Protect currently occupied habitat. At a minimum, for continued survival of the continental U.S. breeding population, currently occupied nesting, roosting, and foraging habitat must be protected from further loss or degradation. Watersheds supporting natural nesting habitat should remain unaltered, or be restored to function as a natural system if previously altered. Recovery actions under this recovery task include: (1.1) Locate important habitat, (1.2) prioritize habitat, (1.3) work with private landowners to protect habitat, (1.4) acquire land, (1.5) protect sites from disturbance, and (1.6) use existing regulatory mechanisms to protect habitat. Recent habitat models (e.g., Gawlik 2002; Herring 2007; Borkhataria 2009; Rodgers et al. 2010); ongoing annual monitoring of nesting colonies (e.g., Cook and Korboza 2010; Brooks and Dean 2008; Murphy and Coker 2008; Winn et al. 2008; Frederick and Meyer 2008); surveys of nesting colony core foraging areas in Florida, Georgia, and South Carolina (e.g., Herring 2007; Bryan and Stephens 2007; Lauritsen 2010; Tomlinson 2009; Meyer 2010); and satellite-telemetry studies (e.g., Hylton 2004; Hylton et al. 2006; Bryan VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 et al. 2008; Borkahatria 2009; Lauritsen 2010) are helping to update conservation information and tools that are used to identify, prioritize, protect, restore, and acquire important wood stork habitats. Core foraging areas near large colonies on protected lands, like Corkscrew Swamp Sanctuary in Florida, Harris Neck National Wildlife Refuge in Georgia, and Washo Plantation in South Carolina, have been identified. However, alteration and loss of foraging habitat continues as a threat to recovery, as such habitat continues to be lost today through the continual expansion of the human environment, resulting in new development and associated roads and other infrastructure. The Service has developed a brochure, Wood Stork Conservation and Management for Land Owners, to assist public and private land managers in protecting and restoring wood stork habitat (Service 2001). The wood stork habitat management guidelines are also being updated (Bryan 2006) and are an important conservation tool to provide guidance on protecting wood storks and their habitats. In an effort to minimize loss of wetland habitats important to wood stork recovery, like those within the core foraging area of a nesting colony, the Service’s South and North Florida Ecological Services Field Offices have also developed a ‘‘May Affect’’ key to assist regulators with review of wetland dredge and fill permit applications. Recovery Task (2): Restore and enhance habitat. A prerequisite for recovery of the wood stork in the southeastern United States is the restoration and enhancement of suitable habitat throughout the mosaic of habitat types used by this species. Recovery actions include: (2.1) Restore the Everglades and Big Cypress system, (2.2) enhance nesting and roosting sites throughout the range, and (2.3) enhance foraging habitat by modifying hydrologic regimes in existing artificial impoundments to maximize use by wood storks. Wood storks depend upon a mosaic of wetlands throughout the coastal plain of the southeastern United States for breeding and foraging. Ecosystems and wetlands are being restored throughout the southeastern United States through programs such as the Comprehensive Everglades Restoration Program (CERP) (RECOVER 2009); Kissimmee River Restoration Project, which includes a goal to restore over 40 square miles of river and floodplain ecosystem including 43 miles of meandering river channel and 27,000 acres of wetlands (USACE 2011); and Upper St. Johns Basin Restoration Project, which has PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 enhanced and restored 150,000 acres of marsh (SJRWMD 2011). These and other large-scale wetland restoration projects are significantly contributing to wood stork recovery by reducing the threat of habitat loss. Management plans such as State wildlife action plans (http:// www.wildlifeactionplans.org/) help to identify important habitats on which to focus conservation efforts. Other management plans such as the North American Waterfowl Management Plan (USFWS 2011) also help to identify focus areas for conservation. By highlighting important habitats or areas, such as the ACE Basin and Winyah Bay in South Carolina, funds and conservation initiatives are directed towards restoring these important habitat areas and contribute to recovery by reducing the threat due to loss of habitat. Thousands of acres are being protected, enhanced, restored, and brought under conservation easements to assist in wildlife conservation through programs such as the Wetland Reserve Program (WRP) and the Farm Bill, including 70,000 acres of wetlands in Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina in 2010 (NRCS 2011). The WRP is a voluntary program offering landowners the opportunity to protect, restore, and enhance wetlands on their property. The U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS) provides technical and financial support to help landowners with their wetland restoration efforts. The goal of the NRCS is to achieve the greatest wetland functions and values, along with optimum wildlife habitat, on every acre enrolled in the program. This program offers landowners an opportunity to establish long-term conservation and wildlife practices and protection, and therefore provides some benefits to wood stork recovery. In Florida, the WRP program has restored over 200,000 acres of wetlands (Simpkins, Service, pers. comm., 2011) and over 115,000 acres in Alabama, Georgia, and South Carolina. A majority of the Florida WRP-restored acres have been within the Everglades and Big Cypress systems. A 2006 WRP restoration of 200 acres of farmland in Camilla, Georgia, now supports the newest Georgia wood stork colony, with over 100 nesting pairs annually. This task will be complete once viable nesting occurs throughout the range of this DPS. The most significant wetland restoration goal for wood storks is to recover viable nesting subpopulations in the traditional Everglades and Big Cypress nesting areas as outlined by CERP. Overall, E:\FR\FM\26DEP1.SGM 26DEP1 ebenthall on DSK5TPTVN1PROD with Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules future wetland restoration efforts in the Southeast U.S. will be beneficial to wood stork recovery. Recovery Task (3): Conduct applied research necessary to accomplish recovery goals. Recovery efforts for the wood stork will be more effective with a better understanding of population biology, movement patterns of continental U.S. and neighboring populations of wood storks, foraging ecology and behavior, the importance of roost sites, and the possible impacts of contaminants. Recovery actions include: (3.1) Determine movement patterns of continental U.S. and neighboring populations of wood storks, (3.2) determine population genetics, (3.3) monitor productivity of stork populations, (3.4) monitor survivorship of stork populations, (3.5) determine extent of competition/cooperation between wood storks and other wading birds in mixed nesting colonies, (3.6) determine foraging ecology and behavior, (3.7) determine the importance of roost sites, and (3.8) determine the impacts of contaminants on wood stork populations. The following is a summary of several recent monitoring and research findings. The South Florida Wading Bird Report (1996–2010) annually reports on habitat monitoring and research with respect to the CERP and foraging and nest monitoring projects for wood storks and wading birds utilizing the Everglades and Big Cypress systems. This report provides an annual assessment on the Restoration Coordination and Verification Program (RECOVER), the system-wide science arm of the CERP. Per Recovery Action 3.1 and 3.6, satellite-telemetry studies are providing new insight into movement patterns (e.g., Hylton 2004; Bryan et al. 2008; Borkhataria 2009; Lauritsen 2010). Surveys to determine foraging distances from nesting colonies and satellite-telemetry research are helping to update our understanding of wood stork foraging ecology and of core foraging areas (e.g., Herring 2007; Bryan and Stephens 2007; Borkhataria 2009; Meyers 2010; Lauritsen 2010; Tomlinson 2009). Satellite-telemetry data and banding studies are helping to refine survival estimates (Borkhataria 2009, pp. 63–64) for population modeling (Borkhataria 2009) as identified under Recovery Action 3.4. Ongoing systematic reconnaissance flights of the Everglades, Kissimmee River, water conservation areas, Big Cypress National Preserve, and Upper St. Johns River are monitoring wood stork abundance and distribution in south Florida (Cheek 2010, pp. 22–26; Alvarado and Bass 2010, pp. 30–39; VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 Nelson 2010, p. 40; D. Hall, SJRWMD, pers. comm., 2008). Annual nesting colony surveys help to monitor the status of the breeding population. Per Recovery Action 3.3, recent productivity research and monitoring efforts have documented productivity rates to be similar to rates documented between the 1970s and 1990s (Rodgers et al. 2008; Bryan and Robinette 2008), and Rodgers et al. (2008, p. 25) suggest the need to develop an unbiased estimator of productivity that takes into consideration the lack of nesting during some years to more accurately estimate wood stork productivity at the regional level. A genetic structuring and haplotype network analysis comparison indicates that either a demographic decline or a recent evolutionary bottleneck reduced the levels of genetic variability in the continental U.S. population (Lopes et al. 2011, p. 1911) is research addressing Recovery action 3.2. The genetic structuring assessment revealed nonsignificant differentiation, indicating that continental U.S. and Brazilian wood stork populations were only recently separated or that gene flow between these populations continues to occur at low levels. The haplotype network analysis indicated low current levels of gene flow between populations that were closely related in the past (Lopes et al. 2011, p. 1911). Recovery Task (4): Increase public awareness. Wood storks utilize a wide variety of wetland habitats. They are visually unique and generate interest from the public. These factors have made the wood stork the subject of many environmental education materials and programs. There are many brochures, videos, and educational packets available. Recovery actions include: (4.1) Increase awareness and appreciation through educational materials, and (4.2) provide opportunities for the public to view wood storks in captivity. Examples of such wood stork educational efforts to increase public awareness can be found on our Web site (http://www.fws.gov/northflorida/ WoodStorks/wood-storks.htm) and the Web sites of many of our recovery partners, including the Everglades National Park (http://www.nps.gov/ever/ naturescience/woodstork.htm), Florida Fish and Wildlife Conservation Commission (http://myfwc.com/ research/wildlife/birds/wood-storks/), Georgia Department of Natural Resources (http:// www.georgiawildlife.com/sites/default/ files/uploads/wildlife/nongame/pdf/ accounts/birds/mycteria_ americana.pdf), South Carolina Department of Natural Resources PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 75955 (http://www.dnr.sc.gov/cwcs/pdf/ Woodstork.pdf), University of Florida (http://www.wec.ufl.edu/faculty/ frederickp/woodstork/), Audubon Society (http://birds.audubon.org/ species/woosto), Corkscrew Sanctuary Swamp (http:// www.corkscrewsanctuary.org/Wildlife/ Birds/profiles/wost.pdf), and others. Opportunities for the public to view wood storks in the wild include almost all National Wildlife Refuges (NWR) and National Parks and Preserves in Florida and coastal Georgia and South Carolina, including the Everglades National Park, Ten Thousand Island NWR, J.N. Ding Darling NWR, Loxahatchee NWR, Pelican Island NWR, Merritt Island NWR, Harris Neck NWR, and ACE Basin NWR. Several wood stork nesting colonies can also be seen at public observation areas that do not disturb the colony, such as Audubon’s Corkscrew Swamp Sanctuary, Parotis Pond in Everglades National Park, Pelican Island NWR, St. Augustine Alligator Farm, Jacksonville Zoo and Gardens, and Harris Neck NWR. Recovery Achieved The recovery criteria for the continental U.S. breeding population DPS of wood storks state that reclassification from endangered to threatened could be considered when there are 6,000 nesting pairs and annual average regional productivity is greater than 1.5 chicks per nest per year (both calculated over a 3-year average). Although variable, productivity appears to be sufficient to support continued population growth as evidenced by the increasing nesting population and range expansion. 1. Nesting pairs. The continental U.S. breeding population of the wood stork has been increasing since it was listed in 1984 (Brooks and Dean 2008, p. 58; Borkhataria 2009, p. 34). Regional nesting surveys to census wood stork colonies have been continuous in south Florida and Georgia since 1976, and in South Carolina since 1981. Nest censuses of the entire breeding range were conducted in 1975–1986, 1991, 1993–1995, 1997, 1999, and 2001–2010 (Table 1). The 3-year average for nesting pairs has exceeded the reclassification criterion of 6,000 every year since 2003 (Table 2). However, the nesting pair average is well below the 5-year average of 10,000 nesting pairs (a benchmark for delisting), and the 5-year averages for nesting in the Everglades and Big Cypress Systems are below 2,500 nesting pairs (another benchmark for delisting), as nesting in south Florida remains variable (Table 2). E:\FR\FM\26DEP1.SGM 26DEP1 75956 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules TABLE 2—WOOD STORK NESTING DATA IN THE SOUTHEASTERN UNITED STATES AND 3-YEAR AVERAGES (SERVICE 2011). Total Year ebenthall on DSK5TPTVN1PROD with 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 South FL Nesting pairs ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. ............................. 3yr Avg 4,442 3,575 5,983 6,245 5,193 ................ ................ ................ ................ ................ 4,073 ................ 6,729 5,768 7,853 ................ ................ ................ ................ ................ 5,582 7,855 8,813 8,379 5,572 11,279 4,406 6,118 12,720 8,141 9,579 ............ ............ 4,667 5,268 5,807 ............ ............ ............ ............ ............ ............ ............ ............ ............ 6,783 ............ ............ ............ ............ ............ ............ ............ 7,417 8,349 7,588 8,410 7,086 7,268 7,748 8,993 10,147 2. Productivity. There is also a need to systematically determine reproductive success (number of fledged young per nest and number of fledged young per successful nest) for a majority of the colonies in the same year(s) to better estimate productivity of the breeding population (USFWS 1997, p. 24). The Service acknowledges that the productivity dataset is incomplete, with less than 25 percent of the colonies surveyed for productivity during the past 4 years and 50 percent surveyed between 2003 and 2007. Brooks and Dean (2008, p. 56) indicate the average productivity rate for all colonies monitored in the southeastern United States was 1.5 chick/nest attempt between 2004 and 2006; 1.2 chick/nest attempt between 2003 and 2005; and 1.5 chick/nest attempt between 2003 and 2006 (Brooks and Dean 2008, p. 56). Rodgers et al. (2008, p. 25) found that colonies farther north in Florida exhibited greater productivity, and that colonies in northeastern and northwestern Florida had greater fledging rates than colonies farther south in central Florida. Bryan and Robinette (2008, p. 20) found Georgia and South Carolina rates similar to North Florida rates. Due to funding and VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 Nesting pairs 2,428 1,237 2,858 1,245 798 643 100 755 515 475 550 1,917 587 741 1140 1215 445 478 2,674 3,996 2,888 3,463 1,747 1,485 591 2,648 696 344 5,816 1,220 2,131 Central/North FL 3yr Avg Nesting pairs 3yr Avg ............ ............ 2,174 1,780 1,634 895 514 499 457 582 513 981 1,018 1,082 823 1,032 933 713 1,190 2,383 3,186 3,449 2,699 2,232 1,274 1,575 1,312 1,229 2,285 2,460 3,056 1,728 2,183 2,742 4,402 3,764 ............ ............ ............ ............ ............ 1,890 ............ 3,675 2,847 4,383 ............ ............ ............ ............ ............ 358 2,000 4,057 3,241 1,713 4,568 857 1,494 3,612 2,600 3,161 ............ ............ 2,218 3,109 3,636 ............ ............ ............ ............ ............ ............ ............ ............ ............ 3,635 ............ ............ ............ ............ ............ ............ ............ 2,138 3,099 3,004 3,174 2,379 2,306 1,988 2,571 3,124 GA Nesting pairs 275 135 363 576 557 648 506 311 543 709 969 1,091 1,661 1,468 1,501 1,480 1,379 1,665 1,139 566 1,162 1,256 1,653 1,596 1,817 1,928 1,054 2,292 1,676 2,708 2,160 manpower constraints, rangewide, Statewide, and regional monitoring of wood stork productivity only has occurred episodically (e.g., early 1980s and 2000s). As there are now over 80 wood stork colonies, Rodgers et al. (2008, p. 32) identifies the need to develop a long-term program of monitoring that relies on monitoring of fewer colonies. Based upon the nesting population criteria in the recovery plan, we can consider the continental U.S. breeding population of the wood stork for reclassification to threatened status at this time because wood storks and their habitat would continue to receive the protections of the Act, and management efforts continue to maintain, enhance, and restore the amount and quality of available habitat to support a growing population. For the following reasons, we believe that the continental U.S. breeding population of the wood stork has surpassed the recovery criteria outlined as necessary for reclassification. As shown in Table 2 of this document, the nesting population is increasing and well above the reclassification benchmark (Brooks and Dean 2008, p. 58; Table 2). The total number of nesting colonies has PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 SC 3yr Avg ............ ............ 258 358 499 584 570 488 453 521 740 923 1,240 1,407 1,543 1,483 1,453 1,508 1,394 1,123 956 995 1,357 1,502 1,689 1,780 1,600 1,758 1,674 2,225 2,181 Nesting Pairs 11 20 20 22 74 120 194 179 376 536 664 475 806 712 829 953 917 1,093 520 1,236 1,174 1,136 1,356 2,057 1,419 2,010 1,607 1,839 1,482 1,393 2,031 NC 3yr Avg Nesting pairs 3yr Avg ............ ............ 17 21 39 72 129 164 250 364 525 558 648 664 782 831 900 988 843 950 977 1,182 1,222 1,516 1,611 1,829 1,679 1,819 1,643 1,571 1,635 ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ 32 125 192 149 134 220 96 ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ ............ 116 155 158 168 141 remained stable in south Florida and the number of colonies in central and north Florida, Georgia, South Carolina, and North Carolina continue to increase (Ogden et al. 1987, p. 754; Brooks and Dean 2008, p. 54; Table 1). The nesting range continues to expand with new colonies documented in North Carolina and western Georgia. Although variable (particularly in south Florida) and not yet well documented, productivity appears to be sufficient to support continued population growth, as evidenced by the increasing population and range expansion described above. Population trends suggest that the overall population may approach the delisting benchmark of 10,000 nesting pairs during the next 15 to 20 years. Nesting numbers suggest a stable or increasing population, however, data are not available to evaluate the productivity criterion of 1.5 chicks per nest per year. Summary of Factors Affecting the Species Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing, reclassifying, or removing a species from, the Federal Lists of Endangered E:\FR\FM\26DEP1.SGM 26DEP1 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules ebenthall on DSK5TPTVN1PROD with and Threatened Wildlife and Plants. Under section 3 of the Act, a species is ‘‘endangered’’ if it is in danger of extinction throughout all or a ‘‘significant portion of its range’’ and is ‘‘threatened’’ if it is likely to become endangered within the foreseeable future throughout all or a ‘‘significant portion of its range.’’ The word ‘‘range’’ refers to the range in which the species currently exists, and the word ‘‘significant’’ refers to the value of that portion of the range being considered to the conservation of the species. The ‘‘foreseeable future’’ is the period of time over which events or effects reasonably can or should be anticipated, or trends extrapolated. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. The following analysis examines all five factors currently affecting or that are likely to affect the wood stork within the foreseeable future: A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Throughout its range in the southeastern United States, wood storks are dependent upon wetlands for breeding and foraging. Preventing loss of wood stork nesting habitat and foraging wetlands within a colony’s core foraging area is of the highest priority. In addition, winter foraging habitat is important to recovery, as it may determine the carrying capacity of the continental U.S. wood stork DPS. While the immediacy and the magnitude of this factor are substantially reduced when compared to when this species was originally listed, the destruction, fragmentation, and modification of its wetland habitats continues to occur and could accelerate in the absence of the protections of the Act. Hefner et al. (1994, p. 21) estimated that 1.3 million acres of wetlands lost in the southeastern United States between the mid 1970s and mid 1980s were located in the Gulf-Atlantic Lower Coastal Plain, an area upon which wood storks are dependent. Ceilley and Bartone (2000, p. 70) suggest that short hydroperiod wetlands provide a more important pre-nesting food source and provide for a greater early nestling VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 survivorship for wood storks than previously known. Wetlands that wood storks use for foraging are being lost through permitted activities where mitigation is provided. However, it is not known if wood stork foraging wetlands are being replaced with likequality foraging wetlands within the core foraging area of an impacted colony. Lauritsen (2010, pp. 4–5) suggests that today’s mitigation practices lead to a disproportionate loss of short hydroperiod wetlands. The impacts of the loss of short hydroperiod (isolated) wetlands, which supply most of the food energy for initiating reproduction (Fleming et al. 1994, p. 754), may result in abandonment of nest colonies by wood storks (e.g., Corkscrew Swamp Sanctuary). Frederick and Meyer (2008, p. 15) suggest that the decline in colony size in Florida reflects the increasingly fragmented nature of Florida’s wetlands resulting from development. The decline of south Florida’s Everglades and Big Cypress ecosystems is well-documented (e.g., Davis and Ogden 1994). Prior to 1970, a majority (70 percent) of the wood stork population nested south of Lake Okeechobee and declined from 8,500 nesting pairs in the early 1960s to around 500 pairs in the late 1980s and early 1990s (Service 1997). The primary cause of this decline was the loss of wetland function of these south Florida ecosystems that resulted in reduced prey availability or loss of wetland habitats (Service 1997, p. 10). Wood storks use manmade wetlands for foraging and breeding purposes. Manmade wetlands include, but are not limited to, storm water treatment areas and ponds, golf course ponds, borrow pits, reservoirs, roadside ditches, agricultural ditches, drainages, flowways, mining and mine reclamation areas, and dredge spoil sites. The impacts can be positive in certain scenarios as these wetlands can provide protected foraging and nesting habitat, and may offset some losses of natural wetlands caused by development. A significant number of wood stork colonies are located where water management practices can impact the nesting habitat negatively. Colonies that are perpetually flooded will have no tree regeneration. Draining surface waters of a colony’s wetland or pond will prevent wood storks from nesting, and lowered water levels after nest initiation facilitate raccoon predation. Lowering surface water or water table may occur through water control structures, manipulating adjacent wetlands, or water withdrawals from the local aquifer and can prevent wood PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 75957 storks from nesting or cause colony failure. While habitat loss, fragmentation, and degradation continue to occur throughout the range of the continental U.S. population of wood stork, there are also protection, acquisition, and restoration efforts in progress. Natural wetlands are being targeted for acquisition to be protected through the management of public lands for wildlife and water conservation (NRCS 2006, p. 1). In Florida, the Wetlands Reserve Program has restored over 200,000 acres of wetlands and over 115,000 acres in Alabama, Georgia, and South Carolina during the past 18 years. Thousands of acres of wetlands are also being protected on private lands to assist in habitat and wildlife protection through restoration in conjunction with establishing conservation easements (Dahl 2006, p. 16). Wetland losses are being avoided, minimized, and mitigated through the regulatory process (Votteler and Muir 2002, pp. 1–2). Large-scale restoration projects like the CERP, Kissimmee River Restoration Project, and St. Johns River Headwaters Restoration Project are significant conservation efforts that greatly benefit wood stork recovery. Additionally, the species’ response to the threat of habitat loss and degradation indicates its ability to adapt and seek out new nesting and foraging areas. Since 1980, wood storks have expanded their breeding range north into Georgia, South Carolina, and North Carolina, and the total number of breeding adults is now approaching the delisting criterion set out in the species’ recovery plan. Seventy percent of the population now breeds north of Lake Okeechobee and the Everglades (Brooks and Dean 2008, p. 53). These positive indicators throughout the range suggest that the viability of the continental U.S. wood stork DPS may no longer be as closely tied to the health of the Everglades for reproduction. With regard to important wood stork habitats, a number of the nesting colonies occur on Federal conservation lands and are consequently afforded protection from development and largescale habitat disturbance. Wood stork colonies also occur on a variety of Stateowned properties, and existing State and Federal regulations provide protection on these sites. However, approximately half of known wood stork colonies occur on private lands. Through conservation partnerships, colonies can be protected through the owners’ stewardship. In an effort to minimize potential loss of colony sites, partnerships have been developed through conservation easements, E:\FR\FM\26DEP1.SGM 26DEP1 75958 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules ebenthall on DSK5TPTVN1PROD with wetland restoration projects, and other conservation means. Also, the wetland areas near nesting colonies play a vital role in the success of a nesting colony. Due to the regulatory status of wetlands, conservation of wetlands shown to be important to wood storks can be largely achieved through the application of existing wetland laws, such as the Clean Water Act (33 U.S.C. 1251 et seq.) and the interagency cooperation provisions of the Act. In summary, loss, fragmentation, and modification of wetland habitats continue as threats to wood storks. Changes in local habitat conditions are known to impact wood storks. Based on the best available scientific information, it is our assessment that the species is showing the ability to respond to these threats through expansion of its range, adjusting reproductive timing, and utilizing a variety of wetlands for foraging, roosting, and breeding, including manmade wetlands. Historically, the core of the wood stork breeding population was located in the Everglades and Big Cypress systems of south Florida. Populations there had diminished because of deterioration of the habitat. In recognition of the importance of the Everglades and Big Cypress systems to wood stork recovery, the recovery plan stated that, as a prerequisite for full recovery, these ecosystems should once again provide the food resources that are necessary to support traditional wood stork nesting patterns at historical nesting areas. However, current data show that the breeding range has now almost doubled in area and shifted northward along the Atlantic coast as far as southeastern North Carolina. As