Endangered and Threatened Wildlife and Plants; Reclassification of the Hawaiian Stilt From Endangered to Threatened With a Section 4(d) Rule, 15855-15876 [2021-05846]

Download as PDF Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules with the principal community coverage requirements of the Commission’s rules at coordinates 31–19–53.0 N and 85–51– 43.0 W. In addition, we find that this channel change meets the technical requirements set forth in our regulations. This is a synopsis of the Commission’s Notice of Proposed Rulemaking, MB Docket No. 21–70; RM–11886; DA 21–267, adopted March 4, 2021, and released March 4, 2021. The full text of this document is available for download at https:// www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418–0530 (VOICE), (202) 418–0432 (TTY). This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104–13. In addition, therefore, it does not contain any proposed information collection burden ‘‘for small business concerns with fewer than 25 employees,’’ pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601– 612, do not apply to this proceeding. Members of the public should note that all ex parte contacts are prohibited from the time a notice of proposed rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in § 1.1204(a) of the Commission’s rules, 47 CFR 1.1204(a). See §§ 1.415 and 1.420 of the Commission’s rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420. List of Subjects in 47 CFR Part 73 Television. Federal Communications Commission. Thomas Horan, Chief of Staff, Media Bureau. Proposed Rule For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICE 1. The authority citation for part 73 is revised to read as follows: ■ Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, and 339. VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 2. In § 73.622, amend paragraph (i) by revising the Post-Transition Table of DTV Allotments under Georgia the entry for Albany to read as follows: ■ § 73.622 Digital television table of allotments. * * * (i) * * * * * Community * * Channel No. * * * Georgia * * * * * * * 10, 29 * pursuant to the CRA, 5 U.S.C. 801(a)(1)(A), because no rules are being adopted by the Commission. Subject: Amendment of Parts 15, 73 and 74 of the Commission’s Rules to Provide for the Preservation of One Vacant Channel in the UHF Television Band For Use By White Spaces Devices and Wireless Microphones, published 86 FR 9297, February 12, 2021, in MB Docket No 15–146. This document is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1) and 1.429(f), (g). Number of Petitions Filed: 2. Federal Communications Commission. Marlene Dortch, Secretary, Office of the Secretary. * Albany ................................... 15855 [FR Doc. 2021–06099 Filed 3–24–21; 8:45 am] BILLING CODE 6712–01–P * DEPARTMENT OF THE INTERIOR [FR Doc. 2021–05990 Filed 3–24–21; 8:45 am] Fish and Wildlife Service BILLING CODE 6712–01–P 50 CFR Part 17 FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 73 and 74 [Docket No. FWS–R1–ES–2020–0079; FF09E22000 FXES11130900000 212] RIN 1018–BE02 [MB Docket No. 15–146; GN Docket No. 12– 268; Report No. 3169; FRS 17596] Petition for Reconsideration of Action in Proceedings Endangered and Threatened Wildlife and Plants; Reclassification of the Hawaiian Stilt From Endangered to Threatened With a Section 4(d) Rule Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: Federal Communications Commission. ACTION: Petition for Reconsideration. AGENCY: Petition for Reconsideration (Petition) has been filed in the Commission’s proceeding by Michael Lazarus, on behalf Sennheiser Electronic Corporation and Catherine Wang, on behalf of Shure Incorporated. DATES: Oppositions to the Petition must be filed on or before April 9, 2021. Replies to an opposition must be filed on or before April 19, 2021. ADDRESSES: Federal Communications Commission, 45 L Street NE, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Shaun Maher, Media Bureau, (202) 418– 2324. SUPPLEMENTARY INFORMATION: This is a summary of the Commission’s document, Report No. 3169, released March 17, 2021. The full text of the Petition can be accessed online via the Commission’s Electronic Comment Filing System at: http://apps.fcc.gov/ ecfs/. The Commission will not send a Congressional Review Act (CRA) submission to Congress or the Government Accountability Office SUMMARY: SUMMARY: PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 We, the U.S. Fish and Wildlife Service (Service), propose to reclassify (downlist) the Hawaiian stilt (Himantopus mexicanus knudseni) from endangered to threatened under the Endangered Species Act of 1973, as amended (Act). After a review of the best available scientific and commercial information, we find that the subspecies’ status has improved such that it is not currently in danger of extinction throughout all or a significant portion of its range, but that it is still likely to become so in the foreseeable future. We also propose a rule under section 4(d) of the Act that provides for the conservation of the Hawaiian stilt. Additionally, we also recognize the name ‘‘aeo’’ as an alternative common name. We will accept comments received or postmarked on or before May 24, 2021. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We DATES: E:\FR\FM\25MRP1.SGM 25MRP1 15856 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules What This Document Does must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by May 10, 2021. You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. In the Search box, enter FWS–R1–ES–2020–0079, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R1–ES–2020–0079, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, Information Requested, below, for more information). Availability of supporting materials: This proposed rule and supporting documents, including the 5-year review and the Recovery Plan, are available at https://www.fws.gov/Pacificislands/ and at http://www.regulations.gov under Docket No. FWS–R1–ES–2020–0079. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Katherine Mullett, Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Room 3–122, Honolulu, HI 96850; telephone 808– 792–9400. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Why We Need To Publish a Rule Under the Act, a species may warrant reclassification from endangered to threatened if it no longer meets the definition of endangered (in danger of extinction). The Hawaiian stilt is listed as endangered, and we are proposing to reclassify (downlist) the Hawaiian stilt as threatened because we have determined is it not currently in danger of extinction. Reclassifying a species can only be completed by issuing a rulemaking. VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 This rule proposes to downlist the Hawaiian stilt from endangered to threatened on the Federal List of Endangered and Threatened Wildlife, based on the species’ current status, which has been improved through implementation of conservation actions. In addition, we propose in this rule to prohibit certain activities in relation to the species under section 4(d) of the Act. The Basis for Our Action Under the Act, we may determine that a species is an endangered species or a threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We may reclassify a species if the best available commercial and scientific data indicate the species no longer meets the applicable definition in the Act. For the reasons discussed below, we have determined that the Hawaiian stilt is no longer in danger of extinction and, therefore, does not meet the definition of an endangered species, but is still affected by the following current and ongoing threats to the extent that the species meets the definition of a threatened species under the Act: • Habitat degradation, destruction, and modification due to urban development, altered ground and surface water, nonnative plants, and coastal inundation and groundwater flooding due to sea level rise; • Predation by nonnative animals such as mongooses, black rats, feral cats, feral dogs, bullfrogs, black-crowned night herons, cattle egrets, and barn owls, and native animals such as the Hawaiian short-eared owl; • Disease, primarily botulism caused by the bacterium Clostridium botulinum (type C); • Environmental contaminants resulting from human activities; and • Stochastic events such as hurricanes, which are anticipated to increase in frequency and intensity. We Are Proposing To Promulgate a Section 4(d) Rule In the 4(d) rule, we propose to prohibit all intentional take and most incidental take of the Hawaiian stilt under section 9(a)(1) of the Act with a few specific exceptions to allow incidental take as a means to further the PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 conservation and recovery of the species by providing management flexibilities for our State, Federal, and private partners. Additionally, these exceptions will help to guide Hawaiian stilts away from hazardous habitat and toward habitat managed to meet the species’ individual and species-level needs. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the species should remain listed as endangered instead of being reclassified as threatened, or we may conclude that the species no longer warrants listing as either an endangered species or a threatened species. In addition, we may change the parameters of the prohibitions and conservation measures in the 4(d) rule if we conclude it is appropriate in light of comments and new information received. For example, we may expand the incidental-take prohibitions to include prohibiting activities that these proposed regulations would allow if we conclude that additional activities are likely to cause direct injury or mortality to the species. Conversely, we may establish additional exceptions to the incidentaltake prohibitions so as to allow activities that this proposed rule would prohibit if we conclude that the activities would not cause direct injury or mortality to the species and will facilitate the conservation and recovery of the species. Such final decisions would be a logical outgrowth of this proposal. Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) Reasons we should or should not reclassify the Hawaiian stilt as a threatened species. (2) New information on the historical and current status, range, distribution, and population size of the Hawaiian stilt. (3) New information on the known and potential threats to the Hawaiian stilt, including predation; urban E:\FR\FM\25MRP1.SGM 25MRP1 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules development, nonnative plants, alterations in surface or ground water; data on avian botulism; contaminants; impacts associated with climate change; or trends in the status and abundance of wetlands used by the subspecies. (4) New information regarding the life history, ecology, and habitat use of the Hawaiian stilt. (5) Current or planned activities within the geographic range of the Hawaiian stilt that may have adverse or beneficial impacts on the subspecies. (6) Information on regulations that are necessary and advisable to provide for the conservation of the Hawaiian stilt and that the Service can consider in developing a 4(d) rule for the subspecies. (7) Information concerning the extent to which we should include any of the section 9 prohibitions in the 4(d) rule or whether any other forms of take should be excepted from the prohibitions in the 4(d) rule. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made ‘‘solely on the basis of the best scientific and commercial data available.’’ You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit information via http:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, under Docket No. FWS–R1–ES–2020–0079. VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 Public Hearing Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES. Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service’s website, in addition to the Federal Register. The use of these virtual public hearings is consistent with our regulation at 50 CFR 424.16(c)(3). Peer Review In accordance with our policy, ‘‘Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,’’ which was published on July 1, 1994 (59 FR 34270) and our August 22, 2016, Director’s Memorandum ‘‘Peer Review Process,’’ we will seek the expert opinion of at least three appropriate and independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. We will ensure that the opinions of peer reviewers are objective and unbiased by following the guidelines set forth in the Director’s Memo, which updates and clarifies Service policy on peer review (U.S. Fish and Wildlife Service 2016a). The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. Accordingly, our final decision may differ from this proposal. Previous Federal Actions The Hawaiian stilt was listed as an endangered species under the Act on October 13, 1970 (35 FR 16047). A recovery plan for four Hawaiian waterbirds, including the Hawaiian stilt, was issued in 1978 (U.S. Fish and Wildlife Service (USFWS) 1978, entire), and the first revision of this plan was issued in 1985. The final Recovery Plan for Hawaiian Waterbirds, Second Revision (Service 2011, entire), was made publicly available January 19, 2012 (77 FR 2753). We completed the most recent 5-year review of the subspecies in March 2020, in which we recommended downlisting the Hawaiian stilt (Service 2020, entire). PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 15857 This document serves as our proposed rule to reclassify the Hawaiian stilt from endangered to threatened based on the recommendation in our 2020 5-year review. Proposed Reclassification Determination Background A thorough review of the biological information on Hawaiian stilts including taxonomy, life history, ecology, and conservation activities, as well as threats facing the subspecies or its habitat is presented in our recent Hawaiian stilt 5-year review (USFWS 2020, entire) and the Recovery Plan for Hawaiian Waterbirds (USFWS 2011, entire), which are available at http:// www.regulations.gov under Docket No. FWS–R1–ES–2020–0079. The following is a summary of the best available information on Hawaiian stilts. Please refer to the 2020 5-year review and 2011 recovery plan for additional discussion and background information. Taxonomy and Species Description The Hawaiian stilt (Himantopus mexicanus knudseni) is a waterbird endemic to the Hawaiian Islands (Stejneger 1887, entire). Another commonly accepted name for the Hawaiian stilt is the aeo (from a Hawaiian name for the bird and word for stilts). The Hawaiian stilt is widely recognized as a subspecies of the blacknecked stilt Himantopus mexicanus (American Ornithology Union (AOU) 1998). It is black and white with long, pink legs (Bryan 1901, p. 26; Shallenberger 1977, p. 24), is slender in appearance, and grows to about 16 inches (in) (40 centimeters (cm)) in height. Plumage is black on the back, and white on the front and underside of the bird. Juveniles have a brownish back, and more extensive white on the cheeks and forehead than adults. Chicks are well camouflaged in a downy plumage that is tan with black speckling (Coleman 1981, pp. 33, 35, 86–87). The Hawaiian stilt is a long-lived vertebrate, as the life span of the Hawaiian Stilt can reach at least 30 years (Reed et al. 2014, p. 4). Range, Abundance, and Population Trends Hawaiian stilts were historically known from all the main Hawaiian Islands (i.e., Niihau, Kauai, Oahu, Maui, Molokai, Lanai, Kahoolawe, and Hawaii) except Lanai (until recently) and Kahoolawe. Hawaiian stilts move between islands, based on observations of sudden large increases in numbers at certain sites (from several hundred to a thousand or more), and concomitant E:\FR\FM\25MRP1.SGM 25MRP1 15858 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules winter and a single day in the summer to try to avoid counting the same birds twice. Niihau is no longer included in the counts as it is a privately owned island that has not been surveyed since 1999; this island shares birds seasonally with Kauai (Engilis and Pratt 1993, p. 156). However, periodic low numbers on Kauai are often due to Hawaiian stilts moving to Niihau, particularly in years with increased precipitation (Laut, 2020, pers. comm.). Winter and summer surveys for Hawaiian stilts show a fluctuating population, which generally increased from 1987 to 2004 and since then has been roughly stable at 1,500 to 2,000 individuals. Years where counts surpassed 2,000 individuals have been followed in the subsequent year by a decrease of 300 to 700 birds (DOFAW 2020). seasonally flooded wetlands, and readily colonize newly restored or created habitats (van Rees et al. 2020, p. 3). The population naturally fluctuates according to climatic and hydrologic conditions (Banko 1988, pp. 2–7; Engilis and Pratt 1993, pp. 145, 147; Reed et al. 1998b, pp. 791–797). Because the subspecies consists of one large population, any discussion regarding the subspecies’ needs (below) also addresses the population’s needs. The Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife (DOFAW) conducts a biannual waterbird population census (count), and those data offer the best available information to assess trend and abundance of the subspecies (DOFAW 2020). Data were available from 1986 through 2017 for our analysis. The DOFAW surveys take place Statewide on a single day in the decreases at other sites, including certain wetlands over the years (Engilis and Pratt 1993, pp. 142, 156, 148; Banko 1988, p. 6). Hawaiian stilts began colonizing the island of Lanai following developments during the 1980s, including construction of a water treatment plant that provided foraging and breeding habitat (Engilis and Pratt 1993, p. 147; Pyle and Pyle 2017, unpaginated). The subspecies consists of one single population dispersed across the main Hawaiian Islands (except Kahoolawe), and individuals move freely between wetlands both within and between islands (Munro 1944, pp. 59–60; Telfer and Burr 1979, p. 8; Coleman 1981, pp. 7–8; Reed et al. 1998a, pp. 36, 38; Reed et al. 1998b, pp. 791–796; Battista 2008, p. 2; Nishimoto 2014, p. 3; Paxton and Kawasaki 2015, in litt.; Dibben-Young 2017, in litt.). Hawaiian stilts disperse readily, exploit Figure 1. Statewide census counts for Hawaiian stilt 1986-2017 (Source: DOF AW 2020). H It - n 2500 2000 1500 1.000 500 0 co 0) ....-1 "' 00 0) ,-I 00 00 en 0) 0) ....-1 ....-1 00 0 .-1 ,-! ....-1 N rn LI) 0) 0) <..O "'cr, ....-1 ....-1 ....-1 ,-! en 0) en 0) en 0) en ""' en en 0) en en ,-I ,-! 0) 00 0) 0) ,-I en 0) 0) ....-1 0 0 ,-! N N a - - - Statewide Hawaiian stilt (summer) Variability in population count numbers can be partially explained by variation in reproductive success (Engilis and Pratt 1993, p. 155) and predation. Summer counts are generally more variable than winter counts due to the variability in hatch-year bird survival (Reed and Oring 1993, pp. 1, 57; Reed et al. 2011b, p. 475). Given that the Hawaiian stilt is conspicuous and most wetlands are surveyed during the Statewide waterbird surveys, the data provide a fairly reliable index of overall population abundance and indicate that the population continues to be stable or increasing with short-term fluctuations (Reed et al. 2011b, pp. 475–476, 478– 479; USFWS 2011, p. iv; DOFAW 2020). VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 0 0 N rn N N 0 0 0 0 ""'a0 N LI) 0 a N \D r-. N N 0 0 0 0 00 en 0 ri ,-! ,-! N N N N 0 0 a 0 0 0 N m ,-! ,-1 N N a 0 ""'a LI) ,-! ,-1 N N 0 <..O .-I 0 N -statewide Hawaiian stilt (winter) 1994, p. 6; USFWS 2005, p. 31; USFWS 2011, pp. 50–60). However, Hawaiian stilts are not restricted to lowland coastal wetlands as they have been observed at slightly higher elevations and outside of the coastal wetlands, such as foothill impoundments, reservoirs, and other wetlands (USFWS 2005, pp. 28–29; Kawasaki et al. 2020, Habitat and Life History Requirements p. 431). Hawaiian stilts use areas of sparse, low-growing (up to 18 in (46 cm) The Hawaiian stilt primarily occurs tall) perennial vegetation or exposed from sea level up to 656 feet (ft) (200 tidal flats for nesting and breeding, and meters (m)) in elevation, in natural and sometimes foraging (Smith and human-made lowland coastal wetlands Polhemus 2003, p. 61; United States (Perkins 1903, p. 452; Shallenberger Department of Agriculture–Natural 1977, pp. 23–25; Coleman 1981, pp. 8– Resources Conservation Service (USDA– 18; Griffin et al. 1989, p. 1169; Engilis and Pratt 1993, pp. 155–156; Evans et al. NRCS) 2009, p. 5 and Appendix B; Gee Using indices to monitor abundance can make detecting changes in populations difficult, potentially masking declines (Staples 2005, p. 1909). We recognize this limitation but conclude the use of this data represents the best available information to ascertain status, trends, and abundance of this subspecies. PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 E:\FR\FM\25MRP1.SGM 25MRP1 EP25MR21.005</GPH> \D Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules 2007, pp. 70–71; Reed et al. 2011a, pp. 3, 4). The most common foraging depth for adults appears to be 5 in (13 cm) or less below the surface of the water (Ohashi and Burr 1977, p. 3; Smith and Polhemus 2003, pp. 60–61; Gee 2007, p. 62; Reed et al. 2011a, pp. 3–4). Shallow water (approximately 2–3 in (7.6 cm)) and wet mudflats are particularly important for foraging chicks (Morin 1998, p. 11; USDA–NRCS 2009, p. 4; Reed et al. 2011a, p. 4; Reed 2017, in litt.). Hawaiian stilts typically begin breeding at age two (Reed et al. 1998a, p. 36). Nests are simple scrapes on the ground (Coleman 1981, p. 53; Smith and Polhemus 2003, p. 61; Gee 2007, p. 98). Pairs usually lay three to four eggs that are incubated for approximately 24 days (Coleman 1981, p. 56; Chang 1990, p. 43). Chicks are precocial, leaving the nest within 24 hours of hatching. After the last chick hatches, parents lead their brood to shallow feeding areas (Coleman 1981, p. 77). Chicks fledge approximately 28 days post-hatching (Reed et al. 1999, p. 478), and young may remain with both parents for several months after hatching (Coleman 1981, pp. 83–84). Parents are extremely aggressive toward unrelated young (Robinson et al. 1999, pp. 11–13). During the nesting season, incubating pairs move between their nest site and a foraging area (USFWS 2011, p. 60). Foraging areas may be directly adjacent to the nest site or quite a distance away (Coleman 1981, p. 77; Engilis and Pratt 1993, pp. 155–156; Reed and Oring 1993, p. 57). Food availability is at least one factor that drives foraging at greater distances from the nest site (Reed and Oring 1993, p. 57). Adults with 3-dayold chicks have been observed foraging 0.3 mile (mi) (1.5 kilometer (km)) from the nest site (Reed and Oring 1993, p. 57). Within a few hours of the last chick hatching, parents lead their brood to shallow feeding areas that may be the same feeding areas used by the adults during incubation (Coleman 1981, p. 77). Hawaiian stilts are opportunistic feeders. They eat a wide variety of invertebrates and other aquatic organisms found in shallow water and mudflats (Perkins 1903, p. 452; Shallenberger 1977, pp. 23–25; Robinson et al. 1999, pp. 8–9; USFWS 2011, p. 58). They also sometimes forage in grasslands adjacent to wetlands. Managed wetlands with desirable water depth are common foraging sites (Underwood et al. 2013, p. 6). Hawaiian stilts move intraisland and interisland as they exploit food resources (Engilis and Pratt 1993, pp. 155–156). VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 We consider the specific breeding and rearing conditions described above as necessary for both individual and subspecies needs. The Hawaiian stilt is considered a conservation-reliant subspecies (Reed et al. 2012, p. 888; Underwood et al. 2013, p. 1), which means that it will require active management into perpetuity because of our inability to eliminate the dominant threats (Scott et al. 2005, pp. 383–389; Scott et al. 2010, pp. 92–93: Goble et al. 2012, pp. 869–872). It is also considered conservation-reliant because it relies almost solely upon managed wetlands for successful nesting and breeding (Reed et al. 2012, p. 888; Underwood et al. 2013, p. 1). The accepted management regime for creating and maintaining optimal Hawaiian stilt breeding and rearing habitat has three major components: Control of invasive introduced plant species; manipulation of water levels to mimic natural hydrological processes and benefit lifehistory needs; and control of predators (USFWS 2011, pp. 163–169; Underwood et al. 2014, p. 32 and supporting references). More information on the subspecies’ management dependency is presented in the Summary of Biological Status and Threats, below. Recovery Criteria 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. 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.’’ Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species’ likely future condition. However, they are not regulatory documents and do not 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, or to delist a species, is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan. PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 15859 There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and that the species is robust enough that it no longer meets the definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan. For the purposes of this discussion, we assess the progress of Hawaiian stilt recovery relative to recovery targets in the second revision of the Recovery Plan for Hawaiian Waterbirds (Service 2011, entire). The 2011 revision included more specific recovery recommendations for Hawaiian stilt and modified population target levels. In developing recovery criteria for the Hawaiian stilt, we used a 1998 population viability analysis (PVA) for the subspecies (see Reed et al. 1998a, entire) as the basis for population target levels. For recovery criteria for the Hawaiian stilt, we also assessed and categorized wetlands on each island into core and supporting wetlands. Core wetlands provide habitat essential for the larger populations of Hawaiian waterbirds that comprise the bulk of the numbers prescribed for recovery. Supporting wetlands are additional areas that provide habitat important for smaller populations or provide habitat needed seasonally by segments of the population during part of their life cycle. Wetlands identified as ‘‘protected’’ (whether core, supporting, or neither) are those considered secure from development. In general, protected wetlands are National Wildlife Refuges (NWR), State-owned wildlife sanctuaries, or mitigation wetlands, where the primary purpose of management is wildlife conservation or does not conflict with the goal of wildlife conservation. The core and supporting wetlands identified in the E:\FR\FM\25MRP1.SGM 25MRP1 15860 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules 2011 recovery plan are the sites on each island that provide the greatest potential for recovery of Hawaiian stilts (USFWS 2011, p. 114; USFWS 2020 pp. 2–3). The overall goal for recovery of the Hawaiian stilt is to restore and maintain multiple self-sustaining populations within the subspecies’ historical range (Service 2011, p. 120). The plan provides four criteria for reclassifying the Hawaiian stilt from endangered to threatened status and two additional criteria for delisting the subspecies. We describe and assess the recovery criteria as they relate to evaluating the status of the Hawaiian stilt below. Criterion 1 for Downlisting Criterion 1 states that all core wetlands on the island groups of KauaiNiihau, Oahu, Maui-Molokai, and Hawaii are protected and managed in accordance with the management practices outlined in the recovery plan (Service 2011, pp. 124, 126, 163–165). The plan states that it is crucial for wetlands at these sites to be secure from conversion to non-wetland condition and to have sufficient enduring management to recover Hawaii’s waterbirds. Currently, of the recovery plan’s 17 identified core wetlands, 14 are protected from development and have some predator and habitat management activities in place. Only 3 lack protection from development and predator and habitat management (see Table 1, below). TABLE 1—STATUS AND CHARACTERISTICS OF CORE WETLANDS IDENTIFIED FOR RECOVERY OF THE HAWAIIAN STILT Hectares (acres) Core or supporting Protected 1 Managed Core ................... X predators and habitat .......... NPS. .................. .................. ................... ................... ................... ........................ X X ........................ X .............................................. predators and habitat .......... predators and habitat .......... .............................................. predators and habitat .......... Private. USFWS. USFWS. Private. DOFAW. .................. .................. .................. ................... ................... ................... ................... X X X X ........................ X X predators and habitat .......... predators and habitat .......... predators and habitat .......... predators and habitat .......... .............................................. predators and habitat .......... predators and habitat .......... DOFAW. USFWS. USFWS. County. Private. DOFAW/DU. USFWS. Core .................. Core .................. Core ................... X X X predators and habitat .......... predators and habitat .......... predators and habitat .......... DOFAW. MCBH. USFWS. Core .................. X predators and habitat .......... DOFAW. Wetland name/location Island Kaloko-Honokohau, National Historic Park. Loko Waka Ponds ................................... Hanalei NWR ........................................... Huleia NWR ............................................. Lumahai Valley Wetlands ........................ Mana Plains Forest Reserve (formerly Kawaiele Wild Bird Sanctuary). Kanaha Pond Wildlife Sanctuary ............. Kealia Pond NWR ................................... Kakahaia NWR ........................................ Ohiapilo Pond Bird Sanctuary ................. Playa Lakes (wetland complex) .............. Hamakua Marsh Waterbird Sanctuary .... James Campbell NWR, Kii and Punamano Units. Kawainui Marsh ....................................... Marine Core Base Hawaii, Nuupia Ponds Pearl Harbor NWR, Honouliuli and Waiawa Units. Pouhala Marsh Waterbird Sanctuary ...... Hawaii ................ 22 (55) Hawaii ................ Kauai ................. Kauai ................. Kauai ................. Kauai ................. 10 (24.5) 371 (917) 98 (241) 51 (125) 14 (35) Core Core Core Core Core Maui ................... Maui ................... Molokai .............. Molokai .............. Niihau ................ Oahu ................. Oahu ................. 59 (145) 280 (692) 18 (45) 10 (25) 769 (1,900) 35.6 (88) 66 (164) Core Core Core Core Core Core Core Oahu ................. Oahu ................. Oahu ................. 304 (750) 196 (483) 25 (61) Oahu ................. 28 (78) Responsibility 2 Legend: 1 Protected refers to wetland areas that are secure from development. 2 Responsibility: DOFAW = Hawaii Division of Forestry and Wildlife; DU = Ducks Unlimited; MCBH = Marine Corps Base Hawaii; NPS = National Park Service; USFWS = U.S. Fish and Wildlife Service; USN = U.S. Navy; County = County Government; State = State Government entity; Private = private landowner(s). Although we conclude that this criterion has not been completely met, we have made substantial progress toward meeting it, and the ongoing management on core wetlands has contributed toward the stabilization of the Hawaiian stilt population and helped to further the recovery of the subspecies. Criterion 2 for Downlisting Criterion 2 states that at least 50 percent of the supporting wetlands on the islands of Kauai, Oahu, MauiMolokai-Lanai, and Hawaii are protected and managed in accordance with the management practices outlined in the recovery plan. The plan states that protection and management of these wetlands is required to recover Hawaii’s waterbirds, but there is more flexibility with regard to which sites must be managed, as it is possible that other sites may fulfill the same needs as those identified. The recovery plan identified 34 sites as supporting wetlands throughout the State; of these, 15 are protected, 11 have predator or habitat management or both, but only 7 of the 34 supporting wetlands are in protective status and have some form of management (Table 2). Therefore, we conclude that this criterion has been partially met. TABLE 2—SUPPORTING WETLANDS AND CHARACTERISTICS IDENTIFIED FOR RECOVERY OF THE HAWAIIAN STILT Core or supporting Protected 1 Managed 12 (30) Supporting ......... ........................ predators .............................. County. Hawaii ................ Hawaii ................ 2.9 (7.2) 18+ (45+) Supporting ......... Supporting ......... X ........................ .............................................. .............................................. Private. Private/State. Hawaii ................ Hawaii ................ Hawaii ................ Hawaii ................ Kauai ................. 3 (7.5) 16 (39.5) (*) (**) 40.4 (100) Supporting Supporting Supporting Supporting Supporting ......... ......... ......... ......... ......... ........................ ........................ ........................ X ........................ .............................................. .............................................. .............................................. .............................................. .............................................. Private. State/County. County. County. Private/State. Kauai ................. 20 (50) Supporting ......... ........................ .............................................. Private/DOFAW. Wetland name/location Island Kealakehe (Kona) Sewage Treatment Plant. Keanae Pond (Keaau/Shipman) .............. Keanakolu Road Stock Ponds (1–5) (Part of Kohala–Mauna Kea Ponds and Streams). Opaeula Pond .......................................... Waiakea Pond ......................................... Waimanu Valley ....................................... Waipio Valley ........................................... Hanalei Trader Taro Fields (Hanalei River and Taro fields that are not part of Hanalei NWR). Hanapepe Salt Ponds ............................. Hawaii ................ VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 PO 00000 Hectares (acres) Frm 00061 Fmt 4702 Sfmt 4702 E:\FR\FM\25MRP1.SGM 25MRP1 Responsibility 2 15861 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules TABLE 2—SUPPORTING WETLANDS AND CHARACTERISTICS IDENTIFIED FOR RECOVERY OF THE HAWAIIAN STILT— Continued Hectares (acres) Core or supporting Protected 1 Managed Supporting ......... X predators and habitat .......... Private/State. ........................ X ........................ ........................ ........................ ........................ ........................ X X .............................................. .............................................. .............................................. .............................................. .............................................. .............................................. predators .............................. .............................................. predators and habitat .......... Private/DOFAW. Private/State. Private/State. Private/State. Private/County. Private. Private/County. State. Private. X predators .............................. County. ......... ......... ......... ......... ......... ......... X ........................ ........................ ........................ X X .............................................. .............................................. .............................................. .............................................. predators and habitat .......... predators and habitat .......... State. Private. Private/County. Private. DOFAW. Private. 41 (100) Supporting ......... ........................ .............................................. Private. ................. ................. ................. ................. ................. 81 (200) 16 (40) 13 (33) 41 (100) 5 (12.4) Supporting Supporting Supporting Supporting Supporting X X X X X .............................................. predators and habitat .......... predators and habitat .......... .............................................. .............................................. Private. USN/USFWS. DOFAW. Private. Private. Oahu ................. Oahu ................. 122 (300) 10 (25) ........................ ........................ predators and habitat .......... predators and habitat .......... Private. Private. Wetland name/location Island Mana Base Pond and Wetlands (Part of Mana Plain). Opaekaa Marsh ....................................... Smith’s Tropical Paradise ........................ Wailua River Bottoms .............................. Waimea River System ............................. Wainiha Valley River and Taro Fields ..... Waita Reservoir ....................................... Lanai Sewage Treatment Ponds ............. Keanae Point ........................................... Waihee Coastal Dunes and Wetlands (Waihe1e Refuge). Kaunakakai Wastewater Reclamation Facility Ponds. Kualapu1u Reservoir ................................ Paialoa Fish Ponds ................................. Haleiwa Lotus and Taro Fields ............... Haleiwa Waialua Lotus Fields ................. Heeia Marsh ............................................ Kaelepulu Mitigation Pond (Enchanted Lake). Kahuku Prawn Farm (Includes Amoriant and Kahuku Aquaculture Farms). Laie Wetlands .......................................... Lualualei RTF, Niulii Ponds ..................... Paiko Lagoon Wildlife Sanctuary ............ Punahoolapa Marsh ................................ Turtle Bay, Kuilima Wastewater Treatment Plant. Ukoa Marsh ............................................. Waihee Marsh ......................................... Kauai ................. 81 (200) Kauai ................. Kauai ................. Kauai ................. Kauai ................. Kauai ................. Kauai ................. Lanai ................. Maui ................... Maui ................... 20 (50) 1.9 (4.7) 20 (50) 64 (158) 44 (109) 151 (373) 3 (7.4) 1.5 (3.7) 101 (250) Molokai .............. 1.5 (3.7) Molokai .............. Molokai .............. Oahu ................. Oahu ................. Oahu ................. Oahu ................. 30 (74) 2 (5) 4.2 (10.6) 30 (75) 162 (400) 2.2 (5.6) Oahu ................. Oahu Oahu Oahu Oahu Oahu Supporting Supporting Supporting Supporting Supporting Supporting Supporting Supporting Supporting ......... ......... ......... ......... ......... ......... ......... ......... ......... Supporting ......... Supporting Supporting Supporting Supporting Supporting Supporting ......... ......... ......... ......... ......... Supporting ......... Supporting ......... Responsibility 2 Legend: 1 Protected refers to wetland areas that are secure from development. 2 Responsibility: HDOFAW = Hawaii Division of Forestry and Wildlife; DU = Ducks Unlimited; MCBH = Marine Corps Base Hawaii; NPS = National Park Service; USFWS = U.S. Fish and Wildlife Service; USN = U.S. Navy; County = County Government; State = State Government entity; Private = Private Landowner(s). * Large area of intermixed wetland, upland, and agricultural lands where specific habitat areal extent cannot be determined. ** Large area of intermixed wetlands and agricultural lands where specific habitat areal extent cannot be determined. Criterion 3 for Downlisting Criterion 3 states that a PVA should be conducted to update the findings of Reed et al. (1998a, entire), and the population size necessary for long-term viability of the subspecies should be reassessed; and (2) the Statewide surveyed number of Hawaiian stilts show a stable or increasing trend and has not declined below 2,000 birds (or an alternative target based on the updated PVA) for at least 5 consecutive years. Researchers have produced two PVAs for the subspecies to support and inform the creation of recovery criteria and recovery decisions for the subspecies (Reed et al. 1998a, entire; Reed and van Reese 2019, entire). The most recent analysis in 2019, completed with data collected since 1998, incorporated additional peer-reviewed data on adult survival rates and variances in adult or juvenile survival rates (Reed et al. 2014, entire); these additional data were not available at the time of the initial modelling effort. The 2019 effort also included data on individual movement patterns for Hawaiian stilt (Reed et al. 1998b, entire). The authors of the 2019 PVA stressed that the results are considered VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 preliminary; that said, we find that the results inform the best available information regarding the viability of Hawaiian stilt. Modeling from the 2019 PVA indicates that the Hawaiian stilt’s population growth is affected by density-dependent population dynamics on managed wetlands beginning at approximately 1,000 birds. When population densities are high, the aggressive territorial behavior of adult stilts can lead to violent and occasionally fatal attacks on conspecific chicks and adults, sometimes with extensive chick fatalities as well as the potential for large numbers of nest failures or abandonment. Local adult density has a strong negative correlation with nest success (proportion of nests hatching at least one chick) at Kealia Pond National Wildlife Refuge (NWR) on Maui, where few alternative breeding habitats are available, but no such effect at a refinery pond on Oahu, where many nearby alternative wetlands are available. Therefore, optimizing the distribution of birds during breeding across the landscape (as opposed to concentrating breeding populations on one/few sites) to mitigate the effects of PO 00000 Frm 00062 Fmt 4702 Sfmt 4702 density dependence will benefit the conservation of the subspecies. Additionally, because this densitydependence is closely associated with available managed habitat, increased management (i.e., predator control, water-level, and nonnative plant removal) across the range of the species, in both core and supporting wetlands, will create more suitable breeding habitat and thus increase the carrying capacity. Adequate representation across multiple sites on multiple islands—as illustrative of the approach of managed core and supporting wetlands developed by the recovery team—offers the most effective pathway to recovery of this conservation-reliant subspecies. The PVA suggests that, under the current management efforts on core and supporting wetlands the Statewide carrying capacity of Hawaiian stilts is below 2,000 individuals. This means that the Hawaiian stilt has reached its equilibrium population size (i.e., the population size the landscape can currently support). Data used in the PVA was collected from sites that are both protected and managed, as well as data from sites that are protected but do E:\FR\FM\25MRP1.SGM 25MRP1 15862 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules not have management. The vital rates (reproduction and mortality) used in this PVA come from birds almost exclusively from managed sites as there are few to no birds able to successfully breed elsewhere due to the myriad threats present at non-managed sites. If the management practices continue and the environmental conditions of the managed sites are stable over the next 80 years, the rangewide population has no chance of extinction within the 80year modelling period. This analysis demonstrates that under the current management practices the rangewide population is stable within the limited available managed sites and will continue to be stable as long as these management practices and environmental conditions continue. The three key factors that influence the probability of extinction, in order of importance, are adult mortality, juvenile mortality, and nest failure rate. The PVA predicted a sharp rise in the probability of extinction when adult mortality rates exceeded approximately 24 percent; at approximately 34 percent, the probability of extinction for the stilt approached 80 percent (Reed and van Reese 2019, pp. 24, 30). The PVA also found that the Hawaiian stilt’s viability is sensitive to changes in both annual juvenile mortality rates and nest failure rates. The PVA model indicated that the probability of extinction begins to increase sharply when annual juvenile mortality begins to exceed 40 percent, with almost certain extinction at 79 percent annual juvenile mortality (Reed and van Rees 2019; p. 31). Nest failure rates also influence changes in the model’s outcomes on probability of extinction within 80 years (i.e., the likelihood the species will not persist in 80 years). Nest failure rate would need to double, from approximately 19 percent to approximately 40 percent to reach a high probability of extinction within 80 years, with almost certain extinction if nest failure rates reaches 50 percent. The PVA stresses that the successful reproduction and survival of stilts occurs almost exclusively at protected and managed wetlands and that birds at unmanaged wetlands tend to disappear, and consequently, a loss (or reduction) of management would decrease the species persistence likelihood (Reed and van Reese 2019, p. 36). This insight means in the absence (or reduction) of management at the currently managed sites, the species probability of extinction would substantially increase, and therefore, the species viability would substantially decrease. Further, adult mortality, juvenile mortality, and VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 nest success are not independent factors. For example, if there are fewer adults there are fewer nests, so any reduction in management or habitat quality is likely to impact all life stages of the Hawaiian stilt. Another potential limitation of the PVA is that changes in the environmental conditions of the protected and managed sites attributed to sea-level rise or other factors was not included as a variable in any of the models included in this PVA. Sea-level rise in particular is already impacting some wetlands in Hawaii (see Summary of Biological Status and Threats, below) (Kane et al. 2015, p. 353; Htun et al. 2016, pp. 50–51; van Reese and Reed 2018, pp. 2–3; van Reese and Reed 2019, p. 4; van Reese 2020, pers. comm.). Over the next several decades, sea-level rise could inundate enough core wetlands (e.g., Kanaha and Kealia on Maui, and almost all wetlands on Molokai) across the islands and result in changes to the species’ persistence estimates in the PVA due to changes or loss of available habitat and subsequent increases in mortalities of adults, eggs, or young (Kane et al. 2015, p. 353; Htun et al. 2016, pp. 50–51; van Reese and Reed 2018, pp. 2–3; Reed and van Rees 2019, p. 4; Harmon 2020, in litt.; van Reese 2020, pers. comm.). The insights from the PVA justify the need for long term conservation actions such as managing habitat conditions and controlling predation. The robustness of the populations on core managed wetlands, as well as the effectiveness of management efforts focusing on producing conditions that result in the successful protection of nests, chicks, and adults, are well established. For example, although the Service’s NWR units contain only 15 percent of the total coastal plan wetland acreage in the State, they supported between 37 and 47 percent of the total Hawaiian stilt Statewide population using data from 1986 through 2007 (Underwood et al. 2013, p. 6). Effective and sustained habitat and predator management produces conditions that result in the successful protection of nests, chicks, and adults, thereby significantly mitigating risk to the subspecies and improving resiliency into the foreseeable future. Long-term commitment towards conservation management actions are essential to continued progress towards recovery. Furthermore, additional and more expansive management on core and supporting wetland sites will also benefit the status of the subspecies into the foreseeable future. Regarding population trends for Hawaiian stilt, winter and summer PO 00000 Frm 00063 Fmt 4702 Sfmt 4702 surveys for the subspecies show a fluctuating population, which generally increased from 1986 to 2004 and since then has been roughly stable at 1,500 to 2,000 individuals (see Range, Abundance, and Population Trends). While the number of Hawaiian stilts counted during the surveys has only occasionally exceeded 2,000 individuals during winter or summer counts over the last 10 years, the population has remained relatively stable over the past 16 years. We conclude that this criterion has not fully been met because although a new preliminary PVA has been produced, the Service has not yet reassessed the subspecies population size necessary for long-term viability. The Service will conduct this reassessment once the PVA has undergone peer review and is published in the scientific literature. Further, winter and summer surveys for the Hawaiian stilt show a fluctuating population with a stable to increasing trend, but the total population has not consistently been near 2,000 birds for 5 consecutive years (see Range, Abundance, and Population Trends). Criterion 4 for Downlisting Criterion 4 states that there should be multiple self-sustaining breeding populations, including multiple breeding populations on at least the following: The island group of Kauai and Niihau, the island of Oahu, the island group of Maui, Molokai, and Lanai, and the island of Hawaii. Because the Hawaiian stilt exists in one intermixed population, we refer to breeding populations solely to distinguish groups of Hawaiian stilts that breed at a specific wetland on a specific island at any given time. They may or may not be the same stilts over time. The recovery plan defines a selfsustaining breeding population as a population that is large enough to make extirpation from stochastic forces unlikely, and that is able to remain stable or grow with little human intervention except for predator control and vegetation management (USFWS 2011, p. 121). The recovery strategy further strengthens this concept by incorporating the need to satisfy two widely recognized and scientifically accepted goals for promoting viable selfsustaining breeding populations: (1) By increasing the population size and distribution across the islands, a single or series of catastrophic events will not result in the extinction of the subspecies; and (2) increasing the population size throughout its range to a level where the threats of genetic, E:\FR\FM\25MRP1.SGM 25MRP1 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules demographic (population dynamics), and normal environmental uncertainties are diminished (USFWS 2011, p. 112). Furthermore, for these population and distribution goals to ensure the longterm viability of the subspecies, they will require the successful control or elimination of the identified threats. Present distribution of the Hawaiian stilt encompasses all islands where historically known (Niihau, Kauai, Oahu, Maui, Molokai, and Hawaii), as well as the island of Lanai due to the expansion in range that occurred in the mid-1980s from the development of the Lanai wastewater treatment facility. As previously summarized, since 1986, census data indicate a Statewide population that is relatively stable or slightly increasing (Service 2011, pp. 48–49; Service 2020, pp. 5, 18; van Rees et al. 2020, p. 3; DOFAW 2020). Additionally, the implementation of adaptive management predator control practices over the last decade at multiple core wetland sites has demonstrated that the response of the subspecies to predator control is positive, with higher fledgling success rates and overall improvements in population densities of Hawaiian stilts than in unmanaged sites (Underwood et al. 2014, p. 35; Price 2020, p. 10). Current management of threats at most core wetlands and some supporting wetland sites (Tables 1 and 2) has contributed toward the stabilization of the population and likely also plays an important role in creating a Hawaiian stilt population that is at or near carrying capacity (Reed and van Rees 2019, entire; van Rees et al. 2020, entire). As noted above, carrying capacity in this case is really more an equilibrium population, which is the population size the habitat can support under current conditions. If additional management was implemented at more core and supporting wetlands then the carrying capacity or equilibrium population size would increase. The expansion of effective predator and vegetation control methods (e.g., mammalian exclusion fencing, trapping methods, and vegetation control) into more core and supporting wetlands may increase the carrying capacity or equilibrium population size for the subspecies and further improve the status of the species into the foreseeable future. Additionally, implementation of the three essential management actions (predator, vegetation, and water level control) at the same time, at the same location, on a more regular basis, at wetlands that currently receive management and expanding such practices to those that do not, will VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 further benefit the species. Although it is generally accepted by wetland managers in Hawaii that all three management actions in concerted effort are required restore the functionality of wetlands to meet the life-history requirements of waterbirds, currently, all three of these essential management actions do not necessarily happen at the same time on managed wetlands (Underwood et al. 2013, p. 2). Sustained management over time at many core and some supporting wetlands has advanced the recovery of the Hawaiian stilt by securing essential breeding habitat enabling the subspecies to increase its population size and distribution. The wide distribution of the Hawaiian stilt population, spread out across the multiple islands, provides the subspecies with the resiliency and redundancy necessary to withstand a stochastic (e.g., single wetland) or catastrophic (e.g., islandwide) event, respectively. However, within-island distribution can be quite limited. For example, the number of birds on the island of Hawaii are still relatively low (200 to 250 at any given time on the island) and the birds have been highly dependent on a local wastewater treatment facility (Kealakehe) for breeding (National Park Service (NPS) 2020, pers. comm.). Biologists at Kaloko-Honokohau National Park (NP) have more recently been creating mudflats and more suitable habitat for Hawaiian stilts which has increased nesting attempts (eight to 10 pairs of birds on average) at the park; however, there is low nest success and very few fledglings (NPS 2020, pers. comm.). The birds tend to increase in number outside of the breeding season, but are primarily just foraging (NPS 2020, pers. comm.). Similarly, the occurrence of birds on Lanai demonstrates an expansion in range, but they are utilizing the artificial habitat of a wastewater treatment facility and there are only approximately 20 breeding pairs (Pulama Lanai 2020, pers. comm.). Likewise, Hawaiian stilts on Molokai also largely depend on a wastewater treatment facility, and most of Molokai’s coastal wetlands are only 1 ft (0.30 meter) above sea level and thus expected to be reduced by sea-level rise resulting in a reduction of both nesting and foraging areas on the island (Jenkins 2016, in litt.; Dibben-Young 2017, in litt.). Further, recent analyses of Hawaiian stilt numbers at several NWR wetlands show a slight decline in Hawaiian stilts in recent years (Rounds 2020, pers. comm.), which may lead to reduced distribution. The population size does fluctuate, and the birds appear PO 00000 Frm 00064 Fmt 4702 Sfmt 4702 15863 to favor some wetlands over others during different years; however, monitoring such trends is important to understanding the conservation needs of the subspecies. Therefore, we conclude that this criterion is partially met. Discussion/Summary of Downlisting Criteria Assessment The downlisting criteria in the recovery plan (USFWS 2011, entire) represented our best assessment, at the time the plan was prepared, of the conditions that would result in a determination that the Hawaiian stilt could be considered for reclassification under the Act as threatened rather than endangered. While the downlisting criteria in the recovery plan have