Endangered and Threatened Wildlife and Plants; Reclassifying the Columbia River Distinct Population Segment of the Columbian White-Tailed Deer as Threatened With a Rule Under Section 4(d) of the Act, 71386-71410 [2016-24790]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Rules and Regulations]
[Pages 71386-71410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24790]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2014-0045; FXES11130900000C6-167-FF09E42000]
RIN 1018-BA30


Endangered and Threatened Wildlife and Plants; Reclassifying the 
Columbia River Distinct Population Segment of the Columbian White-
Tailed Deer as Threatened With a Rule Under Section 4(d) of the Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the Columbia River distinct population segment 
(DPS) of Columbian white-tailed deer (Odocoileus virginianus leucurus). 
This subspecies of white-tailed deer is found in limited areas of 
Clatsop, Multnomah, and Columbia Counties in Oregon, and Cowlitz, 
Wahkiakum, Pacific, Skamania, and Clark Counties in Washington. The 
effect of this rule is to change the listing status of the Columbia 
River DPS of Columbian white-tailed deer from an endangered species to 
a threatened species on the List of Endangered and Threatened Wildlife. 
We call this ``reclassifying'' or ``downlisting'' the DPS. We are also 
adopting a rule under the authority of section 4(d) of the Act (a 
``4(d) rule'') that is necessary and advisable to provide for the 
conservation of the Columbia River DPS of the Columbian white-tailed 
deer.

DATES: This rule is effective November 16, 2016.

ADDRESSES: This final rule is available online at https://www.regulations.gov under Docket No. FWS-R1-ES-2014-0045. Comments and 
materials received, as well as supporting documentation used in 
preparation of this final rule, are available for public inspection at 
https://www.regulations.gov, or by appointment, during normal business 
hours at: U.S. Fish and Wildlife Service, Oregon Fish and Wildlife 
Office, 2600 SE. 98th Avenue, Portland, OR 97266; telephone 503-231-
6179.

FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, 
telephone: 503-231-6179. Direct all questions or requests for 
additional information to: Columbian White-tailed Deer Information 
Request, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife 
Office, 2600 SE. 98th Avenue, Portland, OR 97266. Individuals who are 
hearing impaired or speech impaired may call the Federal Relay Service 
at 800-877-8337 for TTY (telephone typewriter or teletypewriter) 
assistance 24 hours a day, 7 days a week.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
reclassification from endangered to threatened if it no longer meets 
the definition of endangered (in danger of extinction). The 
reclassification of a listed species can only be completed by issuing a 
rule. The endangered designation no longer correctly reflects the 
current status of the Columbia River DPS of Columbian white-tailed deer 
(CWTD) due to a substantial improvement in the species' status. This 
action is based on a thorough review of the best available scientific 
and commercial data, which indicate an increasing population trend 
within the DPS and the presence of multiple secure subpopulations.
    This rule finalizes the reclassification of the Columbia River DPS 
of CWTD as a threatened species. It includes provisions under the 
authority of section 4(d) of the Act that are necessary and advisable 
for the conservation needs of the CWTD.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any one or a 
combination 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 population of the Columbia River DPS of CWTD 
consists of over 900 individuals. In addition to the new Ridgefield 
National Wildlife Refuge (NWR) subpopulation of 100 individuals, there 
are three other secure subpopulations. We have determined that the CWTD 
is no longer at risk of extinction and, therefore, does not meet the 
definition of endangered, but is still impacted by habitat loss and 
degradation of habitat to the extent that the DPS meets the definition 
of a threatened species under the Act (a species which is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range).
    Under section 4(d) of the Act, the Secretary of the Interior has 
discretion to issue such regulations she deems necessary and advisable 
to provide for the conservation of the species. A 4(d) rule may include 
some or all of the prohibitions and authorizations set out in title 50 
of the Code of Federal Regulations (CFR) at sections 17.31 and 17.32 
(50 CFR 17.31 and 17.32), but also may be more or less restrictive than 
those general provisions. For the Columbia River DPS of CWTD, the 
Service has determined that a 4(d) rule is appropriate as a means to 
facilitate conservation of CWTD in the Columbia River DPS and expansion 
of the species' range by increasing flexibility in management 
activities for our State and Tribal partners and private landowners.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our

[[Page 71387]]

determination is based on scientifically sound data, assumptions, and 
analyses. We invited these peer reviewers to comment on the downlisting 
proposal. We considered all comments and information we received during 
the comment period.

Background

Previous Federal Actions

    On March 11, 1967, the Secretary of the Interior identified the 
CWTD as an endangered species (32 FR 4001), under the authority of the 
Endangered Species Preservation Act of October 15, 1966 (80 Stat. 926; 
16 U.S.C. 668aa(c)). On March 8, 1969, the Secretary of the Interior 
again identified the CWTD as an endangered species (34 FR 5034) under 
section 1(c) of the Endangered Species Preservation Act of 1966. On 
August 25, 1970, the Acting Secretary of the Interior proposed to list 
the CWTD as an endangered subspecies (35 FR 13519) under the authority 
of new regulations implementing the Endangered Species Conservation Act 
(ESCA) of 1969. On October 13, 1970, the Director of the Bureau of 
Sport Fisheries and Wildlife listed the CWTD as an endangered 
subspecies (35 FR 16047) under the authority of new regulations 
implementing the ESCA of 1969. Species listed as endangered under the 
ESCA of 1969 were automatically included in the List of Endangered and 
Threatened Wildlife when the Endangered Species Act (16 U.S.C. 1531 et 
seq.) was enacted in 1973. In December 1971, the Service established 
the Julia Butler Hansen National Wildlife Refuge (JBHR) for CWTD in 
Cathlamet, Washington. JBHR consists of the Mainland Unit and 
Tenasillahe Island (see Figure 1).
    On October 21, 1976, the Service released the CWTD Recovery Plan. 
On June 14, 1983, the Service released the Revised Recovery Plan for 
CWTD. The revised plan addressed the two main populations of CWTD, 
Columbia River and Douglas County, separately. On July 24, 2003, the 
Service published a rule (68 FR 43647) that: (1) Recognized the Douglas 
County and Columbia River populations as DPSs under the Service's 1996 
Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments under the Act (see 61 FR 4722; February 7, 1996), and (2) 
removed the Douglas County population of CWTD from the List of 
Endangered and Threatened Wildlife. It was determined that recovery 
criteria for the Douglas County population had been met, as it achieved 
benchmarks in both population size and amount of secure habitat.
    A 5-year status review of the Columbia River DPS was completed on 
November 5, 2013 (U.S. Fish and Wildlife Service 2013a). This review 
concluded that the CWTD's status had substantially improved since 
listing, that the DPS no longer met the definition of an endangered 
species under the Act, and recommended that the DPS be downlisted from 
endangered to threatened.
    On October 8, 2015, we published a proposed rule (80 FR 60850) to 
downlist the Columbia River DPS of CWTD from endangered to threatened, 
with a 4(d) rule that is necessary and advisable to provide for the 
conservation of that DPS. We accepted public comments on the proposal 
for 60 days, ending December 7, 2015.

Species Information

    The CWTD is the westernmost representative of 38 subspecies of 
white-tailed deer in North and Central America (Gavin 1984, p. 6). It 
resembles other white-tailed deer subspecies, ranging in size from 39 
to 45 kilograms (kg) (85 to 100 pounds (lb)) for females and 52 to 68 
kg (115 to 150 lb) for males (Oregon Department of Fish and Wildlife 
1995, p. 2). Although CWTD can live up to 20 years, their median 
lifespan ranges from 3 to 5 years for bucks and 5 to 9 years for does 
(Gavin 1984, p. 490; U.S. Fish and Wildlife Service, unpublished data). 
Breeding occurs from mid-September through late February, with a peak 
in November. Does reach sexual maturity by 6 months of age or when 
their weight reaches approximately 36 kg (80 lb); however, their 
maturation and fertility depends on the nutritional quality of 
available forage (Verme and Ullrey 1984, p. 96). Fawns are born in 
early summer after an approximately 200-day gestation period. In their 
first pregnancy, does usually give birth to a single fawn, although 
twins are common in later years if forage is abundant (Verme and Ullrey 
1984, p. 96). On the JBHR Mainland Unit, Service biologists often 
observe fawns in pastures of tall, dense reed canary grass (Phalaris 
arundinacea L.) and tall fescue (Festuca arundinacea), as well as mixed 
deciduous and Sitka spruce (Picea sitchensis) forest (U.S. Fish and 
Wildlife Service 1983, p. 10; Brookshier 2004, p. 2).
    CWTD were formerly distributed throughout the bottomlands and 
prairie woodlands of the lower Columbia, Willamette, and Umpqua River 
basins in Oregon and southern Washington (Bailey 1936, p. 92; Verts and 
Carraway 1998, p. 479). The subspecies occupied a range of 
approximately 60,000 square kilometers (km\2\) (23,170 square miles 
(mi\2\)) west of the Cascades Mountains: From the Dalles, Oregon, in 
the east, to the Pacific Ocean in the west; and Lake Cushman in Mason 
County, Washington, in the north, to Grants Pass, Oregon, in the south 
(Crews 1939, p. 3; Smithsonian 2014, p. 1). Early accounts indicate 
that CWTD were locally common, particularly in riparian areas along 
major rivers (Crews 1939, p. 5), until the arrival and settlement of 
pioneers in the fertile river valleys (Crews 1939, p. 2). Conversion of 
brushy riparian land to agriculture, urbanization, uncontrolled sport 
and commercial hunting, and perhaps other factors caused the 
extirpation of CWTD over most of its range by the early 1900s (Crews 
1939, pp. 2, 5). By 1940, a population of 500 to 700 animals along the 
lower Columbia River in Oregon and Washington, and a disjunct 
population of 200 to 300 in Douglas County, Oregon, survived (Crews 
1939, p. 3; Gavin 1984, p. 487; Verts and Carraway 1998, p. 480). These 
two remnant populations remain geographically separated by about 320 km 
(200 mi), much of which is unsuitable or discontinuous habitat. 
Currently, the Columbia River DPS has a discontinuous range of 
approximately 240 km\2\ (93 mi\2\) or about 24,281 hectares (ha) 
(60,000 acres (ac)) (Smith 1985, p. 247) (Figure 1) in limited areas of 
Clatsop, Multnomah, and Columbia Counties in Oregon, and Cowlitz, 
Wahkiakum, Pacific, Skamania, and Clark Counties in Washington. Within 
that range, CWTD currently occupy an area of approximately 6,475 ha 
(16,000 ac) (U.S. Fish and Wildlife Service 2013a, p. 7), with a 2015 
population estimate of about 966 deer (U.S. Fish and Wildlife Service, 
unpublished data).
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TR17OC16.003

BILLING CODE 4333-15-C

Summary of Comments and Recommendations

    In the proposed rule that published on October 8, 2015 (80 FR 
60850), we requested that all interested parties submit written 
comments on the proposal by December 7, 2015. We also contacted 
appropriate Federal and State agencies, scientific experts and 
organizations, and other interested parties and invited them to comment 
on the proposal. Newspaper notices inviting general public comments 
were published in the Oregonian, Columbian, Olympian, and Seattle Times 
newspapers. We did not receive any requests for a public hearing.
    During the public comment period on the proposed rule, we received 
a total of 9 comment letters, including 3 from peer reviewers, 
addressing the proposed downlisting and proposed 4(d) rule. We received 
two duplicate comments in opposition to the proposed downlisting; 
however, no reasons specific to CWTD were given. The other seven 
comment letters either supported the proposed downlisting and proposed 
4(d) rule or provided anecdotal evidence of increases in CWTD numbers. 
Within those 7 comment letters, we identified 15 substantive comments 
grouped into 6 categories: status of CWTD, population dynamics, threat 
assessment, surveys, calculated take, and habitat security. All 
substantive information provided during comment periods has either been 
incorporated directly into this final determination or is addressed 
below. All public and peer review comments are available at https://www.regulations.gov (Docket No. FWS-R1-ES-2014-0045) and from our 
Oregon Fish and Wildlife Office by request (see FOR FURTHER INFORMATION 
CONTACT).

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' 
published on July 1, 1994 (59 FR 34270), we solicited expert opinion of 
three knowledgeable individuals with scientific expertise that included 
familiarity with CWTD and its habitat, biological needs, and threats. 
We received responses from all three peer reviewers.

[[Page 71389]]

Peer Reviewer Comments

    (1) Comment: Two peer reviewers commented on the status of CWTD. 
They agreed that the DPS was not in immediate danger of extinction. One 
peer reviewer also requested clarification on the Upper Estuary Island 
subpopulation and commented that translocations to the Upper Estuary 
Island area were successful because CWTD were not found there 
previously. Another peer reviewer asked if there was any biological 
evidence to support calling Westport and Wallace Island the same 
subpopulation.
    Our Response: Greater detail has been added to the description of 
the Upper Estuary Island subpopulation to clarify which islands are 
included and why. We concur that translocations to the Upper Estuary 
Islands did create a new subpopulation of CWTD; however, recovery 
criteria for minimum population sizes of deer have not yet been met, 
and extensive management would likely be required in order to expand 
the population. We did not group Westport and Wallace Island based on 
biological evidence; rather, we defined subpopulations by the 
likelihood of mixing. At the narrowest point, Wallace Island is 
approximately 0.13 miles (0.21 km) from the bank of the Oregon mainland 
near Westport. At the widest point, Wallace Island is 0.30 miles (0.49 
km) from the shore. Although we do not have telemetry data or genetic 
data, Wallace Island appears to be close enough that deer would cross 
between it and Westport, and we do have evidence that deer are capable 
of crossing the amount of water between these two areas (Meyers 2016, 
pers comm.). Wallace Island is also not large enough to support a self-
sustaining herd, such that CWTD on the island likely rely on Westport 
for their life-history requirements.
    (2) Comment: We received two comments regarding population dynamics 
in regard to subpopulation classification. One peer reviewer asked if 
the new population at Ridgefield NWR was a subpopulation or a new DPS. 
Another commenter stated that the lower Columbia River population 
(LCRP) is a metapopulation with unique attributes that underpin and 
influence all three elements of population dynamics. The commenter went 
on to say that metapopulations rely on both demographic and genetic 
rescue through periodic dispersal from other subpopulations (none of 
which was acknowledged, described, or discussed), suggesting a lack of 
understanding of the unique nature of the LCRP or the population 
processes necessary for its persistence. The commenter further stated 
that the risk of extirpation of each subpopulation is far greater than 
the metapopulation, which increases substantially as each subpopulation 
becomes extirpated, and that there was little data or discussion about 
dispersal among subpopulations, which is fundamental to metapopulation 
viability.
    Our Response: The new population at Ridgefield NWR is a 
subpopulation, not a DPS, because it occurs within the identified range 
of the current DPS and there are no geographical barriers preventing 
the deer from intermingling with other nearby subpopulations within the 
existing DPS. The Service agrees that since the various subpopulations 
in the lower Columbia River DPS have infrequent, but regular, 
interactions among them, the entire lower Columbia River DPS can be 
considered a metapopulation. For instance, CWTD have been seen swimming 
between the JBHR Mainland Unit and Tenasillahe Island (Meyers 2015, 
pers. comm.). While we have anecdotal evidence, along with data from 
several telemetry receivers, to document movement patterns of CWTD, we 
do not have information available regarding dispersal patterns or gene 
flow across the entire DPS. Based on yearly survey efforts, however, we 
do know that no new subpopulations have formed without translocations, 
suggesting dispersal may be limited.
    (3) Comment: We received one comment regarding population dynamics 
as it relates to the origin of our minimum viable population size 
estimates. Specifically, the commenter asked how we can say that 50 
deer is a minimum viable population without any consideration of age 
and sex structure.
    Our Response: We incorporated additional clarification on the 
origin of minimum viable population estimates from the 1983 Revised 
Recovery Plan, including details on how age and sex structure were 
incorporated into the estimates. To determine minimum population sizes, 
the Revised Recovery Plan used the formula F = 1/(2Ne), 
where F is the inbreeding coefficient and Ne is the 
effective population size (i.e., the number of individuals the 
contribute offspring to the next generation) (U.S. Fish and Wildlife 
Service 1983, p. 72). Given potential barriers to genetic exchange 
within the Columbia River DPS, the Revised Recovery Plan considered 2 
percent to be the maximum reasonable inbreeding coefficient for a 
subpopulation and 0.25 percent to be a reasonable inbreeding 
coefficient for the total DPS population (U.S. Fish and Wildlife 
Service 1983, pp. 72-74). Using both the aforementioned formula and 
inbreeding coefficients, the effective population size would be a 
minimum of 50 deer per subpopulation and a minimum of 400 total deer in 
the DPS, after correcting for an unequal sex ratio (3 females to 1 
male) and the percentage of the herd that is of breeding age (65 
percent) (U.S. Fish and Wildlife Service 1983, p. 73). To determine the 
sex ratio and the percentage of breeding individuals, we used data from 
surveys of fawn to doe ratios that also included number of bucks seen 
during those surveys. We continue to conduct fawn to doe surveys on the 
current population to gather sex ratio and age structure information, 
but we do not use that information to create new minimum viable 
population (MVP) estimates. We also do not break down age classes 
further than fawn and adult. In white-tailed deer, age can be estimated 
based on tooth wear and replacement, the amount of cementum built up on 
the roots of the teeth, or physical characteristics. The first two 
techniques require the jaws of the deer, which require capturing or 
killing the deer; however the latter technique, also known as aging on 
the hoof (AOTH), can be done in the field. In a recent study assessing 
the efficacy of AOTH by deer biologists, the overall accuracy of 
assigning white-tailed deer of known ages into the correct age category 
was 36 percent (Gee et al. 2014, p. 99). Since the accuracy of AOTH is 
poor and it is only used to age adult males, we used the more 
conservative categorization of fawn, adult female, or adult male for 
our age and sex structure. This information still allowed us to 
estimate both the sex ratio of adults and the proportion of a 
population that is breeding, both of which were important details in 
calculating the aforementioned MVP size of 50 individuals per 
subpopulation. All of the subpopulations deemed viable have far 
exceeded the MVP of 50 individuals per subpopulation. In 2015, Puget 
Island had almost five times the number of individuals necessary to 
achieve the MVP, while Westport/Wallace had almost four times the 
number of individuals, and Tenasillahe Island had three times the 
number of individuals. These data provide support that the viable 
subpopulations can handle fluctuations in age and sex structure and 
continue to grow.
    (4) Comment: We received one comment regarding our threats 
assessment. One peer reviewer stated that assisting deer to expand 
their range out of the Columbian River's riparian