a result of their range expansion, dependence of wood storks on any specific wetland complex has been reduced. Even though habitat destruction and modification are still a threat to recovery, the improved wood stork population statistics suggest that wetland habitat is not yet limiting the population, at least at the landscape level (USFWS 2007, p. 16). Habitat loss, fragmentation, and modification of wetland habitats continue around nesting colonies and core foraging areas, and are a significant factor affecting the viability of the continental U.S. wood stork DPS. B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes Monitoring of and research on wood storks over the past 20 years has increased. A small number of scientific research permits with potential to harm individual wood storks have been issued. This level of take/harm is not expected to adversely impact wood stork recovery or present a threat to the species. Wading birds and other waterbird species, including wood storks, can impact production at fish farms. A Georgia catfish farmer located approximately 25 miles west of the Chewmill and Birdsville colonies in Jenkins County, Georgia, has documented hundreds of woods storks aggregating and foraging on the littoral edges of the ponds during the late summer in recent years. U.S. Department of Agriculture, Wildlife Services Division (Wildlife Services) has documented hundreds of wood storks, and in one case 1,000 wood storks, roosting on fish pond dikes in the eastern Mississippi, west-central Alabama area (J. Taylor, U.S. Department of Agriculture, pers. comm., 2007). Wildlife Services found that the wood storks were generally loafing, and if they were feeding, they were taking diseased and oxygen-deprived fish and not impacting production. Nonetheless, operators of fish farms often respond to such activities by taking wood storks. Unpermitted wood stork take has been documented at a Mississippi catfish farm and a Florida tropical fish farm. Each of these incidents ended in prosecution for shooting wood storks. However, wood stork take at aquaculture facilities likely still occurs. To what extent this type of take occurs is unknown. Migratory Bird Treaty Act (MBTA; 16 U.S.C. 701 et seq.) depredation permits assist in minimizing unauthorized take. Depredation permits are issued to allow the take of migratory birds that are causing serious damage to public or private property, pose a health or safety hazard, or are damaging agricultural crops or wildlife. Wildlife Services provides expert technical advice and information regarding hazing and harassment techniques. Research permits are issued to eliminate or minimize impacts to wood storks from scientific research. Overutilization was not identified as a threat at the time of listing in 1984, and we conclude that overutilization for commercial, recreational, scientific, or educational purposes is not a threat to the continental U.S. wood stork DPS now or in the foreseeable future. C. Disease or Predation There is limited information regarding potential impacts from disease or parasites. Hematozoa (blood parasites) have been documented to a limited extent in wood storks in Florida and Georgia (Forrester et al. 1977, p. 1273; Fedynich et al. 1998, p. 166). Avian VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 malaria has recently been documented in continental U.S. wood storks, but the available information does not indicate that avian malaria is a significant factor affecting the DPS. Adequate water levels under nesting trees or surrounding nesting islands deter raccoon predation of wood stork colonies. Water level manipulation that keeps levels too low can facilitate raccoon predation of wood stork nests. In many cases, colonies also have a population of alligators nearby that deter raccoon predation (Coulter and Bryan 1995, p. 242), and removal of alligators from a nesting colony site could lead to increased raccoon predation. Human disturbance may cause adults to leave nests, exposing the eggs and downy nestlings to predators (e.g., fish crows), sun, and rain. Great horned owls have been documented nesting in and near colonies and likely impact the colony to some degree. A breeding population of Burmese pythons has been documented in the Florida Everglades, and a recent study documented that pythons had preyed upon wood storks (Dove et al. 2011, p. 128). If these snakes or other species of nonnative reptiles become established in additional areas within the south Florida ecosystem, they could pose a threat to nesting wood storks and other species of colonial-nesting water birds but at the present time pythons do not pose a significant factor affecting the continental U.S. breeding population of wood stork. As summarized above, we have a few documented instances of disease and predation within range of the continental U.S. wood stork DPS. However, this information does not indicate that disease or predation occur at a level that would threaten the continental U.S. wood stork DPS, now or in the foreseeable future. We will continue to work closely with our State and Federal wildlife agency partners, those who monitor wildlife diseases in the wild, and those conducting research of wood storks in order to monitor these potential threats. D. The Inadequacy of Existing Regulatory Mechanisms In addition to the Act, the MBTA provides Federal protection to the continental U.S. wood stork DPS. Florida, Georgia, South Carolina, North Carolina, Alabama, and Mississippi wildlife laws also list and protect wood storks. These Federal and State laws prohibit the taking of a wood stork, their nests, or their eggs, except as authorized through permitted activities such as scientific research and depredation permits. However, the MBTA and State E:\FR\FM\26DEP1.SGM 26DEP1 ebenthall on DSK5TPTVN1PROD with Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules laws do not prohibit clearing, alteration, or conversion of wetland foraging habitats or nesting colony sites during the non-nesting season. The Clean Water Act (CWA) regulates dredge and fill activities that would adversely affect wetlands, which constitute wood stork habitat. Section 404 of the CWA regulates the discharge of dredged or fill materials into wetlands. Discharges of dredged or fill materials are commonly associated with projects to create dry land for development sites, water-control projects, and land clearing. The U.S. Army Corps of Engineers (Corps) and the Environmental Protection Agency (EPA) share the responsibility for implementing the permitting program under section 404 of the CWA. These federal actions must not jeopardize the continued existence of any species protected under the Act. When impacts to wetlands cannot be avoided or minimized, wetland mitigation is often employed to replace an existing wetland or its functions by creating a new wetland, restoring a former wetland, or enhancing or preserving an existing wetland. This is done to compensate for the authorized destruction of the existing wetland. As discussed earlier, it is not known if wood stork foraging wetlands are being replaced with like-quality foraging wetlands within the core foraging areas of impacted colonies. There is currently little protection for isolated wetland habitats under section 404 of the CWA. A 2001 U.S. Supreme Court opinion (Solid Waste Agency of Northern Cook County (SWANCC) v. US Army Corps of Engineers, 531 U.S. 159 (2001)) substantially reduced the jurisdiction of the Federal Government in regulating isolated wetlands. While many States in the southeastern United States regulate those activities affecting wetlands that are not protected by section 404 of the CWA, Florida is the only State known to regulate isolated wetlands. In South Carolina, Georgia, Alabama, and North Carolina, there are no State laws that protect isolated wetlands. The EPA and the Corps have developed draft guidance for determining whether a waterway, water body, or wetland is protected by the CWA (76 FR 24479, May 2, 2011). If implemented, the guidance will increase the extent of waters over which the agencies assert jurisdiction under the CWA and thus would provide protection to additional wood stork foraging wetlands that are currently unprotected from modification or elimination. The Service recommends, through its Wood Stork Habitat Management VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 Guidelines (Ogden 1990), that active colony sites be protected from local hydrologic changes and from human activities (e.g. timber harvesting, vegetation removal, construction, and other habitat-altering activities) which are likely to be detrimental to the colony (Service 1997, p. 18). The Service also recommends that feeding sites be protected to the maximum extent possible. The Service’s South Florida and Jacksonville Ecological Services Field Offices have developed ‘‘May Affect’’ keys to assist regulators with review of wetland dredge and fill permit applications and in an effort to minimize loss of wetland habitats important to wood stork recovery, like those within the core foraging area of a nesting colony. In summary, there are a number of regulatory mechanisms implemented by Federal and State agencies to protect wood storks and conserve their habitat. Take of wood storks is illegal under both the Act and MBTA. The CWA minimizes impacts on jurisdictional wetlands that are important to Wood Storks, however the CWA alone is not sufficient to eliminate all impacts, as discussed in Factor A. Whether existing habitat protections and conservation mechanisms are inadequate can only be assessed by monitoring the status of the wood stork population. Recent trends indicate that the range is expanding and the breeding population has increased, suggesting that the combination of the CWA, the Act, MBTA, and state regulations are adequate to protect jurisdictional wetlands to allow population growth. However, nonjurisdictional wetlands continue to be lost to development due to lack of existing regulatory mechanisms, and therefore, loss of these wetlands continues as a threat to this species. E. Other Natural or Manmade Factors Affecting Its Continued Existence Climate Change The terms ‘‘climate’’ and ‘‘climate change’’ are defined by the Intergovernmental Panel on Climate Change (IPCC). ‘‘Climate’’ refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term ‘‘climate change’’ thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 75959 both (IPCC 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8–14, 18–19). In our analyses, we use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change. The IPCC concluded that evidence of warming of the climate system is unequivocal (IPCC 2007a, p. 30). Numerous long-term changes have been observed, including changes in arctic temperatures and ice, widespread changes in precipitation amounts, ocean salinity, wind patterns, and aspects of extreme weather, including droughts, heavy precipitation, heat waves, and the intensity of tropical cyclones (IPCC 2007b, p. 7). While continued change is certain, the magnitude and rate of change is unknown in many cases. Species that are dependent on specialized habitat types, are limited in distribution, or are located in the extreme periphery of their range will be most susceptible to the impacts of climate change. Such species would currently be found at high elevations or in extreme northern/southern latitudes, or are dependent on delicate ecological interactions or sensitive to nonnative competitors. Wood storks nest in a wide variety of natural and human made habitats (e.g., fresh water wetlands to estuarine environs, cypress strands to mangrove islands, lake edges to river edges, impoundments to borrow pits); they are not dependent upon specialized habitat. They nest in trees and shrubby vegetation (native to exotic) where water is surrounding (island) or water is underneath the nesting vegetation and where there is suitable foraging habitat nearby (shallow water wetlands). The marshes and wetlands they use may be impacted by climate change depending on their location but wood storks have been shown to find other habitat if existing locations become unavailable. Information on the subject of climate change in our files is not specific to the wood stork. While predictions of increased drought frequency, intensity, and duration suggest that nestling survival could be a limiting factor for the wood stork due to increased predation or possible loss or shift in the location of coastal colonies due to sea level rise, the species possesses other biological traits, like adaptability to E:\FR\FM\26DEP1.SGM 26DEP1 75960 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules ebenthall on DSK5TPTVN1PROD with changing habitat conditions that provide resilience to this threat. Wood storks are already responding to habitat changes by altering their nest locations. This has been seen in the recent expansion from Everglades colony locations in Florida to other areas in the southeastern United States (Brooks and Dean 2008). These expansions are in response to annual cycles; nest locations depend upon availability. Abandonment of old colonies and formation of new ones is a typical and fairly rapid process in wood storks (Frederick and Meyer 2008 p.12). Most wood stork colonies in the Southeast U.S. have relatively short survival histories and only a handful of colonies have survived more than 20 years and the large numbers of shortlived colonies indicate that wood stork colony abandonment and novel colony initiation seems to be typical of the species (Tsai et al. 2011, p. 2). The wood storks’ ability to seek out new locations for nesting would seem to indicate that they will respond in a similar fashion to changes in habitat availability that result from sea level rise. Although many species already listed as endangered or threatened may be particularly vulnerable to negative effects related to changes in climate, we also recognize that, for some listed species, the likely effects may be positive or neutral. At this time, we have no evidence that climate changes observed to date have had any adverse effect on the wood stork or its habitat; this long-lived species is expected to adapt to future changes in habitat availability that may result from climate change. Contamination Events Contamination events can be triggered by restoration or natural events, such as hurricanes or flooding, that can expose concentrations of contaminants. For example, from November 1998 through early April 1999, a bird mortality event occurred on the north shore of Lake Apopka, Florida, on former farmlands that had been purchased by the St. Johns River Water Management District and NRCS. An estimated 676 birds died on-site, mostly white pelicans (Pelecanus erythrorhynchos) and various species of wading birds, including the wood stork. Of the estimated 1,991 wood storks present in the area, 43 died on-site (Rauschenberger 2007, p. 16). The cause of death was attributed to organochlorine pesticide (OCP) toxicosis (Rauschenberger 2007, p. 16). The birds were exposed to OCPs by eating OCP-contaminated fish, which became easy prey as fish moved from ditches into the flooded fields, located VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 in the eastern part of the restoration area (Rauschenberger 2007, p. 16). Mercury, heavy metals, and other contaminants that may impair reproduction and cause other health issues are being studied in wood storks and many other wading bird species (Bryan et al. 2012; Gallaher et al. 2011; Martin 2010; Frederick and Jayasena 2010; Brant et al. 2002; Bryan et al. 2001; Gariboldi et al. 2001). Also, exposure to contaminants by foraging in manmade wetlands may pose a potential risk to wood stork health and reproduction. On the other hand, pesticide contamination has not generally been considered to adversely affect wood stork reproduction (Ohlendorf et al. 1978, p. 616). Algal Blooms (Red Tide Events) Harmful algal blooms, specifically red tide events, have become more prevalent along Florida’s coast. Brevitoxicosis was documented in 2005 as the cause of death of a wood stork (Spalding 2006). Wood storks can be exposed to harmful microalgae and their toxins through a variety of mechanisms, including aerosolized transport (i.e., respiratory irritation in mammals, turtles, birds); bioaccumulation through consumption of prey containing toxins or toxic cells (crustaceans, gastropods, fish, birds, turtles, mammals); and mechanical damage by spines, setae, or other anatomical features of the cells (FWC 2007, p. 1). In addition to dead fish, large numbers of aquatic birds, particularly double-crested cormorants (Phalacrocorax auritus), red-breasted mergansers (Mergus merganser), and lesser scaup (Aythya affinis), were found moribund or dead in red tide areas during the Florida west coast Karenia brevis red tide of October 1973 to May 1974 (FWC 2007). Electrocution Electrocution mortalities of wood storks from power lines have been documented and reported to us by power companies and by State and Federal wildlife law enforcement. In most cases, when a problem location is identified, it is retrofitted using standard avian protection guidelines to prevent electrocutions. The guidelines recommend using heavily insulated wire, spreading the wires apart to prevent grounding as body parts touch the wires, or burying the wires underground. The Service’s Wood Stork Habitat Management Guidelines (Ogden 1990) include recommendations that new transmission lines be at least 1 mile away from colony sites and tall transmission towers no closer than 3 miles from active colonies. The Service PO 00000 Frm 00055 Fmt 4702 Sfmt 4702 also recommends similar guidance for cell phone towers and wind turbines. Other Threats The following is a list of threats that have also been documented to occur, but we have concluded that due to low incident numbers and minimal documentation, the impacts at this time are very low and do not impede recovery. Human disturbance is known to have a detrimental effect on wood stork nesting (Service 1997, pp. 10, 12). Wood storks have been documented to desert nests when disturbed by humans, thus exposing eggs and young birds to the elements and to predation by gulls and fish crows (Coulter et al. 1999, p. 19). Documentation of road kill mortalities of wood storks has increased (B. Brooks, USFWS, pers. comm., 2010). This may be due to better reporting or more storks using roadside ponds, ditches, swales, and flow-ways as foraging habitat. Stochastic events, such as severe thunderstorms and hurricanes, pose a potential risk. Loss of nesting trees due to hurricanes can have a negative impact on nesting habitat. Severe local storm events have impacted individual colonies, causing chick mortality and even blowing nests out of trees. The invasion of exotic plants into natural wetland areas can prevent wood storks from foraging due to high density and canopy cover of the plants (USFWS 2010, p. 127). Invasion into natural nesting habitats by exotic species, including Brazilian pepper (Schinus terebinthifolius), melaleuca (Melaleuca quinquenervia), and Australian pine (Casuarina equisetifolia), may present a problem; however, wood storks are using exotic species for nesting habitat at many manmade wetland colony sites, such as borrow pits. Even though wetlands overgrown with exotics may preclude wood storks from foraging within, they do have a conservation benefit as they flood during the wet season and provide a prey source to adjacent wetlands. Wood storks are also documented utilizing Brazilian pepper as nesting substrate (USFWS 1999, p. 4– 396). A small number of sacred ibis (Threskiornis aethiopicus) escaped from a south Florida zoo and established a small breeding population in south Florida. They may compete with wood storks for nesting space within south Florida colonies. Summary of Factor E In summary, other natural or manmade factors affecting the wood stork’s continued existence, such as contaminants, harmful algal blooms, E:\FR\FM\26DEP1.SGM 26DEP1 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules ebenthall on DSK5TPTVN1PROD with electrocution, road kill, invasion of exotic plants and animals, human disturbance, and stochastic events, are all documented at minimal levels to affect wood storks. The wood stork utilizes a wide variety of habitats throughout its range in the southeastern United States; this ability to use alternative habitats (as evidenced by the wood storks expansion from the Everglades of Florida into marshes and tidal areas throughout the southeastern United States (Brooks and Dean 2008)), helps to buffer this species from some of the impacts to its habitat through natural or manmade threats. We conclude that other natural or manmade factors are not a significant factor affecting the continental U.S. wood stork DPS, now or in the foreseeable future. Conclusion Whether a species is currently on the brink of extinction in the wild depends on the life history and ecology of the species, the nature of the threats, and the species’ response to those threats. Loss, fragmentation, and modification of wetland habitats continue as threats to continental U.S. wood storks. Based on the best available scientific information, it is our assessment that the species is showing the ability to respond to these threats through expanding its range, adjusting its reproductive timing, and utilizing a variety of wetlands, including manmade wetlands, to forage, roost, and breed. Current data show that the breeding range has now almost doubled in extent and shifted northward along the Atlantic coast as far as southeastern North Carolina. As a result, dependence of wood storks on any specific wetland complex has been reduced. Even though habitat destruction and modification are still a threat to recovery, the improved wood stork population statistics also suggest that wetland habitat is not yet limiting the population, at least at the landscape level. A number of regulatory mechanisms are being implemented by Federal and State agencies to protect wood storks and conserve their habitat. Take of wood storks is illegal under both the Act and MBTA. Whether habitat protection and conservation mechanisms are inadequate must be assessed in terms of the wood stork population. Recent trends indicate that the range of the continental U.S. wood stork DPS is expanding and that the breeding population has increased, suggesting that existing regulatory mechanisms are adequate to allow population growth. However, we remain concerned that the status of this species would be expected VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 to deteriorate should the Act’s requirements to consult on all federal actions affecting the species’ habitat or the prohibition on take (including significant habitat modification) be removed. Other threats such as overutilization of the species for commercial, recreational, scientific, or educational purposes; disease and predation; and other natural or manmade factors (e.g., contaminants, harmful algal blooms, electrocution, road kill, invasion of exotic plants and animals, human disturbance, and stochastic events) are known to occur but are not significant. While there continue to be ongoing threats, the continental U.S. wood stork DPS is increasing and expanding its overall range. Population criteria for reclassification have been exceeded with 3-year population averages higher than 6,000 nesting pairs since 2003 (range of 7,086 to 8,996 nesting pairs). Delisting criteria of 10,000 nesting pairs (5-year average) has not been achieved. The wood stork population has exceeded 10,000 nesting pairs twice during the past 5 years (2006 and 2009), and the 2009 count of 12,720 nesting pairs represents the highest count since the early 1960s. Productivity, though variable, is sufficient to support a growing population. Based on the analysis presented above and the fact that downlisting criteria have been met, we believe the continental U.S. wood stork DPS is not presently in danger of extinction throughout its range. However, because loss, fragmentation, and modification of wetland habitats continue around nesting colonies and core foraging areas, and because delisting criteria have not been met, we conclude that the continental U.S. wood stork DPS is likely to become endangered within the foreseeable future and therefore should be reclassified as threatened under the Act. Significant Portion of the Range Analysis Having determined that the continental U.S. wood stork DPS meets the definition of threatened, we must next consider whether there is a significant portion of the range where the wood stork is in danger of extinction. The phrase ‘‘significant portion of its range’’ (SPR) is not defined by the statute, and we have never addressed in our regulations: (1) The consequences of a determination that a species is either endangered or likely to become so throughout a significant portion of its range, but not throughout all of its range; or (2) what qualifies a portion of a range as ‘‘significant.’’ PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 75961 Two recent district court decisions have addressed whether the SPR language allows the Service to list or protect less than all members of a defined ‘‘species’’: Defenders of Wildlife v. Salazar, 729 F. Supp. 2d 1207 (D. Mont. 2010), concerning the Service’s delisting of the Northern Rocky Mountain gray wolf (74 FR 15123, April 2, 2009); and WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. Sept. 30, 2010), concerning the Service’s 2008 finding on a petition to list the Gunnison’s prairie dog (73 FR 6660, February 5, 2008). The Service had asserted in both of these determinations that it had authority, in effect, to protect only some members of a ‘‘species,’’ as defined by the Act (i.e., species, subspecies, or DPS), under the Act. Both courts ruled that the determinations were arbitrary and capricious on the grounds that this approach violated the plain and unambiguous language of the Act. The courts concluded that reading the SPR language to allow protecting only a portion of a species’ range is inconsistent with the Act’s definition of ‘‘species.’’ The courts concluded that once a determination is made that a species (i.e., species, subspecies, or DPS) meets the definition of ‘‘endangered species’’ or ‘‘threatened species,’’ it must be placed on the list in its entirety and the Act’s protections applied consistently to all members of that species (subject to modification of protections through special rules under sections 4(d) and 10(j) of the Act). Consistent with that interpretation, and for the purposes of this proposed rule and finding, we interpret the phrase ‘‘significant portion of its range’’ in the Act’s definitions of ‘‘endangered species’’ and ‘‘threatened species’’ to provide an independent basis for listing a species in its entirety; thus there are two situations (or factual bases) under which a species would qualify for listing: A species may be endangered or threatened throughout all of its range; or a species may be endangered or threatened in only a significant portion of its range. If a species is in danger of extinction throughout an SPR, it, the species, is an ‘‘endangered species.’’ The same analysis applies to ‘‘threatened species.’’ Therefore, the consequence of finding that a species is endangered or threatened in only a significant portion of its range is that the entire species will be listed as endangered or threatened, respectively, and the Act’s protections will be applied across the species’ entire range. We conclude, for the purposes of this proposed rule and finding, that interpreting the SPR phrase as providing E:\FR\FM\26DEP1.SGM 26DEP1 ebenthall on DSK5TPTVN1PROD with 75962 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules an independent basis for listing is the best interpretation of the Act because it is consistent with the purposes and the plain meaning of the key definitions of the Act; it does not conflict with established past agency practice (i.e., prior to the 2007 Solicitor’s Opinion), as no consistent, long-term agency practice has been established; and it is consistent with the judicial opinions that have most closely examined this issue. Having concluded that the phrase ‘‘significant portion of its range’’ provides an independent basis for listing and protecting the entire species, we next turn to the meaning of ‘‘significant’’ to determine the threshold for when such an independent basis for listing exists. Although there are potentially many ways to determine whether a portion of a species’ range is ‘‘significant,’’ we conclude, for the purposes of this proposed rule and finding, that the significance of the portion of the range should be determined based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for ‘‘significant’’ in terms of an increase in the risk of extinction for the species. We conclude that a biologically based definition of ‘‘significant’’ best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species’ conservation. Thus, for the purposes of this proposed rule and finding, a portion of the range of a species is ‘‘significant’’ if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction. We evaluate biological significance based on the principles of conservation biology using the concepts of redundancy, resiliency, and representation. Resiliency describes the characteristics of a species that allow it to recover from periodic disturbance. Redundancy (having multiple populations distributed across the landscape) may be needed to provide a margin of safety for the species to withstand catastrophic events. Representation (the range of variation found in a species) ensures that the species’ adaptive capabilities are conserved. Redundancy, resiliency, and representation are not independent of each other, and some characteristic of a species or area may contribute to all three. For example, distribution across a wide variety of habitats is an indicator of representation, but it may also indicate a broad geographic distribution contributing to redundancy (decreasing the chance that any one event affects the entire species), and the likelihood that VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 some habitat types are less susceptible to certain threats, contributing to resiliency (the ability of the species to recover from disturbance). None of these concepts is intended to be mutually exclusive, and a portion of a species’ range may be determined to be ‘‘significant’’ due to its contributions under any one of these concepts. For the purposes of this proposed rule and finding, we determine if a portion’s biological contribution is so important that the portion qualifies as ‘‘significant’’ by asking whether, without that portion, the representation, redundancy, or resiliency of the species would be so impaired that the species would have an increased vulnerability to threats to the point that the overall species would be in danger of extinction (i.e., would be ‘‘endangered’’). Conversely, we would not consider the portion of the range at issue to be ‘‘significant’’ if there is sufficient resiliency, redundancy, and representation elsewhere in the species’ range that the species would not be in danger of extinction throughout its range if the population in that portion of the range in question became extirpated (extinct locally). We recognize that this definition of ‘‘significant’’ establishes a threshold that is relatively high. On the one hand, given that the consequences of finding a species to be endangered or threatened in an SPR would be listing the species throughout its entire range, it is important to use a threshold for ‘‘significant’’ that is robust. It would not be meaningful or appropriate to establish a very low threshold whereby a portion of the range can be considered ‘‘significant’’ even if only a negligible increase in extinction risk would result from its loss. Because nearly any portion of a species’ range can be said to contribute some increment to a species’ viability, use of such a low threshold would require us to impose restrictions and expend conservation resources disproportionately to conservation benefit: Listing would be rangewide, even if only a portion of the range of minor conservation importance to the species is imperiled. On the other hand, it would be inappropriate to establish a threshold for ‘‘significant’’ that is too high. This would be the case if the standard were, for example, that a portion of the range can be considered ‘‘significant’’ only if threats in that portion result in the entire species’ being currently endangered or threatened. Such a high bar would not give the SPR phrase independent meaning, as the Ninth Circuit held in Defenders of Wildlife v. Norton, 258 F.3d 1136 (9th Cir. 2001). PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 The definition of ‘‘significant’’ used in this proposed rule and finding carefully balances these concerns. By setting a relatively high threshold, we minimize the degree to which restrictions would be imposed or resources expended that do not contribute substantially to species conservation. But we have not set the threshold so high that the phrase ‘‘in a significant portion of its range’’ loses independent meaning. Specifically, we have not set the threshold as high as it was under the interpretation presented by the Service in the Defenders litigation. Under that interpretation, the portion of the range would have to be so important that current imperilment there would mean that the species would be currently imperiled everywhere. Under the definition of ‘‘significant’’ used in this proposed rule and finding, the portion of the range need not rise to such an exceptionally high level of biological significance. (We recognize that if the species is imperiled in a portion that rises to that level of biological significance, then we should conclude that the species is in fact imperiled throughout all of its range, and that we would not need to rely on the SPR language for such a listing.) Rather, under this interpretation we ask whether the species would be endangered everywhere without that portion, i.e., if that portion were completely extirpated. In other words, the portion of the range need not be so important that even being in danger of extinction in that portion would be sufficient to cause the remainder of the range to be endangered; rather, the complete extirpation (in a hypothetical future) of the species in that portion would be required to cause the remainder of the range to be endangered. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that have no reasonable potential to be significant and threatened or endangered. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be ‘‘significant,’’ and (2) the species may be in danger of extinction there or likely to become so within the foreseeable future. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. Thus, if we determine that a portion of the range is not ‘‘significant,’’ we do not need to E:\FR\FM\26DEP1.SGM 26DEP1 ebenthall on DSK5TPTVN1PROD with Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is ‘‘significant.’’ In practice, a key part of the portion status analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species’ range that clearly would not meet the biologically based definition of ‘‘significant,’’ such portions will not warrant further consideration. Applying the process described above, we evaluated the continental U.S. wood stork DPS’s range to determine if any areas could be considered a significant portion of its range, and a key portion of that determination is whether the threats are geographically concentrated in some manner. As detailed in the threat analysis in this proposed rule and finding, the primary threat to the wood stork—habitat loss, fragmentation, and modification—is a relatively uniform threat across the species’ range. It could be argued that at the time of listing, the threat of habitat destruction and fragmentation to the continental U.S. wood stork DPS at one time was concentrated in south Florida. With the current habitat regimes, nesting wood storks have persisted in south Florida with nesting numbers below historic counts but also varying annually from hundreds to several thousand in many years (Table 2). Even though we share above that no concentration of threats currently occurs in the range of this DPS, we provide here more detail on south Florida to show further why it is not a significant portion of range because of the emphasis on south Florida in the wood stork recovery plan. The wood storks nesting in south Florida (the region south of Lake Okeechobee from Lee County on the west coast to Palm Beach County on the east coast, and the Everglades and Big Cypress systems) now represent approximately 25 percent of the breeding wood storks in the United States during the past 10 years (Tables 1 and 2). Total nesting pairs in this region have been quite variable, but showed a general pattern of decline during the 1970s and remained low through the mid 1980s. However, wood stork nesting increased in south Florida from the mid 1990s (an average of 400 to 500 pairs) to a high of 5,816 pairs in 2009. A 3-year running average since VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 the time of listing in 1984 ranges from 457 to 3,449 pairs, with considerable variability. These observed fluctuations in the nesting between years and nesting sites have been attributed primarily to variable hydrologic conditions during the nesting season (Crozier and Gawlik 2003, p. 1; Crozier and Cook 2004, pp. 1–2). Frequent, heavy rains during nesting can cause water levels to increase rapidly. The abrupt increases in water levels during nesting, termed reversals (Crozier and Gawlik 2003, p. 1), may cause nest abandonment, renesting, late nest initiation, and poor fledging success. For example, optimal foraging conditions in 2006 resulted in high nesting success, but the 2-year drought that followed in 2007 and 2008 resulted in no nesting success in the Corkscrew Sanctuary rookery (Lauritsen 2007, p. 11; Lauritsen 2008, p. 12). However, 2009 nesting data for Corkscrew Sanctuary rookeries noted 1,120 nests producing 2,570 nestlings (Lauritsen 2009, p. 13). Similar rebounds in nesting activity were recorded for other south Florida rookeries in 2009, with possibly the largest number of nest starts since 1975, estimated at about 4,000 nests throughout the Everglades and Big Cypress Systems (Newman 2009, p. 51) and a total of 5,816 nesting pairs (Table 2) in south Florida. The CERP established performance measures and related goals for wood storks and other wading bird species. Metrics include the number of pairs of nesting wood storks and the location of the wood stork colonies. The timing of nesting, which shifted from historical periods of November through December to January through March, is also a metric. There have been some recent positive measures in Everglades restoration regarding these metrics. Restoration predicts that the return of natural flows and hydrologic patterns will result in large, sustainable breeding wading bird populations, with large colonies in the coastal zone of the Everglades and a return to natural timing of nesting, with wood stork nest initiation in November or December. Cook and Kobza (2010, p. 2) suggest that Everglades National Park may be more attractive to nesting birds in recent years and that the 2009 breeding season was the best nesting year in south Florida since the 1940s. The 2009–2010 nesting year did show an improvement in nest timing with wood stork nesting in January, which is earlier than previous years, but which is still outside the nesting onset target of November to December (Newman 2009, p. 52; Gottlieb 2010, p. 42). Also, Cook and PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 75963 Kobza (2010, p. 2) report a general shift of colony locations to the coast in recent years. Although the variability of habitat conditions affects the nesting efforts in south Florida and at times there is total failure of a colony or little to no nesting, we do not believe such variability will cause extirpation of wood storks in south Florida. Wood storks are a longlived species that demonstrate considerable variation in population numbers in response to changing hydrological conditions (USFWS 1997, p. 10). We are not aware of any other threat within this portion of the range that would act synergistically and heighten our level of concern for the wood stork population. Consequently, although we recognize that it is desirable to improve the nesting success of wood storks in south Florida, we conclude that the present level of habitat threat, when combined with the restoration efforts of CERP, is not of a magnitude that leads us to delineate the wood storks in and around south Florida as being more in danger of extinction than wood storks breeding in central/north Florida through North Carolina, nor as being a significant portion of the range of the continental U.S. wood stork DPS. In summary, the primary threat to the continental U.S. wood stork DPS— habitat loss, fragmentation, and modification—is relatively uniform throughout the DPS’s range. We have determined that none of the existing or potential threats currently place the continental U.S. wood stork DPS in danger of extinction throughout all or a significant portion of its range. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing increases public awareness of threats to the continental U.S. breeding population of the wood stork, and promotes conservation actions by Federal, State, and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the State, and for recovery planning and implementation. The protection required of Federal agencies and the prohibitions against taking and harm are discussed, in part below. A number of the nesting colonies of the continental U.S. wood stork DPS occur on Federal conservation lands and are consequently afforded protection E:\FR\FM\26DEP1.SGM 26DEP1 ebenthall on DSK5TPTVN1PROD with 75964 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules from development and large-scale habitat disturbance. Wood stork colonies also occur on a variety of Stateowned properties, and existing State and Federal regulations provide protection on these sites. There is also a significant number of wood stork colonies that occur on private lands, and through conservation partnerships, many of these colonies are protected through the owners’ stewardship. In many cases these partnerships have been developed through conservation easements, wetland restoration projects, and other conservation means. The fact that wood stork habitat is primarily wetlands also assures the opportunity for conference or consultation on most projects that occur in wood stork habitat under the authorities described below. Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to the continental U.S. breeding population of the wood stork. If a Federal action may affect the wood stork or its habitat, the responsible Federal agency must consult with the Service to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of the wood stork. Federal agency actions that may require consultation with us include Corps’ involvement in projects such as residential development, mining operations, construction of roads and bridges, or dredging that requires dredge/fill permits. Protecting and restoring wetlands that wood storks are dependent upon through the environmental regulatory review process is the most important action that Federal, State, and local regulatory agencies can undertake and is key to wood stork recovery. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions would be applicable to the wood stork. These prohibitions, under 50 CFR 17.21 (17.31 for threatened wildlife species), make it illegal for any person subject to the jurisdiction of the United States to ‘‘take’’ (including to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt any of these) within the United States or upon the high seas, import or export, deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of a commercial activity, or to sell or offer for sale in interstate or foreign commerce, any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 exceptions apply to agents of the Service and State conservation agencies. We may issue permits to carry out otherwise prohibited activities involving threatened wildlife species under certain circumstances. Regulations governing permits are codified at § 17.32 for threatened species. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in the course of otherwise lawful activities. For threatened species, permits are also available for zoological exhibition, educational purposes, and special purposes consistent with the purposes of the Act. Questions regarding whether specific activities will constitute a violation of section 9 of the Act should be directed to the U.S. Fish and Wildlife Service, North Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT section). Requests for copies of the regulations regarding listed species and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Ecological Services Division, 1875 Century Boulevard, Suite 200, Atlanta, GA 30345 (telephone 404–679–7313, facsimile 404–679–7081). existence of the continental U.S. wood stork DPS. If this proposed rule is made final and the continental U.S. wood stork DPS is reclassified as threatened, recovery actions directed at the wood stork would continue to be implemented as outlined in the recovery plan (Service 1997). Highest priority recovery actions include: (1) Locate nesting habitat; (2) locate roosting and foraging habitat; (3) inform landowners; (4) protect (nesting) sites from disturbance; (5) use existing regulatory mechanisms to protect habitat; and (6) monitor productivity of stork populations. Other recovery initiatives also include appointing a recovery team to update the recovery plan to ensure the recovery criteria and actions reflect the most current information on the demographics, range, and habitat needs of the species. Finalization of this proposed rule would not constitute an irreversible commitment on our part. Reclassification of the continental U.S. wood stork DPS from threatened status back to endangered status would be possible if changes occur in management, population status, or habitat, or if other factors detrimentally affect the DPS or increase threats to the species’ survival. Effects of This Rule Peer Review This rule, if made final, would revise 50 CFR 17.11(h) to reclassify the continental U.S. wood stork DPS from endangered to threatened on the List of Endangered and Threatened Wildlife. This proposed rule discusses how the continental U.S. wood stork DPS is no longer in danger of extinction throughout all or a significant portion of its range. However, this reclassification would not significantly change the protection afforded this species under the Act. Based on new information about the range of the continental U.S. wood stork DPS and where nesting is now occurring, this rule, if made final, would also revise 50 CFR 17.11(h) to reflect that the range of the continental U.S. wood stork DPS has expanded from Alabama, Florida, Georgia, and South Carolina to also include North Carolina and Mississippi (see Distinct Vertebrate Population Segment Analysis section above). Anyone taking, attempting to take, or otherwise possessing a wood stork, or parts thereof, in violation of section 9 of the Act is subject to a penalty under section 11 of the Act. Pursuant to section 7 of the Act, all Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued In accordance with our policy published on July 1, 1994 (59 FR 34270), we will solicit the expert opinions of at least three appropriate and independent specialists for peer review of this proposed rule. The purpose of such review is to ensure that decisions are based on scientifically sound data, assumptions, and analysis. We will send peer reviewers copies of this proposed rule immediately following publication in the Federal Register. We will invite peer reviewers to comment, during the public comment period, on the specific assumptions and conclusions regarding the proposed reclassification to threatened. We will summarize the opinions of these reviewers in the final decision document, and we will consider their input, and any additional information we receive, as part of our process of making a final decision on the proposal. Such communication may lead to a final regulation that differs from this proposal. PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 Required Determinations Paperwork Reduction Act of 1995 This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork E:\FR\FM\26DEP1.SGM 26DEP1 75965 Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules Reduction Act (44 U.S.C. 3501 et seq.). This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. 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 We have determined that we do not need to prepare an environmental assessment or environmental impact statement, as defined in the National Environmental Policy Act of 1969 (42 U.S.C 4321 et seq.), in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994, ‘‘Government-to-Government Relations with Native American Tribal Governments’’ (59 FR 22951), Executive Order 13175, and the Department of the Interior Manual Chapter 512 DM 2, we have considered possible effects on and have notified the Native American Tribes within the range of the continental U.S. breeding population of the wood stork about this proposal. They have been advised through a written informational mailing from the Service. If future activities resulting from this proposed rule may affect Tribal resources, a Plan of Cooperation will be developed with the affected Tribe or Tribes. Clarity of This Regulation (E.O. 12866) We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (a) Be logically organized; (b) Use the active voice to address readers directly; (c) Use clear language rather than jargon; (d) Be divided into short sections and sentences; and (e) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. References Cited A complete list of references cited is available upon request from the North Species Vertebrate population where endangered or threatened Historic range Common name * Scientific name * * * Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this document are the staff members of the North Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation We propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. 2. Amend § 17.11(h) by revising the entry for ‘‘Stork, wood’’ under ‘‘BIRDS’’ in the List of Endangered and Threatened Wildlife to read as follows: § 17.11 Endangered and threatened wildlife. * * * (h) * * * * When listed Status * * Critical habitat * Special rules * BIRDS * Stork, wood .............. ebenthall on DSK5TPTVN1PROD with * VerDate Mar<15>2010 * Mycteria americana * 06:27 Dec 22, 2012 * U.S.A. (CA, AZ, TX, to Carolinas), Mexico, C. and S. America. * Jkt 229001 PO 00000 * U.S.A. (AL, FL, GA, MS, NC, SC). * Frm 00060 Fmt 4702 * * 142, T * Sfmt 4702 E:\FR\FM\26DEP1.SGM * 26DEP1 * NA NA * 75966 * * Federal Register / Vol. 77, No. 247 / Wednesday, December 26, 2012 / Proposed Rules * * * Dated: December 14, 2012. Rowan W. Gould, Acting Director, Fish and Wildlife Service. [FR Doc. 2012–30731 Filed 12–21–12; 4:15 pm] BILLING CODE 4310–55–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 121121645–2645–01] RIN 0648–BC80 Control Date for Qualifying Landings History in the Central Gulf of Alaska Trawl Groundfish Fisheries National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Advance notice of proposed rulemaking (ANPR); control date. AGENCY: At the request of the North Pacific Fishery Management Council (Council), this notice announces a control date of December 31, 2012, that may be used as a reference for future management actions applicable to, but not limited to, qualifying landings and permit history for an allocation-based management or catch share program in the Central Gulf of Alaska (GOA) trawl groundfish fisheries. This date corresponds to the end of the fishing year for this fishery, so that the full catch history for 2012 may be considered in any such future management actions. We also expect that this notice will publish close to the control date of December 31, 2012, and so will not either prompt speculation in advance of the control date, or disadvantage any fishers regarding their fishing activity after the control date, but before publication. This notice is intended to promote awareness of possible rulemaking and provide notice to the public that any accumulation of landings history in the Central GOA trawl groundfish fisheries occurring after the control date may not be credited for purposes of making any allocation under a future management program. This notice is also intended to discourage speculative entry into the fisheries while the Council considers whether and how allocations of fishing privileges should be developed under a future management program. DATES: December 31, 2012, shall be known as the control date for the Central GOA trawl groundfish fisheries ebenthall on DSK5TPTVN1PROD with SUMMARY: VerDate Mar<15>2010 06:27 Dec 22, 2012 Jkt 229001 and may be used as a reference for allocations in a future management program that is consistent with the Council’s objectives and applicable Federal laws. FOR FURTHER INFORMATION CONTACT: Rachel Baker: 907–586–7228 or rachel.baker@noaa.gov. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fisheries in the U.S. exclusive economic zone (EEZ) of the GOA under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The Council prepared, and NMFS approved, the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679. This advance notice of proposed rulemaking would apply to owners and operators of catcher vessels and catcher/ processors participating in Federal fisheries prosecuted with trawl gear in the Central Reporting Area of the GOA. The Central Reporting Area, defined at § 679.2 and shown in Figure 3 to 50 CFR part 679, includes the Central Regulatory Area (Statistical Areas 620 and 630). The Council and NMFS annually establish biological thresholds and annual total allowable catch limits for groundfish species to sustainably manage the groundfish fisheries in the GOA. To achieve these objectives, NMFS requires vessel operators participating in GOA groundfish fisheries to comply with various restrictions, such as fishery closures, to maintain catch within specified total allowable catch limits. The GOA groundfish fishery restrictions also include prohibited species catch (PSC) limits for species that are generally required to be discarded when harvested. When harvest of a PSC species reaches the specified PSC limit for that fishery, NMFS closes directed fishing for the target groundfish species, even if the total allowable catch limit for that species has not been harvested. The Council and NMFS have long sought to control the amount of fishing in the North Pacific Ocean to ensure that fisheries are conservatively managed and do not exceed established biological thresholds. One of the measures used by the Council and NMFS is the license limitation program (LLP) which limits access to the groundfish, crab, and scallop fisheries in the Bering Sea and Aleutian Islands and the GOA. The LLP is intended to limit entry into federally managed fisheries. For groundfish, the LLP PO 00000 Frm 00061 Fmt 4702 Sfmt 4702 requires that persons hold and assign a license to each vessel that is used to fish in federally managed fisheries, with some limited exemptions. The preamble to the final rule implementing the groundfish LLP provides a more detailed explanation of the rationale for specific provisions in the LLP (October 1, 1998; 63 FR 52642). Over the course of the past few years, the Council has recommended amendments to the FMP to reduce the use of PSC in the GOA fisheries. Under Amendment 93 to the FMP, the Council recommended, and NMFS approved, Chinook PSC limits in the GOA pollock (Theragra chalcogramma) trawl fisheries (77 FR 42629, July 20, 2012). In June 2012, the Council recommended an FMP amendment to reduce halibut PSC limits for the trawl and longline fisheries in the Central GOA and Western GOA. This series of actions reflects the Council’s commitment to reduce PSC in the GOA fisheries. Participants in these fisheries, particularly the Central GOA trawl fisheries, have raised concerns that the current limited access management system creates a substantial disincentive for participants to take actions to reduce PSC usage, particularly if those actions could reduce target catch rates. Additionally, any participants who choose not to take actions to reduce PSC usage stand to gain additional target catch by continuing to harvest groundfish at a higher catch rate, at the expense of any vessels engaged in PSC avoidance. In October 2012, the Council unanimously adopted a purpose and need statement, and goals and objectives, to support the development of a management system that would remove this disincentive to reduce PSC usage. The Council intends to develop a management program that would replace the current limited access management program with allocations of allowable harvest (catch shares) to individuals, cooperatives, or other entities. The goal of the program is to improve stock conservation by creating vessel-level and/or cooperative-level incentives to control and reduce PSC, and to create accountability measures for participants when utilizing target, secondary, and PSC species. The Council also intends for the program to improve operational efficiencies, reduce incentives to fish during unsafe conditions, and support the continued participation of coastal communities that are dependent on the fisheries. The Council intends to develop an analysis of alternatives for a catch share management program that meets its goals and objectives. In developing the E:\FR\FM\26DEP1.SGM 26DEP1