not yet been completely met, we have made substantial progress as: (1) Ongoing management is occurring at most core wetlands (Criterion 1); (2) protection has been secured for about 40 percent of supporting wetlands, and about 33 percent of the supporting wetlands are being managed (Criterion 2); (3) preliminary results from a 2019 PVA have been obtained (Criterion 3) (Reed and van Reese 2019, entire); and (4) census data indicate a rangewide stable to increasing population with the resiliency and redundancy to withstand both stochastic and catastrophic events (Criterion 4). Recovery criteria for the Hawaiian stilt may need to be revisited once the PVA is finalized. Using its assessment of population size necessary for long-term viability of the subspecies, the PVA indicates that under current vital rates at managed sites, current management effort, and current condition and availability of habitat, the Statewide carrying capacity may be below the conditional target of 2,000 individuals as listed in Recovery Criterion 3. The PVA notes that it can be shown easily that a long-lived species in a setting with low environmental stochasticity could steadily decline for 80 years but still have a probability of persistence, particularly if the starting population size is in the hundreds or thousands of individuals (van Reese and Reed 2019, p. 35). Further, the PVA questions the target goal of 2,000 individuals, citing that population sizes of long-lived vertebrates tends to be greater (van Reese and Reed 2019, p. 38). Increasing management (predator control, vegetation removal, and water-level control) across the species’ range at both core and supporting wetlands is the most effective way to meet this recovery criterion. See Current Voluntary and Regulatory Conservation Efforts, below, for a summary of the partnerships that have contributed toward the E:\FR\FM\25MRP1.SGM 25MRP1 15864 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules stabilization of the Hawaiian stilt population and efforts to manage the subspecies throughout its range. Delisting Criteria We provided two delisting criteria in our recovery plan. Criterion 1 states that of the supporting wetlands on the islands of Kauai, Oahu, Maui–Molokai– Lanai, and Hawaii, at least 85 percent are protected and managed in accordance with the management practices outlined in this recovery plan. Criterion 2 states that the Statewide surveyed number of Hawaiian stilts shows a stable or increasing trend and has not declined below 2,000 birds (or an alternative target based on the updated population viability analysis) for at least 10 consecutive years. The information presented above for the downlisting criteria indicates that the criteria for delisting have not yet been met; we provide a summary of information relating to the delisting criteria below. With regard to Criterion 1, the Service finds that progress towards securing management actions on supporting wetlands has been made and is showing success, but the criterion has not been fully realized to date. For supporting wetland sites, producing long-term and sustained Hawaiian stilt habitat management is complicated by the following factors. First, many supporting wetlands are owned or managed by multiple entities, which complicates coordination and intensity of management effort. Additionally, the primary purpose of many of these sites is not waterbird conservation (e.g., water reclamation facilities, wastewater pond, taro production, and flood control), and, therefore, management of conditions conducive to Hawaiian stilt breeding is secondary. Finally, achieving long-term management efforts on many of these sites is more uncertain than core and supporting sites owned by the Federal and/or State conservation agencies; this is due to a general lack of secured and dedicated funding sources and lack of internal operational capacity. Partnerships at supporting wetland sites have contributed to recovery progress for the Hawaiian stilt and other waterbirds (see Current Voluntary and Regulatory Conservation Efforts) and are contributing to recovery. Progress toward achieving this criterion is currently ongoing but not yet at an acceptable level of permanency or extent to achieve the greatest conservation outcomes to meet this criterion. With regard to delisting Criterion 2, winter and summer surveys for Hawaiian stilt show a fluctuating VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 population, which generally increased from 1986 to 2004 and since then has been roughly stable at 1,500 to 2,000 individuals (see Range, Abundance, and Population Trends). The number of Hawaiian stilts counted during the surveys has only occasionally exceeded 2,000 individuals during winter or summer counts over the last 10 years; thus, we will revisit this target once the PVA has been peer reviewed and published. Regulatory and Analytical Framework Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an ‘‘endangered species’’ or a ‘‘threatened species.’’ The Act defines an endangered species as a species that is ‘‘in danger of extinction throughout all or a significant portion of its range,’’ and a threatened species as a species that is ‘‘likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ The Act requires that we determine whether any species is an ‘‘endangered species’’ or a ‘‘threatened species’’ because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species’ continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We consider these same five factors in reclassifying a species from endangered to threatened (50 CFR 424.11(c)–(e)). We use the term ‘‘threat’’ to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term ‘‘threat’’ includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term ‘‘threat’’ may encompass—either together or separately—the source of the PO 00000 Frm 00065 Fmt 4702 Sfmt 4702 action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ In determining whether a species meets either definition, we must evaluate all identified threats by considering the species’ expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species’’ only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future. The Act does not define the term ‘‘foreseeable future,’’ which appears in the statutory definition of ‘‘threatened species.’’ Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term foreseeable future extends only so far into the future as we can reasonably determine that both the future threats and the species’ responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. ‘‘Reliable’’ does not mean ‘‘certain;’’ it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions. It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species’ likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species’ biological response include speciesspecific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors. E:\FR\FM\25MRP1.SGM 25MRP1 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules In addition to the threat analysis, to assess the Hawaiian stilt’s viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306–310). Briefly, resiliency supports the ability of the subspecies to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the subspecies to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a subspecies is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the subspecies’ ecological requirements for survival and reproduction at the individual, population, and (sub)species levels, and described the beneficial and risk factors influencing the subspecies’ viability. Our assessment of viability is categorized into three sequential stages. During the first stage, we evaluated the subspecies’ life-history needs. The next stage involved an assessment of the historical and current condition of the subspecies’ demographics and habitat characteristics, including an explanation of how the subspecies arrived at its current condition. The recent PVA provided a synthesis of this information. The third and final stage involved making predictions about the subspecies’ responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a subspecies to sustain populations in the wild over time. Summary of Biological Status and Threats In this section, we review the biological conditions of the subspecies and its resources, and the threats that influence the subspecies’ current and future condition, in order to assess the subspecies’ overall viability and the risks to that viability. The sources cited in this proposed rule represent the best scientific and commercial data available concerning the current status of the subspecies, including the past, present, and future threats. We used this information to evaluate the current and future resiliency, redundancy, representation, and viability of the Hawaiian stilt. (See VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 Regulatory and Analytical Framework.) The effects of conservation actions were also assessed as part of the current condition of the subspecies. We note that overutilization for commercial, recreational, scientific, or educational purposes (Factor B) was not identified as a threat at the time of listing, and we have no additional information to suggest it is currently, or will become, a threat in the foreseeable future; hunting of the subspecies has been prohibited since the 1940s. Furthermore, as per our policy, in this proposed rule we consider regulatory mechanisms (Factor D) with respect to how both regulatory and volunteer conservation measures might reduce or ameliorate threats to the species, rather than in the context of a potential standalone threat. Threats to the subspecies are reduced by voluntary and regulatory actions initiated by the Service, DOFAW, and voluntary actions by a large network of organizations interested in wetland and waterbird conservation rangewide. A summary of these efforts is found in Current Voluntary and Regulatory Conservation Efforts. The primary threats to Hawaiian stilts are habitat loss and degradation (due to urban development, ground and surface water alterations that affect core and supporting wetlands, nonnative plants, and foreseeable changes in habitat quality and quantity due to sea level rise (such as groundwater flooding and inundation and coastal flooding and inundation)) (Factor A); nonnative predators (Factor C); avian disease (Factor C); environmental contaminants (Factor E); and foreseeable tropical cyclone intensity and frequency resulting from climate change (Factor E). These threats should be considered in the context of a stable and resilient subspecies indicated from surveys over the past several decades, and peerreviewed studies including past (Reed et al. 1998, entire) and most recent (Reed and van Rees 2019, entire) PVA analyses, and radio telemetry studies (Kawasaki et al. 2020, p. 431). Below we discuss these threats and their relationship to Hawaiian stilt current and future condition. Habitat Loss and Degradation Due to Urban Development Some of the largest core wetlands have been lost over the past century. On Oahu, Waikiki, Pearl Harbor, Kaelepulu (now Enchanted Lake), and Salt Lake were lost to development, each with only remnants left behind, some of which, like Waikiki, are no longer able to support the Hawaiian stilt. A small preserve (Kaelepulu Wetland Preserve, PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 15865 1.2 ha (3 ac)) was set aside in 1955, a remnant of the once expansive Kaelepulu wetland. Pearl Harbor wetlands have also been greatly degraded or diminished by means of filling, urban development, nonnative plant overgrowth, and water pollution. The Mana Plains on Kauai, once the largest wetland in Hawaii at over 1,600 ac (650 ha) (circa 1910) was reduced to only 200 ac (80 ha) by 2006, primarily due to water diversions for sugar cane (Munro 1944, p. 59; Shallenberger 1977, p. 218; Erickson and Puttock 2006, p. 40). Within these last 200 ac (80 ha), 35 ac (14 ha) are designated as the Mana Plain Forest Reserve (formerly the Kawaiele Waterbird Sanctuary). Although magnitudes smaller in size, it is still considered a core wetland (USFWS 2011, pp. 207, 214). The greater Mana Plain area is also an important supporting wetland habitat for the Hawaiian stilt due to remaining scattered ephemeral (temporary) wetlands (Nadig 2017, pers. comm.). The adjacent Navy wastewater treatment facility at the Pacific Missile Range Facility also serves to support the subspecies as a supporting (albeit human-made) wetland. Most wetland losses in Hawaii have been human induced, ranging from water diversions, discharging fill, building dams, channelizing, pumping, grubbing (the removal of trees, shrubs, stumps, and rubbish from a site), grading, deep ripping, and other agricultural or military land use practices (Erickson and Puttock 2006, p. 40). Many of Hawaii’s wetlands, including core and supporting wetlands occupied by Hawaiian stilts, occur in coastal areas that are highly valued for development and are becoming increasingly urbanized. Although the rate of permanent losses of coastal wetlands has significantly been slowed due to wetland protection laws, suitable Hawaiian stilt breeding wetland sites continue to be subject to degradation effects of adjacent urbanization and other incompatible land uses, water extraction, and diversion. This continuous encroachment raises concerns regarding human disturbance, urban runoff impacts on water quality, and an increased incidence of domestic cats and dogs in wildlife areas (Stone 1989, pp. 129–130, 134; Wright et al. 2006, pp. 13–60). Further, ongoing urbanization could limit or prohibit the inland movement of coastal wetlands as areas are inundated with groundwater and marine water resulting from sea level rise because the ground is impermeable (Clausen and Clausen 2014, p. 177). E:\FR\FM\25MRP1.SGM 25MRP1 15866 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules Ground and Surface Water Alterations Resulting From Urban Development Ground and surface water alterations, such as flood control and channelization, often make wetland habitat less suitable or unusable for Hawaiian stilts by altering both water depth and timing of water level fluctuations. Nearly all surface-water features (e.g., streams, lakes, reservoirs, wetlands, and estuaries) interact with ground water (United States Geological Survey (USGS) 1998, p. III). As a result, withdrawal of water from streams can deplete ground water. Similarly, pumping of ground water can deplete water in streams, lakes, and wetlands (USGS 1998, p. III). Hawaiian stilts are not always able to adjust their breeding behavior to accommodate such modifications, which results in decreased reproductive success and therefore decreased resiliency. Alternatively, water released after prolonged diversion can negatively impact habitat for Hawaiian stilts (Morin 1998, p. 27; Underwood 2017, pers. comm.). For example, recent (2014) water disputes on west Maui resulted in less upstream water diversion for agriculture, and subsequently a more-steady stream flow of water into Kealia Pond NWR. This steady water influx decreased the amount of stilt habitat (i.e., mudflats and shallow water areas), raising water levels so high the NWR had to breech water out into the ocean so the water did not get too deep (Underwood 2017, pers. comm.). Prior to this surface water alteration, Kealia Pond was a common breeding site for Hawaiian stilts (sometimes supporting over 1,000 individuals) (Nishimoto 2006, p. 40; Nishimoto 2014, p. 1; Underwood 2017, pers. comm.). The shift to deeper, yearround water has resulted in reduction of Hawaiian stilt numbers at Kealia Pond (Underwood 2017, pers. comm.). The natural cycle of seasonal inundation and evaporation of fresh or brackish water mudflats has been altered, resulting in a decrease in quality of habitat. More recently, the NWR manager at Kealia has increased management practices and is starting to see more stilts on the NWR again, although in low numbers (USFWS waterbird hui 2020, pers. comm.). The depletion of freshwater aquifers also causes saltwater intrusion into coastal groundwater resulting in changes to salinity levels in associated wetlands. Changes in salinity may alter the composition of the vegetation and invertebrate communities, which subsequently may affect food availability at such sites for Hawaiian VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 stilts (Chang 1990, pp. 65, 71, 73; Morin 1998, p. 27; Wirwa 2007, pp. 86, 91; Silbernagle 2008, pers. comm. cited in USFWS 2011, p. 80). Further, invertebrate die-offs from salinity changes could trigger a botulism outbreak (see Avian Disease, below) (Morin 1998, p. 27). Records of salinity in Hawaii’s wetlands range from 0 parts per thousand (ppt) up to 200 ppt (Ueoka et al. 1979, p. 6; Coleman 1981, pp. 12, 15, 18; Wirwa 2007, p. 91; Nadig 2017, pers. comm.). Alterations in ground and or surface water could result in complete habitat loss (e.g., Waikiki), as mentioned above under Habitat Loss and Modification due to Urban Development. Habitat Loss and Degradation by Nonnative Plants Hawaii experiences a year-round growing season; therefore, management of invasive wetland plants, and sometimes native plants, must be constant (Underwood et al. 2013, p. 1; Nadig 2017, pers. comm.) to provide good habitat for the Hawaiian stilt. Invasive species such as California grass, pickleweed, water hyacinth (Eichornia crassipes), Indian fleabane (Pluchea indica), and mangrove (Rhizophora mangle) present serious problems in most Hawaiian wetlands by outcompeting native species and eliminating open water, mudflats, and shallow water areas (Shallenberger 1977, pp. 154, 184, 238; Griffin 1989, p. 1171; Henry 2006, p. 26). At least one native plant, aeae (Bacopa monnieri) may also need management as it too has the potential to smother wetland habitat (Nadig 2017, pers. comm.). The alteration of wetland plant communities due to extensive, blanketing overgrowth of invasive plants can greatly reduce the usefulness of wetland areas for native waterbirds, including the Hawaiian stilt (Shallenberger 1977, pp. 154, 184, 238; Griffin 1989, p. 1171; Morin 1994, p. 69; Morin 1998, p. 21; Pacific Rim Conservation 2012, p. 6; Jenkins 2016, in litt.). The establishment of nonnative red mangrove may facilitate the use of wetlands by introduced cattle egrets and the indigenous black-crowned nightheron or aukuu (Nycticorax nycticorax), thereby increasing the threat of predation on Hawaiian stilts (Rauzon and Drigot 2002, p. 240). Efforts to remove such invasive species are expensive and require ongoing vegetation management as well as periodic sweeps for removing seedlings. Nonnative plant control is a key problem facing wetland managers in the State of Hawaii (USFWS 2011, p. 80). PO 00000 Frm 00067 Fmt 4702 Sfmt 4702 Sea Level Rise Global mean sea level (GMSL) is rising and is expected to continue to rise for centuries due to thermal expansion, even if all Nations ceased production of greenhouse gasses today (Meehl et al. 2012, p. 576; Golledge et al. 2015, pp. 421, 424; DeConto and Pollard 2016, p. 591). This is because of the warming that has already occurred. Additionally, GMLS may rise even more due to warming that is yet to occur from the still uncertain level of future greenhouse gas emissions (National Oceanic Atmospheric Administration (NOAA) 2017, p. 1). The level of projected rise in GMSL is different depending on the corresponding Representative Concentration Pathway (RCP) emissions scenario (RCP 2.6, 4.5, 6, or 8.5) (van Vuuren et al. 2011, p. 5; Intergovernmental Panel on Climate Change 2014, p. 8). The NOAA, along with other Federal and academic science institutions, laid out six riskbased GMSL scenarios describing potential future conditions, with lower and upper bounds of GMSL rise between 0.2 and 0.6 m (0.7 and 1.9 ft) through 2040 (NOAA 2017, pp. vi–vii, 1–55 and Appendices A–D). This is highly relevant to Hawaiian stilt conservation because, even at the lowest current estimate, substantial habitat may be lost or degraded. Sea level rise is not expected to be uniform throughout the world, due to factors including, but not limited to: (1) Variations in oceanographic factors such as circulation patterns; (2) changes in Earth’s gravitational field and rotation, and the flexure of the crust and upper mantle, due to melting of land-based ice; and (3) vertical land movement due to glacial isostatic adjustments, sedimentation compaction, groundwater and fossil fuel withdrawals, and other non-climactic factors (Spada et al. 2013, p. 484; NOAA 2017, pp. vi–vii, 9, 19). The Hawaiian Islands are expected to receive higher increases in sea level rise than the GMSL rise (Spada et al. 2013, p. 484; Polhemus 2015, p. 7; NOAA 2017, p. 9). Further, sea level rise in Hawaii will not be uniform across the islands due, in part, to vertical land motion resulting from the actively growing Hawaii Island (Kane 2014, p. 3 and references therein; Polhemus 2015, p. 3). Both marine inundation and groundwater inundation will contribute to wetland habitat loss and modification, but as sea level rise increases beyond 2.4 ft (0.74 m), marine inundation will be the dominant source of inundation (Polhemus 2015, p. 25). Lastly, sea level rise is not expected to be a slow, gradual, and linear E:\FR\FM\25MRP1.SGM 25MRP1 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules phenomenon; it is anticipated to accelerate and at times be quite rapid (Polhemus 2015, pp. 6–7). Sea level rise is of particular concern for conservation of the Hawaiian stilt because most of Hawaii’s wetlands are located just inland of a narrow coastal strand and are dependent upon natural or pumped groundwater sources to maintain pond water levels (Kane 2014, p. 7 and references therein). Our assessment of sea level rise and its effects on Hawaiian stilt wetland habitat has been limited to the foreseeable future. We have assessed the foreseeable future as through the year 2040, based that many climate models diverge at year 2040, and the mediumterm forecast of 0.98 ft (0.3 m) sea level rise effects on Hawaiian coastal wetlands (Kane and Fletcher 2013, entire). Availability of climate change models for this timeframe and localized area is limited. By 2040, marine flooding and inundation resulting from sea level rise is anticipated to result in coastal flooding in Hawaii (Kane and Fletcher 2013, pp. 1–33, and Appendix). Marine flooding and inundation is expected to occur through a combination of storm surge (rising sea level associated with a storm), marine overwash (waves overtopping sand dunes) and tidal waves (periodic tidal fluctuations caused by gravitational pull), intensified by sea level rise and increases in tropical storm frequency and intensity (see Tropical Cyclone Intensity and Frequency) (Fletcher et al. 1995, p. 193). This wave action can change coastal geomorphology, increasing the flooding risks of the coastal floodplain (Theuerkauf et al. 2014, p. 5146) and low-island overwash (Hoeke et al. 2013, p. 137). In coastal wetlands with no significant barrier from the ocean, marine inundation is expected to have a greater effect on Hawaiian stilt habitat than groundwater inundation by approximately 2040 (Kane and Fletcher 2013, p. 16; Jenkins 2016, in litt.). Marine overwash poses a substantial threat to Hawaiian stilt reproduction. Flooding from marine overwash during the breeding season (February thru July) will destroy nests with eggs (Coleman 1981, p. 57), although Hawaiian stilts have been observed re-nesting if nest failure occurs early in the breeding season (Coleman 1981, p. 59; Browning 2020, in litt.). If re-nesting did not occur over many years at wetlands on Kauai, Oahu, and Maui, the resilience and redundancy of this subspecies (Reed et al. 2007, p. 616) would decrease due to lack of natural recruitment. Marine flooding and inundation also will cause an increase in salinity levels, VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 changing the composition of vegetation in coastal wetlands (Kane et al. 2014, p. 1685). This could impact shallow foraging and nesting mudflat areas by allowing invasive, salt-tolerant, emergent vegetation to become established which could in turn reduce nesting habitat for the Hawaiian stilt. However, Hawaiian stilts currently occupy core wetlands that are hypersaline (e.g., the Waiawa unit of Pearl Harbor NWR). Usually there is a freshwater source somewhere near these highly saline wetlands in Hawaii as there are many springs scattered across the islands, even occurring in ocean tidal zone. Some of the most vulnerable wetlands in Hawaii are on the south shore of Molokai. Palaau and Kahanui wetlands—both supporting wetlands— may be completely inundated at 1 ft (0.3 m) and 2 to 3 ft (0.6 to 0.9 cm), respectively, and Ohiapilo may similarly be inundated at 2 ft (0.6 m) (Jenkins 2016, in litt.). Even under some of the most conservative sea level rise estimates, a large portion of Molokai’s wetlands may be obliterated. A critical elevation point is when sea level rise impacts will rapidly accelerate after a particular increase of sea level occurs. At Kanaha State Wildlife Sanctuary on Maui, the critical elevation point is 0.7 ft (0.2 m) and it is predicted to be exceeded by year 2028 [±25 years] (Kane and Fletcher 2013, p. 18). The critical elevation point at Kealia Pond NWR (Maui) and James Campbell NWR (Oahu) is 2 ft (0.6 m) and is predicted to be exceeded by year 2066 [±16 years] (Kane and Fletcher 2013, p. 18). As on Molokai, even the more conservative estimates of sea level rise place these wetlands at risk. 15867 the Hawaiian Islands; five of these caused serious damage to the islands, including stilt habitat (Businger 1998, in litt.). Impacts from a tropical cyclone can degrade and destroy habitat as well as cause direct mortality of eggs and chicks (e.g., flooding of nests and separation of chicks from parents). Groundwater Inundation and Flooding As sea level rises, the water table will rise simultaneously, eventually rising above the land surface, creating new wetlands and expanding others (Rotzoll and Fletcher 2012, p. 477). This will subsequently change surface drainage, saturate the soil, and inundate land in lower lying areas (Rotzoll and Fletcher 2012, p. 447). The rising groundwater table will change certain aspects of spatial configuration and vegetative zonation in some wetlands, and the freshwater resources will degrade in quality due to the underlying saltwater intrusion (Polhemus 2015, p. 21 and references therein). There are also several reports that note although ecogeopmorphic (interactions between organisms and the development of landforms) feedbacks will allow some coastal wetlands to adapt to the lower estimates of sea level rise, they all predict that more rapid and higher estimates of sea level rise will likely submerge many wetlands by the year 2100 (Kirwan et al. 2010, pp. 1–5; Langley et al. 2009, p. 6182). Effects of groundwater flooding may have already begun at Kealia Pond NWR and wetlands with similar characteristics (Kane 2014, p. 13). The net effect, or expected rate of change, on the narrow band of habitat suitable for Hawaiian stilt has not been specifically Tropical Cyclone Intensity and analyzed and remains unclear. More Frequency research needs to be conducted to better understand how much wetland losses Tropical cyclone frequency and and gains we can anticipate in Hawaii intensity are projected to change as a due to sea level rise, as well as the result of increasing temperature and impacts on the Hawaiian stilt and other changing circulation associated with climate change (Vecchi and Soden 2007, Hawaiian waterbirds, and wetland ecosystems in general. Some actively pp. 1068–1069, Figures 2 and 3; Emanuel et al. 2008, p. 360, Figure 8; Yu managed wetlands, such as NWR units in Hawaii, will have some management et al. 2010, p. 1371, Figure 14). A flexibility to provide both foraging and projected shift in the path of the breeding habitat for Hawaiian stilts at subtropical jet stream northward, away least during the early signs of from Hawaii, will increase the number of storms reaching the Hawaiian Islands groundwater inundation. However, as marine flooding and inundation from an easterly direction similar to exacerbates this threat, NWR units may Hurricane Iselle in 2014 (Murakami