[[Page 71390]]

zone is the only long-term solution to flooding and climate-induced 
habitat changes. The commenter also stated that while the current rate 
of vehicle-caused mortality does not appear to be limiting, estimates 
of the number of deer killed on roads are probably low, and increasing 
human development and deer population sizes could result in increased 
mortality rates in the future.
    Our Response: We concur with the comments. First, flooding has been 
an issue at the JBHR Mainland Unit multiple times resulting in 
temporary reductions in the number of CWTD located there. To minimize 
these impacts, new tide gates, a new culvert, and a new set-back levee 
were installed. Finding upland areas with suitable habitat would be 
beneficial for CWTD and will be pursued prior to making a decision 
regarding delisting the deer (that is, removing the Act's protections 
for the subspecies), as would a monitoring program with funding 
available to determine if current habitat management on the JBHR 
Mainland Unit has been successful for CWTD or if management changes are 
warranted. Second, because deer are highly mobile, collisions between 
CWTD and vehicles do occur, but the number of collisions in the 
Columbia River DPS has not prevented the DPS population from increasing 
over time and meeting recovery criteria for downlisting. The frequency 
of collisions is dependent on the proximity of a subpopulation to roads 
with high traffic levels, and collisions with CWTD have been most 
frequent among deer that have been translocated to areas that are 
relatively close to highly trafficked roads. Even if translocated areas 
are relatively far from highly trafficked roads, deer typically roam 
following translocation events and may enter traffic corridors. We 
anticipate that vehicle collisions could increase as both the CWTD 
population and human infrastructure increase. In order to address the 
issue of collisions, a habitat connectivity model is being developed by 
the Washington Department of Transportation. The goal of this model is 
to identify areas that contain suitable habitat for CWTD movement 
within their range and to identify areas with potential land-use 
conflicts. This model would be a tool for managers to make decisions 
regarding translocation sites where vehicle collisions are less likely 
and to prioritize habitat restoration sites.
    (5) Comment: One peer reviewer questioned the ability of surveys to 
accurately quantify the number of CWTD when within black-tailed deer 
(Odocoileus hemionus columbianus) habitat. The peer reviewer stated 
that for the period in which there was data collected with a similar 
protocol in the same locations over time there was a correlation 
coefficient of r = -0.93, indicating a negative population trend.
    Our Response: Greater detail regarding forward-looking infrared 
(FLIR) survey methodology in habitat containing black-tailed deer and 
potential error in survey population estimates is incorporated into 
this final rule. Aerial surveys using FLIR are a common methodology for 
estimating ungulate abundance. The Service began using FLIR 
thermography camera systems affixed to a helicopter (or, in 2008, a 
fixed-wing Cessna 206) to conduct aerial CWTD surveys in conjunction 
with annual ground counts within the Columbia River DPS beginning in 
1996. FLIR uses thermal contrast between animals and their environment, 
and operates by using sensors to detect infrared radiation undetectable 
to human observers. The limitations of FLIR are two-fold: The inability 
to determine the demographic structure of a population and the 
inability to differentiate between CWTD and black-tailed deer. To 
address these limitations, we used data from annual ground counts and 
photos from trail cameras to determine a rough estimate of sex ratio 
and to determine the ratio of CWTD to black-tailed deer in a given 
area. For the latter, the number of deer observed in the FLIR count is 
adjusted by the estimated ratio of CWTD to black-tailed deer. Thus, we 
do not count every individual deer detected in a FLIR survey as a CWTD. 
We have ground count data available from 1984 through 2015, to estimate 
subpopulation size because FLIR was always used in conjunction with 
ground counts. We do not know the detection rate or error rate of FLIR 
within the geographic range of the DPS, and we do not apply reported 
detection rates from other studies due to the variability of FLIR 
detection rates from studies reporting them along with use of different 
equipment and survey protocols. To determine detection rates and 
compare survey methods for this DPS, we ideally would have replicated 
surveys of closed populations with known numbers of individuals to 
ensure that detection rates accounted for differences in counts. Since 
we do not have detection rates, we attempted to increase the likelihood 
of detection by conducting FLIR surveys in late fall when deer are less 
likely to be obscured by overhead vegetation and using the same 
equipment year to year. Thus, we have no evidence to suggest that 
changes in annual population estimates were the result of differences 
in survey methods or detectability, and we have taken measures to 
reduce the likelihood of bias in our population estimates. We have no 
evidence to suggest that bias in survey methods is accountable for the 
increase in population size estimates.
    In this instance, a correlation coefficient is not an appropriate 
statistical analysis to accurately reflect population trends across the 
DPS for multiple reasons. First, the data used for the correlation were 
from 1984 to 2005, which eliminates 10 years of population data and 
eliminates the upward trend in the population in those 10 years. 
Second, the reviewer stated that the choice of the aforementioned dates 
was for the period in which there was data collected with a similar 
protocol in the same locations over time; however, from 1984 to 1996, 
only ground counts were conducted to obtain population data, but from 
1996 to 2005, both FLIR and ground counts were used. Thus, the protocol 
was not similar throughout the time frame suggested for the 
correlation. Third, correlation is only applicable to linear 
relationships. A scatter plot of the population data portrays a 
quadratic relationship due to the negative trend through 2004, followed 
by the upward population trend observed from 2005 onward. Fourth, the 
overall population trend for the Columbia River DPS does appear to 
decline over time until 2004; however, closer examination revealed that 
the overall trend was strongly influenced by the decline at the JBHR 
Mainland Unit in the late 1980s. Although population estimates 
fluctuated, the population has been steadily increasing over time since 
2004. We know that population numbers have been influenced by severe 
flooding in the late 1990s and early 2000s, and by the new 
subpopulation at Ridgefield NWR, which has been observed breeding and 
producing twins following translocations. Thus, we have biological 
evidence to support the positive population trend occurring since 2004.
    (6) Comment: Two peer reviewers and one commenter questioned take 
of CWTD. One peer reviewer suggested changing the limit on take to 5 
percent of each subpopulation while another asked why we chose 5 
percent as the limit.
    Our Response: In regard to changing the limit on take to 5 percent 
of each subpopulation instead of 5 percent of the DPS, we point out 
that this would not change the number of deer allowed to be taken. Five 
percent of each subpopulation results in the same number as 5 percent 
of the DPS. We determined the take percentage and developed the 4(d) 
rule using best available data on annual mortality of

[[Page 71391]]

CWTD, annual subpopulation growth, translocation data, and best 
professional judgment. The subpopulations of CWTD have been able to 
maintain a positive annual growth rate even with the removal of 
individuals from subpopulations for translocations. For example, the 
Service removed 34 CWTD, which constituted 20 percent of the 
subpopulation, from Puget Island for translocations in 2012. The 
estimated size of the subpopulation on Puget Island was 227 CWTD in 
2015, representing an annual population growth rate of 16 percent. If 
the subpopulation continues to grow 16 percent each year, then removing 
a maximum of 5 percent would still allow the subpopulation to grow. 
While it is possible that some areas may experience higher levels of 
take than others, we do not anticipate that all 5 percent of annual 
allotted take would affect one subpopulation. As currently written, the 
4(d) rule allows a maximum of 5 percent of the DPS to be lethally taken 
annually for the following activities combined: (1) Damage management 
of problem CWTD; (2) misidentification during black-tailed deer damage 
management; and (3) misidentification during black-tailed deer hunting.
    (7) Comment: Two peer reviewers questioned habitat security. One 
reviewer found the updated definition of habitat security surprising, 
yet supported calling Puget Island a secure population because there 
has been a large population of CWTD there since surveys began, there is 
little danger of flooding, and the levees are higher than on JBHR. The 
other commenter stated that the new interpretation of secure habitat 
violated both the Recovery Plan guidelines defining secure critical 
habitat and the mandate on the Department of the Interior's 
(Department's) Web site stating that the Department will use the best 
science to guide policy and management. This commenter further stated 
that the proposal will set a precedent that will almost certainly lead 
to future unsupported, arbitrary and capricious considerations. The 
commenter emphasized the need for conservation easements to establish 
secure habitat.
    Our Response: We understand that considering Puget Island to be 
secure may appear to contradict earlier definitions of secure habitat 
in the 1983 Revised Recovery Plan. In that plan, secure habitat was 
defined as free from adverse human activities in the foreseeable future 
and relatively safe from natural phenomena that would destroy the 
habitat's value to CWTD (U.S. Fish and Wildlife Service 1983, p. 33). 
The Service initially interpreted that definition of secure habitat to 
mean that legal instruments, such as local land use planning, zoning, 
easements, leases, agreements, memoranda of understanding, or a 
combination of these, were the only ways to secure habitat protection 
and enhancement that was free from adverse human activities in the 
foreseeable future because we lacked empirical evidence of potential 
long-term security for this DPS. However, for the reasons explained in 
this rule, we found that this restrictive interpretation of what 
constitutes security has limited our ability to make progress toward 
recovery of CWTD. Therefore, we reevaluated the current status of CWTD 
under a broadened framework for what constitutes ``secure'' habitat 
based on 30 years of population data. The 30-year population trend from 
Puget Island makes it clear that CWTD can maintain stable populations 
on suitable habitat that is not formally set aside by acquisition, 
conservation easement, or agreement for the protection of the species. 
Thus, the definition of secure habitat now includes locations that, 
regardless of ownership status, have supported viable subpopulations of 
CWTD for 20 or more years, and have no anticipated change to land 
management in the foreseeable future that would make the habitat less 
suitable to CWTD.

Comments From States and Counties

    Section 4(b)(5)(A)(ii) of the Act states that the Secretary shall 
give actual notice of the proposed regulation (including the complete 
text of the regulation) to the State agency in each State in which the 
species is believed to occur, and to each county or equivalent 
jurisdiction in which the species is believed to occur, and invite the 
comment of such agency and each such jurisdiction on the proposed 
regulation. We submitted the proposed rule (containing our proposed 
regulation language) to the States of Oregon and Washington and 
received formal comments from Oregon. We also notified Clatsop, 
Multnomah, and Columbia Counties in Oregon, and Cowlitz, Wahkiakum, 
Pacific, Skamania, and Clark Counties in Washington, when we published 
the proposed rulemaking. We did not receive any comments from the 
counties.
    (8) Comment: The Oregon Department of Fish and Wildlife indicated 
they support Federal reclassification of the Columbia River DPS of 
CWTD, as proposed, along with the proposed 4(d) rule, and they welcome 
the opportunity to work with the Service, the State of Washington, 
Tribes, and other partners in recovering this DPS in Oregon.
    Our Response: We thank the Oregon Department of Fish and Wildlife 
for its comments. Without our partners, we would not have been able to 
accomplish the downlisting goals for the DPS. We continue to work with 
our partners toward full recovery of CWTD.

Public Comments

    (9) Comment: One commenter asked what the next steps are and what 
we hope to see from this reclassification of the DPS from endangered to 
threatened.
    Our Response: By reclassifying CWTD to threatened, the Service is 
recognizing that CWTD are no longer in immediate danger of extinction, 
based upon overall population size, addition of a new subpopulation, 
and secured habitat. Many landowners do not welcome endangered or 
threatened species on their lands due to increased regulatory 
restrictions. In addition, under section 4(d) of the Act, we may issue 
rules to provide for the conservation of the species. Issuing a 4(d) 
rule in this case will support conservation of the species by providing 
opportunities for CWTD translocations to new areas previously 
unavailable to create new subpopulations, encouraging habitat 
restoration of areas on private lands that may act as dispersal 
corridors for CWTD, and promoting coexistence between people and CWTD 
as the deer population increases. These activities will facilitate 
conservation partnerships with the agricultural community and private 
landowners to voluntarily create or restore habitat for new and 
existing subpopulations of CWTD, and encourage natural expansion of 
CWTD. Thus, we have determined that this 4(d) rule is necessary and 
advisable for the conservation and recovery of CWTD.

Summary of Changes From the Proposed Rule

    In response to comments, in the preamble of this final rule, we 
added an explanation of how viable population size using sex and age 
structure data was determined in the Revised Recovery Plan, greater 
detail regarding the Upper Estuary subpopulation, and clarification of 
surveys conducted to estimate population size. We also reorganized the 
information associated with downlisting criterion 2 (maintain three 
viable subpopulations, two of which are located on secure habitat) to 
clarify the interaction between population viability and secure 
habitat. In addition, we revised the section discussing climate change. 
Finally, we added survey data from 2015 that were unavailable when the 
proposed downlisting and proposed 4(d) rule published in the Federal 
Register (80 FR 60850; October 8, 2015).

[[Page 71392]]

With these new data, we were able to provide more information regarding 
the new subpopulation at Ridgefield NWR.
    In the Regulation Promulgation section of this final rule, we made 
minor changes to what we proposed for the 4(d) rule for clarity. 
Specifically, in the definition of CWTD, we include ``individual 
specimens'' to clarify the use of that term in the rule. Also, where we 
set forth the provisions concerning the take of problem CWTD, we 
specify that this is take ``resulting in mortality.'' Last, where we 
set forth reporting and disposal requirements, we now include a 
reference to requirements for Tribal employees, State and local law 
enforcement officers, and State-licensed wildlife rehabilitation 
facilities acting under 50 CFR 17.40(i)(6) of the rule.

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include 
objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the List of Endangered and 
Threatened Wildlife or the List of Endangered and Threatened Plants. 
However, revisions to the Lists of Endangered and Threatened Wildlife 
and Plants (adding, removing, or reclassifying a species) must be based 
on determinations made in accordance with sections 4(a)(1) and 4(b) of 
the Act. Section 4(a)(1) requires that the Secretary determine whether 
a species is endangered or threatened (or not) because of one or more 
of five threat factors. Section 4(b) of the Act requires that the 
determination be made ``solely on the basis of the best scientific and 
commercial data available.'' While recovery plans provide important 
guidance to the Service, States, and other partners on methods of 
minimizing threats to listed species and measurable objectives against 
which to measure progress towards recovery, they are not regulatory 
documents and cannot substitute for the determinations and promulgation 
of regulations required under section 4(a)(1) of the Act. A decision to 
revise the status of a species on, or to remove a species from, the 
Federal List of Endangered and Threatened Wildlife (50 CFR 17.11) is 
ultimately based on an analysis of the best scientific and commercial 
data then available to determine whether a species continues to meet 
the definition of an endangered species or a threatened species, 
regardless of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all criteria suggested in the recovery 
plan being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be achieved or may never be achieved. 
In that instance, we may determine that the threats are minimized 
sufficiently and the species is robust enough to delist. In other 
cases, recovery opportunities may be discovered that were not known 
when the recovery plan was finalized. These opportunities may be used 
instead of methods identified in the recovery plan. Likewise, 
information on the species may be learned that was not known at the 
time the recovery plan was finalized. The new information may change 
the extent to which criteria need to be met for recognizing recovery of 
the species. Recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, fully follow the guidance 
provided in a recovery plan.
    For downlisting the Columbia River DPS from endangered to 
threatened, the Revised Recovery Plan for CWTD (U.S. Fish and Wildlife 
Service 1983) established the following criteria: (1) Maintain a 
minimum of at least 400 CWTD across the Columbia River DPS; and (2) 
maintain three viable subpopulations, two of which are located on 
secure habitat (U.S. Fish and Wildlife Service 1983, pp. 31-33). Viable 
is defined as a minimum November population of 50 individuals or more 
in a subpopulation. A minimum viable population size of 50 deer in each 
subpopulation and of 400 total deer in the DPS would theoretically 
cancel out any deleterious effects of inbreeding. To determine minimum 
population sizes, the Revised Recovery Plan used the formula F = 1/
(2Ne), where F is the inbreeding coefficient and 
Ne is the effective population size (i.e., the number of 
breeding individuals necessary for optimal genetic exchange) (U.S. Fish 
and Wildlife Service 1983, p. 72). Given potential barriers to genetic 
exchange within the Columbia River DPS, the Revised Recovery Plan 
considered 2 percent to be the maximum reasonable inbreeding 
coefficient for a subpopulation and 0.25 percent to be a reasonable 
inbreeding coefficient for the total DPS population (U.S. Fish and 
Wildlife Service 1983, pp. 72-74). Using both the aforementioned 
formula and inbreeding coefficients, the effective population size 
would be a minimum of 50 deer per subpopulation and a minimum of 400 
total deer in the DPS, after correcting for an unequal sex ratio (3 
females to 1 male) and the percentage of the herd that is of breeding 
age (65 percent) (U.S. Fish and Wildlife Service 1983, p. 73).
    To determine the sex ratio and the percentage of breeding 
individuals, we used data from surveys of fawn to doe ratios that also 
included number of bucks seen during those surveys. We did not, 
however, have estimates of the age structure of the population. In 
white-tailed deer, age can be estimated based on tooth wear and 
replacement, the amount of cementum built up on the roots of the teeth, 
or physical characteristics. The first two techniques require the jaws 
of the deer, which require capturing or killing the deer; however, the 
latter technique, also known as aging on the hoof (AOTH), can be done 
in the field. In a recent study assessing the efficacy of AOTH by deer 
biologists, the overall accuracy of assigning white-tailed deer of 
known ages into the correct age category was 36 percent (Gee et al. 
2014, p. 99). Since AOTH accuracy is poor and is only used to age male 
deer, we categorized individuals as fawns, adult females, or adult 
males. We incorporated this information into our analyses of the 
aforementioned minimum effective population size.
    In order to ensure viable subpopulations of at least 50 
individuals, the Revised Recovery Plan determined that protection 
through securing habitat would be necessary. Secure habitat was defined 
as free from adverse human activities in the foreseeable future and 
relatively safe from natural phenomena that would destroy the habitat's 
value to CWTD (U.S. Fish and Wildlife Service 1983, p. 33). An example 
of a human activity that may cause adverse impacts to deer is large-
scale commercial development. An example of natural phenomena that may 
destroy CWTD habitat is persistent flooding.
    For delisting (i.e., removing the species from the Federal List of 
Endangered and Threatened Wildlife), the recovery plan established the 
following criteria: (1) Maintain a minimum of at least 400 CWTD across 
the Columbia River DPS; and (2) maintain three viable subpopulations, 
all located on secure habitat. Recovery actions specified in the 
recovery plan to achieve the downlisting and delisting goals include 
management of existing subpopulations and protection of their habitat, 
establishment of new subpopulations, and public education