Agencies

[Federal Register Volume 77, Number 247 (Wednesday, December 26, 2012)]
[Proposed Rules]
[Pages 75947-75966]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30731]



[[Page 75947]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0020; 92220-1113-0000-C6]
RIN 1018-AX60


Endangered and Threatened Wildlife and Plants; Reclassification 
of the Continental U.S. Breeding Population of the Wood Stork From 
Endangered to Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and notice of petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
propose to reclassify the continental United States (U.S.) breeding 
population of wood stork from endangered to threatened under the 
Endangered Species Act of 1973, as amended (Act). We find that the best 
available scientific and commercial data indicate that the endangered 
designation no longer correctly reflects the current status of the 
continental U.S. breeding population of the wood stork due to a 
substantial improvement in the species' overall status. This proposed 
rule also constitutes our 12-month finding on the petition to 
reclassify the species.

DATES: We will accept comments on this proposed rule received or 
postmarked on or before February 25, 2013. We must receive requests for 
a public hearing, in writing at the address shown in the FOR FURTHER 
INFORMATION CONTACT section, by February 11, 2013.

ADDRESSES: You may submit comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R4-
ES-2011-0020.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R4-ES-2011-0020; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Field Supervisor, North Florida 
Ecological Services Field Office, 7915 Baymeadows Way, Suite 200, 
Jacksonville, FL 32256; telephone 904-731-3336; facsimile 904-731-3045. 
If you use a telecommunications device for the deaf (TDD), please call 
the Federal Information Relay Service (FIRS) at 800-877-8339, 24 hours 
a day, 7 days a week.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why We Need To Publish a Rule

     In September 2007, we completed a 5-year status review, 
which included a recommendation to reclassify the continental U.S. 
breeding population of the wood stork from endangered to threatened.
     In May 2009, we received a petition to reclassify the 
continental U.S. breeding population of wood stork; the petition 
incorporated the Service's 5-year review as its sole supporting 
information.
     On September 21, 2010, we published a 90-day finding that 
the petition presented substantial information indicating that 
reclassifying the wood stork may be warranted (75 FR 57426).
     This proposed rule, in accordance with section 4(b)(3)(B) 
of the Endangered Species Act (Act), constitutes our 12-month finding 
on the petition we received.

Summary of the Major Provisions of This Proposed Rule

     We propose to reclassify the continental U.S. breeding 
population of wood stork from endangered to threatened.
     This proposed rule constitutes our 12-month petition 
finding.
     We determine that the continental U.S. breeding population 
of wood stork meets the criteria of a distinct population segment (DPS) 
under our 1996 DPS policy (61 FR 4722).
     We propose to amend the List of Endangered and Threatened 
Wildlife (50 CFR 17.11(h)) to reflect that the U.S. wood stork DPS is 
found in the States of Florida, Georgia, South Carolina, North 
Carolina, Alabama, and Mississippi.

The Basis for Our Action

     The continental U.S. breeding population of wood stork was 
listed under the Act in 1984, prior to publication of the joint policy 
of the National Marine Fisheries Service and U.S. Fish and Wildlife 
Service (Services) regarding the recognition of distinct vertebrate 
population segments (61 FR 4722). We find that the continental U.S. 
breeding population of wood stork meets the discreteness and 
significance elements of the Services' DPS policy and is a valid DPS.
     When the continental U.S. breeding population of wood 
stork was listed in 1984, the population was known to occur only in 
Florida, Georgia, South Carolina, and Alabama. Based on new information 
about where the population is found and where nesting is occurring, the 
population is now known to occur in North Carolina and Mississippi in 
addition to Florida, Georgia, South Carolina, and Alabama.
     The best available scientific and commercial data indicate 
that since the continental U.S. breeding population of wood stork was 
listed as endangered in 1984, the population has been increasing and 
its breeding range has expanded significantly.
     Downlisting criteria from the recovery plan have been met 
or exceeded. We have had 3-year population averages of total nesting 
pairs of wood storks higher than 6,000 nesting pairs since 2003. 
However, the 5-year average number of nesting pairs is still below the 
benchmark of 10,000 nesting pairs identified in the recovery plan for 
delisting. In addition, productivity, even though variable, is 
sufficient to support a growing population.
     As a result of continued loss, fragmentation, and 
modification of wetland habitats in parts of the wood stork's range, we 
find that the continental U.S. wood stork DPS meets the definition of a 
threatened species under section 3 of the Act.

Public Comments

    We intend that any final action resulting from this proposed rule 
will be as accurate and as effective as possible. Therefore, we are 
requesting comments from other concerned governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested party concerning this proposed rule. We particularly seek 
information and comments concerning:
    (1) The historical and current status and distribution of the wood 
stork, its biology and ecology, and ongoing conservation measures for 
the species and its habitat.
    (2) Wood stork nesting colony location data (latitude/longitude in 
decimal degrees to confirm or improve our location accuracy); nest 
census counts and survey dates; years when a colony was active or not; 
years and dates when a colony was abandoned (fully or partially); and 
annual productivity rates (per total nest starts and per successful 
nests) and average chicks per nest estimates from continental U.S. 
colonies.
    (3) Current or planned activities within the geographic range of 
the

[[Page 75948]]

continental U.S. breeding population of the wood stork that may impact 
or benefit the species, including any acquisition of large tracts of 
wetlands, wetland restoration projects, planned developments, roads, or 
expansion of agricultural or mining enterprises, especially those near 
nesting colonies and surrounding suitable foraging habitats.
    Prior to issuing a final rule on this proposed action, we will take 
into consideration all comments and additional information we receive. 
Such information may lead to a final rule that differs from this 
proposal. All comments and recommendations, including names and 
addresses, will become part of the administrative record for the final 
rule.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. If you 
submit a comment via http://www.regulations.gov, your entire comment, 
including any personal identifying information, will be posted on the 
Web site. Please note that comments submitted to this Web site are not 
immediately viewable. When you submit a comment, the system receives it 
immediately. However, the comment will not be publicly viewable until 
we post it, which might not occur until several days after submission. 
If you mail or hand deliver hard copy comments that include personal 
identifying information, you may request at the top of your documents 
that we withhold this information from public review. However, we 
cannot guarantee that we will be able to do so. To ensure that the 
electronic docket for this rulemaking is complete and all comments we 
receive are publicly available, we will post all hard copy comments on 
http://www.regulations.gov.

Public Hearing

    The Act (16 U.S.C. 1531 et seq.) provides for one or more public 
hearings on this proposal, if requested. We must receive your request 
for a public hearing within 45 days after the date of this Federal 
Register publication (see DATES). Such requests must be made in writing 
and addressed to the Field Supervisor (see FOR FURTHER INFORMATION 
CONTACT section above).

Background

    Much of the basic biological information presented in this section 
is based upon existing literature published on the continental U.S. 
breeding population of the wood stork. This section summarizes 
information found in a large body of published literature and reports, 
including the revised recovery plan for the continental U.S. breeding 
population of the wood stork (USFWS 1997), The Birds of North America 
Online species account for wood stork (Coulter et al. 1999), and the 
South Florida Multi-Species Recovery Plan (USFWS 1999).

Taxonomy and Species Description

    The wood stork (Mycteria americana) is one of 19 species of storks 
that make up the family Ciconiidae (Coulter et al. 1999, p. 3). It is 
one of three species of storks found in the western hemisphere (Coulter 
et al. 1999, p. 3) and the only stork that breeds north of Mexico 
(Ogden 1990, p. B-3). The wood stork shows no obvious morphological 
differentiation across its range, and no subspecies have been proposed.
    The wood stork is a large, long-legged wading bird, with a head-to-
tail length of 85-115 centimeters (cm) (33-45 inches (in)) and a 
wingspread of 150-165 cm (59-65 in- or roughly 5 to 5.5 feet). The 
plumage is white, except for iridescent black primary and secondary 
wing feathers and a short black tail. Storks fly with their necks and 
legs extended. On adults, the rough, scaly skin of the head and neck is 
unfeathered and blackish in color, the legs are dark, and the feet are 
dull pink. The bill color is also blackish. Immature storks, up to the 
age of about 3 years, differ from adults in that their bills are 
yellowish or straw-colored and there are varying amounts of dusky 
feathers on the head and neck. During courtship and early nesting 
season, adults have pale salmon coloring under the wings, fluffy 
coverts (feathers under the base of a bird's tail) that are longer than 
the tail, and toes that brighten to a vivid pink.

Life Span

    Wood storks are considered a long-lived species with delayed 
breeding, with first breeding generally occurring for 3- to 4-year old 
birds. The greatest recorded longevities are 17+ years for a wild adult 
wood stork caught and fitted with a satellite tag and leg bands in 
1998, and recently documented at the Harris Neck nesting colony in 2011 
(Larry Bryan, SREL, pers. comm., 2011), and 27.5 years for a captive 
bird (Brouwer et al. 1992, p. 132).

Feeding

    The specialized feeding behavior of the wood stork involves 
tactilocation, also called grope feeding, where the stork uses its bill 
to find small fish. Wood storks feed primarily on fish between 2 and 25 
cm (1 and 10 in) in length (Kahl 1964, pp. 107-108; Ogden et al. 1976, 
pp. 325-327). Wood storks also occasionally consume crustaceans, 
amphibians, reptiles, mammals, birds, and arthropods (Coulter et al. 
1999, p. 7). Wood storks forage in a variety of shallow wetlands, 
wherever prey concentrations reach high enough densities, in water that 
is shallow and open enough for the birds to be successful in their 
hunting efforts (Ogden et al. 1978, pp. 15-17; Browder 1984, p. 94; 
Coulter and Bryan 1993, p. 59). Fish populations reach high numbers 
during the wet season, but become concentrated in increasingly 
restricted habitats as drying occurs. Typical foraging sites include 
freshwater marshes, swales, ponds, hardwood and cypress swamps, narrow 
tidal creeks or shallow tidal pools, and artificial wetlands (such as 
stock ponds; shallow, seasonally flooded, roadside or agricultural 
ditches; and impoundments) (Coulter and Bryan 1993, p. 59; Coulter et 
al. 1999, p. 5). The wetland foraging areas near a nesting colony play 
a vital role during the nesting season (Cox et al. 1994, p. 135). 
Nesting wood storks generally use foraging sites that are located 
within a 30- to 50-kilometer (km) (18- to 31-mile (mi)) flight range of 
the colony; successful colonies are those that have options to feed 
during a variety of rainfall and surface water conditions (Coulter 
1987, p. 22; Bryan and Coulter 1987, p. 157; Coulter et al. 1999, pp. 
17-18; Herring 2007, p. 60; Bryan and Stephens 2007, p. 6; Meyers 2010, 
p. 5; Lauritsen et al. 2010, p. 3; Tomlinson 2009, p. 30). Early in the 
nesting season, the short-hydroperiod wetlands supply most of the 
forage, whereas later, the long-hydroperiod wetlands supply the prey 
needed to successfully fledge the offspring (Fleming et al. 1994, p. 
754).

Mating and Reproduction

    Wood storks are seasonally monogamous, probably forming a new pair 
bond every season. There is documented first breeding at 3 and 4 years 
old. Nest initiation varies geographically. Wood storks lay eggs as 
early as October and as late as June in Florida (Rodgers 1990, pp. 48-
51). Wood storks in north Florida, Georgia, and South Carolina initiate 
nesting on a seasonal basis regardless of environmental conditions 
(USFWS 1997, p. 6). They lay eggs from March to late May, with fledging 
occurring in July and August. Historically, nest initiation in south 
Florida was in December and January; however, in response to the 
altered habitat conditions (wetland drainage, hydroperiod alteration) 
in south Florida, wood storks nesting in Everglades National Park and 
in the Big Cypress

[[Page 75949]]

region of Florida have delayed initiation of nesting to February or 
March in most years since the 1970s. Colonies that start after January 
in south Florida risk having young in the nests when May-June rains 
flood marshes and disperse fish, which can cause nest abandonment.
    Females generally lay a single clutch of two to five eggs per 
breeding season, but the average is three eggs. Females sometimes lay a 
second clutch if nest failure occurs early in the season (Coulter et 
al. 1999, p. 11). Average clutch size may increase during years of 
favorable water levels and food resources. Incubation requires about 30 
days and begins after the female lays the first one or two eggs. 
Nestlings require about 9 weeks for fledging, but the young return to 
the nest for an additional 3 to 4 weeks to be fed. Actual colony 
production measurements are difficult to determine because of the 
prolonged fledging period, during which time the young return daily to 
the colony to be fed.
    Wood storks experience considerable variation in production among 
colonies, regions, and years in response to local and regional habitat 
conditions and food availability (Kahl 1964, p. 115; Ogden et al. 1978, 
pp. 10-14; Clark 1978, p. 183; Rodgers and Schwikert 1997, pp. 84-85). 
Several recent studies documented production rates to be similar to 
rates published between the 1970s and 1990s. Rodgers et al. (2008, p. 
25) reported a combined production rate for 21 north- and central-
Florida colonies from 2003 to 2005 of 1.19  0.09 fledglings 
per nest attempt (n = 4,855 nests). Rodgers et al. (2009, p. 3) also 
reported the St. Johns River basin production rate of 1.49  
1.21 fledglings per nest attempt (n = 3,058 nests) and for successful 
nests an average fledgling rate of 2.26  0.73 fledglings 
per nest attempt (n = 2,105 nests) from 2004 to 2008. Bryan and 
Robinette (2008, p. 20) reported rates of 2.3 and 1.6 fledged young per 
nesting attempt in 2004 and 2005, respectively, for South Carolina and 
Georgia. Murphy and Coker (2008, p. 5) reported that since the wood 
stork was listed in 1984, South Carolina colonies averaged 2.08 young 
per successful nest with a range of 1.72 to 2.73. The Palm Beach County 
(PBC) Solid Waste Authority colony (M. Morrison, PBC, pers. comm., 
2011) was documented with 0.75 fledgling per nesting attempt in 2010, 
with annual rates ranging from 0.11 to 1.49 (2003 to 2010). The 
Corkscrew Sanctuary colony in Naples, Florida (J. Lauritsen, Audubon, 
pers. comm., 2011), documented no nesting in 2010, but an average of 
2.29 fledglings per nesting attempt in 2009, with average annual rates 
ranging from 0.00 (abandonment) to 2.55 (2001-2010).

Habitat

    Wood storks use a wide variety of freshwater and estuarine wetlands 
for nesting, feeding, and roosting throughout their range and thus are 
dependent upon a mosaic of wetlands for breeding and foraging. For 
nesting, wood storks generally select patches of medium to tall trees 
as nesting sites, which are located either in standing water such as 
swamps, or on islands surrounded by relatively broad expanses of open 
water (Ogden 1991, p. 43). Colony sites located in standing water must 
remain inundated throughout the nesting cycle to protect against 
predation and nest abandonment. A wood stork tends to use the same 
colony site over many years, as long as the site remains undisturbed, 
and sufficient feeding habitat remains in the surrounding wetlands. 
Wood storks may abandon traditional wetland sites if changes in water 
management result in water loss from beneath the colony trees.
    Typical foraging sites include a mosaic of shallow water wetlands. 
Several factors affect the suitability of potential foraging habitat 
for wood storks. Foraging habitats must provide both a sufficient 
density and biomass of forage fish and other prey and have vegetation 
characteristics that allow storks to locate and capture prey. Calm 
water, about 5 to 40 cm (2 to 16 in) in depth, and free of dense 
aquatic vegetation, is preferred (Coulter and Bryan 1993, p. 61). 
During nesting, these areas must also be sufficiently close to the 
colony to allow storks to deliver prey to nestlings efficiently. 
Hydrologic and environmental characteristics have strong effects on 
fish density, and these factors may be some of the most significant in 
determining foraging habitat suitability.
    Alterations in the quality and amount of foraging habitats in the 
Florida Everglades and extensive drainage and land conversions 
throughout south Florida led to the initial decline of the wood stork 
nesting population. Since listing under the Act, wood stork nesting and 
winter counts appear to be increasing slightly in south Florida and the 
Everglades (Newman 2009, p. 51; Alvarado and Bass 2009, p. 40), but the 
timing and location of nesting has changed in response to alterations 
in hydrology and habitat (Ogden 1994, p. 566). The overall distribution 
of the breeding population of wood storks is also in transition. The 
wood stork appears to have adapted to changes in habitat in south 
Florida in part by nesting later, nesting in colonies in the interior 
Everglades system (Ogden 1994, p. 566), and by expanding its breeding 
range north into Georgia, South Carolina, and North Carolina (Brooks 
and Dean 2008, p. 58).

Distribution

    The wood stork occurs in South America from northern Argentina, 
eastern Peru, and western Ecuador, north into Central America, Mexico, 
Cuba, Hispaniola, and the southern United States. The breeding range 
includes the southeastern United States in North America, Cuba and 
Hispaniola in the Caribbean, and southern Mexico through Central 
America (Figure 1). In South America, the breeding range is west of the 
Andes south from Colombia to western Ecuador, east of the Andes from 
Colombia south through the Amazonas in Brazil to eastern Peru, northern 
Bolivia and northern Argentina east to the Atlantic coast through 
Paraguay, Uruguay, and north to the Guianas (Figure 1; Coulter et al. 
1999, p. 2). The winter range in Central and South America is not well 
studied, but wood storks are known to occur year-round as a resident 
throughout the breeding range.
    At the time of listing in 1984, the range of the continental U.S. 
breeding population of wood storks was Florida, Georgia, South 
Carolina, and Alabama. Breeding was restricted primarily to peninsular 
Florida (22 colonies in 1983), with only four colonies occurring in 
Georgia and South Carolina. The current breeding range includes 
peninsular Florida (48 colonies in 2010), the coastal plain and large 
river systems of Georgia (21 colonies) and South Carolina (13 
colonies), and southern North Carolina (1 colony). The breeding range 
also extends west to south-central Georgia and the panhandle of Florida 
to the Ochlockonee River system. The nonbreeding season range includes 
all of Florida; the coastal plains and large river systems of Alabama, 
Georgia, South Carolina; and southern North Carolina and eastern 
Mississippi.
    Wood storks are not true migrants, but some individuals do undergo 
lengthy inter-regional travel in response to resource availability 
(Coulter et al. 1999, p. 3; Bryan et al. 2008, p. 39). Generally, wood 
storks disperse following breeding.

[[Page 75950]]

[GRAPHIC] [TIFF OMITTED] TP26DE12.000

    As the rainy season begins in May in south Florida and the 
Everglades, post-breeding wood storks, fledglings, and juveniles 
disperse throughout peninsular Florida and many move northward along 
the coastlines and coastal plain of Georgia, South Carolina, North 
Carolina and westward along large river basins in Alabama and eastern 
Mississippi. Individuals from northern Florida, Georgia, and South 
Carolina colonies also disperse across the coastal plain and coastal 
marshes in the southeast United States in July to August after the 
breeding season. Most wood storks in this population winter in south 
and central Florida and along the coast of peninsular Florida, Georgia, 
and South Carolina. These inter-regional movements have been documented 
through color marking, banding, radio-telemetry and satellite-telemetry 
studies (Comer et al. 1987, p. 165; Ogden 1996, p. 34; Coulter et al. 
1999, p. 4; Savage et al. 1999, p. 65; Bryan et al. 2008, pp. 39-41). 
Wood storks are seasonal visitors in Texas, Louisiana, the lower 
Mississippi Valley, and California. These are post breeders and 
juveniles from Central America (Rechnitzer 1956, p. 431; Coulter et al. 
1999, pp. 4-5). Bryan et al. (2008, pp. 39-40) suggest that wood storks 
observed in western Mississippi and Louisiana originate from Central 
America, and wood storks found in eastern Mississippi originate

[[Page 75951]]

from the continental U.S. population. Behaviorally, wood storks are not 
predisposed to travel across the open waters like the Gulf of Mexico, 
as they use thermals for soaring flight for long-distance movements. 
The lack of thermals over open water restricts movements back and forth 
across the Gulf of Mexico from Florida to Central and South America or 
the Caribbean.