et run out of land area to meet the needs al. 2013, p. 751). This shift may result of the subspecies. Other core and in extreme rainfall events and supporting wetland managers may not associated flooding impacts to core and be able to manage for adaptation as supporting wetland sites located on the readily due to lack of funding or northern and eastern shores of the support, or they may too find there is no affected islands. Between 1950 and 1997, 22 hurricanes passed near or over land left for which to manage. PO 00000 Frm 00068 Fmt 4702 Sfmt 4702 E:\FR\FM\25MRP1.SGM 25MRP1 15868 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules Although the upslope expansion or creation of new wetlands from groundwater and marine flooding and inundation (ecogeomorphic feedback) could help to counteract at least some habitat losses from sea level rise, many of these sites would be outside of current landownership as well as predator control programs on current core or supporting wetlands. To take advantage of these changes, State and Federal agencies would need to commit and potentially increase funding to adjust predator control programs at newly created or expanded core and supporting wetlands, and perhaps acquire new lands; historically, predator control funding has not always been consistent (Nadig 2018, pers. comm.). Additionally, urban development directly adjacent to coastal wetlands, or surrounding wetlands as is the situation at Kanaha Pond State Wildlife Sanctuary, will limit or prohibit such wetlands from a natural landward migration or ecogeomorphic shift (Kane 2014, p. 29). Because Hawaiian stilts compete for brood territories and nesting ground in mudflats and shallow water, reduction of this habitat may have negative impacts on the population, specifically reduced resiliency, redundancy, representation, and therefore reduced viability. Hawaiian stilts that are forced to use nest sites and brood-rearing habitat outside predator control areas are likely to suffer higher mortality (Price 2020, p. 10). Predation Predation by nonnative animals is one of the greatest threats influencing the overall viability of the Hawaiian stilt (USFWS 2011, p. v; Underwood et al. 2013, pp. 1–2; Underwood et al. 2014, pp. 32–38; Price 2020, p. 1; Harmon 2020, in litt.). Introduced predators have negatively influenced the overall viability of the Hawaiian stilt since the mid-1800s (Griffin et al. 1989, pp. 1165– 1174). Birds in the Hawaiian Islands evolved in the absence of mammalian predators and are consequently highly vulnerable to these introduced animals. Predators of Hawaiian stilts include both introduced and native animals, including mongooses (Herpestes javanicus), black rats (Rattus rattus), feral cats (Felis catus), feral dogs (Canis lupus familiaris), black-crowned night herons or aukuu (Nycticorax nycticorax), cattle egrets (Bubulcus ibis), Hawaiian short-eared owl or pueo (Asio flammeus sandwichensis), barn owls (Tyto alba), common mynas (Acridotheres tristis), and bullfrogs (Anas wyvilliana) (Coleman 1981, pp. 70–73; Robinson et al. 1999, p. 13; VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 Eijzenga 2004, in litt.; K. Viernes pers. comm. 1994, in Service 2011, p. 58). Mongooses were first introduced to the island of Hawaii in 1883, and subsequently to Oahu, Maui, and Molokai. They do not seem to have established on Kauai, although sightings continue to be reported (Phillips and Lucey 2016, pp. 1–23). Mongoose have become a serious threat to Hawaiian stilts where they occur, taking eggs, young birds, and nesting adults. Feral cats became established in Hawaii shortly after European contact and were common in Oahu forests as early as 1892 (Tomich 1986, pp. 101–102). Feral cats range from sea level to at least 2,900 m (9,500 ft) on Hawaii Island (Hu et al. 2001, p. 236) and 3,055 m (10,000 ft) on Maui (Hodges and Nagata 2001, pp. 308, 312). The proliferation of feral cat feeding stations near parks and other areas that support Hawaiian stilts contributes toward the predation. Cats have been observed taking adult Hawaiian waterbirds (including Hawaiian stilts) and are presumed to take chicks as well (Dibben-Young 2017, in litt.). Rats are known to prey on eggs and young Hawaiian stilts (Underwood et al. 2014, pp. 32, 37). Other introduced species, such as the cattle egret, bullfrog, and barn owl, are known to prey on Hawaiian waterbirds. The introduced bullfrog is considered a voracious predator of all small animals (Berger 1981, p. 86; Viernes 1995 cited in Adams and Pearl 2007, p. 680; Robinson et al. 1999, p. 13; Eijzenga 2004, in litt.). Underwood and Letchworth (2016, pp. 380–383) hypothesize that improving bullfrog trapping will result in the improved survival of waterbird chicks. Cattle egrets play an unquantified role as a predator of nestling birds. Nonnative cats, rats, mongooses, dogs, and, to a lesser extent, pigs, barn owls, cattle egrets, predatory fish and bullfrogs all directly depredate either eggs, young, or adult Hawaiian waterbirds (Underwood et al. 2013, p. 1). The effect of predation on reproductive success is a known point of vulnerability for viability of Hawaiian stilt populations and if unmanaged could result in rangewide population declines. Predator control programs in wetlands result in higher fledgling success rates and overall population densities of Hawaiian stilts (Underwood et al. 2014, p. 35). Without active predator control, survival is expected to be lower, particularly in the hatch-year class (Reed et al. 2015, p. 183). Some predation of hatch-year individuals continues to occur even where extensive predator control programs are in effect (Coleman 1981, p. 89; Reed et. al. 2015, PO 00000 Frm 00069 Fmt 4702 Sfmt 4702 p. 183). Analysis of data collected over two nesting seasons across Oahu revealed hatching success (number of nests that produced at least one chick per number of total nests) averaged between 40 and 60 percent across wetlands, with predation at 65 percent of all nest failures (Harmon 2020, in litt.). All data used in this analysis were collected in wetlands that actively trap and remove introduced predators, thus predation is expected to be higher without predator removal. Managed wetlands using mammal exclusion fences (e.g., Honouliuli Unit of Pearl Harbor NWR) result in a greater number of eggs laid per nest and a greater number of eggs hatched per nest than managed wetlands that rely solely on mammalian trapping methods (e.g., Waiawa Unit of Pearl Harbor NWR and most other managed wetlands in Hawaii) (Price 2020, p. 7; Christensen 2020, in litt. in Harmon 2020, in litt.). Notably, nearly as many nests were abandoned as were depredated in this study. Cause of abandonment is often difficult to determine as there are several potential causes: Presence or harassment from predators, competition between Hawaiian stilts, poor egg development, undetected flooding, and human disturbance (Price 2020, p. 19). Predator control programs continue to be implemented in most core wetland areas (See Recovery Criteria and Table 1); the resulting level of reproductive success, has been sufficient to support stable to increasing population indices over several decades. Improvements in predator control continue to be implemented (e.g., predator-proof fencing at the Honouliuli Unit of Pearl Harbor NWR). New trapping technologies are also being implemented (e.g., automatic selfresetting traps such as Goodnature A–24 devices). Because this technology is less labor-intensive to implement, effective trapping areas can be increased so that predator populations can be reduced over broader areas. As previously summarized above, ongoing management and predation control programs need to continue into the foreseeable future. For core and supporting wetlands under federal or state control, we expect these efforts to continue so long as supporting budgets are funded at current levels. This effort has currently resulted in a stable or slightly increasing population to the point at which it is approaching population equilibrium under current management practices (See Recovery Criteria discussion above). Continuation of, and expansion of, these predator control and habitat management actions E:\FR\FM\25MRP1.SGM 25MRP1 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules will further the stability (and expansion) of the conservation-reliant Hawaiian stilt population and its ability to withstand stochastic (i.e., resiliency) and catastrophic (i.e., redundancy) events, as well as maintain its widespread distribution on multiple islands (i.e., representation) and therefore its long-term viability. Avian Disease Avian botulism is the most prevalent disease affecting waterbirds in Hawaii, including Hawaiian stilts, and has been documented at two dozen or more wetlands (including many core and supporting wetlands) across the State (Dibben-Young 2016, p. 4; USFWS 2016, in litt.). Some wetlands have more recurrence than others (e.g., Kauai: Hanalei NWR; Oahu: James Campbell NWR, Kaelepulu Pond, Kawainui Marsh; Maui: Kanaha Pond State Wildlife Sanctuary, Kealia Pond NWR; Molokai: Ohiapilo Pond) (Dibben-Young 2016, p. 4). Since December 2011, Hanalei NWR has experienced yearround avian botulism type C and has reported deaths of Hawaiian stilts from this disease (USFWS 2016, in litt.). Avian botulism is caused by a toxin produced by the anaerobic bacteria Clostridium botulinum type C in stagnant water. The disease may reappear annually and can affect all native and migratory waterbirds, causing paralysis evidenced by staggering and the eventual loss of use of legs. Death is likely due to respiratory failure or drowning from the inability to hold their head above water. Botulism is an ongoing issue for mortality risk, and we have no specific data or information suggesting the degree of threat will change in the future. Procedures have been developed for response to botulism outbreaks through Hawaii’s State Wildlife Action Plan, in coordination with the DOFAW, wildlife centers, and veterinarians. Improvements in response to outbreaks may benefit in reducing mortality rates, as quick carcass disposal is essential to contain the diseases’ spread. This threat remains persistent and rangewide. Environmental Contaminants Many wetlands in Hawaii are adjacent to urban development (Kane 2014, p. 29). This proximity results in potential for the Hawaiian stilt to be exposed to contaminants from storm drains and roadside ditches that empty into streams, wetlands, and the ocean (Stone 1989, p. 132; Wright et al. 2006, pp. 13– 60). Some wetlands used as flood control basins, such as Kawai Nui marsh, are expected to accumulate contaminants from urban runoff. Non- VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 point source pollution from septic wastewater, agricultural runoff, roads, and contaminated storm water can overwhelm the filtering capacity of wetlands, including wetlands in Hawaii, impacting downstream coastal waters (DeCarlo and Anthony 2002, p. 490; Zhang and Zhang 2011, entire; DOFAW 2015, in litt.; Einoder et al. 2018, p. 102; van Reese 2018, p. 38). Additionally, two featherless chicks have been found at Marine Corp Base Hawaii, one each in the 2018–2019 and 2019–2020 nesting seasons, the latter of which is undergoing a toxicology analysis (DOD 2017, entire; Fry 2020, pers. comm.). Several core wetlands are on or adjacent to military installations and airports which further increase the risk of contaminants (Fry 2020, pers. comm.). Contaminants in wetlands can enter the diet of waterbirds, resulting in accumulation of toxins (Ratner 2000, entire; Einoder et al. 2018, p. 103). In Switzerland, polychlorinated biphenyls have been detected in waterbirds at levels within the range that could result in reproductive impairment (Zimmerman et al. 1997, p. 1379). Due to ocean current patterns and Hawaii’s location in the Pacific Ocean, Hawaii receives an enormous amount of plastic marine debris each year. This debris not only impacts Hawaii’s beaches, but also pollutes Hawaii’s coastal wetlands. At this time, we know of no contaminant surveys being conducted in Hawaii wetlands or specific information about contaminant effects on the Hawaiian stilt; however, because Hawaiian stilts eat fish and aquatic invertebrates, they are particularly at risk from elevated concentrations of contaminants that accumulate in streams around Hawaii, many of which are tributaries to Hawaii’s coastal wetlands (Brasher and Wolff 2007, p. 284). Cumulative Threats Analysis The Hawaiian stilt is threatened by ongoing predation, combined with loss or degradation of habitat resulting from urban development, ground and surface water alterations associated with urban development, nonnative plants, and flooding and inundation of habitat resulting from sea level rise. Threats such as botulism and environmental contaminants are also rangewide and persistent. Torrential rains associated with increases in hurricane frequency and intensity will increase urban runoff of oil, heavy metals, and other undesirable chemicals into Hawaii’s lowland coastal wetlands. Similarly, torrential rain will increase sedimentation which, among other factors (increased temperature, pH, and salinity), is linked to increased botulism PO 00000 Frm 00070 Fmt 4702 Sfmt 4702 15869 outbreak events (Rocke and Samual 1999, pp. 1250, 1255–1256). However, Hawaiian stilts have demonstrated strong resilience and adaptability, as long as active management of predators, vegetation, and water levels give them a safe place with suitable habitat to meet their needs for breeding, foraging, and sheltering. More wetlands are being fenced to exclude predators and most core wetlands are managed to some extent to meet the needs of Hawaiian stilts (see Recovery Criteria). Management is the influencing factor that counters all of the above influence factors, easing the burden of predation, habitat loss and modification, and disease. Continuing the current level of habitat management and predation control efforts has resulted in a largely stable population to a point at which the subspecies may have reached an equilibrium population size (the number of birds the existing habitat can support) (See Recovery Criteria discussion above). Expansion of management on additional acreage and at additional locations should create enhanced stability (and expansion of) of the Hawaiian stilt population rangewide. Further, expansion and continuation of these essential actions will allow the subspecies to withstand stochastic (i.e., resiliency) and catastrophic (i.e., redundancy) events, as well as maintain its widespread distribution on multiple islands (i.e., representation) and therefore its longterm viability. Current Voluntary and Regulatory Conservation Efforts The recovery of Hawaiian stilt requires strong partnerships among Federal, State, local, and private groups. The State of Hawaii and the Department of Defense have been important partners with the NWRs’ efforts to protect, manage, and conserve the significant wetland habitats and to support Hawaiian stilt populations over the last 30 years. The U.S. Marine Corps Base— Hawaii has worked to maintain Hawaiian stilt habitat on its properties and facilitated events that promote Hawaiian stilt conservation and involve both the public and military personnel. Their overall goal is to contribute to regional recovery efforts of the Hawaiian stilt, with a view to building regional partnerships and strengthening the Hawaiian stilt population outside of the core habitat on the Marine Corps Base. The Navy’s Pacific Missile Range Facility on Kauai has committed to habitat restoration and management actions in important nearby wetland habitat in proximity to actions involving military readiness associated with E:\FR\FM\25MRP1.SGM 25MRP1 15870 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules implementation of their Integrated Natural Resources Management Plans and associated section 7 biological opinions. Several wastewater treatment facilities across the islands conduct predator control to protect nesting Hawaiian stilts and adults with chicks. Local and county governments also contribute to conservation actions. Additionally, several academic researchers continue to produce data that help guide management actions and inform policy. In addition to the protections afforded by the Endangered Species Act, the Hawaiian stilt is protected under a variety of other laws, including the Migratory Bird Treaty Act (MBTA). The MBTA (16 U.S.C. 703–712, 50 CFR 10.13), is a domestic law that implements the U.S. commitment to four international conventions (with Canada, Japan, Mexico, and Russia) for the protection of shared migratory bird resources. The Hawaii Endangered Species law (Hawaii Revised Statutes (HRS) 195D) prohibits take, possession, sale, transport, or commerce in designated species. This State law also recognizes as endangered or threatened those species determined to be endangered or threatened pursuant to the Federal Endangered Species Act. This Hawaii law states that a threatened species (under the Act) or an indigenous species may be determined to be an endangered species under State law. Protection of these species is under the authority of Hawaii’s DLNR, and under administrative rule (Hawaii Administrative Rules (HAR) 13–124– 11). Incidental take of threatened and endangered species may be authorized through the issuance of a temporary license as part of a safe harbor agreement (SHA) or habitat conservation plan (HCP) (HRS 195D–21, HCPs; 195D– 22, SHAs). Although this State law can address threats such as habitat modification, collisions, and other human-caused mortality through HCPs that address the effects of individual projects or programs on Hawaiian stilt, it does not address the pervasive threats to the Hawaiian stilt posed by introduced mammalian predators. The federal Clean Water Act (CWA) (33 U.S.C. 1251 et seq. (1972)) was designed, in part, to protect surface waters of the United States from unregulated pollution from point sources. The CWA provides some benefit to Hawaiian stilts through the regulation of discharge into surface waters through a permitting process. The CWA has significantly slowed the permanent loss of wetlands throughout Hawaii. VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 In addition to these federal and state regulatory programs, a variety of voluntary conservation partnerships have been formed to protect and manage waterbird habitat. Examples of such partnership opportunities include our Pacific Coast Joint Venture, Partners for Fish and Wildlife Program, Coastal Program, and Habitat Conservation Plan and Safe Harbor Agreement Programs; the multiagency Coastal America program; restoration plans for hazardous materials spills that target waterbird habitat; and the Natural Resources Conservation Service’s wetland restoration programs. Partnerships aim to encourage landowners and private citizens to protect and preserve waterbirds and their habitats through cooperative agreements and funding for habitat restoration and creation. Additional conservation organizations are contributing to the recovery of Hawaii’s endangered waterbirds, including the Hawaiian stilt. The Nature Conservancy manages several ecological preserves in the State. Ahahui Malama I Ka Lokahi and Kawai Nui Heritage Foundation are watchdog organizations that oversee the future of Kawainui Marsh on Oahu. They sponsor and lead educational tours and coordinate plant restoration projects at Na Pohaku o Hauwahine. The Nature Center, Wildlife Society, and University of Hawaii’s Pacific Cooperative Studies Unit all work on waterbird recovery issues. Private landowners that also contribute to waterbird recovery include Kamehameha Schools, Midler Family Trust, Arleone Dibben-Young (Nene O Molokai), and Kaelepulu Wetland Preserve. Additionally, Ducks Unlimited, a nonprofit wetlands conservation organization, works cooperatively with State and Federal agencies as well as with private landowners and local corporations on wetlands conservation and habitat restoration and protection efforts. The Service also facilitates recovery implementation, including a cooperative agreement with Chevron Refinery on Oahu during 1993–2004 that implemented terms to manage Rowland’s Pond to maintain it as nesting habitat for Hawaiian stilts. Activities included predator control and vegetation management at Rowland’s Pond, the Impounding Basin, and Oxidation Ponds. From 2004 through 2016, Chevron Refinery continued to manage the refinery grounds for the benefit of the Hawaiian stilt and Hawaiian coot under a Safe Harbor Agreement. As a result of this agreement, at least 419 Hawaiian stilt chicks fledged at Chevron Refinery Hawaii during this period. In 2016, the PO 00000 Frm 00071 Fmt 4702 Sfmt 4702 complex was purchased by IES Downstream, LLC (IES), and in 2018, IES sold a portion of the refinery to PAR Hawaii Refining, LLC (PAR). Rowland’s pond remains within the IES owned portion of the refinery but IES has not yet reached out to the Service for consultation. The Service is currently providing technical assistance to PAR, who is currently seeking a Habitat Conservation Plan for a low level of take. There are no recent updates regarding the status of the Hawaiian stilts at this site. The Service has also worked with a variety of partners implementing management techniques that benefit Hawaiian stilts throughout its range. Habitat management activities for the conservation of the Hawaiian stilt include activities that maintain suitable habitat conditions. These include vegetation management activities (for example, weeding, mowing, herbicide application, out-planting of native plants, mud flat creation), activities that maintain water levels suitable for breeding or that maintain water quality (for example, irrigating wetland habitat for conservation purposes), activities for minimizing disease outbreaks (for example, monitoring for and addressing dead or decaying animals, emergency botulism outbreak responses), and largescale restoration of native habitat (e.g., feral ungulate, rat, and mongoose, control, and fencing). Determination of Hawaiian Stilt Status Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ The Act defines endangered species as a species that is ‘‘in danger of extinction throughout all or a significant portion of its range,’’ and a threatened species as a species that is ‘‘likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ The Act requires that we determine whether a species meets the definition of ‘‘endangered species’’ or ‘‘threatened species’’ because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. E:\FR\FM\25MRP1.SGM 25MRP1 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules Status Throughout All of Its Range We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Hawaiian stilt and its habitat. After evaluating threats to the subspecies and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we have concluded that threats identified in the earlier 5-year status review (USFWS 2010, entire) and the recovery plan (USFWS 2011, entire) are ongoing at similar to increasing levels (USFWS 2020, p. 20). The main threats to the Hawaiian stilt continue to be the loss and degradation of habitat, including urban development, alteration in ground and surface water associated with urban development, invasion of habitat by nonnative plants, and sea level rise (Factor A); predation by a variety of introduced mammalian species (Factor C); and botulism (Factor C). Environmental contaminants are also considered a rangewide threat (Factor E). A variety of voluntary and regulatory conservation measures have helped to limit or reduce the impact of these threats to the subspecies, and are anticipated to continue into the foreseeable future (Factor D). A summary of these efforts are outlined in Current Voluntary and Regulatory Conservation Efforts, above. The best available information does not suggest that collection of Hawaiian stilt is a current or future concern (Factor B) and no other natural or manmade factors that operate at a scope, magnitude, and intensity as to affect the viability of the subspecies, either currently or in the future (Factor E). The three key aspects of successful management of Hawaiian stilt breeding populations are predator control, vegetation management to provide more open areas, and water-level controls. These actions are in place for the vast majority of the core wetlands (see Recovery Criteria and Table 1). Further, 15 of the 34 supporting wetlands are in protected status, and 11 have some form of either habitat or predator management (see Recovery Criteria and Table 2). Based on predictions of groundwater and coastal flooding and inundation in Hawaiian coastal wetlands, sea level rise is likely to continue to progressively affect Hawaiian stilt habitat (Factor A), as by 2040, wetlands that exist at elevations near sea level without dune barriers may be most affected (Kane and Fletcher 2013, p. 10). The resulting groundwater and marine flooding and inundation can change the amount of available Hawaiian stilt foraging and VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 breeding habitat. Expansion of current wetlands and newly created wetlands from rising groundwater will create some new shallow water and mudflat areas for foraging and breeding; however, currently existing shallow water and mudflat areas will also be flooded (Rotzoll and Fletcher 2012, p. 477). Coastal plain wetlands are also at risk of marine flooding and inundation by storm surges, marine overwash, and high tides due to coastal erosion from rising sea levels that elevate normal tides (Fletcher et al. 1995, p. 203). Inundation can cause mortality to eggs and chicks, with impacts that vary temporally and spatially (Peakall 1970, p. 73; Staples et al. 2005, p. 1910; Holmes and York 2003, p. 1795; Miles et al. 2015, p. 1). Creation of new or expansion of existing wetlands due to marine flooding and inundation may also change the salinity in wetlands which may encourage the expansion of salt tolerant nonnative plants on mudflats. Increased vegetation on mudflats can reduce available Hawaiian stilt nesting habitat. Marine inundation and groundwater inundation will modify wetland habitat, but whether there will be a net gain or loss of habitat is unknown (Polhemus 2015, p. 25). Increases in foraging and breeding habitat from expanding or newly created wetlands could offset losses from sea level rise; however, this may occur outside of the area of current predator control programs (Factor C). State and Federal land managers may need to adjust existing programs and/or acquire lands in order to effectively support Hawaiian stilt habitat in the new areas. Avian botulism (Factor C) continues to be documented at wetlands Statewide as a cause of mortality events in Hawaiian stilt and other waterbird and waterfowl species (Dibben-Young 2016, pp. 4–5). Environmental contaminants (Factor E) may also be a threat to Hawaiian stilts using wetland habitats near urban areas. As previously stated, the Hawaiian stilt is a conservation-reliant subspecies (Reed et al. 2012, p. 888; Underwood et al. 2013, p. 1), which means that it will require active management in perpetuity (Scott et al. 2005, pp. 383–389; Scott et al. 2010, pp. 92–93: Goble et al. 2012, pp. 869–872). Management actions aimed at reducing or eliminating predators and control of both vegetation and water levels occurs in the majority of the core wetlands. Sea level rise due to climate change adds a high degree of uncertainty to the net gain or loss of foraging and breeding habitat, which will likely challenge current management strategies. PO 00000 Frm 00072 Fmt 4702 Sfmt 4702 15871 Despite these ongoing threats, the Hawaiian stilt population is stable to increasing population (Reed et al. 2011b, pp. 475–476, 478–479; USFWS 2011a, p. iv; DOFAW 2020). We conclude that the Hawaiian stilt population has maintained resiliency, redundancy, and representation over the past few decades. Having multiple breeding populations spread out across the main Hawaiian Islands affords the subspecies some protection from both stochastic and catastrophic events. Additionally, the subspecies will continue to be monitored in the biannual waterbird count, as well as at numerous NWRs across the State, to