[[Page 71393]]

and outreach to foster greater understanding of the CWTD and its place 
in the natural environment of its historical range (U.S. Fish and 
Wildlife Service 1983, pp. 31-33).
    Recovery Plan Implementation for the Columbia River DPS. At the 
time of the Revised Recovery Plan's publication, the JBHR Mainland Unit 
subpopulation was the only subpopulation considered viable and secure. 
The Revised Recovery Plan recommended increasing the Tenasillahe Island 
subpopulation to a minimum viable herd of 50 deer, maintaining a total 
population minimum of 400 deer, and securing habitat for one additional 
subpopulation (U.S. Fish and Wildlife Service 1983, p. 31).
    Forty-nine years have passed since the CWTD was federally listed as 
endangered, and the species is now more abundant and better distributed 
throughout the lower Columbia River Valley. The improvement is due in 
part to the maintenance and augmentation of existing subpopulations, 
and to the establishment of new subpopulations via successful 
translocations within the species' historical range. Many threats to 
the species have been substantially ameliorated, and CWTD have met all 
of the criteria for downlisting to threatened in the Revised Recovery 
Plan. A review of the species' current status relative to the 
downlisting criteria follows.
    Downlisting criterion 1: Maintain a minimum of at least 400 CWTD 
across the Columbia River DPS. This criterion has been met. The total 
population of the Columbia River DPS has been maintained at over 400 
deer annually since regular surveys began in 1984. At the time of the 
CWTD Revised Recovery Plan publication in 1983, the number of deer in 
the Columbia River DPS was thought to be 300 to 400. The first 
comprehensive survey effort in 1984 resulted in an estimate of 720 
deer, suggesting that prior estimates were probably low. Since 1985, 
fall ground counts have been conducted to establish long-term trends by 
indicating gross population changes. In addition to annual fall ground 
counts, the Service began using forward-looking infrared (FLIR) 
thermography camera systems affixed to a helicopter (or, in 2008, a 
fixed-wing Cessna 206) to conduct aerial CWTD surveys within the 
Columbia River DPS beginning in 1996. The limitations of FLIR are two-
fold: the inability to determine the demographic structure of a 
population and the inability to differentiate between CWTD and black-
tailed deer. To address these limitations, ground counts and photos 
from trail cameras are used to determine a rough estimate of sex ratio 
and to determine the ratio of white-tailed deer to black-tailed deer in 
a given area. For the latter, the number of CWTD observed in the FLIR 
count is adjusted by the estimated percentage of CWTD to black-tailed 
deer. In years when FLIR surveys were not completed, ground counts were 
used to estimate whether there had been any unusual decrease or 
increase in a subpopulation. As of 2015, there are approximately 966 
CWTD spread across 6 main subpopulations: JBHR Mainland Unit, 
Tenasillahe Island, Upper Estuary Islands, Puget Island, Westport/
Wallace Island, and Ridgefield NWR (see Table 1, below).
    While the overall population trend for the Columbia River DPS 
appeared to decline over time along a similar trajectory as the JBHR 
Mainland Unit subpopulation until 2006, closer examination revealed 
that the overall trend was strongly influenced by the decline at the 
JBHR Mainland Unit in the late 1980s. Although population numbers 
fluctuated, the other subpopulations did not undergo a similar decline, 
and when the JBHR Mainland Unit is left out of the analysis, the 
overall Columbia River DPS population demonstrates a more positive 
trend exceeding the minimum population size of 400 individuals. Thus, 
downlisting criterion 1 has been met.

                                  Table 1--Estimated Population Size of the Columbia River DPS of CWTD by Subpopulation
                              [U.S. Fish and Wildlife Service 2013a, p. 7; U.S. Fish and Wildlife Service, Unpublished Data]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Tenasillahe      Westport/     JBHR Mainland   Upper Estuary
                  Year                     Puget Island       Island      Wallace Island       Unit         Islands \c\   Ridgefield NWR       Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1984....................................             170              40             150             360               0               0             720
1985....................................             215              40             125             480               0               0             860
1986....................................             195              55             125             500               0               0             875
1987....................................             185              70             150             500               0               0             905
1988....................................             205              80             150             410               0               0             845
1989....................................             205              90             150             375               0               0             820
1990....................................             200             105             150             345               0               0             800
1991....................................             200             130             150             280               0               0             760
1992....................................             200             165             175             280               0               0             820
1993....................................             200             195             200             175               0               0             770
1994....................................             200             205             225             140               0               0             770
1995....................................             200             205             225             120               0               0             750
1996....................................             200         \a\ 125         \a\ 225          \a\ 51               0               0             610
1997....................................             200         \a\ 150         \a\ 200         \a\ 100               0               0             650
1998....................................             200         \a\ 200         \a\ 200         \a\ 110               0               0             710
1999....................................             150         \a\ 160         \a\ 140         \a\ 110          \a\ 25               0             585
2000....................................             150         \a\ 135         \a\ 150         \a\ 120          \a\ 55               0             610
2001....................................             125         \a\ 135         \a\ 150         \a\ 120          \a\ 55               0             585
2002....................................             125         \a\ 100         \a\ 140         \a\ 125          \a\ 55               0             545
2003....................................             125         \a\ 100         \a\ 140         \a\ 115          \a\ 80               0             560
2004....................................             110         \a\ 100         \a\ 140         \a\ 110          \a\ 95               0             555
2005....................................             125         \a\ 100         \a\ 140         \a\ 100         \a\ 100               0             565
2006\a\.................................             n/a              86             104              81              67               0  ..............
2007\a\.................................             n/a              82             n/a              59          \e\ 41               0  ..............
2009\a\.................................             138          \b\ 97             146          \b\ 74              28               0         \d\ 593
2010 \a\................................             n/a             143             164              68              39               0          \d\630
2011 \ a\...............................             171              90             n/a              83          \f\ 18               0         \d\ 603
2014 \ a\...............................             227             154         \g\ 154              88              39              48         \d\ 830

[[Page 71394]]

 
2015 \ a\...............................             228             155             190             100              36             100          \d\966
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Estimates from 1996-2015 are derived from forward-looking infrared (FLIR) survey results, but survey results from 2008 produced anomalous data
  because an alternative technique was used. These data are not considered representative of actual numbers, and are thus not included in this table.
\b\ Numbers reflect a post-survey translocation of 16 CWTD from Tenasillahe Island to the Refuge mainland.
\c\ Includes Lord, Walker, Fisher, Hump, and Crims Islands.
\d\ Includes estimates from residual populations in Cottonwood Island, Clatskanie Flats, Brownsmead, Willow Grove, Barlow Point, and Rainier.
\e\ Does not include Fisher and Hump Islands.
\f\ Assuming a white-tailed:black-tailed deer ratio of 20:1; this includes only Crims Island.
\g\ Approximate population estimate after 2014 translocation. Note: Totals are not given in 2006 and 2007 due to incomplete data, and no surveys were
  conducted in 2012 or 2013.

    Downlisting criterion 2: Maintain three viable subpopulations, two 
of which are located on secure habitat. There are currently six 
recognized subpopulations of CWTD: JBHR Mainland Unit with 100 deer, 
Westport/Wallace Island with 190 deer, Upper Estuary Islands with 36 
deer, Ridgefield NWR with 100 deer, Tenasillahe Island with 155 deer, 
and Puget Island with 228 deer (see Table 1). One of these 
subpopulations is a viable yet unsecure subpopulation of CWTD; three 
are non-viable yet secure; and two are viable and secure. The Service 
attempted to establish an additional subpopulation on Cottonwood 
Island; however, the deer were unable to establish a population there.
    Viable yet unsecure subpopulations. The Westport/Wallace Island 
subpopulation has been stable and relatively abundant since regular 
surveys began. After reaching a peak of approximately 225 deer in 1995, 
the subpopulation's last estimate from 2015 was 190 deer (see Table 1, 
above) despite the removal of 10 deer from the area to contribute to 
the 2014 translocation to Ridgefield NWR. Habitat in the Westport area 
consists mainly of cottonwood/willow swamp and scrub-shrub tidal 
wetlands. In 1995, Wallace Island, Oregon, was purchased by the Service 
for CWTD habitat. Although the habitat is now protected for the 
recovery of CWTD, the 227-ha (562-ac) island alone is considered too 
small to support a viable population (U.S. Fish and Wildlife Service 
2010, p. 4:39). Because it is located adjacent to Westport, Oregon, and 
anecdotal reports suggest that CWTD traverse both areas, Wallace Island 
is considered part of the Westport/Wallace Island CWTD subpopulation. 
Acquisitions by JBHR also included a 70-ha (173-ac) area of Westport 
called the Westport Unit. The remaining portion of Westport Island is 
in private ownership.
    Apart from Wallace Island and the Westport Unit, most of the area 
where the Westport/Wallace Island subpopulation resides is owned and 
managed by one individual family. The family has managed the land for 
duck hunting for many years, implementing intensive predator control 
and maintaining levees as part of their land management activities. The 
Service suspects that CWTD reproduction in the Westport/Wallace Island 
subpopulation has benefited from this intensive predator control 
(Meyers 2013, pers. comm.). If the property owners alter the management 
regime or the property should change hands, the Westport/Wallace Island 
subpopulation could be negatively affected, particularly if the owners 
decide to remove the current levees, thereby inundating some of the 
CWTD habitat (Meyers 2013, pers. comm.). Because the stability of CWTD 
in this area appears to be so closely tied to one private landowner and 
their land management choices, there is less certainty as to the long-
term security of this subpopulation and its associated habitat. As a 
result, although a small portion of the habitat for this subpopulation 
is protected for CWTD, the Service does not currently recognize 
Westport/Wallace Island as secure habitat. However, given that the area 
has supported a healthy subpopulation of CWTD for several decades, if 
the landowner were willing, then securing this property through 
purchase or conservation agreement would potentially increase recovery 
prospects for the Columbia River DPS.
    Non-viable yet secure subpopulations. The Upper Estuary Islands are 
a five-island complex with a total area of 400 ha (989 ac), under a mix 
of private and State ownership. The Revised Recovery Plan originally 
identified four of the five islands near Longview, Washington, as 
suitable habitat to create a third subpopulation of CWTD. Of these 
islands, Fisher Island is a naturally occurring tidal wetland dominated 
by black cottonwood (Populus trichocarpa), willow (Salix spp.), and 
dogwood (Cornus nuttallii) (U.S. Fish and Wildlife Service 2005, p. 1). 
The remaining three islands are dredge material sites with dense 
cottonwood and shrub habitat. The fifth island, Crims Island, lies 1.6 
km (1 mi) downstream from the four original Upper Estuary Islands, and 
contributes to the interchange among CWTD of neighboring islands and 
mainland subpopulations (U.S. Fish and Wildlife Service 2005, p. 4). 
Given Crims Island's role in connectivity for subpopulations, 
population counts of CWTD on the island were included with the Upper 
Estuary Islands, and it was secured for CWTD recovery in a 1999 
agreement among the Bonneville Power Administration, the Columbia Land 
Trust, and the Service (U.S. Fish and Wildlife Service 2010, p. 1:19). 
The protected portion of the island (approximately 191 ha (473 ac)) 
contains about 121 ha (300 ac) of deciduous forest (black cottonwood, 
Oregon ash (Fraxinus latifolia), and willow), pasture, and marsh. Crims 
Island was designated as a suitable translocation site in the Revised 
Recovery Plan and was originally considered able to support 50 to 100 
deer (U.S. Fish and Wildlife Service 2000, p. 2).
    To establish a new subpopulation in the Upper Estuary Islands, 
translocations of CWTD to Fisher/Hump and Lord/Walker Islands began in 
2003, and a total of 66 deer (33 to each set of islands) have been 
relocated there to date (U.S. Fish and Wildlife Service 2013a, p. 23). 
In addition, 66 deer have been translocated to Crims Island through 
several translocation efforts (U.S. Fish and Wildlife Service 2013a, p. 
21). At the time of the translocations, CWTD were not known to inhabit 
these islands, but habitat was available. The population goal for the 
five-island

[[Page 71395]]

complex is at least 50 CWTD (U.S. Fish and Wildlife Service 2005, p. 
1), but as a unit, this complex has yet to maintain the target 
population of 50 deer. The original four islands currently contain 10 
CWTD and reach a total of only 39 deer with the Crims Island 
population. It is suspected that the low numbers of CWTD in the complex 
are a result of deer finding higher quality habitat in areas adjacent 
to the island complex. Telemetry data indicated that CWTD moved to the 
adjacent mainland areas of Willow Grove, the Barlow Point industrial 
area, and Dibblee Point (U.S. Fish and Wildlife Service 2005, p. 3), 
after translocations. These adjacent areas averaged 44 CWTD between 
2009 and 2011 (U.S. Fish and Wildlife Service 2013a, p. 23); however, 
these areas are considered residual populations, rather than part of 
the Upper Estuary Islands, because the mainland portion consisting of 
privately owned land cannot be secured. Further range expansion in this 
region is limited by its direct proximity to urban development. The 
potential for problems associated with translocations, particularly 
damage to private gardens and commercial crops, remains an issue with 
local landowners and, therefore, limits CWTD range expansion at this 
time. Thus, even with translocation efforts, this undeveloped island 
complex has only supported between 8 and 33 deer since 2000, with the 
latest population estimate at 25 deer in 2015. Therefore, the Upper 
Estuary islands do not constitute a viable subpopulation now, and we do 
not expect it will in the foreseeable future.
    The JBHR Mainland Unit subpopulation has fluctuated in numbers 
since regular surveys began, with a high of 500 CWTD in 1987 to a low 
of 51 deer in 1996 (after a catastrophic flood event). When the refuge 
was established, refuge biologists established a goal of approximately 
125 deer for the JBHR Mainland Unit to balance the density of deer 
given the amount of available habitat (U.S. Fish and Wildlife Service 
2010, p. 2:62).
    Flooding on the JBHR Mainland Unit has occurred three times over 
the history of the refuge, in 1996, 2006 and 2009, resulting in short-
term population declines after each flood. In March of 2011, a 
geotechnical assessment determined that the dike that protects the JBHR 
Mainland Unit from flooding by the Columbia River was at ``imminent 
risk'' of failure (U.S. Fish and Wildlife Service 2013b, p. 2) and a 
breach at that location would result in the flooding of the JBHR 
Mainland Unit at high tides. In response to this threat, the Service 
conducted an emergency translocation of 37 CWTD from the JBHR Mainland 
Unit to unoccupied but suitable habitat at Ridgefield NWR in early 2013 
(U.S. Fish and Wildlife Service 2013c, p. 8). The U.S. Army Corps of 
Engineers subsequently constructed a set-back levee on the JBHR 
Mainland Unit to prevent flooding of the refuge and to restore salmonid 
habitat (U.S. Army Corps of Engineers 2013, p. 11). Though the set-back 
dike, completed in fall 2014, reduces available CWTD habitat on the 
JBHR Mainland Unit by approximately 28 ha (70 ac), or approximately 3.5 
percent of the total 797 ha (1,970 ac), it will reduce the likelihood 
of future flooding. After the removal of 37 CWTD in 2013, the 
population of the JBHR Mainland Unit rebounded to an estimated 100 deer 
(2015). Although the current subpopulation count exceeds the criterion 
of 50 individuals described in the Revised Recovery Plan, we currently 
characterize the JBHR Mainland subpopulation as non-viable because in 
defining viability, the Revised Recovery Plan did not account for 
either the significant changes in the numbers of individuals within a 
donor subpopulation resulting from translocations or the impacts of 
significant land disturbances necessary to protect habitat. Therefore, 
we recognize that additional demographic monitoring is needed to more 
reliably demonstrate viability of the JBHR Mainland Unit subpopulation, 
given the removal of nearly half its numbers in 2013 (from 83 prior to 
translocations to 46 afterward) and the reduction in habitat from the 
construction of the setback dike.
    Ridgefield NWR is the most recently established subpopulation of 
CWTD and it was created by translocating individual deer from the JBH 
Mainland, Puget Island, and Westport subpopulations to the refuge 
beginning in 2013. It is located in Clark County, Washington, 
approximately 108 km (67 mi) southeast of JBHR, and is comprised of 
2,111 ha (5,218 ac) of marshes, grasslands, and woodlands with about 
1,537 ha (3,800 ac) of upland terrestrial habitat. As part of the 2013 
emergency translocation, the Service moved 37 deer from the JBHR 
Mainland Unit to the Ridgefield NWR (U.S. Fish and Wildlife Service 
2013c, p. 8). Eleven of the deer suffered either capture-related 
mortality or post-release mortality within 2 months, potentially due to 
predation (U.S. Fish and Wildlife Service, unpublished data). In 2014, 
another 21 deer were translocated to Ridgefield NWR from Puget Island 
and Westport, and the current estimated population based on FLIR 
surveys is 100 deer (see Table 1, above). Although this subpopulation 
has exceeded the criterion of 50 individuals described in the Revised 
Recovery Plan, we currently characterize the Ridgefield NWR 
subpopulation as non-viable because in defining viability, the Revised 
Recovery Plan did not account for the complex suite of factors that 
determine the success or failure of translocations and the resulting 
establishment of a new subpopulation. While translocations may appear 
immediately successful, variation in both an animal's ability to adapt 
to a new environment and the habitat affect the ultimate success of 
translocations. This variation can include donor deer population 
genetics, animal condition, age and sex of translocated individuals, 
and quality of food sources (Foley et. al. 2008, p. 26). Therefore, we 
recognize that additional demographic monitoring is needed to more 
reliably demonstrate viability of the newly established Ridgefield NWR 
subpopulation.
    Non-viable and unsecured subpopulations. Although attempts have 
been made to translocate deer to Cottonwood Island, it does not contain 
a viable subpopulation of CWTD. The island is a recreational site for 
camping and fishing; the surrounding waters are used for waterfowl 
hunting. Cottonwood Island has multiple landowners, which consist 
primarily of a coalition of ports administered by the Port of Portland, 
but there are no people living on the island and there are no 
commercial interests (U.S. Fish and Wildlife Service 2013b, p. 15). It 
lies approximately 1.6 km (1 mi) upriver from Dibblee Point on the 
Washington side of the Columbia River. The 384-ha (948-ac) island was 
considered in the Revised Recovery Plan as a potential relocation site; 
it was thought that the island could support up to 50 deer. In the fall 
of 2010, 15 deer were moved to Cottonwood Island from the Westport 
population in Oregon (Cowlitz Indian Tribe 2010, p. 1). Seven confirmed 
mortalities resulted from vehicle collisions as CWTD dispersed off the 
island (Cowlitz Indian Tribe 2010, p. 3). Telemetry monitoring by 
Washington Department of Fish and Wildlife (WDFW) personnel in the 
spring of 2011 detected three radio-collared CWTD on Cottonwood Island 
and two on the Oregon mainland near Rainier, Oregon. A second 
translocation of 12 deer to Cottonwood Island (from Puget Island) 
occurred in conjunction with the 2013 emergency translocation effort 
(U.S. Fish and Wildlife Service 2013a, p. 24). All but four of these 
new CWTD subsequently died or moved off