Rangewide Status and Demographics

    At the global level, the International Union for Conservation of 
Nature (IUCN) classifies the wood stork as a species of ``least 
concern.'' This is due to the apparent demographic stability documented 
in its large range that encompasses portions of North, Central, and 
South America (IUCN 2010, p. 1). Bryan and Borkhataria (2010, p. 2) 
compiled and summarized the conservation status for wood storks in 
Central and South America and provide the following description with 
regard to the rangewide status of the wood stork:

    The IUCN Red List/BirdLife International listing classifies the 
wood stork as a species of ``least concern'' for its entire range 
(BirdLife International 2008, 2009). This classification is based on 
breeding/resident range size, population trends, population size. 
This classification is due in part to an extremely large global 
breeding range (estimated at 14,000,000 km\2\) and a moderately 
small to large population estimate (38,000-130,000 birds). Although 
the species' global population trend is thought to be decreasing, 
the decline is not thought to be sufficiently rapid to reach 
critical thresholds to threaten the species (BirdLife 2009: A 
``vulnerable'' population exhibits a >30% decline over 10 years or 
three generations). Population size estimates for South America 
range from 50,000-100,000 wood storks (Byers et al. 1995) and 
approximately 48,000-70,000 wood storks in Central and North America 
(Kushlan et al. 2002).

    The continental U.S. wood stork population decline between 1930 and 
1978 is attributed to reduction in the food base necessary to support 
breeding colonies, which is thought to have been related to loss of 
wetland habitats and changes in hydroperiods (Ogden and Nesbitt 1979, 
p. 521; Ogden and Patty 1981, p. 97; USFWS 1997, p. 10; Coulter et al. 
1999, p. 18). The continental U.S. breeding population is considered 
regionally endangered by IUCN due to habitat degradation (IUCN 2011). 
Ogden (1978, p. 143) concluded the continental U.S. wood stork breeding 
population in the 1930s was probably less than 100,000 individuals, or 
between 15,000 and 20,000 pairs. The estimated continental U.S. 
population of breeding wood storks throughout the southeastern United 
States declined from 15,000-20,000, to about 10,000 pairs in 1960, to a 
low of 2,700-5,700 pairs between 1977 and 1980 (Ogden et al. 1987, p. 
752). The low of 2,700 nesting pairs was documented in 1978, during the 
severe drought when many wood storks likely did not breed. In the 
initial 26-year period of listing under the Act (1984 to 2010), 17 
surveys of all known nesting colonies of the wood stork in the 
continental U.S. population's breeding range (Florida, Georgia, South 
Carolina, and North Carolina) were completed. Eleven of those resulted 
in counts exceeding 6,000 pairs. Seven of those higher counts occurred 
during the past 10 years (2002, 2003, 2004, 2006, 2008, 2009, and 2010, 
Table 1, Service 2010). Two counts of over 10,000 pairs have occurred 
during the past 5 years, and the count of 12,720 pairs in 2009 is the 
highest on record since the early 1960s. This population estimate along 
with a conservative estimate of 4,000 pre-breeding age birds suggest 
30,000 storks were inhabiting the United States in 2009 (Bryan and 
Borkhataria 2010, p. 2). From 2009 to 2011 there was a decline in 
observed wood storks likely due to drought. It should be noted that the 
wood stork is a long-lived species that demonstrates considerable 
variation in nesting population numbers in response to changing 
hydrological conditions. This long reproductive lifespan allows wood 
storks to tolerate reproductive failure in some years, and naturally 
occurring events have undoubtedly always affected the breeding success 
of this species, causing breeding failures and variability in annual 
nesting (USFWS 1997, p. 11) and productivity.

                                   Table 1--Wood Stork Nesting Data in the Southeastern United States (Service 2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                           TOTAL                  FLORIDA                 GEORGIA             SOUTH CAROLINA          NORTH CAROLINA
                                 -----------------------------------------------------------------------------------------------------------------------
              YEAR                  Nesting                 Nesting                 Nesting                 Nesting                 Nesting
                                     Pairs     Colonies      Pairs     Colonies      Pairs     Colonies      Pairs     Colonies      Pairs     Colonies
--------------------------------------------------------------------------------------------------------------------------------------------------------
1975............................       9,752          27       9,610          24         142           3  ..........  ..........  ..........  ..........
1976............................       5,310          17       5,294          16          16           1  ..........  ..........  ..........  ..........
1977............................       5,263          25       5,125          21         138           4  ..........  ..........  ..........  ..........
1978............................       2,695          18       2,595          16         100           2  ..........  ..........  ..........  ..........
1979............................       4,648          24       3,800          22          55           2  ..........  ..........  ..........  ..........
1980............................       5,063          25       4,766          20         297           5  ..........  ..........  ..........  ..........
1981............................       4,442          22       4,156          19         275           2          11           1  ..........  ..........
1982............................       3,575          22       3,420          18         135           2          20           1  ..........  ..........
1983............................       5,983          25       5,600          22         363           2          20           1  ..........  ..........
1984............................       6,245          29       5,647          25         576           3          22           1  ..........  ..........
1985............................       5,193          23       4,562          30         557           5          74           1  ..........  ..........
1986............................  ..........  ..........          **  ..........         648           4         120           3  ..........  ..........
1987............................  ..........  ..........          **  ..........         506           5         194           3  ..........  ..........
1988............................  ..........  ..........          **  ..........         311           4         179           3  ..........  ..........
1989............................  ..........  ..........          **  ..........         543           6         376           3  ..........  ..........
1990............................  ..........  ..........          **  ..........         709          10         536           6  ..........  ..........
1991............................       4,073          37       2,440          25         969           9         664           3  ..........  ..........
1992............................  ..........  ..........          **  ..........       1,091           9         475           3  ..........  ..........
1993............................       6,729          43       4,262          29       1,661          11         806           3  ..........  ..........
1994............................       5,768          47       3,588          26       1,468          14         712           7  ..........  ..........
1995............................       7,853          54       5,523          31       1,501          17         829           6  ..........  ..........
1996............................  ..........  ..........          **  ..........       1,480          18         953           7  ..........  ..........
1997............................  ..........  ..........          **  ..........       1,379          15         917           8  ..........  ..........
1998............................  ..........  ..........          **  ..........       1,665          15       1,093          10  ..........  ..........
1999............................       7,768          71       6,109          51       1,139          13         520           8  ..........  ..........
2000............................  ..........  ..........          **  ..........         566           7       1,236          11  ..........  ..........
2001............................       5,582          44       3,246          23       1,162          12       1,174           9  ..........  ..........

[[Page 75952]]

 
2002............................       7,855          70       5,463          46       1,256          14       1,136          10  ..........  ..........
2003............................       8,813          78       5,804          49       1,653          18       1,356          11  ..........  ..........
2004............................       8,379          93       4,726          63       1,596          17       2,057          13  ..........  ..........
2005............................       5,572          73       2,304          40       1,817          19       1,419          13          32           1
2006............................      11,279          82       7,216          48       1,928          21       2,010          13         125           1
2007............................       4,406          55       1,553          25       1,054          15       1,607          14         192           1
2008............................       6,118          73       1,838          31       2,292          25       1,839          16         149           1
2009............................      12,720          86       9,428          54       1,676          19       1,482          12         134           1
2010............................       8,149          94       3,828          51       2,708          28       1,393          14         220           1
2011............................       9,579          88       5,292          45       2,160          19       2,031          23          96           1
--------------------------------------------------------------------------------------------------------------------------------------------------------
** No survey data available for North and Central Florida.

Previous Federal Action

    On February 28, 1984, the Service published a final rule listing 
the continental U.S. breeding population of the wood stork as 
endangered under the Act, due primarily to the loss of suitable feeding 
habitat, particularly in south Florida, and a declining population (49 
FR 7332). The endangered status covers wood storks in the States of 
Alabama, Florida, Georgia, and South Carolina (the known range of the 
continental U.S. breeding population at the time of listing). We 
developed a recovery plan in 1986 for the continental U.S. breeding 
population of the wood stork. The recovery plan was revised on January 
27, 1997, and addressed existing and new threats and species needs.
    We published a notice in the Federal Register on November 6, 1991 
(56 FR 56882) that we were conducting a 5-year review for all 
endangered and threatened species listed before January 1, 1991, 
including the wood stork. The notice indicated that if significant data 
were available warranting a change in a species' classification, we 
would propose a rule to modify the species' status. We did not 
recommend a change in the wood stork's listing classification under the 
Act at that time. On September 27, 2006 (71 FR 56545), we published a 
notice in the Federal Register that we were initiating another 5-year 
status review for the wood stork. We solicited information from the 
public concerning the status of the species, including the status and 
trends of threats to the species under section 4(a)(1) of the Act. We 
completed the 5-year status review on September 27, 2007. Completed in 
accordance with section 4(c)(2) of the Act, the 5-year status review 
contains a detailed description of the species' natural history and 
status, including information on distribution and movements, behavior, 
population status and trends, and factors contributing to the status of 
the continental U.S. breeding population. It also presents a detailed 
analysis of the five factors that are the basis for determination of a 
species' status under section 4(a)(1) of the Act. A copy of the 5-year 
status review is available on our Web site (http://www.fws.gov/ecos/ajax/docs/five_year_review/doc1115.pdf) and includes a recommendation 
to reclassify the continental U.S. breeding population of the wood 
stork from endangered to threatened.
    We received a petition to reclassify the continental U.S. breeding 
population of the wood stork as threatened on May 28, 2009, from the 
Pacific Legal Foundation on behalf of the Florida Homebuilders 
Association. The petition presented the Service's 2007 5-year status 
review as its sole supporting information. The petition incorporated 
the status review by reference, including a summary of the five-factor 
analysis contained in the status review, which included a 
recommendation to reclassify the species. We found that the petition 
presented substantial information indicating that reclassifying the 
continental U.S. breeding population of the wood stork to threatened 
may be warranted. We published a notice announcing our 90-day finding 
and initiation of the species' status review in the Federal Register on 
September 21, 2010 (75 FR 57426).

Current Federal Action

    Section 4(b)(3)(B) of the Act requires that for any petition to 
revise the Lists of Endangered and Threatened Wildlife and Plants 
(Lists) that presents substantial information, we must make a finding 
within 12 months of the date of the receipt of the petition, on whether 
the requested action is (a) Not warranted, (b) warranted, or (c) 
warranted but precluded from immediate proposal by other pending 
proposals of higher priority and expeditious progress is being made to 
add qualified species to the Lists. This proposed rule constitutes our 
12-month finding that the action sought by the May 28, 2009, petition 
is warranted.

Distinct Vertebrate Population Segment Analysis

    On February 7, 1996, we published in the Federal Register our 
``Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments Under the Endangered Species Act'' (DPS Policy) (61 FR 4722). 
For a population to be listed under the Act as a distinct vertebrate 
population segment, three elements are considered: (1) The discreteness 
of the population segment in relation to the remainder of the species 
to which it belongs; (2) the significance of the population segment to 
the species to which it belongs; and (3) the population segment's 
conservation status in relation to the Act's standards for listing, 
(i.e., is the population segment, when treated as if it were a species, 
endangered or threatened). The Act defines ``species'' to include ``* * 
* any distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature'' (16 U.S.C. 1532(16)). The best 
available scientific information supports recognition of the 
continental U.S. breeding population of the wood stork as a distinct 
vertebrate population segment. We discuss the discreteness and 
significance of the population segment within this section; the 
remainder of the document discusses the status of the continental U.S. 
wood stork DPS.
Discreteness
    The DPS policy states that a population segment of a vertebrate 
species may be considered discrete if it

[[Page 75953]]

satisfies either one of the following conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation; or
    (2) It is delimited by international governmental boundaries 
between which significant differences exist in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
that are significant in light of section 4(a)(1)(D) of the Act.
    Globally, wood storks occur only in the Western Hemisphere and are 
comprised of a mosaic of breeding populations in North, Central, and 
South America, and the Caribbean, each with unique nesting sites, 
foraging areas, and seasonal movement patterns in response to regional 
environmental factors. Historically, wood storks nested in all Atlantic 
and Gulf coastal United States from Texas to South Carolina (Bent 1926; 
Cone and Hall 1970; Dusi and Dusi 1968; Howell 1932; Oberholser 1938; 
Oberholser and Kincaid 1974; Wayne 1910), although the colonies outside 
Florida formed irregularly and contained few birds (Ogden and Nesbitt 
1979, p. 512).
    Currently, the continental U.S. breeding population of wood storks 
is documented only in Mississippi, Alabama, Florida, Georgia, South 
Carolina, and North Carolina. The continental U.S. wood stork 
population represents the northernmost extent of the wood stork's range 
and the only population breeding in the continental United States 
(USFWS 1997, p. 1; Coulter et al. 1999, pp. 2-3) The continental U.S. 
population's breeding range is separated by the Strait of Florida from 
the nearest nesting population, which is located in Cuba, 151 km (94 
mi); it is approximately 965 km (600 mi) over the Gulf of Mexico from 
the nearest North American nesting colony, which breeds in southern 
Mexico. However, wood storks are not behaviorally predisposed to travel 
across the open ocean. Wood storks use thermals for soaring flight for 
long-distance movements. The lack of thermals over water may restrict 
movements from Florida to the Caribbean or to Mexico and Central and 
South America (Coulter et al. 1999, p. 4). The available evidence does 
not suggest that wood storks have crossed the Florida Straits between 
the Caribbean islands and the United States or crossed the Gulf of 
Mexico to or from Central and South America.
    Lengthy inter- and intra-regional movements, related to food 
availability, to the wetlands of the Mississippi River Basin and 
adjacent coastal plain river basins have been documented from both the 
continental U.S. population and Central American wood storks (Coulter 
et al. 1999, p. 5; Bryan et al. 2008, pp. 40-41). These studies suggest 
post-breeding dispersal occurs along the coastal plain, not across the 
Gulf of Mexico, and that wood storks observed in eastern Mississippi 
originate from the southeast United States, and those observed in 
western Mississippi and Louisiana originate from Central America. A 
small percentage of wood storks from both the United States and Central 
America apparently overlap during this post-breeding season dispersal 
within Mississippi. There may be some small but unknown level of mixing 
between continental U.S. and Central American breeding populations in 
Mississippi (Bryan et al. 2008, pp. 40-41; R. Borkhataria, University 
of Florida, pers. comm., 2010). However, based upon satellite-telemetry 
studies (e.g., Hylton 2004; Hylton et al. 2006; Bryan et al. 2008; 
Borkahatria 2009; Lauritsen 2010) and other marking studies, mixing 
appears negligible. Based on the above information, if the continental 
U.S. population were extirpated, it is our assessment that repopulation 
from the Central American wood storks would not be sufficient to 
replenish the depleted population in the foreseeable future.
    Genetic data support the conclusion that wood storks occurring in 
the southeastern United States function as one population. Stangle et 
al. (1990, p. 15) employed starch gel electrophoretic techniques to 
examine genetic variation in Florida wood stork colonies. The study did 
not indicate significant allozyme differences within or between 
colonies. Van Den Bussche et al. (1999, p. 1083) used a combination of 
DNA or allozyme approaches and found low levels of genetic variability 
and allelic diversity within Georgia and Florida colonies, suggesting 
one population of wood storks in the southeastern United States. A 
genetic comparison using mtDNA between continental U.S. and Brazilian 
wood storks (the north and south ends of the geographic range) reveals 
that either a demographic decline or a recent evolutionary bottleneck 
reduced the levels of mitochondrial DNA (mtDNA) variability of the 
continental U.S. population (Lopes et al. 2011, p. 1911). The genetic 
structuring assessment revealed nonsignificant differentiation between 
the continental U.S. and Brazilian wood storks, indicating that either 
the populations were only recently separated or that gene flow 
continues to occur at low levels, and the haplotype network analysis 
indicated low levels of gene flow between populations that were closely 
related in the past (Lopes et al. 2011, p. 1911). Genetic studies 
indicate that there are nonsignificant differences between continental 
U.S. and Brazilian wood storks. However, satellite tracked movements of 
U.S. and Central American wood storks indicate that U.S. and Brazilian 
birds likely do not interbreed (Hylton 2004; Hylton et al. 2006; Bryan 
et al. 2008; Borkahatria 2009; Lauritsen 2010). Based on the genetic 
information, we conclude that a past demographic decline has led to the 
reduced levels of genetic variability in all populations of wood stork 
that were studied, that continental U.S. and other populations were 
only recently separated, that the southeastern U.S. populations act as 
a single population, and there is negligible or very low gene flow 
between populations in the United States and Brazil.
    Consequently, we conclude based on the best available information 
that the continental U.S. breeding population of the wood stork is 
markedly separated from wood stork populations in the Caribbean, 
Mexico, Central America, and South America based on physical separation 
and wood stork dispersal behavior.
Significance
    The DPS policy states that populations that are found to be 
discrete will then be examined for their biological or ecological 
significance to the taxon to which they belong. This consideration may 
include evidence that the loss of the population would create a 
significant gap in the range of the taxon. The continental U.S. 
breeding population of the wood stork represents the northernmost 
portion of the species' range in the world (Coulter et al. 1999, p. 2) 
and the only population breeding in the United States. Loss of this 
population would result in a significant gap in the extent of the 
species' range. Because the nearest populations in the Caribbean and 
North America would not likely be able to naturally repopulate the 
continental U.S. breeding population if it were extirpated, wood storks 
would no longer breed in the Everglades and in the salt and fresh water 
wetlands of Florida, Georgia, South Carolina, and North Carolina. 
Maintaining a species throughout its historical and current range helps 
ensure the species' population viability and reduce impacts to species 
as a whole due to localized stochastic

[[Page 75954]]

events. Therefore, we find that loss of continental U.S. breeding 
population of the wood stork, whose range has expanded to include 
Mississippi and North Carolina (USFWS 2007, p. 11), would constitute a 
significant gap in the range of the species as a whole.
Summary
    Based on the above analysis, we conclude that the continental U.S. 
breeding population of wood storks meets both the discreteness and 
significance elements of the 1996 DPS policy. Therefore, we recognize 
this population as a valid DPS.

Recovery Actions

    We published the original recovery plan for the continental U.S. 
breeding population of wood stork on September 9, 1986, and revised it 
on January 27, 1997 (Service 1997). The recovery plan identifies four 
primary recovery actions for the continental U.S. breeding population 
of the wood stork. Species-focused recovery tasks include: (1) Protect 
currently occupied habitat, (2) restore and enhance habitat, (3) 
conduct applied research necessary to accomplish recovery goals, and 
(4) increase public awareness. These primary recovery actions have been 
initiated. Many of the actions listed under these categories are of 
high priority to implement and are ongoing.
    Recovery Task (1): Protect currently occupied habitat. At a 
minimum, for continued survival of the continental U.S. breeding 
population, currently occupied nesting, roosting, and foraging habitat 
must be protected from further loss or degradation. Watersheds 
supporting natural nesting habitat should remain unaltered, or be 
restored to function as a natural system if previously altered. 
Recovery actions under this recovery task include: (1.1) Locate 
important habitat, (1.2) prioritize habitat, (1.3) work with private 
landowners to protect habitat, (1.4) acquire land, (1.5) protect sites 
from disturbance, and (1.6) use existing regulatory mechanisms to 
protect habitat.
    Recent habitat models (e.g., Gawlik 2002; Herring 2007; Borkhataria 
2009; Rodgers et al. 2010); ongoing annual monitoring of nesting 
colonies (e.g., Cook and Korboza 2010; Brooks and Dean 2008; Murphy and 
Coker 2008; Winn et al. 2008; Frederick and Meyer 2008); surveys of 
nesting colony core foraging areas in Florida, Georgia, and South 
Carolina (e.g., Herring 2007; Bryan and Stephens 2007; Lauritsen 2010; 
Tomlinson 2009; Meyer 2010); and satellite-telemetry studies (e.g., 
Hylton 2004; Hylton et al. 2006; Bryan et al. 2008; Borkahatria 2009; 
Lauritsen 2010) are helping to update conservation information and 
tools that are used to identify, prioritize, protect, restore, and 
acquire important wood stork habitats. Core foraging areas near large 
colonies on protected lands, like Corkscrew Swamp Sanctuary in Florida, 
Harris Neck National Wildlife Refuge in Georgia, and Washo Plantation 
in South Carolina, have been identified. However, alteration and loss 
of foraging habitat continues as a threat to recovery, as such habitat 
continues to be lost today through the continual expansion of the human 
environment, resulting in new development and associated roads and 
other infrastructure. The Service has developed a brochure, Wood Stork 
Conservation and Management for Land Owners, to assist public and 
private land managers in protecting and restoring wood stork habitat 
(Service 2001). The wood stork habitat management guidelines are also 
being updated (Bryan 2006) and are an important conservation tool to 
provide guidance on protecting wood storks and their habitats. In an 
effort to minimize loss of wetland habitats important to wood stork 
recovery, like those within the core foraging area of a nesting colony, 
the Service's South and North Florida Ecological Services Field Offices 
have also developed a ``May Affect'' key to assist regulators with 
review of wetland dredge and fill permit applications.
    Recovery Task (2): Restore and enhance habitat. A prerequisite for 
recovery of the wood stork in the southeastern United States is the 
restoration and enhancement of suitable habitat throughout the mosaic 
of habitat types used by this species. Recovery actions include: (2.1) 
Restore the Everglades and Big Cypress system, (2.2) enhance nesting 
and roosting sites throughout the range, and (2.3) enhance foraging 
habitat by modifying hydrologic regimes in existing artificial 
impoundments to maximize use by wood storks.
    Wood storks depend upon a mosaic of wetlands throughout the coastal 
plain of the southeastern United States for breeding and foraging. 
Ecosystems and wetlands are being restored throughout the southeastern 
United States through programs such as the Comprehensive Everglades 
Restoration Program (CERP) (RECOVER 2009); Kissimmee River Restoration 
Project, which includes a goal to restore over 40 square miles of river 
and floodplain ecosystem including 43 miles of meandering river channel 
and 27,000 acres of wetlands (USACE 2011); and Upper St. Johns Basin 
Restoration Project, which has enhanced and restored 150,000 acres of 
marsh (SJRWMD 2011). These and other large-scale wetland restoration 
projects are significantly contributing to wood stork recovery by 
reducing the threat of habitat loss. Management plans such as State 
wildlife action plans (http://www.wildlifeactionplans.org/) help to 
identify important habitats on which to focus conservation efforts. 
Other management plans such as the North American Waterfowl Management 
Plan (USFWS 2011) also help to identify focus areas for conservation. 
By highlighting important habitats or areas, such as the ACE Basin and 
Winyah Bay in South Carolina, funds and conservation initiatives are 
directed towards restoring these important habitat areas and contribute 
to recovery by reducing the threat due to loss of habitat. Thousands of 
acres are being protected, enhanced, restored, and brought under 
conservation easements to assist in wildlife conservation through 
programs such as the Wetland Reserve Program (WRP) and the Farm Bill, 
including 70,000 acres of wetlands in Alabama, Florida, Georgia, 
Mississippi, North Carolina, and South Carolina in 2010 (NRCS 2011). 
The WRP is a voluntary program offering landowners the opportunity to 
protect, restore, and enhance wetlands on their property. The U.S. 
Department of Agriculture, Natural Resources Conservation Service 
(NRCS) provides technical and financial support to help landowners with 
their wetland restoration efforts. The goal of the NRCS is to achieve 
the greatest wetland functions and values, along with optimum wildlife 
habitat, on every acre enrolled in the program. This program offers 
landowners an opportunity to establish long-term conservation and 
wildlife practices and protection, and therefore provides some benefits 
to wood stork recovery. In Florida, the WRP program has restored over 
200,000 acres of wetlands (Simpkins, Service, pers. comm., 2011) and 
over 115,000 acres in Alabama, Georgia, and South Carolina. A majority 
of the Florida WRP-restored acres have been within the Everglades and 
Big Cypress systems. A 2006 WRP restoration of 200 acres of farmland in 
Camilla, Georgia, now supports the newest Georgia wood stork colony, 
with over 100 nesting pairs annually. This task will be complete once 
viable nesting occurs throughout the range of this DPS. The most 
significant wetland restoration goal for wood storks is to recover 
viable nesting subpopulations in the traditional Everglades and Big 
Cypress nesting areas as outlined by CERP. Overall,