detect any changes that reflect a change in the current status of the subspecies. The current status of the subspecies has improved from the time of listing. Considering the best available information, including the stability of the population demonstrated over decades, the new data presented in the preliminary 2019 PVA, and the demonstrated adaptability and resiliency of the subspecies, in combination with the expectation that existing conservation actions at their present scope and intensity will continue into the foreseeable future, we conclude that the subspecies no longer meets the Act’s definition of an endangered species throughout all of its range. Therefore, we proceed with determining whether the Hawaiian stilt is likely to become endangered within the foreseeable future throughout all of its range. To determine if a species is considered a threatened species under the Act, we look to future threats facing the species and how the species will likely respond to those threats. The foreseeable future considers population status, trends, and threats for the species. Collective management efforts aimed at the subspecies for the conservation of Hawaiian stilt have been sufficient to maintain a stable population, and it appears that the subspecies is at or near carrying capacity—limited primarily by amount of managed wetland habitat as this is a conservation-reliant subspecies. Hawaiian stilts continue to face significant ongoing threats, as discussed under Summary of Biological Status and Threats. The threat of predation of Hawaiian stilt eggs, chicks, and adults by a myriad of animals is ongoing, despite implementation of predator control at most core wetlands and many supporting wetlands (Tables 1 and 2). Impacts of sea level rise are expected to progressively increase, resulting in moderate impacts on coastal habitat by 2040. Pressure to alter ground and E:\FR\FM\25MRP1.SGM 25MRP1 15872 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules surface water continues with ongoing urban development. Although the preliminary results from a 2019 PVA predict a zero percent chance of extinction over 80 years as long as current management practices continue, it also notes that the population is sensitive to changes in vital rates. For example, if adult mortality increases by just 10 percent, the species has a high probability of extinction (Reed and van Rees 2019 p. 1). Thus, the best available information is consistent with these threats (excluding sea-level rise) having been managed sufficiently over the past several decades such that reproductive success in managed sites supports a stable Statewide population, so that the subspecies is not immediately in danger of extinction. The PVA does have several limitations that suggests this is only one tool for us to consider reclassification. Foremost is that the PVA does not account for changes in quality or availability of currently managed habitat due to the effects of sea level rise. The Hawaiian stilt remains vulnerable to the continuing threat of predation and habitat loss and degradation by several means, and maintaining current population levels (and viability) is contingent upon ongoing commitment to management of wetland habitat and predators at their present scope and intensity. In particular, the demographic data used to provide working assumptions of the preliminary results of the 2019 PVA derives from studies on sites with active habitat and predator management, so reducing management efforts would render its conclusions less applicable; risk of extinction appears particularly sensitive to increases in adult mortality (Reed and van Rees 2019 p. 24). Sustained management commitments are necessary to keep these vital rates at manageable levels (e.g., below 34 percent annual adult mortality). Expansion of existing efforts on current core and supporting wetlands and expansion of the habitat and predator management onto new sites (other core, other supporting wetlands or other suitable locations) would greatly enhance the recovery potential of this subspecies. The threat of sea level rise is also likely to increase over time and can be expected to alter the spatial distribution and quality of wetland habitats and require adaptive changes in which sites will be the focus of management. Thus, after assessing the best available information, we conclude that the Hawaiian stilt is not currently in danger of extinction, but is likely to become in danger of extinction in the foreseeable throughout all of its range (i.e., meets VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 the Act’s definition of a threatened species). Status Throughout a Significant Portion of Its Range Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in Center for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological Diversity), vacated the aspect of the 2014 Significant Portion of its Range Policy that provided that the Services do not undertake an analysis of significant portions of a species’ range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species’ range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the ‘‘significance’’ question or the ‘‘status’’ question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species’ range. Following the court’s holding in Center for Biological Diversity, we now consider whether there are any significant portions of the subspecies’ range where the subspecies is in danger of extinction now (i.e., endangered). In undertaking this analysis for Hawaiian stilt, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the subspecies and the threats that the subspecies faces to identify any portions of the range where the subspecies is endangered. Based upon best available information, Hawaiian stilts disperse frequently between the main Hawaiian Islands and they readily colonize newly restored or created habitats suggesting that Hawaiian stilt in Hawaii form one large population (van Rees et al.. 2020, p. 3, with supporting literature). Thus, there is no biologically meaningful way to break this subspecies’ range into portions, and the threats that the subspecies faces affect the subspecies throughout its entire range. This means that no portions of the subspecies’ range have a different status from its rangewide status. Therefore, no portion of the subspecies’ range can provide a PO 00000 Frm 00073 Fmt 4702 Sfmt 4702 basis for determining that the subspecies is in danger of extinction in a significant portion of its range, and we determine that the subspecies is likely to become in danger of extinction within the foreseeable future throughout all of its range. Our analysis is consistent with the courts’ holdings in Desert Survivors v. Department of the Interior, No. 16–cv–01165–JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017). Determination of Status Our review of the best available scientific and commercial information indicates that the Hawaiian stilt meets the definition of a threatened subspecies. Therefore, we propose to reclassify the Hawaiian stilt as a threatened subspecies in accordance with sections 3(20) and 4(a)(1) of the Act. Proposed Rule Issued Under Section 4(d) of the Act Background Section 4(d) of the Act contains two sentences. The first sentence states that the ‘‘Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation’’ of species listed as threatened. The U.S. Supreme Court has noted that statutory language like ‘‘necessary and advisable’’ demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean ‘‘the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [the Act] are no longer necessary.’’ Additionally, the second sentence of section 4(d) of the Act states that the Secretary ‘‘may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case of plants.’’ Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to us when adopting the prohibitions under section 9. The courts have recognized the extent of the Secretary’s discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have E:\FR\FM\25MRP1.SGM 25MRP1 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibit take of threatened wildlife or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, ‘‘once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species’’ (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973). Exercising this authority under section 4(d), we have developed a proposed rule that is designed to address the specific threats to and conservation needs of the Hawaiian stilt. Although the statute does not require us to make a ‘‘necessary and advisable’’ finding with respect to the adoption of specific prohibitions under section 9, we find that this proposed rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the Hawaiian stilt. As discussed under Summary of Biological Status and Threats, we have concluded that the Hawaiian stilt is likely to become in danger of extinction within the foreseeable future primarily due to predation by nonnative animals (i.e., mongooses, rats, cats, dogs, carnivorous birds, and bullfrogs); habitat loss and degradation by urban development, altered ground and surface water for urban expansion, overgrowth of nonnative plants, sea level rise associated with climate change (both coastal and groundwater flooding and inundation); disease, primarily botulism caused by the bacterium Clostridium botulinum (type C); and environmental contaminants. Additionally, Hawaiian stilt habitat is anticipated to be negatively impacted in the near future by an increase in frequency and intensity of hurricanes associated with climate change, which may also directly harm individuals, eggs, or nesting success through flooding. VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 The provisions of this proposed 4(d) rule would promote conservation of the Hawaiian stilt by encouraging activities that facilitate conservation and management of the Hawaiian stilt and its habitat where it currently occurs and may occur in the future. Thus, we are encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the Hawaiian stilt. The provisions of this proposed rule are one of many tools that we would use to promote the conservation of the Hawaiian stilt. This proposed 4(d) rule would apply only if and when we make final the reclassification of the Hawaiian stilt as a threatened subspecies. Provisions of the Proposed 4(d) Rule This proposed 4(d) rule would provide for the conservation of the Hawaiian stilt by prohibiting the following activities, except as otherwise authorized or permitted: Take (i.e., harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct); importing or exporting; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. These prohibitions would result in regulating a range of human activities that have the potential to affect the viability of the Hawaiian stilt, including agricultural or urban development; recreational and commercial activities; introduction of predators; and direct capture, injury, or killing of Hawaiian stilts. Regulating these activities will help preserve the Hawaiian stilt population. This proposed 4(d) rule would also provide for the conservation of the subspecies by providing select exceptions to the prohibitions for the purpose of promoting conservation of Hawaiian stilt and expansion of their range by increasing flexibility in management activities for State and private landowners. Below we outline each prohibition and any exceptions, as well as provide our justification for their inclusion in this proposed 4(d) rule. Prohibition of Take Under the Act, ‘‘take’’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect PO 00000 Frm 00074 Fmt 4702 Sfmt 4702 15873 impacts, intentionally or incidentally. Regulating incidental and intentional take will help preserve the Hawaiian stilt population and decrease synergistic, negative effects from other threats. Rangewide threats continue to act on the subspecies, and its viability remains reliant on the implementation of conservation actions (see Summary of Biological Status and Threats). However, as explained below, there are a few circumstances in which allowing either intentional or incidental take will benefit the Hawaiian stilt as a subspecies and further its recovery. We have outlined three circumstances below as proposed exceptions to the proposed prohibition of take. By allowing take under these three circumstances, the proposed rule would provide needed protection to the subspecies while allowing management flexibility to benefit the subspecies’ long-term conservation. Proposed Take Exceptions 1. Take that is incidental to conducting lawful nonnative predator control or conducting lawful habitat management activities (from a Service and DOFAW-approved list of such activities) for the conservation benefit of Hawaiian stilts or other native waterbirds. Rationale: Control of introduced predators and habitat management are identified as primary recovery actions for the Hawaiian stilt (USFWS 2011, p. 10). Predation is the greatest threat to Hawaiian stilts, followed by habitat loss and degradation or modification. We propose a take exception for the incidental take of stilts during control of predators (e.g., mongoose, dogs (feral and domestic), feral pigs, cats (feral and domestic), rats, bullfrogs, cattle egrets, and barn owls) designed to protect stilts (or other native waterbirds) or habitat management activities designed to protect stilts (or other native waterbirds). This exception to the prohibition of take will help to reduce or eliminate the depredation of Hawaiian stilts during all life stages, provide sufficient nesting habitat to support the reproductive needs of the population, and provide our conservation partners the flexibility to practice adaptive management to meet the needs of the subspecies. The Service and DOFAW will maintain a list of acceptable habitat conservation management activities; for the current list, contact the Service or DOFAW. We propose this exception to take yearround. Predators are managed using a variety of methods, including fencing, trapping, E:\FR\FM\25MRP1.SGM 25MRP1 15874 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules shooting, and toxicants. All methods must be used in compliance with State and Federal regulations. In addition to the application of the above tools, predator control as defined includes activities related to predator control, such as performing efficacy surveys, trap checks, and maintenance duties. Nesting success is higher for Hawaiian stilts that nest earlier in the season; therefore, implementing predator control during this time may be most beneficial to the subspecies (Price 2020, p. 1). During lawful predator control, or lawful habitat management activities from the Service and DOFAW-approved list, incidental take of Hawaiian stilts (eggs, chicks, fledglings, or adults) may occur in the form of temporary displacement due to human presence, unintentional injury, or death (e.g., accidental ingestion of chemical approved for predator control, collision or crushing by means of mechanical machinery). Reasonable care must be practiced to minimize the effects of such taking and may include, but is not limited to: (a) Procuring and implementing technical assistance from a qualified biologist(s) on predator control or habitat management methods, techniques, and protocols prior to application of methods; (b) compliance with all applicable regulations and following principles of integrated pest management and habitat management; and (c) judicious use of methods and tool adaptations to reduce hazards to Hawaiian stilts (e.g., ingest bait, injury or death from an interaction with mechanical devices). 2. Take by authorized law enforcement officers for the purposes of aiding or euthanizing sick, injured, or orphaned Hawaiian stilts; disposing of dead specimens; and salvaging a dead specimen that may be used for scientific study. Rationale: The increased interaction of Hawaiian stilts with the human environment subsequently increases the likelihood of encounters with orphaned, injured, sick, or dead Hawaiian stilts. By providing an exception for law enforcement officers in consultation with State wildlife biologists to provide aid to orphaned, injured, or sick Hawaiian stilts, or disposal or salvage of dead Hawaiian stilts, we increase the odds for saving orphaned, injured, or sick Hawaiian stilts and may maximize the use of carcasses for research purposes that may inform management decisions and further the recovery of the subspecies. VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 Prohibition of Import, Export, and Interstate and Foreign Commerce We have proposed to include the prohibition of import, export, interstate and foreign commerce, and sale or offering for sale in such commerce of the Hawaiian stilt in this proposed rule to complement and support our proposal to include the prohibition of take. Because the Hawaiian stilt is not known to be held in captivity for commercial, recreational, scientific, or educational purposes, any such exchange of the subspecies would require removing one or more individuals (including eggs) from the sole population of the subspecies resulting in take. Additionally, because the Hawaiian stilt is a conservationreliant subspecies and likely to become in danger of extinction within the foreseeable future due to the threats discussed above and under Summary of Biological Status and Threats, any major reduction in population size by intentional removal of individuals would negatively impact the viability of the subspecies. Therefore, regulating the import, export, and interstate and foreign commerce of Hawaiian stilt will help to preserve their population. There are no proposed exceptions for these prohibitions. Prohibition of Possession and Other Acts With Unlawfully Taken Specimens Although the Hawaiian stilt population is currently stable, it is considered a conservation-reliant subspecies and requires active management to maintain this stability. The Hawaiian stilt is not thriving to the degree that its population is considered capable of sustaining unrestricted capture or collection from the wild without the likelihood of negative impacts to the long-term viability of the subspecies. Because capture and collection of Hawaiian stilts remains prohibited as discussed above, maintaining the complementary prohibition on possession and other acts with illegally taken Hawaiian stilts will further discourage such illegal take. Thus, we propose to prohibit the possession, sale, offering for sale, delivery, receiving, carrying, transporting, or shipping of illegally taken Hawaiian stilts intrastate (within State), interstate (between States), and internationally in order to maintain the viability of the Hawaiian stilt population. Regulating these human activities will contribute to the preservation of the subspecies. There are no proposed exceptions to these prohibitions. PO 00000 Frm 00075 Fmt 4702 Sfmt 4702 We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: Scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed subspecies. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with us in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the Hawaiian stilt that may result in otherwise prohibited take without additional authorization. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or our ability to enter into partnerships for the management and protection of the Hawaiian stilt. However, interagency cooperation may be further streamlined through planned programmatic consultations for the subspecies between us and other Federal agencies, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that we could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested). E:\FR\FM\25MRP1.SGM 25MRP1 15875 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules If finalized, the provisions in this proposed 4(d) rule would address only Federal Endangered Species Act requirements, and would not change State law. State law requires the issuance of a temporary license for the take of endangered and threatened animal species, if the activity otherwise prohibited is: (1) For scientific purposes or to enhance the propagation or survival of the affected species (HRS 195D–4(f)); or (2) incidental to an otherwise lawful activity (HRS 195D– 4(g)). Incidental take licenses require the development of a habitat conservation plan (HRS 195D–21) or a safe harbor agreement (HRS 195D–22), and consultation with the State’s Endangered Species Recovery Committee. Therefore, if this rule is finalized, persons would still need to obtain a State permit for some of the actions described in this proposed 4(d) rule. Required Determinations Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; Common name * (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Authors National Environmental Policy Act (42 U.S.C. 4321 et seq.) Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: We have determined that environmental analyses as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be prepared in connection with determining and implementing a species’ listing status under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). * * Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Proposed Regulation Promulgation 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. 2. Amend § 17.11(h) by revising the entry for ‘‘Stilt, Hawaiian’’ under BIRDS in the List of Endangered and Threatened Wildlife to read as follows: ■ A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). Where listed List of Subjects in 50 CFR Part 17 PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS References Cited Scientific name The primary authors of this proposed rule are the staff members of the U.S. Fish and Wildlife Service’s Species Assessment Team and the Pacific Islands Fish and Wildlife Office. § 17.11 Endangered and threatened wildlife. * * * (h) * * * * Listing citations and applicable rules Status * * * Wherever found ................ * * * * * * Birds * Stilt, Hawaiian (aeo) .......... * * * Himantopus mexicanus knudseni. * * 3. Amend § 17.41 by adding paragraph (j) to read as follows: ■ § 17.41 Special rules—birds. * * * * * (j) Hawaiian stilt (Himantopus mexicanus knudseni) (aeo). (1) Definition. For the purposes of this paragraph (j), ‘‘qualified biologist’’ means an individual with a combination of academic training in the area of wildlife biology or related discipline and demonstrated field experience in the identification and life history of the Hawaiian stilt. VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 (2) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the Hawaiian stilt. Except as provided under paragraph (j)(3) of this section and §§ 17.4 through 17.6, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species: (i) Import or export, as set forth at § 17.21(b) for endangered wildlife. (ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife. PO 00000 Frm 00076 Fmt 4702 Sfmt 4702 * * 35 FR 16047, 10/13/1970; [Federal Register citation of the final rule]; 50 CFR 17.41(j)4d. T * * (iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife. (iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife. (v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife. (3) Exceptions from prohibitions. In regard to this species, you may: (i) Conduct activities as authorized by a permit under § 17.32. (ii) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife and E:\FR\FM\25MRP1.SGM 25MRP1 15876 Federal Register / Vol. 86, No. 56 / Thursday, March 25, 2021 / Proposed Rules (c)(6) and (7) for endangered migratory birds. (iii) Take when the take is incidental to an otherwise lawful activity caused by: (A) Nonnative predator control or habitat management activities for Hawaiian stilt or other native waterbird conservation purposes. A qualified biologist, or personnel working under their direct supervision, may incidentally take Hawaiian stilt in the course of carrying out nonnative predator control or habitat management activities for Hawaiian stilt conservation purposes if reasonable care is practiced to minimize effects to the Hawaiian stilt as follows: (1) Nonnative predator control activities for the conservation of the Hawaiian stilt, or other native Hawaiian waterbirds, which may include the use of fencing, trapping, shooting, and toxicants to control predators, and related activities such as performing efficacy surveys, trap checks, and maintenance duties. Reasonable care for predator control activities may include, but is not limited to, procuring and implementing technical assistance from a qualified biologist on predator control methods and protocols prior to application of methods; compliance with all State and Federal regulations and guidelines for application of predator control methods; and judicious use of methods and tool adaptations to reduce the likelihood of Hawaiian stilt ingesting bait or being injured or dying from interaction with mechanical devices. A list of currently acceptable predator control methods is available by contacting the Service or State of Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife. (2) Habitat management activities for the conservation of the Hawaiian stilt, or other native waterbirds, as long as the VerDate Sep<11>2014 17:19 Mar 24, 2021 Jkt 253001 activities benefit Hawaiian stilts, which may include: Weeding, mowing, fertilizing, herbicide application, water level maintenance, water quality monitoring and maintenance, sedimentation and dead or decaying animal monitoring and maintenance, outplanting native plants, creating mudflats, and irrigating wetland habitat for conservation purposes (if mechanical mowing of pastures adjacent to wetlands for conservation management purposes is not feasible, alternate methods of keeping grass short may be used, such as grazing); emergency botulism outbreak responses; and large-scale restoration of native habitat (e.g., feral ungulate control, fencing). Reasonable care for habitat management may include, but is not limited to, procuring and implementing technical assistance from a qualified biologist on habitat management activities, and documented best efforts to minimize Hawaiian stilt exposure to hazards (e.g., predation, crushing by vehicle or machinery). A list of currently acceptable management activities is available by contacting the Service or State of Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife. (B) Actions carried out by law enforcement officers in the course of official law enforcement duties. When acting in the course of their official duties, State and local government law enforcement officers, working in conjunction with authorized wildlife biologists and wildlife rehabilitators in the State of Hawaii, may take Hawaiian stilt for the following purposes: (1) Aiding or euthanizing sick, injured, or orphaned Hawaiian stilt; (2) Disposing of a dead specimen; or (3) Salvaging a dead specimen that may be used for scientific study; or PO 00000 Frm 00077 Fmt 4702 Sfmt 9990 (4) Possession and other acts with unlawfully taken specimens as provided in § 17.21(d)(2) through (4). (4) Reporting and disposal requirements. Any injury or mortality of Hawaiian stilt associated with the actions excepted under paragraphs (j)(3)(iii)(A) and (B) of this section must be reported to the Service and authorized State wildlife officials within 48 hours, and specimens may be disposed of only in accordance with directions from the Service. Reports should be made to the Service’s Office of Law Enforcement (contact information is at 50 CFR 10.22) or the Service’s Pacific Islands Fish and Wildlife Office (contact information for the Service regional offices is at 50 CFR 2.2). Alternatively, the State of Hawaii Department of Land and Natural Resources, Division of Forestry and Wildlife, may be contacted. Signing Authority The Principal Deputy Director, Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the U.S. Fish and Wildlife Service. Martha Williams, Principal Deputy Director, Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service, approved this document on March 16, 2021, for publication. Dated: March 16, 2021. Madonna Baucum, Regulations and Policy Chief, Division of Policy, Economics, Risk Management, and Analytics, Joint Administrative Operations, U.S. Fish and Wildlife Service. [FR Doc. 2021–05846 Filed 3–24–21; 8:45 am] BILLING CODE 4333–15–P E:\FR\FM\25MRP1.SGM 25MRP1