[[Page 71396]]

the island, with five deer dying from vehicle strikes (U.S. Fish and 
Wildlife Service, unpublished data). We are uncertain why the deer 
moved off the island, but we suspect that habitat quality may have been 
a factor. Approximately 6 ha (15 ac) of habitat was improved in 2013, 
by eliminating reed canary grass and other invasive plants and by 
planting native vegetation. Staff from JBHR and staff representing the 
Cowlitz Indian Tribe continue to conduct periodic monitoring of CWTD 
translocated to Cottonwood Island.
    Viable and secure subpopulations. Tenasillahe Island in Oregon is 
part of the JBHR. The Revised Recovery Plan recommended increasing the 
Tenasillahe Island subpopulation to a minimum viable herd of 50 CWTD. 
The Service has accomplished this recovery goal through several 
translocation efforts and habitat enhancement, and the island's 
subpopulation, though still susceptible to flood events, has remained 
above 50 individuals for the past 20 years. The most current FLIR 
survey at this location (in 2015) estimated the population at 155 CWTD 
(see Table 1, above). Because this population has been stable and 
occurs within the JBHR boundaries, it is considered secure.
    Puget Island is a mix of private and public land. The private land 
consists mainly of pasture for cattle and goats, residential lots, and 
hybrid cottonwood plantations that provide food and shelter for the 
deer. Farmers and ranchers on the island often implement predator 
(coyote, Canis latrans) control on their lands to protect poultry and 
livestock, and this management activity likely benefits the CWTD 
population on the island. In fact, Puget Island has supported one of 
the largest and most stable subpopulations of CWTD. While densities 
have historically been lower than on refuge lands, the size of Puget 
Island (about 2,023 ha (5,000 ac)) has enabled it to support a robust 
number of deer. Since regular surveys began in 1984, the population at 
Puget Island has averaged between 175 and 200 deer. The latest survey 
(2015) estimated the population at a high of 228 deer, although 11 deer 
were removed from the area for the 2014 translocation to the Ridgefield 
NWR. Although Puget Island is not formally set aside for the protection 
of CWTD, the fawn:doe (F:D) ratios are higher than on the protected 
JBHR Mainland Unit, and the area has supported a stable CWTD population 
without active management in the midst of continued small-scale 
development for several decades.
    Of the three viable subpopulations, only the Tenasillahe Island and 
Puget Island subpopulations are located on secure habitat. Page 37 of 
the Revised Recovery Plan states, ``. . . protection and enhancement 
(of off-refuge CWTD habitat) can be secured through local land use 
planning, zoning, easement, leases, agreements, and/or memorand[a] of 
understanding'' (U.S. Fish and Wildlife Service 1983, p. 37). In much 
of the 30 years following the development of the Revised Recovery Plan, 
the Service interpreted this to mean that the only ways to securing 
habitat in order to meet recovery criteria were the ones listed in the 
above citation. This led the Service to focus most CWTD recovery 
efforts on increasing and maintaining the subpopulations within the 
boundaries of the JBHR rather than working in areas that did not meet 
this narrow interpretation of ``secure'' habitat. These efforts 
resulted in some successful recovery projects such as growing and 
stabilizing the subpopulation on Tenasillahe Island, which is part of 
JBHR and currently one of the largest subpopulations in the Columbia 
River DPS. However, it also led the Service to put significant 
resources and time toward efforts that have shown less consistent 
success, such as establishing viable and stable herds on the Upper 
Estuary Islands. At present, a total of 314 deer have been translocated 
in an effort to move CWTD to ``secure'' habitats. As discussed earlier 
in this section, some translocations appear to have yielded success 
(Ridgefield NWR) and some failed to create viable and secure 
subpopulations (Cottonwood Island and the Upper Estuary Islands).
    Two subpopulations, Puget Island and Westport/Wallace Island, have 
maintained relatively large and consistent numbers over the last 3 
decades even though these areas are not under conservation ownership or 
agreement. The number of CWTD in these two areas clearly demonstrates a 
measure of security in the habitat regardless of the ownership of the 
land and may be related to the type of activity taking place in these 
areas.
    The 30-year population trends from Puget Island and Westport/
Wallace Island make it clear that CWTD can maintain secure and stable 
populations on suitable habitat that is not formally set aside by 
acquisition, conservation easement, or agreement. In light of this 
information, we have reevaluated the current status of CWTD and have 
determined that ``secure'' habitat includes locations that, regardless 
of ownership status, have supported viable subpopulations of CWTD for 
20 or more years, and have no anticipated change to land management in 
the foreseeable future that would make the habitat less suitable to 
CWTD.
    While Puget Island and Westport/Wallace Island had previously not 
been considered ``secure'' habitat, they have been supporting two of 
the largest and most stable subpopulations in the Columbia River DPS 
since listing. Although CWTD numbers at these 2 locations have 
fluctuated, the Westport/Wallace Island subpopulation had 150 deer in 
1984 and 164 deer in 2010, and the Puget Island population had 170 deer 
in 1984 and 227 deer in 2014 (see Table 1, above). The Revised Recovery 
Plan identified Puget Island and the Westport area as suitable sources 
for CWTD translocations due in large part to their population 
stability. Subsequently, these two locations have been the donor source 
for numerous translocations over the last 30 years, including the 
removal of 23 deer from Puget Island and 10 deer from Westport as part 
of the 2013 and 2014 translocation efforts. Removal of CWTD from these 
two locations on multiple occasions for the purpose of translocation 
has not resulted in any significant decrease in donor population 
numbers.
    Since the late 1980s, the total acreage of tree plantations on 
Puget Island decreased by roughly half (Stonex 2012, pers. comm.). 
However, a proportional decrease in the numbers of CWTD did not occur. 
Furthermore, though Puget Island has experienced changes in land use 
and increases in development over time, such as the break-up of large 
agricultural farms into smaller hobby farms, the changes have not 
inhibited the ability of CWTD to maintain a very stable population on 
the island. The Wahkiakum Comprehensive Plan (2006) anticipates that 
future development on Puget Island will continue to be tree farms, 
agricultural farms, and rural residential (both low density with 1- to 
2-ha (2.5- to 5-ac) lots and medium density with 0.4- to 1-ha (1- to 
2.5-ac) lots), with a goal of preserving the rural character of the 
area (Wahkiakum County 2006, p. 392). Puget Island's human population 
has grown at a nominal rate of 1 to 1.5 percent over the past 15 years; 
that past rate along with building permit growth over the last 5 years 
leads Wahkiakum County to project a population growth rate on the 
island of 1.5 percent through the 20-year ``plan horizon'' that extends 
through the year 2025 (Wahkiakum County 2006, p. 379). Because CWTD 
have demonstrated the ability to adapt to this type of development on 
the island, continued development of this type and at this low

[[Page 71397]]

level is not expected to impact CWTD on the island in the foreseeable 
future (Meyers 2013, pers. comm.). Since the CWTD population on the 
island has been viable for decades and the best available information 
does not predict significant changes to land management in the 
foreseeable future that would make the habitat less suitable to CWTD, 
the Service considers Puget Island secure habitat.
    In conclusion, there are currently three viable subpopulations of 
CWTD: Tenasillahe Island at 155 deer, Puget Island at 228 deer, and 
Westport/Wallace Island at 190 deer (see Table 1, above). Of those, we 
consider Tenasillahe Island and Puget Island to be located on secure 
habitat. Thus, the downlisting criterion to maintain three viable 
subpopulations, two of which are located on secure habitat, has been 
met. The Westport/Wallace Island subpopulation has shown consistent 
stability over the last 30 years, on par with Puget and Tenasillahe 
Islands, but its long-term security is less certain. While the secure 
JBHR Mainland Unit and Ridgefield NWR subpopulations have reached the 
criterion of 50 individuals described in the Revised Recovery Plan, we 
currently characterize them as non-viable because in defining 
viability, the Revised Recovery Plan did not account for either the 
significant changes in the numbers of individuals within a donor 
subpopulation resulting from translocations or the impacts of 
significant land disturbances necessary to protect habitat (i.e. JBHR 
Mainland Unit subpopulation), nor for the complex suite of factors that 
determine the success or failure of translocations and the resulting 
establishment of a new subpopulation (i.e., Ridgefield NWR 
subpopulation).

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 species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct vertebrate population segment of vertebrate 
fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A 
species may be determined to be an endangered or threatened species 
because of any one or a combination 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. We must consider these same five 
factors in reclassifying (in this case, downlisting) a species. We may 
reclassify a species from endangered to threatened (``downlist'') if 
the best available scientific and commercial data indicate that the 
species no longer meets the definition of endangered, but instead meets 
the definition of threatened because: (1) The species' status has 
improved to the point that it is not in danger of extinction at the 
present time throughout all or a significant portion of its range, but 
the species is not recovered (as is the case with the CWTD); or (2) the 
original scientific data used at the time the species was classified 
were in error.
    Determining whether a species' status has improved to the point 
that it can be downlisted requires consideration of whether the species 
is endangered or threatened because of the same five categories of 
threats specified in section 4(a)(1) of the Act. For species that are 
already listed as endangered or threatened, this analysis of threats is 
an evaluation of both the threats currently facing the species and the 
threats that are reasonably likely to affect the species in the 
foreseeable future following the delisting or downlisting and the 
removal or reduction of the Act's protections.
    A species is ``endangered'' for purposes of the Act 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'' in the significant portion of its range (SPR) 
phrase refers to the general geographical area in which the species 
occurs at the time a status determination is made. For the purposes of 
this analysis, we evaluate whether the currently listed species, the 
Columbia River DPS of CWTD, continues to meet the definition of 
endangered.
    In considering what factors might constitute threats, we must look 
beyond the exposure of the species to a particular factor to evaluate 
whether the species may respond to the factor in a way that causes 
actual impacts to the species. If there is exposure to a factor and the 
species responds negatively, the factor may be a threat, and during the 
five-factor analysis, we attempt to determine how significant a threat 
it is. The threat is significant if it drives or contributes to the 
risk of extinction of the species, such that the species warrants 
listing as endangered or threatened as those terms are defined by the 
Act. However, the identification of factors that could impact a species 
negatively may not be sufficient to compel a finding that the species 
warrants listing. The information must include evidence sufficient to 
suggest that the potential threat is likely to materialize and that it 
has the capacity (i.e., it should be of sufficient magnitude and 
extent) to affect the species' status such that it meets the definition 
of endangered or threatened under the Act.
    In the following analysis, we evaluate the status of the Columbia 
River DPS of CWTD throughout its range as indicated by the five-factor 
analysis of threats currently affecting, or that are likely to affect, 
the species within the foreseeable future.

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

    CWTD evolved as a prairie edge/woodland-associated species with 
historically viable populations that were not confined to river valleys 
(Bailey 1936, pp. 92-93). However, CWTD have been extirpated in all but 
two areas of their historical range: the Columbia River DPS area and 
the Douglas County DPS area. The remnant Columbia River DPS population 
was forced by anthropogenic factors (residential and commercial 
development, roads, agriculture, etc., causing fragmentation of natural 
habitats) into the lowland patches of forest and fields it now 
inhabits. While CWTD can adapt to scattered human development, the 
diffusion of urban, suburban, and agricultural areas now limit natural 
range expansion within the current subpopulations, and existing 
occupied areas support densities of CWTD indicative of low-quality 
habitats, particularly lower-lying and wetter habitat than where the 
species would typically be found.
    Loss of habitat is suspected as a key factor in historical CWTD 
declines; 12,140 ha (30,000 ac) of habitat along the lower Columbia 
River were converted for residential and large-scale agricultural use 
from 1870 to 1970 (Northwest Power and Conservation Council 2004, p. 
B4:13). Over time, CWTD were forced into habitat that was fragmented, 
wetter, and in more lowland than what would be ideal for the species. 
The recovery of the Douglas County DPS reflects the availability of 
more favorable habitat (a mix of conifer and hardwood-dominated 
vegetation communities, including oak woodlands

[[Page 71398]]