[[Page 75955]]

future wetland restoration efforts in the Southeast U.S. will be 
beneficial to wood stork recovery.
    Recovery Task (3): Conduct applied research necessary to accomplish 
recovery goals. Recovery efforts for the wood stork will be more 
effective with a better understanding of population biology, movement 
patterns of continental U.S. and neighboring populations of wood 
storks, foraging ecology and behavior, the importance of roost sites, 
and the possible impacts of contaminants. Recovery actions include: 
(3.1) Determine movement patterns of continental U.S. and neighboring 
populations of wood storks, (3.2) determine population genetics, (3.3) 
monitor productivity of stork populations, (3.4) monitor survivorship 
of stork populations, (3.5) determine extent of competition/cooperation 
between wood storks and other wading birds in mixed nesting colonies, 
(3.6) determine foraging ecology and behavior, (3.7) determine the 
importance of roost sites, and (3.8) determine the impacts of 
contaminants on wood stork populations. The following is a summary of 
several recent monitoring and research findings.
    The South Florida Wading Bird Report (1996-2010) annually reports 
on habitat monitoring and research with respect to the CERP and 
foraging and nest monitoring projects for wood storks and wading birds 
utilizing the Everglades and Big Cypress systems. This report provides 
an annual assessment on the Restoration Coordination and Verification 
Program (RECOVER), the system-wide science arm of the CERP. Per 
Recovery Action 3.1 and 3.6, satellite-telemetry studies are providing 
new insight into movement patterns (e.g., Hylton 2004; Bryan et al. 
2008; Borkhataria 2009; Lauritsen 2010). Surveys to determine foraging 
distances from nesting colonies and satellite-telemetry research are 
helping to update our understanding of wood stork foraging ecology and 
of core foraging areas (e.g., Herring 2007; Bryan and Stephens 2007; 
Borkhataria 2009; Meyers 2010; Lauritsen 2010; Tomlinson 2009). 
Satellite-telemetry data and banding studies are helping to refine 
survival estimates (Borkhataria 2009, pp. 63-64) for population 
modeling (Borkhataria 2009) as identified under Recovery Action 3.4. 
Ongoing systematic reconnaissance flights of the Everglades, Kissimmee 
River, water conservation areas, Big Cypress National Preserve, and 
Upper St. Johns River are monitoring wood stork abundance and 
distribution in south Florida (Cheek 2010, pp. 22-26; Alvarado and Bass 
2010, pp. 30-39; Nelson 2010, p. 40; D. Hall, SJRWMD, pers. comm., 
2008). Annual nesting colony surveys help to monitor the status of the 
breeding population. Per Recovery Action 3.3, recent productivity 
research and monitoring efforts have documented productivity rates to 
be similar to rates documented between the 1970s and 1990s (Rodgers et 
al. 2008; Bryan and Robinette 2008), and Rodgers et al. (2008, p. 25) 
suggest the need to develop an unbiased estimator of productivity that 
takes into consideration the lack of nesting during some years to more 
accurately estimate wood stork productivity at the regional level. A 
genetic structuring and haplotype network analysis comparison indicates 
that either a demographic decline or a recent evolutionary bottleneck 
reduced the levels of genetic variability in the continental U.S. 
population (Lopes et al. 2011, p. 1911) is research addressing Recovery 
action 3.2. The genetic structuring assessment revealed nonsignificant 
differentiation, indicating that continental U.S. and Brazilian wood 
stork populations were only recently separated or that gene flow 
between these populations continues to occur at low levels. The 
haplotype network analysis indicated low current levels of gene flow 
between populations that were closely related in the past (Lopes et al. 
2011, p. 1911).
    Recovery Task (4): Increase public awareness. Wood storks utilize a 
wide variety of wetland habitats. They are visually unique and generate 
interest from the public. These factors have made the wood stork the 
subject of many environmental education materials and programs. There 
are many brochures, videos, and educational packets available. Recovery 
actions include: (4.1) Increase awareness and appreciation through 
educational materials, and (4.2) provide opportunities for the public 
to view wood storks in captivity.
    Examples of such wood stork educational efforts to increase public 
awareness can be found on our Web site (http://www.fws.gov/northflorida/WoodStorks/wood-storks.htm) and the Web sites of many of 
our recovery partners, including the Everglades National Park (http://www.nps.gov/ever/naturescience/woodstork.htm), Florida Fish and 
Wildlife Conservation Commission (http://myfwc.com/research/wildlife/birds/wood-storks/), Georgia Department of Natural Resources (http://www.georgiawildlife.com/sites/default/files/uploads/wildlife/nongame/pdf/accounts/birds/mycteria_americana.pdf), South Carolina Department 
of Natural Resources (http://www.dnr.sc.gov/cwcs/pdf/Woodstork.pdf), 
University of Florida (http://www.wec.ufl.edu/faculty/frederickp/woodstork/), Audubon Society (http://birds.audubon.org/species/woosto), 
Corkscrew Sanctuary Swamp (http://www.corkscrewsanctuary.org/Wildlife/Birds/profiles/wost.pdf), and others.
    Opportunities for the public to view wood storks in the wild 
include almost all National Wildlife Refuges (NWR) and National Parks 
and Preserves in Florida and coastal Georgia and South Carolina, 
including the Everglades National Park, Ten Thousand Island NWR, J.N. 
Ding Darling NWR, Loxahatchee NWR, Pelican Island NWR, Merritt Island 
NWR, Harris Neck NWR, and ACE Basin NWR. Several wood stork nesting 
colonies can also be seen at public observation areas that do not 
disturb the colony, such as Audubon's Corkscrew Swamp Sanctuary, 
Parotis Pond in Everglades National Park, Pelican Island NWR, St. 
Augustine Alligator Farm, Jacksonville Zoo and Gardens, and Harris Neck 
NWR.

Recovery Achieved

    The recovery criteria for the continental U.S. breeding population 
DPS of wood storks state that reclassification from endangered to 
threatened could be considered when there are 6,000 nesting pairs and 
annual average regional productivity is greater than 1.5 chicks per 
nest per year (both calculated over a 3-year average). Although 
variable, productivity appears to be sufficient to support continued 
population growth as evidenced by the increasing nesting population and 
range expansion.
    1. Nesting pairs. The continental U.S. breeding population of the 
wood stork has been increasing since it was listed in 1984 (Brooks and 
Dean 2008, p. 58; Borkhataria 2009, p. 34). Regional nesting surveys to 
census wood stork colonies have been continuous in south Florida and 
Georgia since 1976, and in South Carolina since 1981. Nest censuses of 
the entire breeding range were conducted in 1975-1986, 1991, 1993-1995, 
1997, 1999, and 2001-2010 (Table 1). The 3-year average for nesting 
pairs has exceeded the reclassification criterion of 6,000 every year 
since 2003 (Table 2). However, the nesting pair average is well below 
the 5-year average of 10,000 nesting pairs (a benchmark for delisting), 
and the 5-year averages for nesting in the Everglades and Big Cypress 
Systems are below 2,500 nesting pairs (another benchmark for 
delisting), as nesting in south Florida remains variable (Table 2).

[[Page 75956]]



                         Table 2--Wood Stork Nesting Data in the Southeastern United States and 3-year Averages (Service 2011).
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                   Total            South FL      Central/North FL         GA                SC                NC
                                           -------------------------------------------------------------------------------------------------------------
                   Year                      Nesting            Nesting           Nesting           Nesting           Nesting           Nesting
                                              pairs    3yr Avg   pairs   3yr Avg   pairs   3yr Avg   pairs   3yr Avg   Pairs   3yr Avg   pairs   3yr Avg
--------------------------------------------------------------------------------------------------------------------------------------------------------
1981......................................      4,442  .......    2,428  .......    1,728  .......      275  .......       11  .......  .......  .......
1982......................................      3,575  .......    1,237  .......    2,183  .......      135  .......       20  .......  .......  .......
1983......................................      5,983    4,667    2,858    2,174    2,742    2,218      363      258       20       17  .......  .......
1984......................................      6,245    5,268    1,245    1,780    4,402    3,109      576      358       22       21  .......  .......
1985......................................      5,193    5,807      798    1,634    3,764    3,636      557      499       74       39  .......  .......
1986......................................  .........  .......      643      895  .......  .......      648      584      120       72  .......  .......
1987......................................  .........  .......      100      514  .......  .......      506      570      194      129  .......  .......
1988......................................  .........  .......      755      499  .......  .......      311      488      179      164  .......  .......
1989......................................  .........  .......      515      457  .......  .......      543      453      376      250  .......  .......
1990......................................  .........  .......      475      582  .......  .......      709      521      536      364  .......  .......
1991......................................      4,073  .......      550      513    1,890  .......      969      740      664      525  .......  .......
1992......................................  .........  .......    1,917      981  .......  .......    1,091      923      475      558  .......  .......
1993......................................      6,729  .......      587    1,018    3,675  .......    1,661    1,240      806      648  .......  .......
1994......................................      5,768  .......      741    1,082    2,847  .......    1,468    1,407      712      664  .......  .......
1995......................................      7,853    6,783     1140      823    4,383    3,635    1,501    1,543      829      782  .......  .......
1996......................................  .........  .......     1215    1,032  .......  .......    1,480    1,483      953      831  .......  .......
1997......................................  .........  .......      445      933  .......  .......    1,379    1,453      917      900  .......  .......
1998......................................  .........  .......      478      713  .......  .......    1,665    1,508    1,093      988  .......  .......
1999......................................  .........  .......    2,674    1,190  .......  .......    1,139    1,394      520      843  .......  .......
2000......................................  .........  .......    3,996    2,383  .......  .......      566    1,123    1,236      950  .......  .......
2001......................................      5,582  .......    2,888    3,186      358  .......    1,162      956    1,174      977  .......  .......
2002......................................      7,855  .......    3,463    3,449    2,000  .......    1,256      995    1,136    1,182  .......  .......
2003......................................      8,813    7,417    1,747    2,699    4,057    2,138    1,653    1,357    1,356    1,222  .......  .......
2004......................................      8,379    8,349    1,485    2,232    3,241    3,099    1,596    1,502    2,057    1,516  .......  .......
2005......................................      5,572    7,588      591    1,274    1,713    3,004    1,817    1,689    1,419    1,611       32  .......
2006......................................     11,279    8,410    2,648    1,575    4,568    3,174    1,928    1,780    2,010    1,829      125  .......
2007......................................      4,406    7,086      696    1,312      857    2,379    1,054    1,600    1,607    1,679      192      116
2008......................................      6,118    7,268      344    1,229    1,494    2,306    2,292    1,758    1,839    1,819      149      155
2009......................................     12,720    7,748    5,816    2,285    3,612    1,988    1,676    1,674    1,482    1,643      134      158
2010......................................      8,141    8,993    1,220    2,460    2,600    2,571    2,708    2,225    1,393    1,571      220      168
2011......................................      9,579   10,147    2,131    3,056    3,161    3,124    2,160    2,181    2,031    1,635       96      141
--------------------------------------------------------------------------------------------------------------------------------------------------------

    2. Productivity. There is also a need to systematically determine 
reproductive success (number of fledged young per nest and number of 
fledged young per successful nest) for a majority of the colonies in 
the same year(s) to better estimate productivity of the breeding 
population (USFWS 1997, p. 24). The Service acknowledges that the 
productivity dataset is incomplete, with less than 25 percent of the 
colonies surveyed for productivity during the past 4 years and 50 
percent surveyed between 2003 and 2007. Brooks and Dean (2008, p. 56) 
indicate the average productivity rate for all colonies monitored in 
the southeastern United States was 1.5 chick/nest attempt between 2004 
and 2006; 1.2 chick/nest attempt between 2003 and 2005; and 1.5 chick/
nest attempt between 2003 and 2006 (Brooks and Dean 2008, p. 56). 
Rodgers et al. (2008, p. 25) found that colonies farther north in 
Florida exhibited greater productivity, and that colonies in 
northeastern and northwestern Florida had greater fledging rates than 
colonies farther south in central Florida. Bryan and Robinette (2008, 
p. 20) found Georgia and South Carolina rates similar to North Florida 
rates. Due to funding and manpower constraints, rangewide, Statewide, 
and regional monitoring of wood stork productivity only has occurred 
episodically (e.g., early 1980s and 2000s). As there are now over 80 
wood stork colonies, Rodgers et al. (2008, p. 32) identifies the need 
to develop a long-term program of monitoring that relies on monitoring 
of fewer colonies.
    Based upon the nesting population criteria in the recovery plan, we 
can consider the continental U.S. breeding population of the wood stork 
for reclassification to threatened status at this time because wood 
storks and their habitat would continue to receive the protections of 
the Act, and management efforts continue to maintain, enhance, and 
restore the amount and quality of available habitat to support a 
growing population. For the following reasons, we believe that the 
continental U.S. breeding population of the wood stork has surpassed 
the recovery criteria outlined as necessary for reclassification. As 
shown in Table 2 of this document, the nesting population is increasing 
and well above the reclassification benchmark (Brooks and Dean 2008, p. 
58; Table 2). The total number of nesting colonies has remained stable 
in south Florida and the number of colonies in central and north 
Florida, Georgia, South Carolina, and North Carolina continue to 
increase (Ogden et al. 1987, p. 754; Brooks and Dean 2008, p. 54; Table 
1). The nesting range continues to expand with new colonies documented 
in North Carolina and western Georgia. Although variable (particularly 
in south Florida) and not yet well documented, productivity appears to 
be sufficient to support continued population growth, as evidenced by 
the increasing population and range expansion described above. 
Population trends suggest that the overall population may approach the 
delisting benchmark of 10,000 nesting pairs during the next 15 to 20 
years. Nesting numbers suggest a stable or increasing population, 
however, data are not available to evaluate the productivity criterion 
of 1.5 chicks per nest per year.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing, reclassifying, or removing a 
species from, the Federal Lists of Endangered

[[Page 75957]]

and Threatened Wildlife and Plants. Under section 3 of the Act, a 
species is ``endangered'' if it is in danger of extinction throughout 
all or a ``significant portion of its range'' and is ``threatened'' if 
it is likely to become endangered within the foreseeable future 
throughout all or a ``significant portion of its range.'' The word 
``range'' refers to the range in which the species currently exists, 
and the word ``significant'' refers to the value of that portion of the 
range being considered to the conservation of the species. The 
``foreseeable future'' is the period of time over which events or 
effects reasonably can or should be anticipated, or trends 
extrapolated. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1) of the Act: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    The following analysis examines all five factors currently 
affecting or that are likely to affect the wood stork within the 
foreseeable future:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Throughout its range in the southeastern United States, wood storks 
are dependent upon wetlands for breeding and foraging. Preventing loss 
of wood stork nesting habitat and foraging wetlands within a colony's 
core foraging area is of the highest priority. In addition, winter 
foraging habitat is important to recovery, as it may determine the 
carrying capacity of the continental U.S. wood stork DPS. While the 
immediacy and the magnitude of this factor are substantially reduced 
when compared to when this species was originally listed, the 
destruction, fragmentation, and modification of its wetland habitats 
continues to occur and could accelerate in the absence of the 
protections of the Act.
    Hefner et al. (1994, p. 21) estimated that 1.3 million acres of 
wetlands lost in the southeastern United States between the mid 1970s 
and mid 1980s were located in the Gulf-Atlantic Lower Coastal Plain, an 
area upon which wood storks are dependent. Ceilley and Bartone (2000, 
p. 70) suggest that short hydroperiod wetlands provide a more important 
pre-nesting food source and provide for a greater early nestling 
survivorship for wood storks than previously known. Wetlands that wood 
storks use for foraging are being lost through permitted activities 
where mitigation is provided. However, it is not known if wood stork 
foraging wetlands are being replaced with like-quality foraging 
wetlands within the core foraging area of an impacted colony. Lauritsen 
(2010, pp. 4-5) suggests that today's mitigation practices lead to a 
disproportionate loss of short hydroperiod wetlands. The impacts of the 
loss of short hydroperiod (isolated) wetlands, which supply most of the 
food energy for initiating reproduction (Fleming et al. 1994, p. 754), 
may result in abandonment of nest colonies by wood storks (e.g., 
Corkscrew Swamp Sanctuary). Frederick and Meyer (2008, p. 15) suggest 
that the decline in colony size in Florida reflects the increasingly 
fragmented nature of Florida's wetlands resulting from development.
    The decline of south Florida's Everglades and Big Cypress 
ecosystems is well-documented (e.g., Davis and Ogden 1994). Prior to 
1970, a majority (70 percent) of the wood stork population nested south 
of Lake Okeechobee and declined from 8,500 nesting pairs in the early 
1960s to around 500 pairs in the late 1980s and early 1990s (Service 
1997). The primary cause of this decline was the loss of wetland 
function of these south Florida ecosystems that resulted in reduced 
prey availability or loss of wetland habitats (Service 1997, p. 10).
    Wood storks use manmade wetlands for foraging and breeding 
purposes. Manmade wetlands include, but are not limited to, storm water 
treatment areas and ponds, golf course ponds, borrow pits, reservoirs, 
roadside ditches, agricultural ditches, drainages, flow-ways, mining 
and mine reclamation areas, and dredge spoil sites. The impacts can be 
positive in certain scenarios as these wetlands can provide protected 
foraging and nesting habitat, and may offset some losses of natural 
wetlands caused by development. A significant number of wood stork 
colonies are located where water management practices can impact the 
nesting habitat negatively. Colonies that are perpetually flooded will 
have no tree regeneration. Draining surface waters of a colony's 
wetland or pond will prevent wood storks from nesting, and lowered 
water levels after nest initiation facilitate raccoon predation. 
Lowering surface water or water table may occur through water control 
structures, manipulating adjacent wetlands, or water withdrawals from 
the local aquifer and can prevent wood storks from nesting or cause 
colony failure.
    While habitat loss, fragmentation, and degradation continue to 
occur throughout the range of the continental U.S. population of wood 
stork, there are also protection, acquisition, and restoration efforts 
in progress. Natural wetlands are being targeted for acquisition to be 
protected through the management of public lands for wildlife and water 
conservation (NRCS 2006, p. 1). In Florida, the Wetlands Reserve 
Program has restored over 200,000 acres of wetlands and over 115,000 
acres in Alabama, Georgia, and South Carolina during the past 18 years. 
Thousands of acres of wetlands are also being protected on private 
lands to assist in habitat and wildlife protection through restoration 
in conjunction with establishing conservation easements (Dahl 2006, p. 
16). Wetland losses are being avoided, minimized, and mitigated through 
the regulatory process (Votteler and Muir 2002, pp. 1-2). Large-scale 
restoration projects like the CERP, Kissimmee River Restoration 
Project, and St. Johns River Headwaters Restoration Project are 
significant conservation efforts that greatly benefit wood stork 
recovery.
    Additionally, the species' response to the threat of habitat loss 
and degradation indicates its ability to adapt and seek out new nesting 
and foraging areas. Since 1980, wood storks have expanded their 
breeding range north into Georgia, South Carolina, and North Carolina, 
and the total number of breeding adults is now approaching the 
delisting criterion set out in the species' recovery plan. Seventy 
percent of the population now breeds north of Lake Okeechobee and the 
Everglades (Brooks and Dean 2008, p. 53). These positive indicators 
throughout the range suggest that the viability of the continental U.S. 
wood stork DPS may no longer be as closely tied to the health of the 
Everglades for reproduction.
    With regard to important wood stork habitats, a number of the 
nesting colonies occur on Federal conservation lands and are 
consequently afforded protection from development and large-scale 
habitat disturbance. Wood stork colonies also occur on a variety of 
State-owned properties, and existing State and Federal regulations 
provide protection on these sites. However, approximately half of known 
wood stork colonies occur on private lands. Through conservation 
partnerships, colonies can be protected through the owners' 
stewardship. In an effort to minimize potential loss of colony sites, 
partnerships have been developed through conservation easements,