Agencies

[Federal Register Volume 86, Number 56 (Thursday, March 25, 2021)]
[Proposed Rules]
[Pages 15855-15876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05846]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0079; FF09E22000 FXES11130900000 212]
RIN 1018-BE02


Endangered and Threatened Wildlife and Plants; Reclassification 
of the Hawaiian Stilt From Endangered to Threatened With a Section 4(d) 
Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
reclassify (downlist) the Hawaiian stilt (Himantopus mexicanus 
knudseni) from endangered to threatened under the Endangered Species 
Act of 1973, as amended (Act). After a review of the best available 
scientific and commercial information, we find that the subspecies' 
status has improved such that it is not currently in danger of 
extinction throughout all or a significant portion of its range, but 
that it is still likely to become so in the foreseeable future. We also 
propose a rule under section 4(d) of the Act that provides for the 
conservation of the Hawaiian stilt. Additionally, we also recognize the 
name ``aeo'' as an alternative common name.

DATES: We will accept comments received or postmarked on or before May 
24, 2021. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We

[[Page 15856]]

must receive requests for public hearings, in writing, at the address 
shown in FOR FURTHER INFORMATION CONTACT by May 10, 2021.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2020-0079, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, check the Proposed 
Rule box to locate this document. You may submit a comment by clicking 
on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R1-ES-2020-0079, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Public Comments, Information Requested, below, for more 
information).
    Availability of supporting materials: This proposed rule and 
supporting documents, including the 5-year review and the Recovery 
Plan, are available at https://www.fws.gov/Pacificislands/ and at 
http://www.regulations.gov under Docket No. FWS-R1-ES-2020-0079.

FOR FURTHER INFORMATION CONTACT: Katherine Mullett, Field Supervisor, 
U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife 
Office, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850; 
telephone 808-792-9400. Persons who use a telecommunications device for 
the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

Why We Need To Publish a Rule

    Under the Act, a species may warrant reclassification from 
endangered to threatened if it no longer meets the definition of 
endangered (in danger of extinction). The Hawaiian stilt is listed as 
endangered, and we are proposing to reclassify (downlist) the Hawaiian 
stilt as threatened because we have determined is it not currently in 
danger of extinction. Reclassifying a species can only be completed by 
issuing a rulemaking.

What This Document Does

    This rule proposes to downlist the Hawaiian stilt from endangered 
to threatened on the Federal List of Endangered and Threatened 
Wildlife, based on the species' current status, which has been improved 
through implementation of conservation actions. In addition, we propose 
in this rule to prohibit certain activities in relation to the species 
under section 4(d) of the Act.

The Basis for Our Action

    Under the Act, we may determine that a species is an endangered 
species or a threatened species because of any of five factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence. We may reclassify a 
species if the best available commercial and scientific data indicate 
the species no longer meets the applicable definition in the Act. For 
the reasons discussed below, we have determined that the Hawaiian stilt 
is no longer in danger of extinction and, therefore, does not meet the 
definition of an endangered species, but is still affected by the 
following current and ongoing threats to the extent that the species 
meets the definition of a threatened species under the Act:
     Habitat degradation, destruction, and modification due to 
urban development, altered ground and surface water, nonnative plants, 
and coastal inundation and groundwater flooding due to sea level rise;
     Predation by nonnative animals such as mongooses, black 
rats, feral cats, feral dogs, bullfrogs, black-crowned night herons, 
cattle egrets, and barn owls, and native animals such as the Hawaiian 
short-eared owl;
     Disease, primarily botulism caused by the bacterium 
Clostridium botulinum (type C);
     Environmental contaminants resulting from human 
activities; and
     Stochastic events such as hurricanes, which are 
anticipated to increase in frequency and intensity.

We Are Proposing To Promulgate a Section 4(d) Rule

    In the 4(d) rule, we propose to prohibit all intentional take and 
most incidental take of the Hawaiian stilt under section 9(a)(1) of the 
Act with a few specific exceptions to allow incidental take as a means 
to further the conservation and recovery of the species by providing 
management flexibilities for our State, Federal, and private partners. 
Additionally, these exceptions will help to guide Hawaiian stilts away 
from hazardous habitat and toward habitat managed to meet the species' 
individual and species-level needs.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the species 
should remain listed as endangered instead of being reclassified as 
threatened, or we may conclude that the species no longer warrants 
listing as either an endangered species or a threatened species. In 
addition, we may change the parameters of the prohibitions and 
conservation measures in the 4(d) rule if we conclude it is appropriate 
in light of comments and new information received. For example, we may 
expand the incidental-take prohibitions to include prohibiting 
activities that these proposed regulations would allow if we conclude 
that additional activities are likely to cause direct injury or 
mortality to the species. Conversely, we may establish additional 
exceptions to the incidental-take prohibitions so as to allow 
activities that this proposed rule would prohibit if we conclude that 
the activities would not cause direct injury or mortality to the 
species and will facilitate the conservation and recovery of the 
species. Such final decisions would be a logical outgrowth of this 
proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) Reasons we should or should not reclassify the Hawaiian stilt 
as a threatened species.
    (2) New information on the historical and current status, range, 
distribution, and population size of the Hawaiian stilt.
    (3) New information on the known and potential threats to the 
Hawaiian stilt, including predation; urban

[[Page 15857]]

development, nonnative plants, alterations in surface or ground water; 
data on avian botulism; contaminants; impacts associated with climate 
change; or trends in the status and abundance of wetlands used by the 
subspecies.
    (4) New information regarding the life history, ecology, and 
habitat use of the Hawaiian stilt.
    (5) Current or planned activities within the geographic range of 
the Hawaiian stilt that may have adverse or beneficial impacts on the 
subspecies.
    (6) Information on regulations that are necessary and advisable to 
provide for the conservation of the Hawaiian stilt and that the Service 
can consider in developing a 4(d) rule for the subspecies.
    (7) Information concerning the extent to which we should include 
any of the section 9 prohibitions in the 4(d) rule or whether any other 
forms of take should be excepted from the prohibitions in the 4(d) 
rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the basis of the best 
scientific and commercial data available.'' You may submit your 
comments and materials concerning this proposed rule by one of the 
methods listed in ADDRESSES. We request that you send comments only by 
the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, under 
Docket No. FWS-R1-ES-2020-0079.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulation at 50 CFR 
424.16(c)(3).

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
was published on July 1, 1994 (59 FR 34270) and our August 22, 2016, 
Director's Memorandum ``Peer Review Process,'' we will seek the expert 
opinion of at least three appropriate and independent specialists 
regarding scientific data and interpretations contained in this 
proposed rule. We will send copies of this proposed rule to the peer 
reviewers immediately following publication in the Federal Register. We 
will ensure that the opinions of peer reviewers are objective and 
unbiased by following the guidelines set forth in the Director's Memo, 
which updates and clarifies Service policy on peer review (U.S. Fish 
and Wildlife Service 2016a). The purpose of such review is to ensure 
that our decisions are based on scientifically sound data, assumptions, 
and analysis. Accordingly, our final decision may differ from this 
proposal.

Previous Federal Actions

    The Hawaiian stilt was listed as an endangered species under the 
Act on October 13, 1970 (35 FR 16047). A recovery plan for four 
Hawaiian waterbirds, including the Hawaiian stilt, was issued in 1978 
(U.S. Fish and Wildlife Service (USFWS) 1978, entire), and the first 
revision of this plan was issued in 1985. The final Recovery Plan for 
Hawaiian Waterbirds, Second Revision (Service 2011, entire), was made 
publicly available January 19, 2012 (77 FR 2753). We completed the most 
recent 5-year review of the subspecies in March 2020, in which we 
recommended downlisting the Hawaiian stilt (Service 2020, entire). This 
document serves as our proposed rule to reclassify the Hawaiian stilt 
from endangered to threatened based on the recommendation in our 2020 
5-year review.

Proposed Reclassification Determination

Background

    A thorough review of the biological information on Hawaiian stilts 
including taxonomy, life history, ecology, and conservation activities, 
as well as threats facing the subspecies or its habitat is presented in 
our recent Hawaiian stilt 5-year review (USFWS 2020, entire) and the 
Recovery Plan for Hawaiian Waterbirds (USFWS 2011, entire), which are 
available at http://www.regulations.gov under Docket No. FWS-R1-ES-
2020-0079. The following is a summary of the best available information 
on Hawaiian stilts. Please refer to the 2020 5-year review and 2011 
recovery plan for additional discussion and background information.

Taxonomy and Species Description

    The Hawaiian stilt (Himantopus mexicanus knudseni) is a waterbird 
endemic to the Hawaiian Islands (Stejneger 1887, entire). Another 
commonly accepted name for the Hawaiian stilt is the aeo (from a 
Hawaiian name for the bird and word for stilts). The Hawaiian stilt is 
widely recognized as a subspecies of the black-necked stilt Himantopus 
mexicanus (American Ornithology Union (AOU) 1998). It is black and 
white with long, pink legs (Bryan 1901, p. 26; Shallenberger 1977, p. 
24), is slender in appearance, and grows to about 16 inches (in) (40 
centimeters (cm)) in height. Plumage is black on the back, and white on 
the front and underside of the bird. Juveniles have a brownish back, 
and more extensive white on the cheeks and forehead than adults. Chicks 
are well camouflaged in a downy plumage that is tan with black 
speckling (Coleman 1981, pp. 33, 35, 86-87). The Hawaiian stilt is a 
long-lived vertebrate, as the life span of the Hawaiian Stilt can reach 
at least 30 years (Reed et al. 2014, p. 4).

Range, Abundance, and Population Trends

    Hawaiian stilts were historically known from all the main Hawaiian 
Islands (i.e., Niihau, Kauai, Oahu, Maui, Molokai, Lanai, Kahoolawe, 
and Hawaii) except Lanai (until recently) and Kahoolawe. Hawaiian 
stilts move between islands, based on observations of sudden large 
increases in numbers at certain sites (from several hundred to a 
thousand or more), and concomitant

[[Page 15858]]

decreases at other sites, including certain wetlands over the years 
(Engilis and Pratt 1993, pp. 142, 156, 148; Banko 1988, p. 6). Hawaiian 
stilts began colonizing the island of Lanai following developments 
during the 1980s, including construction of a water treatment plant 
that provided foraging and breeding habitat (Engilis and Pratt 1993, p. 
147; Pyle and Pyle 2017, unpaginated). The subspecies consists of one 
single population dispersed across the main Hawaiian Islands (except 
Kahoolawe), and individuals move freely between wetlands both within 
and between islands (Munro 1944, pp. 59-60; Telfer and Burr 1979, p. 8; 
Coleman 1981, pp. 7-8; Reed et al. 1998a, pp. 36, 38; Reed et al. 
1998b, pp. 791-796; Battista 2008, p. 2; Nishimoto 2014, p. 3; Paxton 
and Kawasaki 2015, in litt.; Dibben-Young 2017, in litt.). Hawaiian 
stilts disperse readily, exploit seasonally flooded wetlands, and 
readily colonize newly restored or created habitats (van Rees et al. 
2020, p. 3). The population naturally fluctuates according to climatic 
and hydrologic conditions (Banko 1988, pp. 2-7; Engilis and Pratt 1993, 
pp. 145, 147; Reed et al. 1998b, pp. 791-797). Because the subspecies 
consists of one large population, any discussion regarding the 
subspecies' needs (below) also addresses the population's needs.
    The Hawaii Department of Land and Natural Resources, Division of 
Forestry and Wildlife (DOFAW) conducts a biannual waterbird population 
census (count), and those data offer the best available information to 
assess trend and abundance of the subspecies (DOFAW 2020). Data were 
available from 1986 through 2017 for our analysis. The DOFAW surveys 
take place Statewide on a single day in the winter and a single day in 
the summer to try to avoid counting the same birds twice. Niihau is no 
longer included in the counts as it is a privately owned island that 
has not been surveyed since 1999; this island shares birds seasonally 
with Kauai (Engilis and Pratt 1993, p. 156). However, periodic low 
numbers on Kauai are often due to Hawaiian stilts moving to Niihau, 
particularly in years with increased precipitation (Laut, 2020, pers. 
comm.).
    Winter and summer surveys for Hawaiian stilts show a fluctuating 
population, which generally increased from 1987 to 2004 and since then 
has been roughly stable at 1,500 to 2,000 individuals. Years where 
counts surpassed 2,000 individuals have been followed in the subsequent 
year by a decrease of 300 to 700 birds (DOFAW 2020).
[GRAPHIC] [TIFF OMITTED] TP25MR21.005

    Variability in population count numbers can be partially explained 
by variation in reproductive success (Engilis and Pratt 1993, p. 155) 
and predation. Summer counts are generally more variable than winter 
counts due to the variability in hatch-year bird survival (Reed and 
Oring 1993, pp. 1, 57; Reed et al. 2011b, p. 475). Given that the 
Hawaiian stilt is conspicuous and most wetlands are surveyed during the 
Statewide waterbird surveys, the data provide a fairly reliable index 
of overall population abundance and indicate that the population 
continues to be stable or increasing with short-term fluctuations (Reed 
et al. 2011b, pp. 475-476, 478-479; USFWS 2011, p. iv; DOFAW 2020). 
Using indices to monitor abundance can make detecting changes in 
populations difficult, potentially masking declines (Staples 2005, p. 
1909). We recognize this limitation but conclude the use of this data 
represents the best available information to ascertain status, trends, 
and abundance of this subspecies.

Habitat and Life History Requirements

    The Hawaiian stilt primarily occurs from sea level up to 656 feet 
(ft) (200 meters (m)) in elevation, in natural and human-made lowland 
coastal wetlands (Perkins 1903, p. 452; Shallenberger 1977, pp. 23-25; 
Coleman 1981, pp. 8-18; Griffin et al. 1989, p. 1169; Engilis and Pratt 
1993, pp. 155-156; Evans et al. 1994, p. 6; USFWS 2005, p. 31; USFWS 
2011, pp. 50-60). However, Hawaiian stilts are not restricted to 
lowland coastal wetlands as they have been observed at slightly higher 
elevations and outside of the coastal wetlands, such as foothill 
impoundments, reservoirs, and other wetlands (USFWS 2005, pp. 28-29; 
Kawasaki et al. 2020, p. 431). Hawaiian stilts use areas of sparse, 
low-growing (up to 18 in (46 cm) tall) perennial vegetation or exposed 
tidal flats for nesting and breeding, and sometimes foraging (Smith and 
Polhemus 2003, p. 61; United States Department of Agriculture-Natural 
Resources Conservation Service (USDA-NRCS) 2009, p. 5 and Appendix B; 
Gee

[[Page 15859]]

2007, pp. 70-71; Reed et al. 2011a, pp. 3, 4). The most common foraging 
depth for adults appears to be 5 in (13 cm) or less below the surface 
of the water (Ohashi and Burr 1977, p. 3; Smith and Polhemus 2003, pp. 
60-61; Gee 2007, p. 62; Reed et al. 2011a, pp. 3-4). Shallow water 
(approximately 2-3 in (7.6 cm)) and wet mudflats are particularly 
important for foraging chicks (Morin 1998, p. 11; USDA-NRCS 2009, p. 4; 
Reed et al. 2011a, p. 4; Reed 2017, in litt.).
    Hawaiian stilts typically begin breeding at age two (Reed et al. 
1998a, p. 36). Nests are simple scrapes on the ground (Coleman 1981, p. 
53; Smith and Polhemus 2003, p. 61; Gee 2007, p. 98). Pairs usually lay 
three to four eggs that are incubated for approximately 24 days 
(Coleman 1981, p. 56; Chang 1990, p. 43). Chicks are precocial, leaving 
the nest within 24 hours of hatching. After the last chick hatches, 
parents lead their brood to shallow feeding areas (Coleman 1981, p. 
77). Chicks fledge approximately 28 days post-hatching (Reed et al. 
1999, p. 478), and young may remain with both parents for several 
months after hatching (Coleman 1981, pp. 83-84). Parents are extremely 
aggressive toward unrelated young (Robinson et al. 1999, pp. 11-13).
    During the nesting season, incubating pairs move between their nest 
site and a foraging area (USFWS 2011, p. 60). Foraging areas may be 
directly adjacent to the nest site or quite a distance away (Coleman 
1981, p. 77; Engilis and Pratt 1993, pp. 155-156; Reed and Oring 1993, 
p. 57). Food availability is at least one factor that drives foraging 
at greater distances from the nest site (Reed and Oring 1993, p. 57). 
Adults with 3-day-old chicks have been observed foraging 0.3 mile (mi) 
(1.5 kilometer (km)) from the nest site (Reed and Oring 1993, p. 57). 
Within a few hours of the last chick hatching, parents lead their brood 
to shallow feeding areas that may be the same feeding areas used by the 
adults during incubation (Coleman 1981, p. 77).
    Hawaiian stilts are opportunistic feeders. They eat a wide variety 
of invertebrates and other aquatic organisms found in shallow water and 
mudflats (Perkins 1903, p. 452; Shallenberger 1977, pp. 23-25; Robinson 
et al. 1999, pp. 8-9; USFWS 2011, p. 58). They also sometimes forage in 
grasslands adjacent to wetlands. Managed wetlands with desirable water 
depth are common foraging sites (Underwood et al. 2013, p. 6). Hawaiian 
stilts move intraisland and interisland as they exploit food resources 
(Engilis and Pratt 1993, pp. 155-156).
    We consider the specific breeding and rearing conditions described 
above as necessary for both individual and subspecies needs. The 
Hawaiian stilt is considered a conservation-reliant subspecies (Reed et 
al. 2012, p. 888; Underwood et al. 2013, p. 1), which means that it 
will require active management into perpetuity because of our inability 
to eliminate the dominant threats (Scott et al. 2005, pp. 383-389; 
Scott et al. 2010, pp. 92-93: Goble et al. 2012, pp. 869-872). It is 
also considered conservation-reliant because it relies almost solely 
upon managed wetlands for successful nesting and breeding (Reed et al. 
2012, p. 888; Underwood et al. 2013, p. 1). The accepted management 
regime for creating and maintaining optimal Hawaiian stilt breeding and 
rearing habitat has three major components: Control of invasive 
introduced plant species; manipulation of water levels to mimic natural 
hydrological processes and benefit life-history needs; and control of 
predators (USFWS 2011, pp. 163-169; Underwood et al. 2014, p. 32 and 
supporting references). More information on the subspecies' management 
dependency is presented in the Summary of Biological Status and 
Threats, below.