and savannah) and compatible land-use practices, such as intensive 
sheep grazing (Franklin and Dyrness 1988, p. 110).
    Though limited access to high-quality upland habitat in the 
Columbia River DPS remains the most prominent hindrance to CWTD 
dispersal and recovery today, the majority of habitat loss and 
fragmentation has already occurred. The most dramatic land-use changes 
occurred during the era of hydroelectric and floodplain development in 
the Columbia River basin, beginning with the construction of the 
Willamette Falls Dam in 1888, and continuing through the 1970s 
(Northwest Power and Conservation Council 2013, p. 1). Compared to the 
magnitude of change that occurred in CWTD habitat through activities 
associated with these types of development (e.g., dredging, filling, 
diking, and channelization) (Northwest Power and Conservation Council 
2004, pp. III, 13-15), significant future changes to currently 
available habitat for the Columbia River DPS are not anticipated.
    Recovery efforts for CWTD have, in large part, focused on formally 
protecting land for the recovery of the species through acquisitions 
and agreements such as JBHR, Crims Island, Cottonwood Island, and 
Wallace Island, as well as restoration activities to increase the 
quality of existing available habitat. In addition, the Service has 
expanded CWTD distribution from approximately 8,093 ha (20,000 ac) to 
24,281 ha (60,000 ac) through translocations, reducing the risk that a 
catastrophic event affecting any one subpopulation would lead to 
extinction. To date, the Service has worked to conserve 3,604 ha (8,918 
ac) of habitat for the protection of CWTD (U.S. Fish and Wildlife 
Service 2013, p. 20). Habitat restoration and enhancement activities on 
JBHR have improved the quality of habitat since publication of the 
Revised Recovery Plan in 1983, and the Ridgefield NWR now has an active 
habitat enhancement program in place to support the translocated 
population of CWTD. These efforts have added to the available suitable 
habitat for the Columbia River DPS and helped offset some of the 
impacts of previous habitat loss.
    Although much of the occupied habitat in the Columbia River DPS is 
fragmented, wetter than the species prefers, and vulnerable to 
flooding, many variables influence CWTD survival. A mosaic of 
ownerships and protection levels does not necessarily hinder the 
existence of CWTD when land use is compatible with the habitat needs of 
the deer. For example, on Puget Island, which is not formally set aside 
for the protection of CWTD, the fawn:doe (F:D) ratios are higher than 
on the protected JBHR Mainland Unit, and the area has supported a 
stable CWTD population without active management in the midst of 
continued small-scale development for several decades. Additionally, 
the Westport/Wallace Island subpopulation has long maintained stable 
numbers, even though most of the area is not managed for the protection 
of CWTD. The level of predation, level of disturbance, and condition of 
habitat all influence how CWTD can survive in noncontiguous habitats.
    Flooding, from either anthropogenic or natural events, is a threat 
to CWTD habitat when browsing and fawning grounds become inundated for 
prolonged periods. CWTD habitat is susceptible to flooding because a 
large proportion of occupied CWTD habitat is land that was reclaimed 
from tidal inundation by construction of dikes and levees for 
agricultural use in the early 20th century (U.S. Fish and Wildlife 
Service 2010, p. 2:48). For example, in 1983, the population of CWTD at 
Karlson Island was estimated to be between 8 and 12 individuals. Since 
that time, however, the dike on the island has breached such that the 
island is now prone to sustained and frequent flooding events. CWTD 
have abandoned the island. On the JBHR Mainland Unit, three major 
storm-related floods occurred in 1996, 2006, and 2009. These flooding 
events were associated with a sudden drop in population numbers, 
followed by population recovery in the next few years.
    In recent years, there has been interest in restoring the natural 
tidal regime to some of the land that was reclaimed from tidal 
inundation in the early 20th century, mainly for fish habitat 
enhancement. This restoration could reduce habitat for CWTD in certain 
areas where the majority of the subpopulation relies upon the reclaimed 
land. Since 2009, three new tide gates were installed on the JBHR 
Mainland Unit to improve fish passage and facilitate drainage in the 
event of large-scale flooding. When the setback levee on the refuge was 
completed in fall 2014, the original dike under Steamboat Slough Road 
was breached, and the estuarine buffer created now provides additional 
protection from flooding to the JBHR Mainland Unit. However, it has 
also resulted in the loss or degradation of about 28 ha (70 ac) of CWTD 
habitat, which amounts to approximately 3.5 percent of the total 
acreage of the JBHR Mainland Unit.
    The persistence of invasive species, especially reed canary grass, 
has reduced forage quality over much of the CWTD's range, but it 
remains unclear how much this change in forage quality is affecting the 
overall status of CWTD. While CWTD will eat the grass, it is only 
palatable during early spring growth, or about 2 months in spring, and 
it is not a preferred forage species (U.S. Fish and Wildlife Service 
2010, p. 3:12). Cattle grazing and mowing are used on JBHR lands to 
control the growth of reed canary grass along with tilling and planting 
of pasture grasses and forbs. This management entails a large effort 
that will likely be required in perpetuity unless other control options 
are discovered. Reed canary grass is often mechanically suppressed in 
agricultural and suburban landscapes, but remote areas, such as the 
upriver islands, experience little control. Reed canary grass thrives 
in wet soil and excludes the establishment of other grass or forb 
vegetation that is likely more palatable to CWTD. Increased groundwater 
due to sea-level rise or subsidence of diked lands may exacerbate this 
problem by extending the area impacted by reed canary grass. However, 
where groundwater levels rise high enough and are persistent, reed 
canary grass will be drowned and may be eradicated, although this rise 
in water level may also negatively affect CWTD. The total area occupied 
by reed canary grass in the future may therefore decrease, remain the 
same, or increase, depending on topography, land management, or both.
    Competition with elk (Cervus canadensis) for forage on the JBHR 
Mainland Unit has historically posed a threat to CWTD (U.S. Fish and 
Wildlife Service 2004, p. 5). To address these concerns, JBHR staff 
trapped and removed 321 elk during the period from 1984 to 2001. 
Subsequently, JBHR staff conducted two antlerless elk hunts, resulting 
in a harvest of eight cow elk (U.S. Fish and Wildlife Service 2004, p. 
13). The combination of these efforts and elk emigration reduced the 
elk population to fewer than 20 individuals. The JBHR considers their 
elk reduction goal to have been met. Future increases in the population 
above 20 individuals may be controlled with a limited public hunt (U.S. 
Fish and Wildlife Service 2010, p. B-20). In a related effort, JBHR 
personnel have constructed roughly 4 miles (6.4 km) of fencing to deter 
elk immigration onto JBHR (U.S. Fish and Wildlife Service 2004, p. 10).

Climate Change

    Our analyses under the Act include consideration of ongoing and 
projected

[[Page 71399]]

changes in climate. 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 
(Intergovernmental Panel on Climate Change 2013, p. 1450). 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 (Intergovernmental Panel on Climate Change 2013, p. 1450). Various 
types of climate change may be positive, neutral, or negative and they 
may vary 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) (Intergovernmental Panel 
on Climate Change 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.
    Environmental changes related to climate change will likely affect 
CWTD occupying low-lying habitat that is not adequately protected by 
well-maintained dikes. Furthermore, even in areas that have adequate 
dikes built, the integrity of those dikes could be at risk of failure 
due to the effects of climate change. Climatic models have projected 
significant sea-level rise over the next century (Mote et al. 2014, p. 
492). Rising sea levels could degrade or inundate current habitat, 
forcing some subpopulations of CWTD to move out of existing habitat 
along the Columbia River into marginal or more developed habitat. A 
rise in groundwater levels could alter vegetation regimes, lowering 
forage quality of CWTD habitat and allowing invasive plants to expand 
their range into new areas of CWTD habitat. The increase in ground 
water levels due to sea-level rise could also allow the threat of hoof 
rot (see discussion under Factor C) to persist or increase.
    Maintaining the integrity of existing flood barriers that protect 
CWTD habitat will be important for recovery of the Columbia River DPS 
until greater numbers of CWTD can occupy upland habitat through 
additional translocations, and subsequent recruitment and natural range 
expansion. The JBHR Mainland Unit has experienced three major storm-
related floods since 1996. While we do not have data to indicate that 
climate change is responsible for past storm-related flooding events, 
climate change could result in increased storm intensity and frequency, 
which would exacerbate the impacts of flooding. Flooding events have 
been associated with sudden drops in the CWTD population (see Table 1, 
above), which then slowly recovered. An increased rate of occurrence of 
these events, however, could permanently reduce the size of this 
subpopulation. To facilitate drainage in the event of large-scale 
flooding, three new tide gates have been installed on the JBHR Mainland 
Unit since 2009. Potentially, additional tide gates could be installed 
and dikes could be elevated to reduce the impact of flooding and sea-
level rise on the JBHR Mainland Unit. A new, larger culvert under 
Highway 4 was also installed in 2015 allowing a tributary better flow 
from the Elochoman River to facilitate drainage and reduce the 
likelihood of flooding. Since Puget and Tenasillahe Islands lack stream 
input from the Elochoman River or other stream sources, the risk of 
flooding from storm events is low. Additionally, Puget Island and 
Tenasillahe Island are adequately protected from potential sea level 
rises due to the height of their levees and their location within the 
main stem of the Columbia River.
    The National Wildlife Federation has employed a model to project 
changes in sea level in Puget Sound, Washington, and along areas of the 
Oregon and Washington coastline. The study projected an average rise of 
0.28 meters (m) (0.92 feet (ft)) by 2050, and 0.69 m (2.26 ft) by 2100, 
in the Columbia River region (Glick et al. 2007, p. 73). A local rise 
in sea level would translate into the loss of some undeveloped dry land 
and tidal and inland fresh marsh habitats. By 2100, projections show 
that these low-lying habitats could lose from 17 to 37 percent of their 
current area due to an influx of saltwater. In addition, since the JBHR 
Mainland Unit and Tenasillahe Island were diked in the early 1900s, the 
land within the dikes has subsided and dropped to a level near or below 
groundwater levels. This in turn has degraded CWTD habitat quality in 
some areas. Although saltwater intrusion does not extend this far 
inland, the area experiences 2 to 2.5 m (7 to 8 ft) tidal shifts due to 
a backup of the Columbia River. Sea-level rise may further increase 
groundwater levels on both of these units, as levees do not provide an 
impermeable barrier to groundwater exchange.
    Due to the reasons listed above, we find the effects of climate 
change (specifically sea level rise and increased frequency and 
magnitude of storm events) to be a threat to CWTD in the foreseeable 
future. The indirect effects of climate change in the form of more 
frequent or more severe floods may be exacerbated by that threat. 
Because of the low-lying nature of some currently occupied CWTD habitat 
in the Columbia River DPS, the long-term stability of the 
subpopulations in those areas may rely on the availability of and 
access to upland habitat protected from the effects of projected sea-
level rise. The Columbia River DPS would benefit from the 
identification of additional suitable high-quality upland habitat and 
the development of partnerships with State wildlife agencies to 
facilitate the translocation of CWTD to these areas, as well as 
securing land with existing stable subpopulations, such as the Westport 
area.
Summary of Factor A
    Habitat loss from fragmentation, flooding, and continued urban and 
suburban expansion remains a threat to CWTD persistence. Stable 
populations of the species do persist in habitat that was previously 
dismissed as inadequate for long-term survival such as the 
subpopulations on Puget Island, Washington, and in Westport, Oregon 
(Westport/Wallace Island subpopulation). Historical habitat loss was 
largely a result of development, and while this activity is still a 
limiting factor, we now understand that the type of development 
influences how CWTD respond. Areas such as Puget Island have been and 
are expected to continue experiencing the break-up of large 
agricultural farms into smaller hobby farms with a continued focus on 
low- to medium-density rural residential development. This type of 
change has not inhibited the ability of CWTD to maintain a stable 
population on Puget Island (about 2,023 ha (5,000 ac)). Therefore, this 
type of development is not expected to impact CWTD on Puget Island in 
the foreseeable future. In contrast, areas like Willow Grove will 
likely see a continued change from an agricultural to a suburban 
landscape; this type of development may have a negative impact on CWTD 
depending on the density of development.
    The Service's recovery efforts involving habitat acquisition and 
restoration have led to a corresponding increase in the amount and 
quality of habitat specifically protected for the benefit of CWTD. 
Habitat enhancement efforts have been focused primarily on the JBHR 
Mainland Unit, Tenasillahe Island, and Crims Island where attention has 
been focused on increasing the quality of browse, forage, and cover. 
There is also a new habitat

[[Page 71400]]

enhancement program at Ridgefield NWR that is focused on increasing the 
amount of browse and forage available to CWTD. Finally, CWTD now have 
access to the upland areas at Ridgefield NWR, and it is expected that 
they will respond positively to the higher quality habitat.
    The rise in sea level predicted by climate change models may 
threaten any low-lying habitat of the Columbia River DPS not adequately 
protected by dikes, and may also threaten the integrity of dikes 
providing flood control to certain subpopulations of CWTD. To minimize 
possible impacts from flooding, dikes and levees will need to be 
maintained and potentially rebuilt or improved over time. Although the 
effects of climate change do not constitute a threat to CWTD now, we do 
expect the effects to constitute a threat in the foreseeable future. 
Overall, although the threat of habitat loss and modification still 
remains, it is lower than when the species was listed and the Recovery 
Plan was developed; this is due to habitat acquisition and enhancement 
efforts, based on an overall better understanding of the influence of 
different types of development on CWTD populations.

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

    Overutilization for commercial, scientific, or educational purposes 
would likely be a threat to CWTD without the continued protections of 
the Act. Although legal harvest of CWTD in the Columbia River DPS 
ceased when CWTD were federally listed as endangered, historical 
overharvest of CWTD in the late 1800s and early 1900s contributed to 
population decline. Early pioneers and explorers to western Oregon used 
CWTD as a food resource along main travel corridors, resulting in 
extirpation of CWTD in these locations (Crews 1939, p. 5).
    As long as take prohibitions generally remain in place, poaching is 
not currently considered a threat. Just after the establishment of the 
JBHR, poaching was not uncommon given the JBHR's proximity to roads and 
easy accessibility. Public understanding and views of CWTD have 
gradually changed, however, and poaching is no longer considered a 
threat but could become a threat if regulations and enforcement are not 
maintained to protect CWTD from overutilization. This downlisting and 
associated 4(d) rule will not change this. There have been only a few 
cases of intentional shooting of CWTD through poaching in the 49 years 
since CWTD were first listed (Bergh 2014, pers. comm.). Although 
poaching cannot be completely ameliorated, this current level of 
poaching is not considered a threat to the DPS. If poaching levels 
change, however, then poaching could hinder CWTD population growth 
because of the DPS's small population size. Small populations face 
greater risks of extinction because genetic drift and demographic 
stochasticity (i.e., random change) have a proportionally large effect 
on small populations. Genetic drift reduces allelic diversity in the 
population, so poaching could lead to higher levels of homozygosity and 
inbreeding depression. Loss of such genetic variation can reduce the 
population's ability to respond to environmental changes and increase 
the risk of extinction. In addition, preferential pursuit of bucks for 
trophy reasons can skew buck to doe ratios and possibly reduce the 
overall age structure of bucks. If these larger and older bucks are 
removed from the population, the genetic advantages they may pass down 
to offspring would also be removed from the population. Thus, while 
overutilization does not constitute a threat to CWTD now, it would 
likely become a threat without the continued protections of the Act.

C. Disease or Predation

Disease
    The Revised Recovery Plan lists necrobacillosis (hoof rot) as a 
primary causal factor in CWTD mortality on the JBHR (U.S. Fish and 
Wildlife Service 1983, p. 13). Fusobacterium necrophorum is identified 
as the etiological agent in most cases of hoof rot, although 
concomitant bacteria such as Arcanobacterium pyogenes may also be at 
play (Langworth 1977, p. 383). Damp soil or inundated pastures increase 
the risk of hoof rot among CWTD with foot injuries (Langworth 1977, p. 
383); increased flooding frequency thus may have potential to increase 
these risk factors in the future. Among 155 carcasses recovered from 
1974 to 1977, hoof rot was evident in 31 percent (n=49) of the cases, 
although hoof rot was attributed directly to only 3 percent (n=4) of 
CWTD mortalities (Gavin et al. 1984, pp. 30-31). Currently, CWTD on the 
JBHR Mainland Unit have occasionally displayed visible evidence of hoof 
rot, and recent cases have been observed on Puget Island, but its 
prevalence is not known to be a limiting factor in population growth 
(U.S. Fish and Wildlife Service 2010, p. 4:53). Of the 49 CWTD captured 
from the JBHR Mainland Unit and Puget Island in 2013, none displayed 
evidence of hoof rot at the time of capture (U.S. Fish and Wildlife 
Service, unpublished data).
    Deer hair loss syndrome (DHLS) was documented in black-tailed deer 
in northwestern Oregon from 2000 to 2004 (Biederbeck 2004, p. 4). DHLS 
results when a deer with an immune system weakened by internal 
parasites is plagued with ectoparasites such as deer lice (Damalinia 
(Cervicola) spp.). The weakened deer suffer increased inflammation and 
irritation, which result in deer biting, scratching, and licking 
affected areas and, ultimately, removing hair in those regions. This 
condition is found most commonly among deer occupying low-elevation 
agricultural areas (below 183 m (600 ft) elevation). While the study 
found a higher instance in black-tailed deer, cases in CWTD have also 
been observed. Most cases (72 percent) of DHLS detected at the Saddle 
Mountain Game Management Unit in northwestern Oregon were associated 
with black-tailed deer. Twenty-six percent of black-tailed deer 
surveyed in the Saddle Mountain Game Management Unit showed symptoms of 
DHLS, while only 7 percent of CWTD were symptomatic (Biederbeck 2004, 
p. 4). Additionally, cases were identified in CWTD in 2002 and 2003, 
but none of the CWTD surveyed in 2004 showed evidence of the disease 
(Biederbeck 2004, p. 4). CWTD captured during translocations in recent 
years have occasionally exhibited evidence of hair loss. Mild hair loss 
has been observed in a few fawns and yearlings (U.S. Fish and Wildlife 
Service 2010, p. 4:53).
    DHLS is not thought to be highly contagious, nor is it considered 
to be a primary threat to CWTD survival, although it has been 
associated with deer mortality (Biederbeck 2002, p. 11; 2004, p. 7). 
Reports of DHLS among black-tailed deer in Washington have indicated 
significant mortality associated with the condition. In 2006, a high 
number of Yakima area mule deer (Odocoileus hemionus) mortalities were 
reported with symptoms of DHLS (Washington Department of Fish and 
Wildlife 2010, p. 1), although their mortality may be more related to a 
significant outbreak of lice in the population at the time. With 
respect to CWTD, however, there has been no documented mortality 
associated with the disease on the JBHR Mainland Unit (U.S. Fish and 
Wildlife Service 2010, p. 4:53), and DHLS is not a current or 
foreseeable threat.
    Parasite loads were tested in 16 CWTD on the JBHR Mainland Unit and 
Tenasillahe Island in February of 1998 (Creekmore and Glaser 1999, p. 
3). All CWTD tested via fecal samples showed