[[Page 75958]]

wetland restoration projects, and other conservation means. Also, the 
wetland areas near nesting colonies play a vital role in the success of 
a nesting colony. Due to the regulatory status of wetlands, 
conservation of wetlands shown to be important to wood storks can be 
largely achieved through the application of existing wetland laws, such 
as the Clean Water Act (33 U.S.C. 1251 et seq.) and the interagency 
cooperation provisions of the Act.
    In summary, loss, fragmentation, and modification of wetland 
habitats continue as threats to wood storks. Changes in local habitat 
conditions are known to impact wood storks. Based on the best available 
scientific information, it is our assessment that the species is 
showing the ability to respond to these threats through expansion of 
its range, adjusting reproductive timing, and utilizing a variety of 
wetlands for foraging, roosting, and breeding, including manmade 
wetlands. Historically, the core of the wood stork breeding population 
was located in the Everglades and Big Cypress systems of south Florida. 
Populations there had diminished because of deterioration of the 
habitat. In recognition of the importance of the Everglades and Big 
Cypress systems to wood stork recovery, the recovery plan stated that, 
as a prerequisite for full recovery, these ecosystems should once again 
provide the food resources that are necessary to support traditional 
wood stork nesting patterns at historical nesting areas. However, 
current data show that the breeding range has now almost doubled in 
area and shifted northward along the Atlantic coast as far as 
southeastern North Carolina. As a result of their range expansion, 
dependence of wood storks on any specific wetland complex has been 
reduced. Even though habitat destruction and modification are still a 
threat to recovery, the improved wood stork population statistics 
suggest that wetland habitat is not yet limiting the population, at 
least at the landscape level (USFWS 2007, p. 16). Habitat loss, 
fragmentation, and modification of wetland habitats continue around 
nesting colonies and core foraging areas, and are a significant factor 
affecting the viability of the continental U.S. wood stork DPS.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Monitoring of and research on wood storks over the past 20 years 
has increased. A small number of scientific research permits with 
potential to harm individual wood storks have been issued. This level 
of take/harm is not expected to adversely impact wood stork recovery or 
present a threat to the species.
    Wading birds and other waterbird species, including wood storks, 
can impact production at fish farms. A Georgia catfish farmer located 
approximately 25 miles west of the Chewmill and Birdsville colonies in 
Jenkins County, Georgia, has documented hundreds of woods storks 
aggregating and foraging on the littoral edges of the ponds during the 
late summer in recent years. U.S. Department of Agriculture, Wildlife 
Services Division (Wildlife Services) has documented hundreds of wood 
storks, and in one case 1,000 wood storks, roosting on fish pond dikes 
in the eastern Mississippi, west-central Alabama area (J. Taylor, U.S. 
Department of Agriculture, pers. comm., 2007). Wildlife Services found 
that the wood storks were generally loafing, and if they were feeding, 
they were taking diseased and oxygen-deprived fish and not impacting 
production. Nonetheless, operators of fish farms often respond to such 
activities by taking wood storks. Unpermitted wood stork take has been 
documented at a Mississippi catfish farm and a Florida tropical fish 
farm. Each of these incidents ended in prosecution for shooting wood 
storks. However, wood stork take at aquaculture facilities likely still 
occurs. To what extent this type of take occurs is unknown. Migratory 
Bird Treaty Act (MBTA; 16 U.S.C. 701 et seq.) depredation permits 
assist in minimizing unauthorized take. Depredation permits are issued 
to allow the take of migratory birds that are causing serious damage to 
public or private property, pose a health or safety hazard, or are 
damaging agricultural crops or wildlife. Wildlife Services provides 
expert technical advice and information regarding hazing and harassment 
techniques.
    Research permits are issued to eliminate or minimize impacts to 
wood storks from scientific research. Overutilization was not 
identified as a threat at the time of listing in 1984, and we conclude 
that overutilization for commercial, recreational, scientific, or 
educational purposes is not a threat to the continental U.S. wood stork 
DPS now or in the foreseeable future.

C. Disease or Predation

    There is limited information regarding potential impacts from 
disease or parasites. Hematozoa (blood parasites) have been documented 
to a limited extent in wood storks in Florida and Georgia (Forrester et 
al. 1977, p. 1273; Fedynich et al. 1998, p. 166). Avian malaria has 
recently been documented in continental U.S. wood storks, but the 
available information does not indicate that avian malaria is a 
significant factor affecting the DPS.
    Adequate water levels under nesting trees or surrounding nesting 
islands deter raccoon predation of wood stork colonies. Water level 
manipulation that keeps levels too low can facilitate raccoon predation 
of wood stork nests. In many cases, colonies also have a population of 
alligators nearby that deter raccoon predation (Coulter and Bryan 1995, 
p. 242), and removal of alligators from a nesting colony site could 
lead to increased raccoon predation. Human disturbance may cause adults 
to leave nests, exposing the eggs and downy nestlings to predators 
(e.g., fish crows), sun, and rain. Great horned owls have been 
documented nesting in and near colonies and likely impact the colony to 
some degree.
    A breeding population of Burmese pythons has been documented in the 
Florida Everglades, and a recent study documented that pythons had 
preyed upon wood storks (Dove et al. 2011, p. 128). If these snakes or 
other species of nonnative reptiles become established in additional 
areas within the south Florida ecosystem, they could pose a threat to 
nesting wood storks and other species of colonial-nesting water birds 
but at the present time pythons do not pose a significant factor 
affecting the continental U.S. breeding population of wood stork.
    As summarized above, we have a few documented instances of disease 
and predation within range of the continental U.S. wood stork DPS. 
However, this information does not indicate that disease or predation 
occur at a level that would threaten the continental U.S. wood stork 
DPS, now or in the foreseeable future. We will continue to work closely 
with our State and Federal wildlife agency partners, those who monitor 
wildlife diseases in the wild, and those conducting research of wood 
storks in order to monitor these potential threats.

D. The Inadequacy of Existing Regulatory Mechanisms

    In addition to the Act, the MBTA provides Federal protection to the 
continental U.S. wood stork DPS. Florida, Georgia, South Carolina, 
North Carolina, Alabama, and Mississippi wildlife laws also list and 
protect wood storks. These Federal and State laws prohibit the taking 
of a wood stork, their nests, or their eggs, except as authorized 
through permitted activities such as scientific research and 
depredation permits. However, the MBTA and State

[[Page 75959]]

laws do not prohibit clearing, alteration, or conversion of wetland 
foraging habitats or nesting colony sites during the non-nesting 
season.
    The Clean Water Act (CWA) regulates dredge and fill activities that 
would adversely affect wetlands, which constitute wood stork habitat. 
Section 404 of the CWA regulates the discharge of dredged or fill 
materials into wetlands. Discharges of dredged or fill materials are 
commonly associated with projects to create dry land for development 
sites, water-control projects, and land clearing. The U.S. Army Corps 
of Engineers (Corps) and the Environmental Protection Agency (EPA) 
share the responsibility for implementing the permitting program under 
section 404 of the CWA. These federal actions must not jeopardize the 
continued existence of any species protected under the Act.
    When impacts to wetlands cannot be avoided or minimized, wetland 
mitigation is often employed to replace an existing wetland or its 
functions by creating a new wetland, restoring a former wetland, or 
enhancing or preserving an existing wetland. This is done to compensate 
for the authorized destruction of the existing wetland. As discussed 
earlier, it is not known if wood stork foraging wetlands are being 
replaced with like-quality foraging wetlands within the core foraging 
areas of impacted colonies.
    There is currently little protection for isolated wetland habitats 
under section 404 of the CWA. A 2001 U.S. Supreme Court opinion (Solid 
Waste Agency of Northern Cook County (SWANCC) v. US Army Corps of 
Engineers, 531 U.S. 159 (2001)) substantially reduced the jurisdiction 
of the Federal Government in regulating isolated wetlands. While many 
States in the southeastern United States regulate those activities 
affecting wetlands that are not protected by section 404 of the CWA, 
Florida is the only State known to regulate isolated wetlands. In South 
Carolina, Georgia, Alabama, and North Carolina, there are no State laws 
that protect isolated wetlands. The EPA and the Corps have developed 
draft guidance for determining whether a waterway, water body, or 
wetland is protected by the CWA (76 FR 24479, May 2, 2011). If 
implemented, the guidance will increase the extent of waters over which 
the agencies assert jurisdiction under the CWA and thus would provide 
protection to additional wood stork foraging wetlands that are 
currently unprotected from modification or elimination.
    The Service recommends, through its Wood Stork Habitat Management 
Guidelines (Ogden 1990), that active colony sites be protected from 
local hydrologic changes and from human activities (e.g. timber 
harvesting, vegetation removal, construction, and other habitat-
altering activities) which are likely to be detrimental to the colony 
(Service 1997, p. 18). The Service also recommends that feeding sites 
be protected to the maximum extent possible. The Service's South 
Florida and Jacksonville Ecological Services Field Offices have 
developed ``May Affect'' keys to assist regulators with review of 
wetland dredge and fill permit applications and in an effort to 
minimize loss of wetland habitats important to wood stork recovery, 
like those within the core foraging area of a nesting colony.
    In summary, there are a number of regulatory mechanisms implemented 
by Federal and State agencies to protect wood storks and conserve their 
habitat. Take of wood storks is illegal under both the Act and MBTA. 
The CWA minimizes impacts on jurisdictional wetlands that are important 
to Wood Storks, however the CWA alone is not sufficient to eliminate 
all impacts, as discussed in Factor A. Whether existing habitat 
protections and conservation mechanisms are inadequate can only be 
assessed by monitoring the status of the wood stork population. Recent 
trends indicate that the range is expanding and the breeding population 
has increased, suggesting that the combination of the CWA, the Act, 
MBTA, and state regulations are adequate to protect jurisdictional 
wetlands to allow population growth. However, non-jurisdictional 
wetlands continue to be lost to development due to lack of existing 
regulatory mechanisms, and therefore, loss of these wetlands continues 
as a threat to this species.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Climate Change
    The terms ``climate'' and ``climate change'' are defined by the 
Intergovernmental Panel on Climate Change (IPCC). ``Climate'' refers to 
the mean and variability of different types of weather conditions over 
time, with 30 years being a typical period for such measurements, 
although shorter or longer periods also may be used (IPCC 2007, p. 78). 
The term ``climate change'' thus refers to a change in the mean or 
variability of one or more measures of climate (e.g., temperature or 
precipitation) that persists for an extended period, typically decades 
or longer, whether the change is due to natural variability, human 
activity, or both (IPCC 2007, p. 78). Various types of changes in 
climate can have direct or indirect effects on species. These effects 
may be positive, neutral, or negative, and they may change over time, 
depending on the species and other relevant considerations, such as the 
effects of interactions of climate with other variables (e.g., habitat 
fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses, we use 
our expert judgment to weigh relevant information, including 
uncertainty, in our consideration of various aspects of climate change.
    The IPCC concluded that evidence of warming of the climate system 
is unequivocal (IPCC 2007a, p. 30). Numerous long-term changes have 
been observed, including changes in arctic temperatures and ice, 
widespread changes in precipitation amounts, ocean salinity, wind 
patterns, and aspects of extreme weather, including droughts, heavy 
precipitation, heat waves, and the intensity of tropical cyclones (IPCC 
2007b, p. 7). While continued change is certain, the magnitude and rate 
of change is unknown in many cases. Species that are dependent on 
specialized habitat types, are limited in distribution, or are located 
in the extreme periphery of their range will be most susceptible to the 
impacts of climate change. Such species would currently be found at 
high elevations or in extreme northern/southern latitudes, or are 
dependent on delicate ecological interactions or sensitive to nonnative 
competitors. Wood storks nest in a wide variety of natural and human 
made habitats (e.g., fresh water wetlands to estuarine environs, 
cypress strands to mangrove islands, lake edges to river edges, 
impoundments to borrow pits); they are not dependent upon specialized 
habitat. They nest in trees and shrubby vegetation (native to exotic) 
where water is surrounding (island) or water is underneath the nesting 
vegetation and where there is suitable foraging habitat nearby (shallow 
water wetlands). The marshes and wetlands they use may be impacted by 
climate change depending on their location but wood storks have been 
shown to find other habitat if existing locations become unavailable.
    Information on the subject of climate change in our files is not 
specific to the wood stork. While predictions of increased drought 
frequency, intensity, and duration suggest that nestling survival could 
be a limiting factor for the wood stork due to increased predation or 
possible loss or shift in the location of coastal colonies due to sea 
level rise, the species possesses other biological traits, like 
adaptability to

[[Page 75960]]

changing habitat conditions that provide resilience to this threat. 
Wood storks are already responding to habitat changes by altering their 
nest locations. This has been seen in the recent expansion from 
Everglades colony locations in Florida to other areas in the 
southeastern United States (Brooks and Dean 2008). These expansions are 
in response to annual cycles; nest locations depend upon availability. 
Abandonment of old colonies and formation of new ones is a typical and 
fairly rapid process in wood storks (Frederick and Meyer 2008 p.12). 
Most wood stork colonies in the Southeast U.S. have relatively short 
survival histories and only a handful of colonies have survived more 
than 20 years and the large numbers of short-lived colonies indicate 
that wood stork colony abandonment and novel colony initiation seems to 
be typical of the species (Tsai et al. 2011, p. 2). The wood storks' 
ability to seek out new locations for nesting would seem to indicate 
that they will respond in a similar fashion to changes in habitat 
availability that result from sea level rise.
    Although many species already listed as endangered or threatened 
may be particularly vulnerable to negative effects related to changes 
in climate, we also recognize that, for some listed species, the likely 
effects may be positive or neutral. At this time, we have no evidence 
that climate changes observed to date have had any adverse effect on 
the wood stork or its habitat; this long-lived species is expected to 
adapt to future changes in habitat availability that may result from 
climate change.
Contamination Events
    Contamination events can be triggered by restoration or natural 
events, such as hurricanes or flooding, that can expose concentrations 
of contaminants. For example, from November 1998 through early April 
1999, a bird mortality event occurred on the north shore of Lake 
Apopka, Florida, on former farmlands that had been purchased by the St. 
Johns River Water Management District and NRCS. An estimated 676 birds 
died on-site, mostly white pelicans (Pelecanus erythrorhynchos) and 
various species of wading birds, including the wood stork. Of the 
estimated 1,991 wood storks present in the area, 43 died on-site 
(Rauschenberger 2007, p. 16). The cause of death was attributed to 
organochlorine pesticide (OCP) toxicosis (Rauschenberger 2007, p. 16). 
The birds were exposed to OCPs by eating OCP-contaminated fish, which 
became easy prey as fish moved from ditches into the flooded fields, 
located in the eastern part of the restoration area (Rauschenberger 
2007, p. 16).
    Mercury, heavy metals, and other contaminants that may impair 
reproduction and cause other health issues are being studied in wood 
storks and many other wading bird species (Bryan et al. 2012; Gallaher 
et al. 2011; Martin 2010; Frederick and Jayasena 2010; Brant et al. 
2002; Bryan et al. 2001; Gariboldi et al. 2001). Also, exposure to 
contaminants by foraging in manmade wetlands may pose a potential risk 
to wood stork health and reproduction. On the other hand, pesticide 
contamination has not generally been considered to adversely affect 
wood stork reproduction (Ohlendorf et al. 1978, p. 616).
Algal Blooms (Red Tide Events)
    Harmful algal blooms, specifically red tide events, have become 
more prevalent along Florida's coast. Brevitoxicosis was documented in 
2005 as the cause of death of a wood stork (Spalding 2006). Wood storks 
can be exposed to harmful microalgae and their toxins through a variety 
of mechanisms, including aerosolized transport (i.e., respiratory 
irritation in mammals, turtles, birds); bioaccumulation through 
consumption of prey containing toxins or toxic cells (crustaceans, 
gastropods, fish, birds, turtles, mammals); and mechanical damage by 
spines, setae, or other anatomical features of the cells (FWC 2007, p. 
1). In addition to dead fish, large numbers of aquatic birds, 
particularly double-crested cormorants (Phalacrocorax auritus), red-
breasted mergansers (Mergus merganser), and lesser scaup (Aythya 
affinis), were found moribund or dead in red tide areas during the 
Florida west coast Karenia brevis red tide of October 1973 to May 1974 
(FWC 2007).
Electrocution
    Electrocution mortalities of wood storks from power lines have been 
documented and reported to us by power companies and by State and 
Federal wildlife law enforcement. In most cases, when a problem 
location is identified, it is retrofitted using standard avian 
protection guidelines to prevent electrocutions. The guidelines 
recommend using heavily insulated wire, spreading the wires apart to 
prevent grounding as body parts touch the wires, or burying the wires 
underground. The Service's Wood Stork Habitat Management Guidelines 
(Ogden 1990) include recommendations that new transmission lines be at 
least 1 mile away from colony sites and tall transmission towers no 
closer than 3 miles from active colonies. The Service also recommends 
similar guidance for cell phone towers and wind turbines.
Other Threats
    The following is a list of threats that have also been documented 
to occur, but we have concluded that due to low incident numbers and 
minimal documentation, the impacts at this time are very low and do not 
impede recovery.
    Human disturbance is known to have a detrimental effect on wood 
stork nesting (Service 1997, pp. 10, 12). Wood storks have been 
documented to desert nests when disturbed by humans, thus exposing eggs 
and young birds to the elements and to predation by gulls and fish 
crows (Coulter et al. 1999, p. 19).
    Documentation of road kill mortalities of wood storks has increased 
(B. Brooks, USFWS, pers. comm., 2010). This may be due to better 
reporting or more storks using roadside ponds, ditches, swales, and 
flow-ways as foraging habitat.
    Stochastic events, such as severe thunderstorms and hurricanes, 
pose a potential risk. Loss of nesting trees due to hurricanes can have 
a negative impact on nesting habitat. Severe local storm events have 
impacted individual colonies, causing chick mortality and even blowing 
nests out of trees.
    The invasion of exotic plants into natural wetland areas can 
prevent wood storks from foraging due to high density and canopy cover 
of the plants (USFWS 2010, p. 127). Invasion into natural nesting 
habitats by exotic species, including Brazilian pepper (Schinus 
terebinthifolius), melaleuca (Melaleuca quinquenervia), and Australian 
pine (Casuarina equisetifolia), may present a problem; however, wood 
storks are using exotic species for nesting habitat at many manmade 
wetland colony sites, such as borrow pits. Even though wetlands 
overgrown with exotics may preclude wood storks from foraging within, 
they do have a conservation benefit as they flood during the wet season 
and provide a prey source to adjacent wetlands. Wood storks are also 
documented utilizing Brazilian pepper as nesting substrate (USFWS 1999, 
p. 4-396).
    A small number of sacred ibis (Threskiornis aethiopicus) escaped 
from a south Florida zoo and established a small breeding population in 
south Florida. They may compete with wood storks for nesting space 
within south Florida colonies.
Summary of Factor E
    In summary, other natural or manmade factors affecting the wood 
stork's continued existence, such as contaminants, harmful algal 
blooms,

[[Page 75961]]

electrocution, road kill, invasion of exotic plants and animals, human 
disturbance, and stochastic events, are all documented at minimal 
levels to affect wood storks. The wood stork utilizes a wide variety of 
habitats throughout its range in the southeastern United States; this 
ability to use alternative habitats (as evidenced by the wood storks 
expansion from the Everglades of Florida into marshes and tidal areas 
throughout the southeastern United States (Brooks and Dean 2008)), 
helps to buffer this species from some of the impacts to its habitat 
through natural or manmade threats. We conclude that other natural or 
manmade factors are not a significant factor affecting the continental 
U.S. wood stork DPS, now or in the foreseeable future.

Conclusion

    Whether a species is currently on the brink of extinction in the 
wild depends on the life history and ecology of the species, the nature 
of the threats, and the species' response to those threats. Loss, 
fragmentation, and modification of wetland habitats continue as threats 
to continental U.S. wood storks. Based on the best available scientific 
information, it is our assessment that the species is showing the 
ability to respond to these threats through expanding its range, 
adjusting its reproductive timing, and utilizing a variety of wetlands, 
including manmade wetlands, to forage, roost, and breed. Current data 
show that the breeding range has now almost doubled in extent and 
shifted northward along the Atlantic coast as far as southeastern North 
Carolina. As a result, dependence of wood storks on any specific 
wetland complex has been reduced. Even though habitat destruction and 
modification are still a threat to recovery, the improved wood stork 
population statistics also suggest that wetland habitat is not yet 
limiting the population, at least at the landscape level.
    A number of regulatory mechanisms are being implemented by Federal 
and State agencies to protect wood storks and conserve their habitat. 
Take of wood storks is illegal under both the Act and MBTA. Whether 
habitat protection and conservation mechanisms are inadequate must be 
assessed in terms of the wood stork population. Recent trends indicate 
that the range of the continental U.S. wood stork DPS is expanding and 
that the breeding population has increased, suggesting that existing 
regulatory mechanisms are adequate to allow population growth. However, 
we remain concerned that the status of this species would be expected 
to deteriorate should the Act's requirements to consult on all federal 
actions affecting the species' habitat or the prohibition on take 
(including significant habitat modification) be removed.
    Other threats such as overutilization of the species for 
commercial, recreational, scientific, or educational purposes; disease 
and predation; and other natural or manmade factors (e.g., 
contaminants, harmful algal blooms, electrocution, road kill, invasion 
of exotic plants and animals, human disturbance, and stochastic events) 
are known to occur but are not significant.
    While there continue to be ongoing threats, the continental U.S. 
wood stork DPS is increasing and expanding its overall range. 
Population criteria for reclassification have been exceeded with 3-year 
population averages higher than 6,000 nesting pairs since 2003 (range 
of 7,086 to 8,996 nesting pairs). Delisting criteria of 10,000 nesting 
pairs (5-year average) has not been achieved. The wood stork population 
has exceeded 10,000 nesting pairs twice during the past 5 years (2006 
and 2009), and the 2009 count of 12,720 nesting pairs represents the 
highest count since the early 1960s. Productivity, though variable, is 
sufficient to support a growing population. Based on the analysis 
presented above and the fact that downlisting criteria have been met, 
we believe the continental U.S. wood stork DPS is not presently in 
danger of extinction throughout its range. However, because loss, 
fragmentation, and modification of wetland habitats continue around 
nesting colonies and core foraging areas, and because delisting 
criteria have not been met, we conclude that the continental U.S. wood 
stork DPS is likely to become endangered within the foreseeable future 
and therefore should be reclassified as threatened under the Act.