Recovery Criteria

    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. 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.''
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not 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, or to 
delist a species, is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer 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 of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished.
    In that instance, we may determine that the threats are minimized 
sufficiently and that the species is robust enough that it no longer 
meets the definition of an endangered species or a threatened species. 
In other cases, we may discover new recovery opportunities after having 
finalized the recovery plan. Parties seeking to conserve the species 
may use these opportunities instead of methods identified in the 
recovery plan. Likewise, we may learn new information about the species 
after we finalize the recovery plan. The new information may change the 
extent to which existing criteria are appropriate for identifying 
recovery of the species. The recovery of a species is a dynamic process 
requiring adaptive management that may, or may not, follow all of the 
guidance provided in a recovery plan.
    For the purposes of this discussion, we assess the progress of 
Hawaiian stilt recovery relative to recovery targets in the second 
revision of the Recovery Plan for Hawaiian Waterbirds (Service 2011, 
entire). The 2011 revision included more specific recovery 
recommendations for Hawaiian stilt and modified population target 
levels. In developing recovery criteria for the Hawaiian stilt, we used 
a 1998 population viability analysis (PVA) for the subspecies (see Reed 
et al. 1998a, entire) as the basis for population target levels. For 
recovery criteria for the Hawaiian stilt, we also assessed and 
categorized wetlands on each island into core and supporting wetlands. 
Core wetlands provide habitat essential for the larger populations of 
Hawaiian waterbirds that comprise the bulk of the numbers prescribed 
for recovery. Supporting wetlands are additional areas that provide 
habitat important for smaller populations or provide habitat needed 
seasonally by segments of the population during part of their life 
cycle. Wetlands identified as ``protected'' (whether core, supporting, 
or neither) are those considered secure from development. In general, 
protected wetlands are National Wildlife Refuges (NWR), State-owned 
wildlife sanctuaries, or mitigation wetlands, where the primary purpose 
of management is wildlife conservation or does not conflict with the 
goal of wildlife conservation. The core and supporting wetlands 
identified in the

[[Page 15860]]

2011 recovery plan are the sites on each island that provide the 
greatest potential for recovery of Hawaiian stilts (USFWS 2011, p. 114; 
USFWS 2020 pp. 2-3).
    The overall goal for recovery of the Hawaiian stilt is to restore 
and maintain multiple self-sustaining populations within the 
subspecies' historical range (Service 2011, p. 120). The plan provides 
four criteria for reclassifying the Hawaiian stilt from endangered to 
threatened status and two additional criteria for delisting the 
subspecies. We describe and assess the recovery criteria as they relate 
to evaluating the status of the Hawaiian stilt below.

Criterion 1 for Downlisting

    Criterion 1 states that all core wetlands on the island groups of 
Kauai-Niihau, Oahu, Maui-Molokai, and Hawaii are protected and managed 
in accordance with the management practices outlined in the recovery 
plan (Service 2011, pp. 124, 126, 163-165). The plan states that it is 
crucial for wetlands at these sites to be secure from conversion to 
non-wetland condition and to have sufficient enduring management to 
recover Hawaii's waterbirds.
    Currently, of the recovery plan's 17 identified core wetlands, 14 
are protected from development and have some predator and habitat 
management activities in place. Only 3 lack protection from development 
and predator and habitat management (see Table 1, below).

                                               Table 1--Status and Characteristics of Core Wetlands Identified for Recovery of the Hawaiian Stilt
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Hectares
        Wetland name/location                   Island                (acres)         Core or supporting       Protected \1\                   Managed                     Responsibility \2\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Kaloko-Honokohau, National Historic   Hawaii....................         22 (55)  Core......................               X   predators and habitat.................  NPS.
 Park.
Loko Waka Ponds.....................  Hawaii....................       10 (24.5)  Core......................  ...............  ......................................  Private.
Hanalei NWR.........................  Kauai.....................       371 (917)  Core......................               X   predators and habitat.................  USFWS.
Huleia NWR..........................  Kauai.....................        98 (241)  Core......................               X   predators and habitat.................  USFWS.
Lumahai Valley Wetlands.............  Kauai.....................        51 (125)  Core......................  ...............  ......................................  Private.
Mana Plains Forest Reserve (formerly  Kauai.....................         14 (35)  Core......................               X   predators and habitat.................  DOFAW.
 Kawaiele Wild Bird Sanctuary).
Kanaha Pond Wildlife Sanctuary......  Maui......................        59 (145)  Core......................               X   predators and habitat.................  DOFAW.
Kealia Pond NWR.....................  Maui......................       280 (692)  Core......................               X   predators and habitat.................  USFWS.
Kakahaia NWR........................  Molokai...................         18 (45)  Core......................               X   predators and habitat.................  USFWS.
Ohiapilo Pond Bird Sanctuary........  Molokai...................         10 (25)  Core......................               X   predators and habitat.................  County.
Playa Lakes (wetland complex).......  Niihau....................     769 (1,900)  Core......................  ...............  ......................................  Private.
Hamakua Marsh Waterbird Sanctuary...  Oahu......................       35.6 (88)  Core......................               X   predators and habitat.................  DOFAW/DU.
James Campbell NWR, Kii and Punamano  Oahu......................        66 (164)  Core......................               X   predators and habitat.................  USFWS.
 Units.
Kawainui Marsh......................  Oahu......................       304 (750)  Core......................               X   predators and habitat.................  DOFAW.
Marine Core Base Hawaii, Nuupia       Oahu......................       196 (483)  Core......................               X   predators and habitat.................  MCBH.
 Ponds.
Pearl Harbor NWR, Honouliuli and      Oahu......................         25 (61)  Core......................               X   predators and habitat.................  USFWS.
 Waiawa Units.
Pouhala Marsh Waterbird Sanctuary...  Oahu......................         28 (78)  Core......................               X   predators and habitat.................  DOFAW.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Legend:
\1\ Protected refers to wetland areas that are secure from development.
\2\ Responsibility: DOFAW = Hawaii Division of Forestry and Wildlife; DU = Ducks Unlimited; MCBH = Marine Corps Base Hawaii; NPS = National Park Service; USFWS = U.S. Fish and Wildlife
  Service; USN = U.S. Navy; County = County Government; State = State Government entity; Private = private landowner(s).

    Although we conclude that this criterion has not been completely 
met, we have made substantial progress toward meeting it, and the 
ongoing management on core wetlands has contributed toward the 
stabilization of the Hawaiian stilt population and helped to further 
the recovery of the subspecies.

Criterion 2 for Downlisting

    Criterion 2 states that at least 50 percent of the supporting 
wetlands on the islands of Kauai, Oahu, Maui-Molokai-Lanai, and Hawaii 
are protected and managed in accordance with the management practices 
outlined in the recovery plan. The plan states that protection and 
management of these wetlands is required to recover Hawaii's 
waterbirds, but there is more flexibility with regard to which sites 
must be managed, as it is possible that other sites may fulfill the 
same needs as those identified.
    The recovery plan identified 34 sites as supporting wetlands 
throughout the State; of these, 15 are protected, 11 have predator or 
habitat management or both, but only 7 of the 34 supporting wetlands 
are in protective status and have some form of management (Table 2). 
Therefore, we conclude that this criterion has been partially met.

                                                 Table 2--Supporting Wetlands and Characteristics Identified for Recovery of the Hawaiian Stilt
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                     Hectares
        Wetland name/location                   Island                (acres)         Core or supporting       Protected \1\                   Managed                     Responsibility \2\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Kealakehe (Kona) Sewage Treatment     Hawaii....................         12 (30)  Supporting................  ...............  predators.............................  County.
 Plant.
Keanae Pond (Keaau/Shipman).........  Hawaii....................       2.9 (7.2)  Supporting................               X   ......................................  Private.
Keanakolu Road Stock Ponds (1-5)      Hawaii....................       18+ (45+)  Supporting................  ...............  ......................................  Private/State.
 (Part of Kohala-Mauna Kea Ponds and
 Streams).
Opaeula Pond........................  Hawaii....................         3 (7.5)  Supporting................  ...............  ......................................  Private.
Waiakea Pond........................  Hawaii....................       16 (39.5)  Supporting................  ...............  ......................................  State/County.
Waimanu Valley......................  Hawaii....................             (*)  Supporting................  ...............  ......................................  County.
Waipio Valley.......................  Hawaii....................            (**)  Supporting................               X   ......................................  County.
Hanalei Trader Taro Fields (Hanalei   Kauai.....................      40.4 (100)  Supporting................  ...............  ......................................  Private/State.
 River and Taro fields that are not
 part of Hanalei NWR).
Hanapepe Salt Ponds.................  Kauai.....................         20 (50)  Supporting................  ...............  ......................................  Private/DOFAW.

[[Page 15861]]

 
Mana Base Pond and Wetlands (Part of  Kauai.....................        81 (200)  Supporting................               X   predators and habitat.................  Private/State.
 Mana Plain).
Opaekaa Marsh.......................  Kauai.....................         20 (50)  Supporting................  ...............  ......................................  Private/DOFAW.
Smith's Tropical Paradise...........  Kauai.....................       1.9 (4.7)  Supporting................               X   ......................................  Private/State.
Wailua River Bottoms................  Kauai.....................         20 (50)  Supporting................  ...............  ......................................  Private/State.
Waimea River System.................  Kauai.....................        64 (158)  Supporting................  ...............  ......................................  Private/State.
Wainiha Valley River and Taro Fields  Kauai.....................        44 (109)  Supporting................  ...............  ......................................  Private/County.
Waita Reservoir.....................  Kauai.....................       151 (373)  Supporting................  ...............  ......................................  Private.
Lanai Sewage Treatment Ponds........  Lanai.....................         3 (7.4)  Supporting................  ...............  predators.............................  Private/County.
Keanae Point........................  Maui......................       1.5 (3.7)  Supporting................               X   ......................................  State.
Waihee Coastal Dunes and Wetlands     Maui......................       101 (250)  Supporting................               X   predators and habitat.................  Private.
 (Waihe[revaps]e Refuge).
Kaunakakai Wastewater Reclamation     Molokai...................       1.5 (3.7)  Supporting................               X   predators.............................  County.
 Facility Ponds.
Kualapu[revaps]u Reservoir..........  Molokai...................         30 (74)  Supporting................               X   ......................................  State.
Paialoa Fish Ponds..................  Molokai...................           2 (5)  Supporting................  ...............  ......................................  Private.
Haleiwa Lotus and Taro Fields.......  Oahu......................      4.2 (10.6)  Supporting................  ...............  ......................................  Private/County.
Haleiwa Waialua Lotus Fields........  Oahu......................         30 (75)  Supporting................  ...............  ......................................  Private.
Heeia Marsh.........................  Oahu......................       162 (400)  Supporting................               X   predators and habitat.................  DOFAW.
Kaelepulu Mitigation Pond (Enchanted  Oahu......................       2.2 (5.6)  Supporting................               X   predators and habitat.................  Private.
 Lake).
Kahuku Prawn Farm (Includes Amoriant  Oahu......................        41 (100)  Supporting................  ...............  ......................................  Private.
 and Kahuku Aquaculture Farms).
Laie Wetlands.......................  Oahu......................        81 (200)  Supporting................               X   ......................................  Private.
Lualualei RTF, Niulii Ponds.........  Oahu......................         16 (40)  Supporting................               X   predators and habitat.................  USN/USFWS.
Paiko Lagoon Wildlife Sanctuary.....  Oahu......................         13 (33)  Supporting................               X   predators and habitat.................  DOFAW.
Punahoolapa Marsh...................  Oahu......................        41 (100)  Supporting................               X   ......................................  Private.
Turtle Bay, Kuilima Wastewater        Oahu......................        5 (12.4)  Supporting................               X   ......................................  Private.
 Treatment Plant.
Ukoa Marsh..........................  Oahu......................       122 (300)  Supporting................  ...............  predators and habitat.................  Private.
Waihee Marsh........................  Oahu......................         10 (25)  Supporting................  ...............  predators and habitat.................  Private.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Legend:
\1\ Protected refers to wetland areas that are secure from development.
\2\ Responsibility: HDOFAW = Hawaii Division of Forestry and Wildlife; DU = Ducks Unlimited; MCBH = Marine Corps Base Hawaii; NPS = National Park Service; USFWS = U.S. Fish and Wildlife
  Service; USN = U.S. Navy; County = County Government; State = State Government entity; Private = Private Landowner(s).
* Large area of intermixed wetland, upland, and agricultural lands where specific habitat areal extent cannot be determined.
** Large area of intermixed wetlands and agricultural lands where specific habitat areal extent cannot be determined.

Criterion 3 for Downlisting

    Criterion 3 states that a PVA should be conducted to update the 
findings of Reed et al. (1998a, entire), and the population size 
necessary for long-term viability of the subspecies should be 
reassessed; and (2) the Statewide surveyed number of Hawaiian stilts 
show a stable or increasing trend and has not declined below 2,000 
birds (or an alternative target based on the updated PVA) for at least 
5 consecutive years. Researchers have produced two PVAs for the 
subspecies to support and inform the creation of recovery criteria and 
recovery decisions for the subspecies (Reed et al. 1998a, entire; Reed 
and van Reese 2019, entire). The most recent analysis in 2019, 
completed with data collected since 1998, incorporated additional peer-
reviewed data on adult survival rates and variances in adult or 
juvenile survival rates (Reed et al. 2014, entire); these additional 
data were not available at the time of the initial modelling effort. 
The 2019 effort also included data on individual movement patterns for 
Hawaiian stilt (Reed et al. 1998b, entire). The authors of the 2019 PVA 
stressed that the results are considered preliminary; that said, we 
find that the results inform the best available information regarding 
the viability of Hawaiian stilt.
    Modeling from the 2019 PVA indicates that the Hawaiian stilt's 
population growth is affected by density-dependent population dynamics 
on managed wetlands beginning at approximately 1,000 birds. When 
population densities are high, the aggressive territorial behavior of 
adult stilts can lead to violent and occasionally fatal attacks on 
conspecific chicks and adults, sometimes with extensive chick 
fatalities as well as the potential for large numbers of nest failures 
or abandonment. Local adult density has a strong negative correlation 
with nest success (proportion of nests hatching at least one chick) at 
Kealia Pond National Wildlife Refuge (NWR) on Maui, where few 
alternative breeding habitats are available, but no such effect at a 
refinery pond on Oahu, where many nearby alternative wetlands are 
available. Therefore, optimizing the distribution of birds during 
breeding across the landscape (as opposed to concentrating breeding 
populations on one/few sites) to mitigate the effects of density 
dependence will benefit the conservation of the subspecies. 
Additionally, because this density-dependence is closely associated 
with available managed habitat, increased management (i.e., predator 
control, water-level, and nonnative plant removal) across the range of 
the species, in both core and supporting wetlands, will create more 
suitable breeding habitat and thus increase the carrying capacity. 
Adequate representation across multiple sites on multiple islands--as 
illustrative of the approach of managed core and supporting wetlands 
developed by the recovery team--offers the most effective pathway to 
recovery of this conservation-reliant subspecies.
    The PVA suggests that, under the current management efforts on core 
and supporting wetlands the Statewide carrying capacity of Hawaiian 
stilts is below 2,000 individuals. This means that the Hawaiian stilt 
has reached its equilibrium population size (i.e., the population size 
the landscape can currently support). Data used in the PVA was 
collected from sites that are both protected and managed, as well as 
data from sites that are protected but do

[[Page 15862]]

not have management. The vital rates (reproduction and mortality) used 
in this PVA come from birds almost exclusively from managed sites as 
there are few to no birds able to successfully breed elsewhere due to 
the myriad threats present at non-managed sites. If the management 
practices continue and the environmental conditions of the managed 
sites are stable over the next 80 years, the rangewide population has 
no chance of extinction within the 80-year modelling period. This 
analysis demonstrates that under the current management practices the 
rangewide population is stable within the limited available managed 
sites and will continue to be stable as long as these management 
practices and environmental conditions continue. The three key factors 
that influence the probability of extinction, in order of importance, 
are adult mortality, juvenile mortality, and nest failure rate. The PVA 
predicted a sharp rise in the probability of extinction when adult 
mortality rates exceeded approximately 24 percent; at approximately 34 
percent, the probability of extinction for the stilt approached 80 
percent (Reed and van Reese 2019, pp. 24, 30).
    The PVA also found that the Hawaiian stilt's viability is sensitive 
to changes in both annual juvenile mortality rates and nest failure 
rates. The PVA model indicated that the probability of extinction 
begins to increase sharply when annual juvenile mortality begins to 
exceed 40 percent, with almost certain extinction at 79 percent annual 
juvenile mortality (Reed and van Rees 2019; p. 31). Nest failure rates 
also influence changes in the model's outcomes on probability of 
extinction within 80 years (i.e., the likelihood the species will not 
persist in 80 years). Nest failure rate would need to double, from 
approximately 19 percent to approximately 40 percent to reach a high 
probability of extinction within 80 years, with almost certain 
extinction if nest failure rates reaches 50 percent.
    The PVA stresses that the successful reproduction and survival of 
stilts occurs almost exclusively at protected and managed wetlands and 
that birds at unmanaged wetlands tend to disappear, and consequently, a 
loss (or reduction) of management would decrease the species 
persistence likelihood (Reed and van Reese 2019, p. 36). This insight 
means in the absence (or reduction) of management at the currently 
managed sites, the species probability of extinction would 
substantially increase, and therefore, the species viability would 
substantially decrease. Further, adult mortality, juvenile mortality, 
and nest success are not independent factors. For example, if there are 
fewer adults there are fewer nests, so any reduction in management or 
habitat quality is likely to impact all life stages of the Hawaiian 
stilt.
    Another potential limitation of the PVA is that changes in the 
environmental conditions of the protected and managed sites attributed 
to sea-level rise or other factors was not included as a variable in 
any of the models included in this PVA. Sea-level rise in particular is 
already impacting some wetlands in Hawaii (see Summary of Biological 
Status and Threats, below) (Kane et al. 2015, p. 353; Htun et al. 2016, 
pp. 50-51; van Reese and Reed 2018, pp. 2-3; van Reese and Reed 2019, 
p. 4; van Reese 2020, pers. comm.). Over the next several decades, sea-
level rise could inundate enough core wetlands (e.g., Kanaha and Kealia 
on Maui, and almost all wetlands on Molokai) across the islands and 
result in changes to the species' persistence estimates in the PVA due 
to changes or loss of available habitat and subsequent increases in 
mortalities of adults, eggs, or young (Kane et al. 2015, p. 353; Htun 
et al. 2016, pp. 50-51; van Reese and Reed 2018, pp. 2-3; Reed and van 
Rees 2019, p. 4; Harmon 2020, in litt.; van Reese 2020, pers. comm.).
    The insights from the PVA justify the need for long term 
conservation actions such as managing habitat conditions and 
controlling predation. The robustness of the populations on core 
managed wetlands, as well as the effectiveness of management efforts 
focusing on producing conditions that result in the successful 
protection of nests, chicks, and adults, are well established. For 
example, although the Service's NWR units contain only 15 percent of 
the total coastal plan wetland acreage in the State, they supported 
between 37 and 47 percent of the total Hawaiian stilt Statewide 
population using data from 1986 through 2007 (Underwood et al. 2013, p. 
6). Effective and sustained habitat and predator management produces 
conditions that result in the successful protection of nests, chicks, 
and adults, thereby significantly mitigating risk to the subspecies and 
improving resiliency into the foreseeable future. Long-term commitment 
towards conservation management actions are essential to continued 
progress towards recovery. Furthermore, additional and more expansive 
management on core and supporting wetland sites will also benefit the 
status of the subspecies into the foreseeable future.
    Regarding population trends for Hawaiian stilt, winter and summer 
surveys for the subspecies show a fluctuating population, which 
generally increased from 1986 to 2004 and since then has been roughly 
stable at 1,500 to 2,000 individuals (see Range, Abundance, and 
Population Trends). While the number of Hawaiian stilts counted during 
the surveys has only occasionally exceeded 2,000 individuals during 
winter or summer counts over the last 10 years, the population has 
remained relatively stable over the past 16 years.
    We conclude that this criterion has not fully been met because 
although a new preliminary PVA has been produced, the Service has not 
yet reassessed the subspecies population size necessary for long-term 
viability. The Service will conduct this reassessment once the PVA has 
undergone peer review and is published in the scientific literature. 
Further, winter and summer surveys for the Hawaiian stilt show a 
fluctuating population with a stable to increasing trend, but the total 
population has not consistently been near 2,000 birds for 5 consecutive 
years (see Range, Abundance, and Population Trends).