[[Page 71401]]

evidence of the stomach worm Haemonchus contortus. Lung worm 
(Parelaphostrongylus spp.) and trematode eggs, possibly from liver 
flukes (Fascioloides spp.), were also detected. These results are 
generally not a concern among healthy populations, and although the 
Columbia River DPS of CWTD has less than optimal forage and habitat 
quality available in some subpopulations, their relatively high 
parasite load has never been linked to mortality in the DPS. Parasites 
are not a current or future threat to CWTD, as the parasite load 
appears to be offset by a level of fecundity that supports stable or 
increasing populations.
Predation
    Coyote predation on CWTD has been a problem for the Columbia River 
DPS, but careful attention to predator control has demonstrated that 
predation can be managed. Since 1983, studies have been conducted to 
determine the primary factors affecting fawn survival throughout the 
range of the Columbia River DPS of CWTD (U.S. Fish and Wildlife 
Service, unpublished data), and coyote predation is thought to be the 
most significant impact on fawn recruitment. On the JBHR Mainland Unit, 
Clark et al. (2010, p. 1) fitted 131 fawns with radio collars and 
tracked them for the first 150 days of age from 1978 to 1982, and then 
again from 1996 to 2000 (16 deer were dropped from the analyses due to 
collar issues). The authors found only a 23 percent survival rate. They 
also determined that predation from coyotes was the primary cause of 
fawn mortality, accounting for 69 percent (n = 61) of all documented 
deaths. Of the remaining fatalities, 16 percent were attributed to 
disease and starvation, and 15 percent were attributed to unknown 
causes. The percentage of mortalities from predation for CWTD fawns is 
comparable to that of other ungulate species; however, CWTD fawn 
survival rate is much lower. Using 111 papers and reports, Linnell et 
al. (1995, p. 209) found the average fawn survival rate of northern 
ungulates was approximately 54 percent, with predation accounting for 
67 percent of fawn mortality.
    Between 1997 and 2008, 46 coyotes were removed from the JBHR 
Mainland Unit by the U.S. Department of Agriculture (USDA) Animal and 
Plant Health Inspection Service (U.S. Fish and Wildlife Service 2010, 
p. 4:62). Coyote removal appears to result in an increase in fawn 
survival, although this has not been analyzed statistically. In 1996, 
the estimated JBHR Mainland Unit fawn:doe (F:D) ratio was 15:100. The 
following year, after 9 coyotes were removed, the F:D ratio increased 
to 61:100 (U.S. Fish and Wildlife Service 2010, p. 4:54); however, this 
was the year following catastrophic flooding, so some F:D ratio 
improvement could be a result of post-flooding conditions. On 
Tenasillahe Island, the average F:D ratio between 2001 and 2003 was 
6:100. No coyotes were removed during that time. Over the next 5 years 
(2004 to 2008), 31 coyotes were removed, and the F:D ratio improved and 
averaged 37:100. Clark et al. (2010, p. 14) suggested shifting the 
timing of coyote removal from winter/early spring to the critical 
fawning period of June to September. This suggestion has been included 
in the comprehensive conservation plan for the JBHR and has been 
implemented since 2008. Since shifting the timing of predator control, 
a F:D ratio of 37:100 has been maintained on the JBHR Mainland Unit. 
Due to the evident success of predator control efforts at JBHR, 
Ridgefield NWR began implementing a coyote control program in May 2013, 
to support the then-newly translocated CWTD. We do not anticipate a 
change in predator control levels on refuge lands in the foreseeable 
future.
    It is common for private landowners in the region to practice 
predator control on their property, but we do not know the extent of 
predator control occurring currently or the amount that is likely to 
occur in the future. On private lands with sheep and other livestock, 
we have no information that leads us to anticipate a decrease in the 
level of predator control in the foreseeable future (Meyers 2016, pers. 
comm.). Even with predation occurring on private lands, the populations 
of Puget Island and Westport still demonstrate a positive growth rate 
over time (see Table 1, above). Additionally, coyote control has been 
in practice on refuge lands for some time and will continue to be 
implemented on both the JBHR and Ridgefield NWR to support CWTD 
populations. While coyote control efforts in the Columbia River DPS 
have met with some success, there may be other factors, such as habitat 
enhancement, that are also influencing increased F:D ratios in certain 
CWTD subpopulations. Doe survival in the DPS depends heavily on the 
availability of nutritious forage rather than on predation pressure, 
although fawn predation within subpopulations is most likely influenced 
by coyote population cycles (Phillips 2009, p. 20). Furthermore, deer 
and elk populations can be depressed by the interplay between various 
factors such as habitat quality and predation pressure (Oregon 
Department of Fish and Wildlife 2013, p. 8).
    The causes of mortality in ungulates are often divided into 
predation and food limitation (Linnell et. al. 1995, p. 209). Predation 
levels on CWTD fawns are comparable to average predation levels for 
other ungulates; however, average survival rates are lower for CWTD 
fawns. Thus, further information is needed on food availability and 
habitat quality within the range of the Columbia River DPS of CWTD to 
determine how food limitation affects fawn survival. As CWTD increase 
in numbers and occupy areas with higher quality habitat, predation will 
likely be offset by increased fecundity. For instance, anecdotal 
observations of twins on Ridgefield NWR provide some indication that 
CWTD fecundity is higher in higher quality habitat. The population size 
of the Ridgefield NWR subpopulation also doubled in 1 year, from 48 
individuals in 2014 to 100 individuals in 2015 (see Table 1, above). 
Fecundity increases that will lead to self-sustaining population levels 
are anticipated as a result of long-term improvement of habitat 
conditions and continued focus on coyote control on refuge lands (and 
monitoring of predation by other species such as bobcat). As predation 
on CWTD fawns is comparable to fawn predation levels in other 
ungulates, and as we anticipate increases in fecundity, and potentially 
fawn survival, with habitat improvement, predation is not a threat to 
the DPS.
Summary of Factor C
    Naturally occurring diseases such as hoof rot, DHLS, and parasite 
loads can often work through an ungulate population without necessarily 
reducing the overall population abundance. Although the relatively high 
parasite load in the Columbia River DPS of CWTD is compounded by the 
additional stressor of suboptimal forage and habitat quality for some 
subpopulations, the load itself has never been linked to mortality in 
the DPS. Disease in the Columbia River DPS of CWTD is not a threat now, 
and we have no evidence to suggest it may become a threat in the 
foreseeable future.
    Predation in the Columbia River DPS of CWTD is not a threat now, 
and we have no reason to expect it to become a threat in the 
foreseeable future. Depredation of fawns by coyotes is common in the 
Columbia River DPS; however, many factors, such as food availability, 
work in conjunction with each other to determine the overall level of 
fawn recruitment. Coyote control is in practice on some private lands 
in the

[[Page 71402]]

region as well as on both the JBHR and Ridgefield NWR to decrease the 
likelihood of fawn depredation, and the level of control is not 
anticipated to change in the foreseeable future on refuge lands. Even 
with a large proportion of fawns being lost to predation, the 
population of the Columbia River DPS has increased since surveys began 
in the late 1980s. As CWTD increase in numbers and habitat quality 
improves through restoration efforts, population increases will likely 
offset the impact of predation.

D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory 
mechanisms adequately address the threats to the CWTD discussed under 
other factors. Section 4(b)(1)(A) of the Act requires the Service to 
take into account, ``those efforts, if any, being made by any State or 
foreign nation, or any political subdivision of a State or foreign 
nation, to protect such species. . . .'' In relation to Factor D under 
the Act, we interpret this language to require the Service to consider 
relevant Federal, State, and Tribal laws, regulations, and other such 
mechanisms that may minimize any of the threats we describe in threat 
analyses under the other four factors, or otherwise enhance 
conservation of the species. We give strongest weight to statutes and 
their implementing regulations and to management direction that stems 
from those laws and regulations. Examples are State governmental 
actions enforced under a State statute or constitution, or Federal 
action under statute.
    The following section includes a discussion of State, local, or 
Federal laws, regulations, or treaties that apply to CWTD. It includes 
legislation for Federal land management agencies and State and Federal 
regulatory authorities affecting land use or other relevant management. 
Before CWTD was federally listed as endangered in 1967, the species had 
no regulatory protections. Existing laws were considered inadequate to 
protect the subspecies. The CWTD was not officially recognized by 
Oregon or Washington as needing any special protection or given any 
special consideration under other environmental laws when project 
impacts were reviewed.
    Now the CWTD is designated as ``State Endangered'' by the WDFW. 
Although there is no State Endangered Species Act in Washington, the 
Washington Fish and Wildlife Commission has the authority to list 
species (Revised Code of Washington (RCW) 77.12.020), and they listed 
CWTD as endangered in 1980. State-listed species are protected from 
direct take, but their habitat is not protected (RCW 77.15.120). Under 
the Washington State Forest Practices Act, the Washington State Forest 
Practices Board has the authority to designate critical wildlife 
habitat for State-listed species affected by forest practices 
(Washington Administrative Code (WAC) 222-16-050, WAC 222-16-080), 
although there is no critical habitat designated for CWTD.
    The WDFW's hunting regulations remind hunters that CWTD are listed 
as endangered by the State of Washington (Washington Department of Fish 
and Wildlife 2015, pp. 18, 20). This designation means it is illegal to 
hunt, possess, or control CWTD in Washington. There has been one 
documented case of an accidental shooting of CWTD by a black-tailed 
deer hunter due to misidentification, and a few cases of intentional 
shooting of CWTD through poaching in the 49 years since CWTD were first 
listed (Bergh 2014, pers. comm.). The State endangered designation 
protects individual CWTD from direct harm, but offers no protection to 
CWTD habitat.
    The Washington State Legislature established the authority for 
Forest Practices Rules (FPR) in 1974. The Forest Practices Board 
established rules to implement the Forest Practices Act in 1976, and 
has amended the rules continuously over the last 30 years. The WDNR is 
responsible for implementing the FPR and is required to consult with 
the WDFW on matters relating to wildlife, including CWTD. The FPR do 
not specifically address CWTD, but they do address endangered and 
threatened species under their ``Class IV-Special'' rules (WAC 222-10-
040). If a landowner's forestry-related action would ``reasonably . . . 
be expected, directly or indirectly, to reduce appreciably the 
likelihood of the survival or recovery of a listed species in the wild 
by reducing the reproduction, numbers, or distribution of that 
species,'' then the landowner would be required to comply with the 
State's Environmental Policy Act guidelines before the landowner could 
perform the action in question. The guidelines can require the 
landowner to employ mitigation measures, or they may place conditions 
on the action such that any potentially significant adverse impacts 
would be reduced. Compliance with the FPR does not substitute for or 
ensure compliance with the Federal Endangered Species Act. A permit 
system for the scientific taking of State-listed endangered and 
threatened wildlife species is managed by the WDFW.
    Though CWTD (Columbia River DPS) are not listed as endangered or 
threatened by the State of Oregon, they are classified as a ``protected 
mammal'' by the State of Oregon because of their federally endangered 
designation, and this will not change upon CWTD being federally 
downlisted to threatened (Oregon Department of Fish and Wildlife 2012, 
p. 1). The CWTD is designated as ``Sensitive-Vulnerable'' by the Oregon 
Department of Fish and Wildlife (ODFW). The ``Sensitive'' species 
classification was created under Oregon's Sensitive Species Rule 
(Oregon Administrative Rules (OAR) 635-100-040) to address the need for 
a proactive species conservation approach. The Sensitive Species List 
is a nonregulatory tool that helps focus wildlife management and 
research activities, with the goal of preventing species from declining 
to the point of qualifying as ``endangered'' or ``threatened'' under 
the Oregon Endangered Species Act (Oregon Revised Statutes (ORS) 
496.171, 496.172, 496.176, 496.182 and 496.192). Species designated as 
Sensitive-Vulnerable are those facing one or more threats to their 
populations, habitats, or both. Vulnerable species are not currently 
imperiled with extirpation from a specific geographic area or the 
State, but could become so with continued or increased threats to 
populations, habitats, or both. This designation encourages but does 
not require the implementation of any conservation actions for the 
species. The ODFW does not allow hunting of CWTD, except for controlled 
hunt of the federally delisted Douglas County DPS in areas near 
Roseburg, Oregon (Oregon Department of Fish and Wildlife 2015, p. 39). 
There have been no documented cases of accidental or intentional 
killing of CWTD in the Columbia River DPS in Oregon (Boechler 2014, 
pers. comm.).
    The State may authorize a permit for the scientific taking of a 
federally endangered or threatened species for ``activities associated 
with scientific resource management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation and 
transplantation.'' An incidental taking permit or statement issued by a 
Federal agency for a species listed under the Federal Endangered 
Species Act ``shall be recognized by the state as a waiver for any 
state protection measures or requirements otherwise applicable to the 
actions allowed under the federal permit'' (ORS 96.172(4)).
    The Oregon Forest Practices Act (ORS 527.610 to 527.992 and OAR 
chapter 629, divisions 600 to 665) lists

[[Page 71403]]

protection measures specific to private and State-owned forested lands 
in Oregon. These measures include specific rules for overall 
maintenance of fish and wildlife, and specifically for federally 
endangered and threatened species including the collection and analysis 
of the best available information and establishing inventories of these 
species (ORS 527.710, section 3(a)(A)). Compliance with the forest 
practice rules does not substitute for or ensure compliance with the 
Federal Endangered Species Act.
    The Oregon Department of Forestry recently updated their Northwest 
Oregon Forest Plan (Oregon Department of Forestry 2010). There is no 
mention of CWTD in their Forest Plan, but they do manage for elk and 
black-tailed deer. Landowners and operators are advised that Federal 
law prohibits a person from taking certain endangered or threatened 
species that are protected under the Federal Endangered Species Act 
(OAR 629-605-0105).
    The 4(d) rule we are making final in this rulemaking retains most 
take prohibitions, which will provide additional protections to CWTD 
that are not available under State laws. Other than the ``take'' that 
will be allowed for the specific activities outlined in the 4(d) rule, 
``take'' of CWTD is prohibited on all lands without a permit or 
exemption from the Service. Furthermore, the National Wildlife Refuge 
System Improvement Act of 1997 (16 U.S.C. 668dd et seq.) provides 
additional protection to CWTD. Where CWTD occur on NWR lands (the JBHR 
and Ridgefield NWRs), this law protects CWTD and their habitats from 
large-scale loss or degradation due to the Service's mission ``to 
administer a national network of lands . . . for the conservation, 
management, and where appropriate, restoration of the fish, wildlife, 
and plant resources and their habitats.''
    The JBHR was established in Washington in 1971, specifically to 
protect and manage the endangered CWTD. Approximately one-third of the 
population of CWTD occurs on the JBHR in the JBHR Mainland Unit 
subpopulation and the Tenasillahe Island subpopulation. The JBHR's 
comprehensive conservation plan (CCP) includes goals for the following: 
(1) Protecting, maintaining, enhancing, and restoring habitats for 
CWTD; (2) contributing to the recovery of CWTD by maintaining minimum 
population sizes on JBHR properties; and (3) conducting survey and 
research activities, assessments, and studies to enhance species 
protection and recovery (U.S. Fish and Wildlife Service 2010a, pp. 
2:48-76). The JBHR implements habitat improvement and enhancement 
actions on a regular basis as well as predator management. As of early 
2013, the Ridgefield NWR is home to a new subpopulation of CWTD. The 
Ridgefield CCP states that current and proposed habitat management will 
support a mix of habitats suitable for CWTD (U.S. Fish and Wildlife 
Service 2010b, p. 48). Habitat conditions on Ridgefield NWR are 
favorable for CWTD, and both habitat enhancement and predator control 
are being implemented. Regular monitoring will occur to assess the 
viability of this subpopulation over time. Both JBHR and Ridgefield NWR 
must conduct consultations under section 7 of the Act for any refuge 
activity that may result in adverse effects to CWTD.
Summary of Factor D
    Although additional regulatory mechanisms have been developed for 
the Columbia River DPS since its listing under the Act and these 
mechanisms are working as designed and help to minimize threats, they 
do not fully ameliorate the threats to the species and its habitat. 
Without the continued protections of the Act, the existing regulatory 
mechanisms for the Columbia River DPS would be inadequate.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Hybridization
    Hybridization with black-tailed deer was not considered a 
significant threat to the Columbia River DPS of CWTD at the time of the 
development of the Revised Recovery Plan (U.S. Fish and Wildlife 1983, 
p. 40). Later studies raised some concern over the presence of black-
tailed deer genes in the isolated Columbia River DPS population. Gavin 
and May (1988, p. 1) found evidence of hybridization in 6 of 33 samples 
of CWTD on the JBHR Mainland Unit and surrounding area. A subsequent 
study revealed evidence of hybridization on Tenasillahe Island, but not 
within the JBHR Mainland Unit (Piaggio and Hopken 2009, p. 18). On 
Tenasillahe Island, 32 percent (8) of the 25 deer tested and identified 
as CWTD contained genes from black-tailed deer. Preliminary evidence 
shows no morphological differences in CWTD/black-tailed deer hybrids, 
suggesting molecular analysis may be the only analytic tool in tracking 
hybridization. These data suggest that these genes may have been due to 
a single hybridization event that is being carried through the 
Tenasillahe Island population (Piaggio and Hopken 2009, p. 18).
    Translocation efforts have at times placed CWTD in areas that 
support black-tailed deer populations. While few black-tailed deer 
inhabit the JBHR Mainland Unit or Tenasillahe Island, the Upper Estuary 
Islands population may experience more interspecific interactions. 
Aerial FLIR survey results in 2006 detected 44 deer on the four-island 
complex of Fisher/Hump and Lord/Walker. Based upon the proportion of 
CWTD to black-tailed deer sightings using trail cameras on these 
islands, Service biologists estimated that, at most, 14 of those 
detected were CWTD (U.S. Fish and Wildlife Service 2007, p. 1). A study 
conducted in 2010 by the JBHR and the National Wildlife Research Center 
using fecal samples collected on Crims, Lord, and Walker Islands showed 
no hybridization in any of the samples collected, suggesting a low 
tendency to hybridize even in island situations (Piaggio and Hopken 
2010, p. 14). The actual magnitude of hybridization has probably not 
changed since the listing of CWTD; however, there are not enough data 
available to confirm this assumption. Hybridization might affect the 
genetic viability of the Columbia River DPS, and additional research 
regarding hybridization could give broader insight to the implications 
and occurrence of this phenomenon, and how it may influence subspecies 
designation. Although a more complete data set would provide more 
conclusive information regarding hybridization in CWTD, based upon the 
minor level of detections of black-tailed deer genetic material and the 
complete lack of any evidence of hybridization on several islands, we 
find that hybridization is not a threat to the Columbia River DPS.
Vehicle Collisions
    Because deer are highly mobile, collisions between CWTD and 
vehicles do occur, but the number of collisions in the Columbia River 
DPS has not prevented the DPS from increasing over time and meeting 
downlisting criteria. The frequency of collisions is dependent on the 
proximity of a subpopulation to roads with high traffic levels, and 
collisions with CWTD have been most frequent among deer that have been 
translocated to areas that are relatively close to high trafficked 
roads. In 2010, 7 of 15 deer translocated to Cottonwood Island, 
Washington, from Westport, Oregon swam off the island and were killed 
by collisions with vehicles on U.S. Highway 30 in Oregon, and on 
Interstate 5 in Washington (Cowlitz Indian Tribe 2010, p. 3). In 2013, 
5 of 12 deer translocated to Cottonwood Island from Puget Island were 
killed by collisions with vehicles,