Significant Portion of the Range Analysis

    Having determined that the continental U.S. wood stork DPS meets 
the definition of threatened, we must next consider whether there is a 
significant portion of the range where the wood stork is in danger of 
extinction. The phrase ``significant portion of its range'' (SPR) is 
not defined by the statute, and we have never addressed in our 
regulations: (1) The consequences of a determination that a species is 
either endangered or likely to become so throughout a significant 
portion of its range, but not throughout all of its range; or (2) what 
qualifies a portion of a range as ``significant.''
    Two recent district court decisions have addressed whether the SPR 
language allows the Service to list or protect less than all members of 
a defined ``species'': Defenders of Wildlife v. Salazar, 729 F. Supp. 
2d 1207 (D. Mont. 2010), concerning the Service's delisting of the 
Northern Rocky Mountain gray wolf (74 FR 15123, April 2, 2009); and 
WildEarth Guardians v. Salazar, 2010 U.S. Dist. LEXIS 105253 (D. Ariz. 
Sept. 30, 2010), concerning the Service's 2008 finding on a petition to 
list the Gunnison's prairie dog (73 FR 6660, February 5, 2008). The 
Service had asserted in both of these determinations that it had 
authority, in effect, to protect only some members of a ``species,'' as 
defined by the Act (i.e., species, subspecies, or DPS), under the Act. 
Both courts ruled that the determinations were arbitrary and capricious 
on the grounds that this approach violated the plain and unambiguous 
language of the Act. The courts concluded that reading the SPR language 
to allow protecting only a portion of a species' range is inconsistent 
with the Act's definition of ``species.'' The courts concluded that 
once a determination is made that a species (i.e., species, subspecies, 
or DPS) meets the definition of ``endangered species'' or ``threatened 
species,'' it must be placed on the list in its entirety and the Act's 
protections applied consistently to all members of that species 
(subject to modification of protections through special rules under 
sections 4(d) and 10(j) of the Act).
    Consistent with that interpretation, and for the purposes of this 
proposed rule and finding, we interpret the phrase ``significant 
portion of its range'' in the Act's definitions of ``endangered 
species'' and ``threatened species'' to provide an independent basis 
for listing a species in its entirety; thus there are two situations 
(or factual bases) under which a species would qualify for listing: A 
species may be endangered or threatened throughout all of its range; or 
a species may be endangered or threatened in only a significant portion 
of its range. If a species is in danger of extinction throughout an 
SPR, it, the species, is an ``endangered species.'' The same analysis 
applies to ``threatened species.'' Therefore, the consequence of 
finding that a species is endangered or threatened in only a 
significant portion of its range is that the entire species will be 
listed as endangered or threatened, respectively, and the Act's 
protections will be applied across the species' entire range.
    We conclude, for the purposes of this proposed rule and finding, 
that interpreting the SPR phrase as providing

[[Page 75962]]

an independent basis for listing is the best interpretation of the Act 
because it is consistent with the purposes and the plain meaning of the 
key definitions of the Act; it does not conflict with established past 
agency practice (i.e., prior to the 2007 Solicitor's Opinion), as no 
consistent, long-term agency practice has been established; and it is 
consistent with the judicial opinions that have most closely examined 
this issue. Having concluded that the phrase ``significant portion of 
its range'' provides an independent basis for listing and protecting 
the entire species, we next turn to the meaning of ``significant'' to 
determine the threshold for when such an independent basis for listing 
exists.
    Although there are potentially many ways to determine whether a 
portion of a species' range is ``significant,'' we conclude, for the 
purposes of this proposed rule and finding, that the significance of 
the portion of the range should be determined based on its biological 
contribution to the conservation of the species. For this reason, we 
describe the threshold for ``significant'' in terms of an increase in 
the risk of extinction for the species. We conclude that a biologically 
based definition of ``significant'' best conforms to the purposes of 
the Act, is consistent with judicial interpretations, and best ensures 
species' conservation. Thus, for the purposes of this proposed rule and 
finding, a portion of the range of a species is ``significant'' if its 
contribution to the viability of the species is so important that, 
without that portion, the species would be in danger of extinction.
    We evaluate biological significance based on the principles of 
conservation biology using the concepts of redundancy, resiliency, and 
representation. Resiliency describes the characteristics of a species 
that allow it to recover from periodic disturbance. Redundancy (having 
multiple populations distributed across the landscape) may be needed to 
provide a margin of safety for the species to withstand catastrophic 
events. Representation (the range of variation found in a species) 
ensures that the species' adaptive capabilities are conserved. 
Redundancy, resiliency, and representation are not independent of each 
other, and some characteristic of a species or area may contribute to 
all three. For example, distribution across a wide variety of habitats 
is an indicator of representation, but it may also indicate a broad 
geographic distribution contributing to redundancy (decreasing the 
chance that any one event affects the entire species), and the 
likelihood that some habitat types are less susceptible to certain 
threats, contributing to resiliency (the ability of the species to 
recover from disturbance). None of these concepts is intended to be 
mutually exclusive, and a portion of a species' range may be determined 
to be ``significant'' due to its contributions under any one of these 
concepts.
    For the purposes of this proposed rule and finding, we determine if 
a portion's biological contribution is so important that the portion 
qualifies as ``significant'' by asking whether, without that portion, 
the representation, redundancy, or resiliency of the species would be 
so impaired that the species would have an increased vulnerability to 
threats to the point that the overall species would be in danger of 
extinction (i.e., would be ``endangered''). Conversely, we would not 
consider the portion of the range at issue to be ``significant'' if 
there is sufficient resiliency, redundancy, and representation 
elsewhere in the species' range that the species would not be in danger 
of extinction throughout its range if the population in that portion of 
the range in question became extirpated (extinct locally).
    We recognize that this definition of ``significant'' establishes a 
threshold that is relatively high. On the one hand, given that the 
consequences of finding a species to be endangered or threatened in an 
SPR would be listing the species throughout its entire range, it is 
important to use a threshold for ``significant'' that is robust. It 
would not be meaningful or appropriate to establish a very low 
threshold whereby a portion of the range can be considered 
``significant'' even if only a negligible increase in extinction risk 
would result from its loss. Because nearly any portion of a species' 
range can be said to contribute some increment to a species' viability, 
use of such a low threshold would require us to impose restrictions and 
expend conservation resources disproportionately to conservation 
benefit: Listing would be rangewide, even if only a portion of the 
range of minor conservation importance to the species is imperiled. On 
the other hand, it would be inappropriate to establish a threshold for 
``significant'' that is too high. This would be the case if the 
standard were, for example, that a portion of the range can be 
considered ``significant'' only if threats in that portion result in 
the entire species' being currently endangered or threatened. Such a 
high bar would not give the SPR phrase independent meaning, as the 
Ninth Circuit held in Defenders of Wildlife v. Norton, 258 F.3d 1136 
(9th Cir. 2001).
    The definition of ``significant'' used in this proposed rule and 
finding carefully balances these concerns. By setting a relatively high 
threshold, we minimize the degree to which restrictions would be 
imposed or resources expended that do not contribute substantially to 
species conservation. But we have not set the threshold so high that 
the phrase ``in a significant portion of its range'' loses independent 
meaning. Specifically, we have not set the threshold as high as it was 
under the interpretation presented by the Service in the Defenders 
litigation. Under that interpretation, the portion of the range would 
have to be so important that current imperilment there would mean that 
the species would be currently imperiled everywhere. Under the 
definition of ``significant'' used in this proposed rule and finding, 
the portion of the range need not rise to such an exceptionally high 
level of biological significance. (We recognize that if the species is 
imperiled in a portion that rises to that level of biological 
significance, then we should conclude that the species is in fact 
imperiled throughout all of its range, and that we would not need to 
rely on the SPR language for such a listing.) Rather, under this 
interpretation we ask whether the species would be endangered 
everywhere without that portion, i.e., if that portion were completely 
extirpated. In other words, the portion of the range need not be so 
important that even being in danger of extinction in that portion would 
be sufficient to cause the remainder of the range to be endangered; 
rather, the complete extirpation (in a hypothetical future) of the 
species in that portion would be required to cause the remainder of the 
range to be endangered.
    The range of a species can theoretically be divided into portions 
in an infinite number of ways. However, there is no purpose to 
analyzing portions of the range that have no reasonable potential to be 
significant and threatened or endangered. To identify only those 
portions that warrant further consideration, we determine whether there 
is substantial information indicating that: (1) The portions may be 
``significant,'' and (2) the species may be in danger of extinction 
there or likely to become so within the foreseeable future. Depending 
on the biology of the species, its range, and the threats it faces, it 
might be more efficient for us to address the significance question 
first or the status question first. Thus, if we determine that a 
portion of the range is not ``significant,'' we do not need to

[[Page 75963]]

determine whether the species is endangered or threatened there; if we 
determine that the species is not endangered or threatened in a portion 
of its range, we do not need to determine if that portion is 
``significant.'' In practice, a key part of the portion status analysis 
is whether the threats are geographically concentrated in some way. If 
the threats to the species are essentially uniform throughout its 
range, no portion is likely to warrant further consideration. Moreover, 
if any concentration of threats applies only to portions of the 
species' range that clearly would not meet the biologically based 
definition of ``significant,'' such portions will not warrant further 
consideration.
    Applying the process described above, we evaluated the continental 
U.S. wood stork DPS's range to determine if any areas could be 
considered a significant portion of its range, and a key portion of 
that determination is whether the threats are geographically 
concentrated in some manner. As detailed in the threat analysis in this 
proposed rule and finding, the primary threat to the wood stork--
habitat loss, fragmentation, and modification--is a relatively uniform 
threat across the species' range.
    It could be argued that at the time of listing, the threat of 
habitat destruction and fragmentation to the continental U.S. wood 
stork DPS at one time was concentrated in south Florida. With the 
current habitat regimes, nesting wood storks have persisted in south 
Florida with nesting numbers below historic counts but also varying 
annually from hundreds to several thousand in many years (Table 2). 
Even though we share above that no concentration of threats currently 
occurs in the range of this DPS, we provide here more detail on south 
Florida to show further why it is not a significant portion of range 
because of the emphasis on south Florida in the wood stork recovery 
plan.
    The wood storks nesting in south Florida (the region south of Lake 
Okeechobee from Lee County on the west coast to Palm Beach County on 
the east coast, and the Everglades and Big Cypress systems) now 
represent approximately 25 percent of the breeding wood storks in the 
United States during the past 10 years (Tables 1 and 2). Total nesting 
pairs in this region have been quite variable, but showed a general 
pattern of decline during the 1970s and remained low through the mid 
1980s. However, wood stork nesting increased in south Florida from the 
mid 1990s (an average of 400 to 500 pairs) to a high of 5,816 pairs in 
2009. A 3-year running average since the time of listing in 1984 ranges 
from 457 to 3,449 pairs, with considerable variability. These observed 
fluctuations in the nesting between years and nesting sites have been 
attributed primarily to variable hydrologic conditions during the 
nesting season (Crozier and Gawlik 2003, p. 1; Crozier and Cook 2004, 
pp. 1-2). Frequent, heavy rains during nesting can cause water levels 
to increase rapidly. The abrupt increases in water levels during 
nesting, termed reversals (Crozier and Gawlik 2003, p. 1), may cause 
nest abandonment, re-nesting, late nest initiation, and poor fledging 
success. For example, optimal foraging conditions in 2006 resulted in 
high nesting success, but the 2-year drought that followed in 2007 and 
2008 resulted in no nesting success in the Corkscrew Sanctuary rookery 
(Lauritsen 2007, p. 11; Lauritsen 2008, p. 12). However, 2009 nesting 
data for Corkscrew Sanctuary rookeries noted 1,120 nests producing 
2,570 nestlings (Lauritsen 2009, p. 13). Similar rebounds in nesting 
activity were recorded for other south Florida rookeries in 2009, with 
possibly the largest number of nest starts since 1975, estimated at 
about 4,000 nests throughout the Everglades and Big Cypress Systems 
(Newman 2009, p. 51) and a total of 5,816 nesting pairs (Table 2) in 
south Florida.
    The CERP established performance measures and related goals for 
wood storks and other wading bird species. Metrics include the number 
of pairs of nesting wood storks and the location of the wood stork 
colonies. The timing of nesting, which shifted from historical periods 
of November through December to January through March, is also a 
metric. There have been some recent positive measures in Everglades 
restoration regarding these metrics. Restoration predicts that the 
return of natural flows and hydrologic patterns will result in large, 
sustainable breeding wading bird populations, with large colonies in 
the coastal zone of the Everglades and a return to natural timing of 
nesting, with wood stork nest initiation in November or December. Cook 
and Kobza (2010, p. 2) suggest that Everglades National Park may be 
more attractive to nesting birds in recent years and that the 2009 
breeding season was the best nesting year in south Florida since the 
1940s. The 2009-2010 nesting year did show an improvement in nest 
timing with wood stork nesting in January, which is earlier than 
previous years, but which is still outside the nesting onset target of 
November to December (Newman 2009, p. 52; Gottlieb 2010, p. 42). Also, 
Cook and Kobza (2010, p. 2) report a general shift of colony locations 
to the coast in recent years.
    Although the variability of habitat conditions affects the nesting 
efforts in south Florida and at times there is total failure of a 
colony or little to no nesting, we do not believe such variability will 
cause extirpation of wood storks in south Florida. Wood storks are a 
long-lived species that demonstrate considerable variation in 
population numbers in response to changing hydrological conditions 
(USFWS 1997, p. 10). We are not aware of any other threat within this 
portion of the range that would act synergistically and heighten our 
level of concern for the wood stork population. Consequently, although 
we recognize that it is desirable to improve the nesting success of 
wood storks in south Florida, we conclude that the present level of 
habitat threat, when combined with the restoration efforts of CERP, is 
not of a magnitude that leads us to delineate the wood storks in and 
around south Florida as being more in danger of extinction than wood 
storks breeding in central/north Florida through North Carolina, nor as 
being a significant portion of the range of the continental U.S. wood 
stork DPS.
    In summary, the primary threat to the continental U.S. wood stork 
DPS--habitat loss, fragmentation, and modification--is relatively 
uniform throughout the DPS's range. We have determined that none of the 
existing or potential threats currently place the continental U.S. wood 
stork DPS in danger of extinction throughout all or a significant 
portion of its range.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing increases public awareness of 
threats to the continental U.S. breeding population of the wood stork, 
and promotes conservation actions by Federal, State, and local 
agencies, private organizations, and individuals. The Act provides for 
possible land acquisition and cooperation with the State, and for 
recovery planning and implementation. The protection required of 
Federal agencies and the prohibitions against taking and harm are 
discussed, in part below.
    A number of the nesting colonies of the continental U.S. wood stork 
DPS occur on Federal conservation lands and are consequently afforded 
protection

[[Page 75964]]

from development and large-scale habitat disturbance. Wood stork 
colonies also occur on a variety of State-owned properties, and 
existing State and Federal regulations provide protection on these 
sites. There is also a significant number of wood stork colonies that 
occur on private lands, and through conservation partnerships, many of 
these colonies are protected through the owners' stewardship. In many 
cases these partnerships have been developed through conservation 
easements, wetland restoration projects, and other conservation means. 
The fact that wood stork habitat is primarily wetlands also assures the 
opportunity for conference or consultation on most projects that occur 
in wood stork habitat under the authorities described below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to the continental U.S. breeding 
population of the wood stork. If a Federal action may affect the wood 
stork or its habitat, the responsible Federal agency must consult with 
the Service to ensure that any action authorized, funded, or carried 
out by such agency is not likely to jeopardize the continued existence 
of the wood stork. Federal agency actions that may require consultation 
with us include Corps' involvement in projects such as residential 
development, mining operations, construction of roads and bridges, or 
dredging that requires dredge/fill permits. Protecting and restoring 
wetlands that wood storks are dependent upon through the environmental 
regulatory review process is the most important action that Federal, 
State, and local regulatory agencies can undertake and is key to wood 
stork recovery.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered and 
threatened wildlife. As such, these prohibitions would be applicable to 
the wood stork. These prohibitions, under 50 CFR 17.21 (17.31 for 
threatened wildlife species), make it illegal for any person subject to 
the jurisdiction of the United States to ``take'' (including to harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to 
attempt any of these) within the United States or upon the high seas, 
import or export, deliver, receive, carry, transport, or ship in 
interstate or foreign commerce in the course of a commercial activity, 
or to sell or offer for sale in interstate or foreign commerce, any 
endangered wildlife species. It also is illegal to possess, sell, 
deliver, carry, transport, or ship any such wildlife that has been 
taken in violation of the Act. Certain exceptions apply to agents of 
the Service and State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife species under certain circumstances. 
Regulations governing permits are codified at Sec.  17.32 for 
threatened species. Such permits are available for scientific purposes, 
to enhance the propagation or survival of the species, and for 
incidental take in the course of otherwise lawful activities. For 
threatened species, permits are also available for zoological 
exhibition, educational purposes, and special purposes consistent with 
the purposes of the Act.
    Questions regarding whether specific activities will constitute a 
violation of section 9 of the Act should be directed to the U.S. Fish 
and Wildlife Service, North Florida Ecological Services Field Office 
(see FOR FURTHER INFORMATION CONTACT section). Requests for copies of 
the regulations regarding listed species and inquiries about 
prohibitions and permits may be addressed to the U.S. Fish and Wildlife 
Service, Ecological Services Division, 1875 Century Boulevard, Suite 
200, Atlanta, GA 30345 (telephone 404-679-7313, facsimile 404-679-
7081).

Effects of This Rule

    This rule, if made final, would revise 50 CFR 17.11(h) to 
reclassify the continental U.S. wood stork DPS from endangered to 
threatened on the List of Endangered and Threatened Wildlife. This 
proposed rule discusses how the continental U.S. wood stork DPS is no 
longer in danger of extinction throughout all or a significant portion 
of its range. However, this reclassification would not significantly 
change the protection afforded this species under the Act. Based on new 
information about the range of the continental U.S. wood stork DPS and 
where nesting is now occurring, this rule, if made final, would also 
revise 50 CFR 17.11(h) to reflect that the range of the continental 
U.S. wood stork DPS has expanded from Alabama, Florida, Georgia, and 
South Carolina to also include North Carolina and Mississippi (see 
Distinct Vertebrate Population Segment Analysis section above).
    Anyone taking, attempting to take, or otherwise possessing a wood 
stork, or parts thereof, in violation of section 9 of the Act is 
subject to a penalty under section 11 of the Act. Pursuant to section 7 
of the Act, all Federal agencies must ensure that any actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the continental U.S. wood stork DPS.
    If this proposed rule is made final and the continental U.S. wood 
stork DPS is reclassified as threatened, recovery actions directed at 
the wood stork would continue to be implemented as outlined in the 
recovery plan (Service 1997). Highest priority recovery actions 
include: (1) Locate nesting habitat; (2) locate roosting and foraging 
habitat; (3) inform landowners; (4) protect (nesting) sites from 
disturbance; (5) use existing regulatory mechanisms to protect habitat; 
and (6) monitor productivity of stork populations. Other recovery 
initiatives also include appointing a recovery team to update the 
recovery plan to ensure the recovery criteria and actions reflect the 
most current information on the demographics, range, and habitat needs 
of the species.
    Finalization of this proposed rule would not constitute an 
irreversible commitment on our part. Reclassification of the 
continental U.S. wood stork DPS from threatened status back to 
endangered status would be possible if changes occur in management, 
population status, or habitat, or if other factors detrimentally affect 
the DPS or increase threats to the species' survival.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will solicit the expert opinions of at least three 
appropriate and independent specialists for peer review of this 
proposed rule. The purpose of such review is to ensure that decisions 
are based on scientifically sound data, assumptions, and analysis. We 
will send peer reviewers copies of this proposed rule immediately 
following publication in the Federal Register. We will invite peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed reclassification to 
threatened. We will summarize the opinions of these reviewers in the 
final decision document, and we will consider their input, and any 
additional information we receive, as part of our process of making a 
final decision on the proposal. Such communication may lead to a final 
regulation that differs from this proposal.

Required Determinations

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under the 
Paperwork

[[Page 75965]]

Reduction Act (44 U.S.C. 3501 et seq.). This rule will not impose 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. 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

    We have determined that we do not need to prepare an environmental 
assessment or environmental impact statement, as defined in the 
National Environmental Policy Act of 1969 (42 U.S.C 4321 et seq.), in 
connection with regulations adopted pursuant to section 4(a) of the 
Endangered Species Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior Manual Chapter 512 DM 2, we have considered possible 
effects on and have notified the Native American Tribes within the 
range of the continental U.S. breeding population of the wood stork 
about this proposal. They have been advised through a written 
informational mailing from the Service. If future activities resulting 
from this proposed rule may affect Tribal resources, a Plan of 
Cooperation will be developed with the affected Tribe or Tribes.

Clarity of This Regulation (E.O. 12866)

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

References Cited

    A complete list of references cited is available upon request from 
the North Florida Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this document are the staff members of the 
North Florida Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    We propose to amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.11(h) by revising the entry for ``Stork, wood'' 
under ``BIRDS'' in the List of Endangered and Threatened Wildlife to 
read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species                                                  Vertebrate population
-----------------------------------------------------------     Historic range      where endangered or     Status       When      Critical     Special
            Common name                 Scientific name                                  threatened                     listed      habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
BIRDS
 
                                                                      * * * * * * *
Stork, wood........................  Mycteria americana...  U.S.A. (CA, AZ, TX,    U.S.A. (AL, FL, GA,             T        142,          NA          NA
                                                             to Carolinas),         MS, NC, SC).
                                                             Mexico, C. and S.
                                                             America.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------



[[Page 75966]]

* * * * *
    Dated: December 14, 2012.
Rowan W. Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2012-30731 Filed 12-21-12; 4:15 pm]
BILLING CODE 4310-55-P