[[Page 71404]]

and another 4 may have been killed by vehicles or by other means such 
as disease or predation (U.S. Fish and Wildlife Service, unpublished 
data). When combined, 12 of 27 CWTD (44 percent) were killed by vehicle 
strikes while dispersing from Cottonwood Island. (Translocation efforts 
to Cottonwood Island are not currently active.) By contrast, of the 58 
deer that were translocated to Ridgefield NWR in 2013 and 2014, only 3 
have been struck by vehicles, and all 3 were struck after wandering off 
refuge land. Because of its proximity to Highway 4 in Washington, JBHR 
sees occasional collisions between vehicles and CWTD on or near the 
refuge. Refuge personnel recorded four CWTD killed by vehicle 
collisions in 2010 along Highway 4 and on the JBHR Mainland Unit. These 
were deer that were either observed by Service personnel or reported 
directly to the JBHR. There are no trend data available for these 
collisions because systematic data collection has not occurred.
    The Washington Department of Transportation removes road kills 
without reporting species details to the JBHR, so the actual number of 
CWTD struck by cars in Washington is probably slightly higher than the 
number of cases of which JBHR staff is aware. Since the 2013 
translocation, ODFW has had an agreement with the Oregon Department of 
Transportation (ODOT) that ODOT personnel assigned to stations along 
Highway 30 will report any CWTD mortalities. So far, they have been 
contacting the Oregon State Police and occasionally ODFW staff when 
they find a mortality with a collar or ear tags. It is uncertain if the 
ODOT staff report unmarked CWTD mortalities (VandeBergh 2013, pers. 
comm.).
    Although the number of deer collisions may increase over time as 
CWTD populations expand in both numbers and range, the rate of 
collisions in proportion to the Columbia River DPS population size is 
not limiting. We acknowledge that estimates of the number of deer 
killed on roads could be low and that increasing human development and 
deer population sizes could result in increased mortality rates in the 
future, especially for those populations near highways. Therefore, 
while vehicle collisions could potentially impact certain 
subpopulations of CWTD, they do not constitute a threat to the entire 
DPS now, and we do not expect them to be a threat in the foreseeable 
future.
Summary of Factor E
    Low levels of hybridization have recently been detected between 
black-tailed deer and CWTD on the JBHR (Piaggio and Hopken 2010, p. 
15). Future genetic work could give a broader insight into the 
implications and occurrence of this phenomenon. However, Piaggio and 
Hopken concluded that although hybridization can occur between CWTD and 
black-tailed deer, it is not a common or current event (2010, p. 16). 
The two species will preferentially breed within their own taxa, and 
their habitat preferences differ somewhat. Therefore, hybridization 
does not constitute a threat now, and we have no reason to expect it 
will become a threat in the foreseeable future. While collisions 
between CWTD and vehicles do occur, frequency of collisions is 
dependent on the proximity of a subpopulation to roads with high 
traffic levels, making some subpopulations more susceptible to vehicle 
mortality than others. Overall, vehicle collisions have not prevented 
the DPS population from increasing over time and meeting recovery 
criteria for downlisting, and there is no evidence to suggest that they 
will become a threat to the DPS in the foreseeable future.

Overall Summary of Factors Affecting CWTD

    The Columbia River DPS has consistently exceeded the minimum 
population criterion of 400 deer over the past 2 decades. Based on the 
most recent comprehensive survey data from 2015, the Columbia River DPS 
has approximately 966 CWTD, with two subpopulations that are both 
viable and secure (Tenasillahe Island and Puget Island). The current 
range of CWTD in the lower Columbia River area has been expanded 
approximately 80.5 km (50 mi) upriver from its easternmost range of 
Wallace Island in 1983, to Ridgefield, Washington, due to a 
translocation of animals from the JBHR Mainland Unit, Puget Island, and 
Westport subpopulations. Based on observations of successful breeding 
and subpopulation growth to date, the recently established Ridgefield 
NWR population is expected to continue to grow and represent an 
additional viable subpopulation, as defined in the recovery plan; 
however, we will conduct additional demographic monitoring to 
accurately assess the overall response of the newly established 
Ridgefield NWR subpopulation and more reliably demonstrate its 
viability. Like the Ridgefield NWR subpopulation, we anticipate the 
JBHR Mainland Unit subpopulation will continue to rebound and represent 
a viable subpopulation in the near future.
    Threats to the Columbia River DPS from habitat loss or degradation 
(Factor A) still remain and will likely continue into the foreseeable 
future in the form of habitat alteration, and some subpopulations are 
expected to be affected by habitat changes resulting from the effects 
of climate change. Predation, diseases, and parasites (Factor C) are 
not currently known to significantly contribute to mortality in CWTD. 
While there is potential for increased flood frequency to increase risk 
factors for hoof rot, available information does not indicate that the 
disease, in combination with other factors, is currently a significant 
limiting factor for the population or is likely to become so. Thus we 
do not consider disease or predation (Factor C) to be a threat. Without 
the protections of the Act, the existing regulatory mechanisms, 
including those to prevent overutilization (Factor B), for the Columbia 
River DPS remain inadequate (Factor D). While hybridization (Factor E) 
is not a threat, vehicle collisions (Factor E) may pose a threat to 
some subpopulations during dispersal.

Determination

    As stated above, section 4 of the Act (16 U.S.C. 1533), and its 
implementing regulations at 50 CFR part 424, set forth the procedures 
for adding species to or removing species from the Federal Lists of 
Endangered and Threatened Wildlife and Plants. An assessment of the 
need for a species' protection under the Act is based on whether a 
species is in danger of extinction or likely to become so because of 
any of five factors described above in the Summary of Factors Affecting 
the Species section. As required by section 4(a)(1) of the Act, we 
considered these five factors in assessing whether the Columbia River 
DPS of CWTD is in danger of extinction or likely to become so in the 
foreseeable future throughout all of its range.
    As required by the Act, we considered the five factors in assessing 
whether the Columbia River DPS of CWTD is endangered or threatened 
throughout all or a significant portion of its range. We carefully 
examined the best scientific and commercial information available 
regarding the past, present, and future threats faced by the DPS. We 
reviewed the information available in our files and other available 
published and unpublished information, and we consulted with recognized 
experts and State and Tribal agencies.
    We find that the Columbia River DPS is still affected by habitat 
loss and degradation, and some subpopulations are likely to be affected 
in the future by habitat changes resulting from the

[[Page 71405]]

effects of climate change and may be affected by vehicle collisions. We 
did not identify any factors that put the DPS in danger of extinction 
at the present time; however, without the continued protections of the 
Act, effects of take could be detrimental to small subpopulations, 
especially those that have not reached minimum viable population size, 
due to the proportionally large effects of genetic drift and 
demographic stochasticity. Conservation efforts have progressed to the 
point that the minimum population size of 400 has now been met or 
exceeded for more than 20 years, and we have three viable 
subpopulations, two of which are considered currently secure, but 
additional viable and secure subpopulations are needed to achieve the 
recovery of the DPS. Increasing the amount and quality of habitat to 
address the ongoing threat of habitat loss or degradation will be a key 
component of achieving the security of additional subpopulations to 
attain recovery goals. Thus, although the threats that led to the 
initial listing of the Columbia River DPS of the CWTD have been 
ameliorated such that the DPS is not presently in danger of extinction, 
ongoing threats to the DPS such as habitat loss and threats to certain 
subpopulations such as effects due to climate change are such that the 
DPS is likely to become an endangered species within the foreseeable 
future. Our analysis thus indicates that the Columbia River DPS of CWTD 
is not at imminent risk of extinction throughout all of its range; 
therefore, the Columbia River DPS of CWTD does not meet the definition 
of an endangered species. We conclude that the DPS is not currently in 
danger of extinction, but is likely to become in danger of extinction 
within the foreseeable future, such that it now meets the definition of 
a threatened species. Therefore, on the basis of the best scientific 
and commercial data available, we find that the Columbia River DPS of 
CWTD no longer meets the definition of endangered and should be 
reclassified as a threatened species in accordance with sections 3(20) 
and 4(a)(1) of the Act.

Significant Portion of the Range

    Because we have concluded that the Columbia River DPS of CWTD is a 
threatened species throughout all of its range, no portion of its range 
can be ``significant'' for purposes of the definitions of ``endangered 
species'' and ``threatened species.'' See the Service's Significant 
Portion of its Range (SPR) Policy (79 FR 37578, July 1, 2014).

Effects of the Rule

    This final rule revises 50 CFR 17.11(h) to reclassify the Columbia 
River DPS of CWTD from endangered to threatened on the List of 
Endangered and Threatened Wildlife. Reclassification of CWTD from 
endangered to threatened provides recognition of the substantial 
efforts made by Federal, State, and local government agencies; Tribes; 
and private landowners to recover the species. This rule formally 
recognizes that this species is no longer at imminent risk of 
extinction and therefore does not meet the definition of endangered, 
but is still impacted by habitat loss and degradation of habitat to the 
extent that the species meets the definition of a threatened species (a 
species which is likely to become an endangered species within the 
foreseeable future) under the Act. However, this reclassification does 
not significantly change the protection afforded this species under the 
Act. Other than the ``take'' that will be allowed for the specific 
activities outlined in the accompanying 4(d) rule, the regulatory 
protections of the Act will remain in place. Anyone taking, attempting 
to take, or otherwise possessing a CWTD, or parts thereof, in violation 
of section 9 of the Act will still be subject to penalties under 
section 11 of the Act, except for the actions covered under the 4(d) 
rule. Whenever a species is listed as threatened, the Act allows 
promulgation of a rule under section 4(d) that modifies the standard 
protections for threatened species found under section 9 of the Act and 
Service regulations at 50 CFR 17.31 (for wildlife) and 17.71 (for 
plants), when it is deemed necessary and advisable to provide for the 
conservation of the species. These rules may prescribe conditions under 
which take of the threatened species would not be a violation of 
section 9 of the Act.

4(d) Rule

    The purposes of the Act are to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved, to provide a program for the conservation of 
endangered species and threatened species, and to take such steps as 
may be appropriate to achieve the purposes of the treaties and 
conventions set forth in the Act. When a species is listed as 
endangered, certain actions are prohibited under section 9 of the Act, 
as specified at 50 CFR 17.21. These include, among others, prohibitions 
on take within the United States, within the territorial seas of the 
United States, or upon the high seas; import; export; and shipment in 
interstate or foreign commerce in the course of a commercial activity.
    The Act does not specify particular prohibitions and exceptions to 
those prohibitions for threatened species. Instead, under section 4(d) 
of the Act, the Secretary is authorized to issue regulations deemed 
necessary and advisable to provide for the conservation of threatened 
species. The Secretary also has the discretion to prohibit by 
regulation with respect to any threatened species any act prohibited 
under section 9(a)(1) of the Act. Exercising this discretion, the 
Service has by regulation applied those prohibitions to threatened 
species unless a special rule is promulgated under section 4(d) of the 
Act (``4(d) rule'') (50 CFR 17.31(c)). Under 50 CFR 17.32, permits may 
be issued to allow persons to engage in otherwise prohibited acts for 
certain purposes unless a special rule provides otherwise.
    A 4(d) rule may include some or all of the prohibitions and 
authorizations set out at 50 CFR 17.31 and 17.32, but also may be more 
or less restrictive than those general provisions. For the Columbia 
River DPS of CWTD, the Service has determined that a 4(d) rule is 
necessary and appropriate for the conservation of the species. As a 
means to provide continued protection from take and also to facilitate 
both conservation of CWTD in the Columbia River DPS and to facilitate 
natural expansion of their range by increasing flexibility in 
management activities for our State and Tribal partners and private 
landowners, we are issuing a rule for this species under section 4(d) 
of the Act.
    Under this 4(d) rule, take will generally continue to be prohibited 
but the following forms of take are allowed:
     Take by landowners or their agents conducting intentional 
harassment not likely to cause mortality if they have obtained a permit 
from the applicable State conservation agency;
     Take of problem CWTD (as defined under Provisions of the 
4(d) Rule, below) by Federal or State wildlife management agency staff, 
or private landowners acting in accordance with a permit obtained from 
a State conservation agency;
     Take by private landowners that is accidental and 
incidental to an otherwise permitted and lawful activity to control 
damage by black-tailed deer, and if reasonable due care was practiced 
to avoid such taking;
     Take by black-tailed deer hunters if the take was 
accidental and incidental to hunting done in full compliance with the 
State hunting rules, and if

[[Page 71406]]

reasonable due care was practiced to avoid such taking;
     Take by designated Tribal employees and State and local 
law enforcement officers to deal with sick, injured, or orphaned CWTD;
     Take by State-licensed wildlife rehabilitation facilities 
when working with sick, injured, or orphaned CWTD; and
     Take under permits issued by the Service under 50 CFR 
17.32.
    Other than these exceptions, the provisions of 50 CFR 17.31(a) and 
(b) apply.
    The 4(d) rule targets these activities to facilitate conservation 
and management of CWTD where they currently occur through increased 
flexibility for State wildlife management agencies, and to encourage 
landowners to facilitate the expansion of the CWTD's range by 
increasing the flexibility of management of the deer on their property 
(see Justification, below). Activities on Federal lands or with any 
Federal agency involvement will still need to be addressed through 
consultation under section 7 of the Act. Take of CWTD in defense of 
human life in accordance with 50 CFR 17.21(c)(2) or by the Service or 
designated employee of a State conservation agency responding to a 
demonstrable but non-immediate threat to human safety in accordance 
with 50 CFR 17.21(c)(3)(iv) (primarily in the event that a deer 
interferes with traffic on a highway) is not prohibited. Any deterrence 
activity that does not create a likelihood of injury by significantly 
disrupting normal CWTD behavioral patterns such as breeding, feeding, 
or sheltering is not take and is therefore not prohibited under section 
9. Non-injurious deterrence activities for CWTD damage control may 
include yelling at the deer, use of repellents, fencing and other 
physical barriers, properly deployed noise-making devices (including 
explosive devices such as propane cannons, cracker shells, whistlers, 
etc.), scarecrows, plant protection devices (bud caps, netting, tree 
tubes, etc.), and artificial lighting.
    If there is potential that an activity would interrupt normal CWTD 
behavior to the point where the animal would stop feeding or not find 
adequate cover, creating a likelihood of injury, then the activity 
would have the potential to cause take in the form of harassment. Under 
this 4(d) rule, if the activity is not likely to be lethal to CWTD, it 
is classified as intentional harassment not likely to cause mortality 
and is allowed if the activity is carried out under and according to a 
legally obtained permit from the Oregon or Washington State 
conservation agency. Actions that may create a likelihood of injury, 
but are determined by State wildlife biologists not likely to cause 
mortality, may include the use of nonlethal projectiles (including 
paintballs, rubber bullets, pellets or ``BB's'' from spring- or air-
propelled guns, etc.) or herding or harassing with dogs, and are only 
allowed if the activity is carried out under and according to a legally 
obtained permit from the Oregon or Washington State conservation 
agency.
    This 4(d) rule allows a maximum of 5 percent of the DPS to be 
lethally taken annually for the following activities combined: (1) 
Damage management of problem CWTD, (2) misidentification during black-
tailed deer damage management, and (3) misidentification during black-
tailed deer hunting. The identification of a problem CWTD will occur 
when the State conservation agency or Service determines in writing 
that: (1) A CWTD is causing more than de minimus negative economic 
impact to a commercial crop, (2) previous efforts to alleviate the 
damage through nonlethal methods have been ineffective, and (3) there 
is a reasonable certainty that additional property losses will occur in 
the near future if a lethal control action is not implemented.
    The current estimated population of the DPS is 966 deer; therefore 
5 percent would currently equate to 48 deer. We will set the allowable 
take at 5 percent of the most current annual November population 
estimate of the DPS based on FLIR surveys and ground counts to provide 
sufficient flexibility to our State wildlife agency partners in the 
management of CWTD and to strengthen our partnership in the recovery of 
the DPS. Although the fecundity and overall recruitment rate is strong 
and will allow the DPS to persist and continue to recover even with 
take up to the maximum allowable 5 percent, we do not expect that the 
number of deer taken per year will ever exceed 2 percent of the DPS per 
year for several reasons. First, no CWTD have been injured or killed as 
a result of management activities because damage management activities 
have not been required for successfully translocated CWTD, although 
most translocations were to NWR lands. We anticipate that the necessity 
of damage management activities may increase as the CWTD population 
increases and as CWTD are able to disperse to areas previously 
unavailable, such as those agricultural areas surrounding the 
Ridgefield NWR. Furthermore, the Service expects that most CWTD will 
respond to non-injurious or nonlethal means of dispersal so that lethal 
take of problem CWTD will not often be necessary. We are, therefore, 
confident that the amount of CWTD lethally taken under this 4(d) rule 
during CWTD damage management actions will be relatively low. 
Additionally, the Service expects that the potential for accidental 
shooting by mistaking a CWTD for a black-tailed deer will be low 
because there has been only one documented case of an accidental 
shooting of CWTD by a black-tailed deer hunter due to misidentification 
(Bergh 2014, pers. comm.) and there have been no documented accidental 
shootings of CWTD during black-tailed deer damage management. The 2015 
big game hunting regulations in both Oregon and Washington provide 
information on distinguishing black-tailed deer from CWTD and make it 
clear that shooting CWTD from the Columbia River DPS is illegal under 
State law (Oregon Department of Fish and Wildlife 2015, p. 39; 
Washington Department of Fish and Wildlife 2015, pp. 18, 20). Even with 
this 4(d) rule in place, a hunter who shot a CWTD due to 
misidentification will still be required under the Act to report the 
incident to the Service, be required under State law to report the 
incident to State authorities, and be subject to potential prosecution 
under the discretion of State law.
    Because the maximum amount of take allowed for these activities is 
a percentage of the DPS population in any given year, the exact number 
of CWTD allowed to be taken will vary from year to year in response to 
each calendar year's most current estimated population. As mentioned 
above, we do not expect that the number of deer taken will ever exceed 
2 percent of the DPS per year. If take does exceed 2 percent of the DPS 
population in a given year, the Service will convene a meeting with the 
Oregon and Washington Departments of Fish and Wildlife to discuss CWTD 
management and strategies to minimize further take from these 
activities for the rest of the year. If take should exceed 5 percent of 
the total DPS population in any given year, no further take will be 
allowed for these activities in the DPS as a whole, and, should any 
further take occur, it would be subject to potential prosecution under 
the Act.
    We encourage any landowner concerned about potential take of listed 
species on their property that is not covered under this rule (see 
Regulation Promulgation, below) to contact the Service to explore 
options for developing a safe harbor agreement or habitat conservation 
plan that can provide for the conservation of the species and offer 
management options

[[Page 71407]]

to landowners associated with a permit to protect the party from 
violations under section 9 of the Act (see FOR FURTHER INFORMATION 
CONTACT).

Justification

    As habitat destruction remains a threat to the species, continued 
application of the prohibition on harm is needed to discourage 
significant habitat modification that would kill or injure CWTD. In 
addition, in light of the relatively small size of the subpopulations 
and the history of overutilization of CWTD, the species is vulnerable 
to hunting and poaching unless the prohibitions on take are generally 
maintained. As the Columbia River DPS of CWTD grows in number and 
range, however, the deer are facing increased interaction and potential 
conflict with the human environment. Reclassification of the Columbia 
River DPS of CWTD from endangered to threatened status under the Act 
allows employees of State conservation agencies operating a 
conservation program pursuant to the terms of a cooperative agreement 
with the Service in accordance with section 6(c) of the Act, and who 
are designated by their agencies for such purposes, and who are acting 
in the course of their official duties, to take CWTD to carry out 
conservation programs (see 50 CFR 17.31(b)). There are many activities 
carried out or managed by the States, Tribes, and private landowners 
that help reduce conflict with CWTD and thereby facilitate the movement 
of CWTD across the landscape, but would not be afforded take allowance 
under reclassification alone. These activities include CWTD damage 
management, black-tailed deer damage management, and black-tailed deer 
hunting. The 4(d) rule provides incentive to States, Tribes, and 
private landowners to support the movement of CWTD across the landscape 
by alleviating concerns about unauthorized take of CWTD.
    One of the limiting factors in the recovery of the Columbia River 
DPS has been the concern of landowners and State wildlife agencies 
regarding CWTD on their property due to the potential property damage 
from the species. Landowners express concern over their inability to 
prevent or address the damage because of the threat of penalties under 
the Act. These concerns may lead landowners to modify unoccupied 
habitat in such a way that it could no longer support deer or to erect 
fences or other manmade structures to exclude deer from their lands. If 
landowners take actions to deter CWTD from areas where they could occur 
to avoid the burden of take restrictions, then natural range expansion 
and connectivity on the landscape could be negatively impacted. 
Increased management flexibility is intended to create an incentive for 
private landowners to voluntarily maintain, create, or restore habitat 
for the benefit of CWTD. Furthermore, State wildlife agencies expend 
resources addressing landowner complaints regarding potential CWTD 
damage to their property, or concerns from black-tailed deer hunters 
who are hunting legally but might accidentally shoot a CWTD even after 
reasonable due care was practiced to avoid such taking. For instance, 
the majority of translocation efforts have moved CWTD to refuge lands; 
however, some areas of State and private land offer high-quality 
habitat for CWTD, and future translocations to these areas would 
benefit the species by either creating a new subpopulation or creating 
connectivity between existing subpopulations. Small-scale agricultural 
lands, especially, can provide potential habitat for CWTD, as 
demonstrated on Puget Island, as opposed to other types of land 
management changes. By providing more flexibility to the States, 
Tribes, and landowners regarding management of CWTD, we expect to 
enhance support for both the movement of CWTD within areas where they 
already occur, as well as the expansion of the subspecies' range into 
additional areas of Washington and Oregon through translocations. In 
addition, easing the general take prohibitions on non-Federal 
agricultural lands is intended to encourage continued responsible land 
uses that provide an overall benefit to CWTD and facilitate private 
lands partnerships that promote conservation efforts.
    The 4(d) rule addresses intentional CWTD damage management by 
private landowners and State and Tribal agencies; black-tailed deer 
damage management and hunting; and management of sick, injured, and 
orphaned CWTD by Tribal employees, State and local law enforcement 
officers, and State licensed wildlife rehabilitation facilities. 
Addressing these targeted activities that may normally result in take 
under section 9 of the Act increases the incentive for landowners and 
land managers to allow CWTD on their property, and provides enhanced 
options for State wildlife agencies with respect to CWTD damage 
management and black-tailed deer management, thereby encouraging the 
States' participation in recovery actions for CWTD.
    The actions and activities allowed under the 4(d) rule, while they 
may have some minimal level of harm or disturbance to individual CWTD 
in the Columbia River DPS, are not expected to adversely affect efforts 
to conserve and recover the DPS. In fact, conservation efforts should 
be facilitated by increasing the likelihood of natural range expansion, 
providing support for translocations onto State and Tribal lands, and 
creating private lands partnerships to promote conservation efforts 
throughout the current range of the DPS. The take of CWTD from these 
activities will be strictly limited to a maximum of 5 percent of the 
most current annual DPS population estimate in order to have a 
negligible impact on the overall DPS population. Though there would be 
a chance for lethal take to occur, recruitment rates appear to be high 
enough in the DPS to allow for continued population growth despite the 
take that is allowed in this final rule. For example, the Service 
removed 34 CWTD, which constituted 20 percent of the subpopulation, 
from Puget Island for translocations in 2012. The estimated size of the 
subpopulation on Puget Island was 228 CWTD in 2015, representing an 
average annual population growth rate of 16 percent. If the 
subpopulation continues to grow 16 percent each year, then removing a 
maximum of 5 percent would still allow the subpopulation, and the DPS 
as a whole, to continue to grow.
    For the reasons described above, we find that it is necessary and 
advisable to apply the provisions of 50 CFR 17.31(a), which prohibit 
take of threatened species, with exceptions intended to facilitate the 
growth and expansion of CWTD subpopulations within the DPS required to 
achieve recovery. By generally extending section 9 take prohibitions 
but allowing take under specified circumstances, the rule will provide 
needed protection to the species while allowing management flexibility 
to benefit the species' long-term conservation. Thus, the provisions of 
this rule meet the statutory requirement under section 4(d) of the Act 
of being necessary and advisable to provide for the conservation of the 
species.

Provisions of the 4(d) Rule

    The increased interaction of CWTD with the human environment 
increases the potential for property damage caused by CWTD, as well as 
the potential for conflict with legal black-tailed deer management 
activities. Therefore, this 4(d) rule applies the prohibitions of 50 
CFR 17.31(a) with some exceptions to increase the flexibility of CWTD 
management for the States, Tribes, and private landowners by allowing 
take of CWTD resulting from CWTD damage management, and

[[Page 71408]]

black-tailed deer damage management and hunting. The maximum allowable 
annual take per calendar year for these activities combined is 5 
percent of the most current annual CWTD DPS population estimate.
    A State conservation agency will be able to issue permits to 
landowners or their agents to harass CWTD on lands they own, rent, or 
lease if the State conservation agency determines in writing that such 
action is not likely to cause mortality of CWTD. The techniques 
employed in this harassment must occur only as specifically directed or 
restricted by the State permit in order to avoid causing CWTD 
mortality. The State conservation agency will also be able to issue a 
permit to landowners or their agents to lethally take problem CWTD on 
lands they own, rent, or lease if the State conservation agency or 
Service determines in writing that: (1) The CWTD are causing more than 
de minimus negative economic impact to a commercial crop; (2) previous 
efforts to alleviate the damage through nonlethal methods have been 
ineffective; and (3) there is a reasonable certainty that additional 
property losses will occur in the near future if a lethal control 
action is not implemented. Lethal take of problem CWTD will have to be 
implemented only as directed and allowed in the permit obtained from 
the State conservation agency. Additionally, any employee or agent of 
the Service or the State conservation agency, who is designated by 
their agency for such purposes and when acting in the course of their 
official duties, will be able to lethally take problem CWTD.
    Take of CWTD in the course of carrying out black-tailed deer damage 
control will be a violation of this rule unless: The taking was 
accidental; reported within 72 hours; reasonable care was practiced to 
avoid such taking; and the person causing the take was in possession of 
a valid black-tailed deer damage control permit from a State 
conservation agency. Take of CWTD in the course of hunting black-tailed 
deer will be a violation of this rule unless: (1) The take was 
accidental; (2) the take was reported within 72 hours; (3) the take was 
in the course of hunting black-tailed deer under a lawful State permit; 
and (4) reasonable due care was exercised to avoid such taking.
    The increased interaction of CWTD with the human environment 
increases the likelihood of encounters with injured or sick CWTD. 
Therefore, take of CWTD will also be allowed by Tribal employees, State 
and local government law enforcement officers, and State-licensed 
wildlife rehabilitation facilities to provide aid to injured or sick 
CWTD. Tribal employees and local government law enforcement officers 
will be allowed take of CWTD for the following purposes: (1) Aiding or 
euthanizing sick, injured, or orphaned CWTD; (2) disposing of a dead 
specimen; and (3) salvaging a dead specimen that may be used for 
scientific study. State-licensed wildlife rehabilitation facilities 
will also be allowed to take CWTD for the purpose of aiding or 
euthanizing sick, injured, or orphaned CWTD.

Required Determinations

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes.
    We have coordinated the development of this reclassification and 
4(d) rule with the Cowlitz Indian Tribe, which manages land where one 
subpopulation of CWTD population is located, Cottonwood Island. 
Biologists from the Cowlitz Indian Tribe are members of the CWTD 
Working Group and have worked with the Service, WDFW, and ODFW to 
incorporate conservation measures to benefit CWTD into their management 
plan for the island.

References Cited

    A complete list of all references cited in this rule is available 
at https://www.regulations.gov under Docket No. FWS-R1-ES-2014-0045, or 
upon request from the Oregon Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this final rule are staff members of the 
Oregon Fish and Wildlife Office in Portland, Oregon (see FOR FURTHER 
INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, 
unless otherwise noted.

0
2. Amend Sec.  17.11(h) by revising the entry for ``Deer, Columbian 
white-tailed'' under MAMMALS in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                           Listing citations and
          Common name            Scientific name       Where listed           Status          applicable rules
----------------------------------------------------------------------------------------------------------------
            Mammals
 

[[Page 71409]]

 
                                                  * * * * * * *
Deer, Columbian white-tailed    Odocoileus        Columbia River         T...............  32 FR 4001; 3/11/
 [Columbia River DPS].           virginianus       (Clark, Cowlitz,                         1967, 68 FR 43647; 7/
                                 leucurus.         Pacific, Skamania,                       24/2003, [Insert
                                                   and Wahkiakum                            Federal Register
                                                   Counties, WA, and                        citation 10/17 2016,
                                                   Clatsop, Columbia,                       50 CFR 17.40(i)
                                                   and Multnomah                            \4d\.
                                                   Counties, OR).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.40 by adding paragraph (i) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (i) Columbian white-tailed deer (Odocoileus virginianus leucurus) 
(CWTD), the Columbia River distinct population segment. (1) General 
requirements. Other than as expressly provided at paragraph (i)(3) of 
this section, the provisions of Sec.  17.31(a) apply to the CWTD.
    (2) Definitions. For the purposes of this entry:
    (i) CWTD means the Columbia River distinct population segment (DPS) 
of Columbian white-tailed deer or individual specimens of CWTD.
    (ii) Intentional harassment means an intentional act which creates 
the likelihood of injury to wildlife by annoying it to such an extent 
as to significantly disrupt normal behavior patterns which include, but 
are not limited to, breeding, feeding, or sheltering. Intentional 
harassment may include prior purposeful actions to attract, track, wait 
for, or search out CWTD, or purposeful actions to deter CWTD.
    (iii) Problem CWTD means an individual specimen of CWTD that has 
been identified in writing by a State conservation agency or the 
Service as meeting the following criteria:
    (A) The CWTD is causing more than de minimus negative economic 
impact to a commercial crop;
    (B) Previous efforts to alleviate the damage through nonlethal 
methods have been ineffective; and
    (C) There is a reasonable certainty that additional property losses 
will occur in the near future if a lethal control action is not 
implemented.
    (iv) Commercial crop means commercially raised horticultural, 
agricultural, or forest products.
    (v) State conservation agency means the State agency in Oregon or 
Washington operating a conservation program for CWTD pursuant to the 
terms of a cooperative agreement with the Service in accordance with 
section 6(c) of the Endangered Species Act.
    (3) Allowable forms of take of CWTD. Take of CWTD resulting from 
the following legally conducted activities is allowed:
    (i) Intentional harassment not likely to cause mortality. A State 
conservation agency may issue permits to landowners or their agents to 
harass CWTD on lands they own, rent, or lease if the State conservation 
agency determines in writing that such action is not likely to cause 
mortality of CWTD. The techniques employed in this harassment must 
occur only as specifically directed or restricted by the State permit 
in order to avoid causing CWTD mortality.
    (ii) Take of problem CWTD resulting in mortality. Take of problem 
CWTD is authorized under the following circumstances:
    (A) Any employee or agent of the Service or the State conservation 
agency, who is designated by their agency for such purposes, may, when 
acting in the course of their official duties, take problem CWTD. This 
take must occur in compliance with all other applicable Federal, State, 
and local laws and regulations.
    (B) The State conservation agency may issue a permit to landowners 
or their agents to take problem CWTD on lands they own, rent, or lease. 
Such take must be implemented only as directed and allowed in the 
permit obtained from the State conservation agency.
    (iii) Accidental take of CWTD when carrying out State-permitted 
black-tailed deer damage control. Take of CWTD in the course of 
carrying out black-tailed deer damage control will be a violation of 
this rule unless the taking was accidental; reasonable care was 
practiced to avoid such taking; and the person causing the take was in 
possession of a valid black-tailed deer damage control permit from a 
State conservation agency. When issuing black-tailed deer damage 
control permits, the State conservation agency will provide education 
regarding identification of target species. The exercise of reasonable 
care includes, but is not limited to, the review of the educational 
material provided by the State conservation agency and identification 
of the target before shooting.
    (iv) Accidental take of CWTD when carrying out State-permitted 
black-tailed deer hunting. Take of CWTD in the course of hunting black-
tailed deer will be a violation of this rule unless the take was 
accidental; the take was in the course of hunting black-tailed deer 
under a lawful State permit; and reasonable due care was exercised to 
avoid such taking. The State conservation agency will provide 
educational material to hunters regarding identification of target 
species when issuing hunting permits. The exercise of reasonable care 
includes, but is not limited to, the review of the educational 
materials provided by the State conservation agency and identification 
of the target before shooting.
    (4) Take limits. The amount of take of CWTD allowed for the 
activities in paragraphs (i)(3)(ii), (iii), and (iv) of this section 
will not exceed 5 percent of the CWTD population during any calendar 
year, as determined by the Service. By December 31 of each year, the 
Service will use the most current annual DPS population estimate to set 
the maximum allowable take for these activities for the following 
calendar year. If take exceeds 2 percent of the DPS population in a 
given calendar year, the Service will convene a meeting with the Oregon 
Department of Fish and Wildlife and the Washington Department of Fish 
and Wildlife to discuss CWTD management and strategies to minimize 
further take from these activities for the rest of the year. If take 
exceeds 5 percent of the CWTD population in any given calendar year, no 
further take under paragraphs (i)(3)(ii), (iii), and (iv) will be 
allowed during that year and any further take that does occur may be 
subject to prosecution under the Endangered Species Act.
    (5) Reporting and disposal requirements. Any injury or mortality of 
CWTD associated with the actions authorized under paragraphs (i)(3), 
(6), and (7) of this section must be reported to the Service within 72 
hours, and specimens may be disposed of only in accordance with 
directions from the Service. Reports should be made to the Service's 
Law Enforcement Office at (503) 231-6125, or the Service's Oregon Fish 
and Wildlife Office at (503) 231-6179. The Service may allow additional

[[Page 71410]]

reasonable time for reporting if access to these offices is limited due 
to closure.
    (6) Additional taking authorizations for Tribal employees, State 
and local law enforcement officers, and State-licensed wildlife 
rehabilitation facilities. (i) Tribal employees and State and local 
government law enforcement officers. When acting in the course of their 
official duties, both Tribal employees designated by the Tribe for such 
purposes, and State and local government law enforcement officers 
working in the States of Oregon or Washington, may take CWTD for the 
following purposes:
    (A) Aiding or euthanizing sick, injured, or orphaned CWTD;
    (B) Disposing of a dead specimen; and
    (C) Salvaging a dead specimen that may be used for scientific 
study.
    (ii) Such take must be reported to the Service within 72 hours, and 
specimens may be disposed of only in accordance with directions from 
the Service.
    (7) Wildlife rehabilitation facilities licensed by the States of 
Oregon or Washington. When acting in the course of their official 
duties, a State-licensed wildlife rehabilitation facility may take CWTD 
for the purpose of aiding or euthanizing sick, injured, or orphaned 
CWTD. Such take must be reported to the Service within 72 hours as 
required by paragraph (i)(5) of this section, and specimens may be 
retained and disposed of only in accordance with directions from the 
Service.
    (8) Take authorized by permits. Any person with a valid permit 
issued by the Service under Sec.  17.32 may take CWTD, pursuant to the 
special terms and conditions of the permit.
* * * * *

    Dated: October 5, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-24790 Filed 10-14-16; 8:45 am]
 BILLING CODE 4333-15-P