Criterion 4 for Downlisting

    Criterion 4 states that there should be multiple self-sustaining 
breeding populations, including multiple breeding populations on at 
least the following: The island group of Kauai and Niihau, the island 
of Oahu, the island group of Maui, Molokai, and Lanai, and the island 
of Hawaii. Because the Hawaiian stilt exists in one intermixed 
population, we refer to breeding populations solely to distinguish 
groups of Hawaiian stilts that breed at a specific wetland on a 
specific island at any given time. They may or may not be the same 
stilts over time.
    The recovery plan defines a self-sustaining breeding population as 
a population that is large enough to make extirpation from stochastic 
forces unlikely, and that is able to remain stable or grow with little 
human intervention except for predator control and vegetation 
management (USFWS 2011, p. 121). The recovery strategy further 
strengthens this concept by incorporating the need to satisfy two 
widely recognized and scientifically accepted goals for promoting 
viable self-sustaining breeding populations: (1) By increasing the 
population size and distribution across the islands, a single or series 
of catastrophic events will not result in the extinction of the 
subspecies; and (2) increasing the population size throughout its range 
to a level where the threats of genetic,

[[Page 15863]]

demographic (population dynamics), and normal environmental 
uncertainties are diminished (USFWS 2011, p. 112). Furthermore, for 
these population and distribution goals to ensure the long-term 
viability of the subspecies, they will require the successful control 
or elimination of the identified threats.
    Present distribution of the Hawaiian stilt encompasses all islands 
where historically known (Niihau, Kauai, Oahu, Maui, Molokai, and 
Hawaii), as well as the island of Lanai due to the expansion in range 
that occurred in the mid-1980s from the development of the Lanai 
wastewater treatment facility. As previously summarized, since 1986, 
census data indicate a Statewide population that is relatively stable 
or slightly increasing (Service 2011, pp. 48-49; Service 2020, pp. 5, 
18; van Rees et al. 2020, p. 3; DOFAW 2020). Additionally, the 
implementation of adaptive management predator control practices over 
the last decade at multiple core wetland sites has demonstrated that 
the response of the subspecies to predator control is positive, with 
higher fledgling success rates and overall improvements in population 
densities of Hawaiian stilts than in unmanaged sites (Underwood et al. 
2014, p. 35; Price 2020, p. 10). Current management of threats at most 
core wetlands and some supporting wetland sites (Tables 1 and 2) has 
contributed toward the stabilization of the population and likely also 
plays an important role in creating a Hawaiian stilt population that is 
at or near carrying capacity (Reed and van Rees 2019, entire; van Rees 
et al. 2020, entire). As noted above, carrying capacity in this case is 
really more an equilibrium population, which is the population size the 
habitat can support under current conditions. If additional management 
was implemented at more core and supporting wetlands then the carrying 
capacity or equilibrium population size would increase. The expansion 
of effective predator and vegetation control methods (e.g., mammalian 
exclusion fencing, trapping methods, and vegetation control) into more 
core and supporting wetlands may increase the carrying capacity or 
equilibrium population size for the subspecies and further improve the 
status of the species into the foreseeable future. Additionally, 
implementation of the three essential management actions (predator, 
vegetation, and water level control) at the same time, at the same 
location, on a more regular basis, at wetlands that currently receive 
management and expanding such practices to those that do not, will 
further benefit the species. Although it is generally accepted by 
wetland managers in Hawaii that all three management actions in 
concerted effort are required restore the functionality of wetlands to 
meet the life-history requirements of waterbirds, currently, all three 
of these essential management actions do not necessarily happen at the 
same time on managed wetlands (Underwood et al. 2013, p. 2). Sustained 
management over time at many core and some supporting wetlands has 
advanced the recovery of the Hawaiian stilt by securing essential 
breeding habitat enabling the subspecies to increase its population 
size and distribution.
    The wide distribution of the Hawaiian stilt population, spread out 
across the multiple islands, provides the subspecies with the 
resiliency and redundancy necessary to withstand a stochastic (e.g., 
single wetland) or catastrophic (e.g., islandwide) event, respectively. 
However, within-island distribution can be quite limited. For example, 
the number of birds on the island of Hawaii are still relatively low 
(200 to 250 at any given time on the island) and the birds have been 
highly dependent on a local wastewater treatment facility (Kealakehe) 
for breeding (National Park Service (NPS) 2020, pers. comm.). 
Biologists at Kaloko-Honokohau National Park (NP) have more recently 
been creating mudflats and more suitable habitat for Hawaiian stilts 
which has increased nesting attempts (eight to 10 pairs of birds on 
average) at the park; however, there is low nest success and very few 
fledglings (NPS 2020, pers. comm.). The birds tend to increase in 
number outside of the breeding season, but are primarily just foraging 
(NPS 2020, pers. comm.). Similarly, the occurrence of birds on Lanai 
demonstrates an expansion in range, but they are utilizing the 
artificial habitat of a wastewater treatment facility and there are 
only approximately 20 breeding pairs (Pulama Lanai 2020, pers. comm.). 
Likewise, Hawaiian stilts on Molokai also largely depend on a 
wastewater treatment facility, and most of Molokai's coastal wetlands 
are only 1 ft (0.30 meter) above sea level and thus expected to be 
reduced by sea-level rise resulting in a reduction of both nesting and 
foraging areas on the island (Jenkins 2016, in litt.; Dibben-Young 
2017, in litt.). Further, recent analyses of Hawaiian stilt numbers at 
several NWR wetlands show a slight decline in Hawaiian stilts in recent 
years (Rounds 2020, pers. comm.), which may lead to reduced 
distribution. The population size does fluctuate, and the birds appear 
to favor some wetlands over others during different years; however, 
monitoring such trends is important to understanding the conservation 
needs of the subspecies. Therefore, we conclude that this criterion is 
partially met.

Discussion/Summary of Downlisting Criteria Assessment

    The downlisting criteria in the recovery plan (USFWS 2011, entire) 
represented our best assessment, at the time the plan was prepared, of 
the conditions that would result in a determination that the Hawaiian 
stilt could be considered for reclassification under the Act as 
threatened rather than endangered. While the downlisting criteria in 
the recovery plan have not yet been completely met, we have made 
substantial progress as: (1) Ongoing management is occurring at most 
core wetlands (Criterion 1); (2) protection has been secured for about 
40 percent of supporting wetlands, and about 33 percent of the 
supporting wetlands are being managed (Criterion 2); (3) preliminary 
results from a 2019 PVA have been obtained (Criterion 3) (Reed and van 
Reese 2019, entire); and (4) census data indicate a rangewide stable to 
increasing population with the resiliency and redundancy to withstand 
both stochastic and catastrophic events (Criterion 4).
    Recovery criteria for the Hawaiian stilt may need to be revisited 
once the PVA is finalized. Using its assessment of population size 
necessary for long-term viability of the subspecies, the PVA indicates 
that under current vital rates at managed sites, current management 
effort, and current condition and availability of habitat, the 
Statewide carrying capacity may be below the conditional target of 
2,000 individuals as listed in Recovery Criterion 3. The PVA notes that 
it can be shown easily that a long-lived species in a setting with low 
environmental stochasticity could steadily decline for 80 years but 
still have a probability of persistence, particularly if the starting 
population size is in the hundreds or thousands of individuals (van 
Reese and Reed 2019, p. 35). Further, the PVA questions the target goal 
of 2,000 individuals, citing that population sizes of long-lived 
vertebrates tends to be greater (van Reese and Reed 2019, p. 38). 
Increasing management (predator control, vegetation removal, and water-
level control) across the species' range at both core and supporting 
wetlands is the most effective way to meet this recovery criterion. See 
Current Voluntary and Regulatory Conservation Efforts, below, for a 
summary of the partnerships that have contributed toward the

[[Page 15864]]

stabilization of the Hawaiian stilt population and efforts to manage 
the subspecies throughout its range.

Delisting Criteria

    We provided two delisting criteria in our recovery plan. Criterion 
1 states that of the supporting wetlands on the islands of Kauai, Oahu, 
Maui-Molokai-Lanai, and Hawaii, at least 85 percent are protected and 
managed in accordance with the management practices outlined in this 
recovery plan. Criterion 2 states that the Statewide surveyed number of 
Hawaiian stilts shows a stable or increasing trend and has not declined 
below 2,000 birds (or an alternative target based on the updated 
population viability analysis) for at least 10 consecutive years. The 
information presented above for the downlisting criteria indicates that 
the criteria for delisting have not yet been met; we provide a summary 
of information relating to the delisting criteria below.
    With regard to Criterion 1, the Service finds that progress towards 
securing management actions on supporting wetlands has been made and is 
showing success, but the criterion has not been fully realized to date. 
For supporting wetland sites, producing long-term and sustained 
Hawaiian stilt habitat management is complicated by the following 
factors. First, many supporting wetlands are owned or managed by 
multiple entities, which complicates coordination and intensity of 
management effort. Additionally, the primary purpose of many of these 
sites is not waterbird conservation (e.g., water reclamation 
facilities, wastewater pond, taro production, and flood control), and, 
therefore, management of conditions conducive to Hawaiian stilt 
breeding is secondary. Finally, achieving long-term management efforts 
on many of these sites is more uncertain than core and supporting sites 
owned by the Federal and/or State conservation agencies; this is due to 
a general lack of secured and dedicated funding sources and lack of 
internal operational capacity. Partnerships at supporting wetland sites 
have contributed to recovery progress for the Hawaiian stilt and other 
waterbirds (see Current Voluntary and Regulatory Conservation Efforts) 
and are contributing to recovery. Progress toward achieving this 
criterion is currently ongoing but not yet at an acceptable level of 
permanency or extent to achieve the greatest conservation outcomes to 
meet this criterion.
    With regard to delisting Criterion 2, winter and summer surveys for 
Hawaiian stilt show a fluctuating population, which generally increased 
from 1986 to 2004 and since then has been roughly stable at 1,500 to 
2,000 individuals (see Range, Abundance, and Population Trends). The 
number of Hawaiian stilts counted during the surveys has only 
occasionally exceeded 2,000 individuals during winter or summer counts 
over the last 10 years; thus, we will revisit this target once the PVA 
has been peer reviewed and published.

Regulatory and Analytical Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an endangered species as a species that is 
``in danger of extinction throughout all or a significant portion of 
its range,'' and a threatened species as a species that is ``likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range.'' The Act requires that we 
determine whether any species is an ``endangered species'' or a 
``threatened species'' because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects. We consider these same five 
factors in reclassifying a species from endangered to threatened (50 
CFR 424.11(c)-(e)).
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species--such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
foreseeable future extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain;'' it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

[[Page 15865]]

    In addition to the threat analysis, to assess the Hawaiian stilt's 
viability, we used the three conservation biology principles of 
resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 
306-310). Briefly, resiliency supports the ability of the subspecies to 
withstand environmental and demographic stochasticity (for example, wet 
or dry, warm or cold years), redundancy supports the ability of the 
subspecies to withstand catastrophic events (for example, droughts, 
large pollution events), and representation supports the ability of the 
species to adapt over time to long-term changes in the environment (for 
example, climate changes). In general, the more resilient and redundant 
a subspecies is and the more representation it has, the more likely it 
is to sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the subspecies' 
ecological requirements for survival and reproduction at the 
individual, population, and (sub)species levels, and described the 
beneficial and risk factors influencing the subspecies' viability.
    Our assessment of viability is categorized into three sequential 
stages. During the first stage, we evaluated the subspecies' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the subspecies' demographics and habitat 
characteristics, including an explanation of how the subspecies arrived 
at its current condition. The recent PVA provided a synthesis of this 
information. The third and final stage involved making predictions 
about the subspecies' responses to positive and negative environmental 
and anthropogenic influences. Throughout all of these stages, we used 
the best available information to characterize viability as the ability 
of a subspecies to sustain populations in the wild over time.

Summary of Biological Status and Threats

    In this section, we review the biological conditions of the 
subspecies and its resources, and the threats that influence the 
subspecies' current and future condition, in order to assess the 
subspecies' overall viability and the risks to that viability.
    The sources cited in this proposed rule represent the best 
scientific and commercial data available concerning the current status 
of the subspecies, including the past, present, and future threats. We 
used this information to evaluate the current and future resiliency, 
redundancy, representation, and viability of the Hawaiian stilt. (See 
Regulatory and Analytical Framework.) The effects of conservation 
actions were also assessed as part of the current condition of the 
subspecies. We note that overutilization for commercial, recreational, 
scientific, or educational purposes (Factor B) was not identified as a 
threat at the time of listing, and we have no additional information to 
suggest it is currently, or will become, a threat in the foreseeable 
future; hunting of the subspecies has been prohibited since the 1940s. 
Furthermore, as per our policy, in this proposed rule we consider 
regulatory mechanisms (Factor D) with respect to how both regulatory 
and volunteer conservation measures might reduce or ameliorate threats 
to the species, rather than in the context of a potential stand-alone 
threat. Threats to the subspecies are reduced by voluntary and 
regulatory actions initiated by the Service, DOFAW, and voluntary 
actions by a large network of organizations interested in wetland and 
waterbird conservation rangewide. A summary of these efforts is found 
in Current Voluntary and Regulatory Conservation Efforts.
    The primary threats to Hawaiian stilts are habitat loss and 
degradation (due to urban development, ground and surface water 
alterations that affect core and supporting wetlands, nonnative plants, 
and foreseeable changes in habitat quality and quantity due to sea 
level rise (such as groundwater flooding and inundation and coastal 
flooding and inundation)) (Factor A); nonnative predators (Factor C); 
avian disease (Factor C); environmental contaminants (Factor E); and 
foreseeable tropical cyclone intensity and frequency resulting from 
climate change (Factor E).
    These threats should be considered in the context of a stable and 
resilient subspecies indicated from surveys over the past several 
decades, and peer-reviewed studies including past (Reed et al. 1998, 
entire) and most recent (Reed and van Rees 2019, entire) PVA analyses, 
and radio telemetry studies (Kawasaki et al. 2020, p. 431). Below we 
discuss these threats and their relationship to Hawaiian stilt current 
and future condition.

Habitat Loss and Degradation Due to Urban Development

    Some of the largest core wetlands have been lost over the past 
century. On Oahu, Waikiki, Pearl Harbor, Kaelepulu (now Enchanted 
Lake), and Salt Lake were lost to development, each with only remnants 
left behind, some of which, like Waikiki, are no longer able to support 
the Hawaiian stilt. A small preserve (Kaelepulu Wetland Preserve, 1.2 
ha (3 ac)) was set aside in 1955, a remnant of the once expansive 
Kaelepulu wetland. Pearl Harbor wetlands have also been greatly 
degraded or diminished by means of filling, urban development, 
nonnative plant overgrowth, and water pollution. The Mana Plains on 
Kauai, once the largest wetland in Hawaii at over 1,600 ac (650 ha) 
(circa 1910) was reduced to only 200 ac (80 ha) by 2006, primarily due 
to water diversions for sugar cane (Munro 1944, p. 59; Shallenberger 
1977, p. 218; Erickson and Puttock 2006, p. 40). Within these last 200 
ac (80 ha), 35 ac (14 ha) are designated as the Mana Plain Forest 
Reserve (formerly the Kawaiele Waterbird Sanctuary). Although 
magnitudes smaller in size, it is still considered a core wetland 
(USFWS 2011, pp. 207, 214). The greater Mana Plain area is also an 
important supporting wetland habitat for the Hawaiian stilt due to 
remaining scattered ephemeral (temporary) wetlands (Nadig 2017, pers. 
comm.). The adjacent Navy wastewater treatment facility at the Pacific 
Missile Range Facility also serves to support the subspecies as a 
supporting (albeit human-made) wetland. Most wetland losses in Hawaii 
have been human induced, ranging from water diversions, discharging 
fill, building dams, channelizing, pumping, grubbing (the removal of 
trees, shrubs, stumps, and rubbish from a site), grading, deep ripping, 
and other agricultural or military land use practices (Erickson and 
Puttock 2006, p. 40).
    Many of Hawaii's wetlands, including core and supporting wetlands 
occupied by Hawaiian stilts, occur in coastal areas that are highly 
valued for development and are becoming increasingly urbanized. 
Although the rate of permanent losses of coastal wetlands has 
significantly been slowed due to wetland protection laws, suitable 
Hawaiian stilt breeding wetland sites continue to be subject to 
degradation effects of adjacent urbanization and other incompatible 
land uses, water extraction, and diversion. This continuous 
encroachment raises concerns regarding human disturbance, urban runoff 
impacts on water quality, and an increased incidence of domestic cats 
and dogs in wildlife areas (Stone 1989, pp. 129-130, 134; Wright et al. 
2006, pp. 13-60). Further, ongoing urbanization could limit or prohibit 
the inland movement of coastal wetlands as areas are inundated with 
groundwater and marine water resulting from sea level rise because the 
ground is impermeable (Clausen and Clausen 2014, p. 177).

[[Page 15866]]

Ground and Surface Water Alterations Resulting From Urban Development

    Ground and surface water alterations, such as flood control and 
channelization, often make wetland habitat less suitable or unusable 
for Hawaiian stilts by altering both water depth and timing of water 
level fluctuations. Nearly all surface-water features (e.g., streams, 
lakes, reservoirs, wetlands, and estuaries) interact with ground water 
(United States Geological Survey (USGS) 1998, p. III). As a result, 
withdrawal of water from streams can deplete ground water. Similarly, 
pumping of ground water can deplete water in streams, lakes, and 
wetlands (USGS 1998, p. III). Hawaiian stilts are not always able to 
adjust their breeding behavior to accommodate such modifications, which 
results in decreased reproductive success and therefore decreased 
resiliency. Alternatively, water released after prolonged diversion can 
negatively impact habitat for Hawaiian stilts (Morin 1998, p. 27; 
Underwood 2017, pers. comm.). For example, recent (2014) water disputes 
on west Maui resulted in less upstream water diversion for agriculture, 
and subsequently a more-steady stream flow of water into Kealia Pond 
NWR. This steady water influx decreased the amount of stilt habitat 
(i.e., mudflats and shallow water areas), raising water levels so high 
the NWR had to breech water out into the ocean so the water did not get 
too deep (Underwood 2017, pers. comm.). Prior to this surface water 
alteration, Kealia Pond was a common breeding site for Hawaiian stilts 
(sometimes supporting over 1,000 individuals) (Nishimoto 2006, p. 40; 
Nishimoto 2014, p. 1; Underwood 2017, pers. comm.). The shift to 
deeper, year-round water has resulted in reduction of Hawaiian stilt 
numbers at Kealia Pond (Underwood 2017, pers. comm.). The natural cycle 
of seasonal inundation and evaporation of fresh or brackish water 
mudflats has been altered, resulting in a decrease in quality of 
habitat. More recently, the NWR manager at Kealia has increased 
management practices and is starting to see more stilts on the NWR 
again, although in low numbers (USFWS waterbird hui 2020, pers. comm.).
    The depletion of freshwater aquifers also causes saltwater 
intrusion into coastal groundwater resulting in changes to salinity 
levels in associated wetlands. Changes in salinity may alter the 
composition of the vegetation and invertebrate communities, which 
subsequently may affect food availability at such sites for Hawaiian 
stilts (Chang 1990, pp. 65, 71, 73; Morin 1998, p. 27; Wirwa 2007, pp. 
86, 91; Silbernagle 2008, pers. comm. cited in USFWS 2011, p. 80). 
Further, invertebrate die-offs from salinity changes could trigger a 
botulism outbreak (see Avian Disease, below) (Morin 1998, p. 27). 
Records of salinity in Hawaii's wetlands range from 0 parts per 
thousand (ppt) up to 200 ppt (Ueoka et al. 1979, p. 6; Coleman 1981, 
pp. 12, 15, 18; Wirwa 2007, p. 91; Nadig 2017, pers. comm.). 
Alterations in ground and or surface water could result in complete 
habitat loss (e.g., Waikiki), as mentioned above under Habitat Loss and 
Modification due to Urban Development.

Habitat Loss and Degradation by Nonnative Plants

    Hawaii experiences a year-round growing season; therefore, 
management of invasive wetland plants, and sometimes native plants, 
must be constant (Underwood et al. 2013, p. 1; Nadig 2017, pers. comm.) 
to provide good habitat for the Hawaiian stilt. Invasive species such 
as California grass, pickleweed, water hyacinth (Eichornia crassipes), 
Indian fleabane (Pluchea indica), and mangrove (Rhizophora mangle) 
present serious problems in most Hawaiian wetlands by outcompeting 
native species and eliminating open water, mudflats, and shallow water 
areas (Shallenberger 1977, pp. 154, 184, 238; Griffin 1989, p. 1171; 
Henry 2006, p. 26). At least one native plant, aeae (Bacopa monnieri) 
may also need management as it too has the potential to smother wetland 
habitat (Nadig 2017, pers. comm.). The alteration of wetland plant 
communities due to extensive, blanketing overgrowth of invasive plants 
can greatly reduce the usefulness of wetland areas for native 
waterbirds, including the Hawaiian stilt (Shallenberger 1977, pp. 154, 
184, 238; Griffin 1989, p. 1171; Morin 1994, p. 69; Morin 1998, p. 21; 
Pacific Rim Conservation 2012, p. 6; Jenkins 2016, in litt.). The 
establishment of nonnative red mangrove may facilitate the use of 
wetlands by introduced cattle egrets and the indigenous black-crowned 
night-heron or aukuu (Nycticorax nycticorax), thereby increasing the 
threat of predation on Hawaiian stilts (Rauzon and Drigot 2002, p. 
240). Efforts to remove such invasive species are expensive and require 
ongoing vegetation management as well as periodic sweeps for removing 
seedlings. Nonnative plant control is a key problem facing wetland 
managers in the State of Hawaii (USFWS 2011, p. 80).

Sea Level Rise

    Global mean sea level (GMSL) is rising and is expected to continue 
to rise for centuries due to thermal expansion, even if all Nations 
ceased production of greenhouse gasses today (Meehl et al. 2012, p. 
576; Golledge et al. 2015, pp. 421, 424; DeConto and Pollard 2016, p. 
591). This is because of the warming that has already occurred. 
Additionally, GMLS may rise even more due to warming that is yet to 
occur from the still uncertain level of future greenhouse gas emissions 
(National Oceanic Atmospheric Administration (NOAA) 2017, p. 1). The 
level of projected rise in GMSL is different depending on the 
corresponding Representative Concentration Pathway (RCP) emissions 
scenario (RCP 2.6, 4.5, 6, or 8.5) (van Vuuren et al. 2011, p. 5; 
Intergovernmental Panel on Climate Change 2014, p. 8). The NOAA, along 
with other Federal and academic science institutions, laid out six 
risk-based GMSL scenarios describing potential future conditions, with 
lower and upper bounds of GMSL rise between 0.2 and 0.6 m (0.7 and 1.9 
ft) through 2040 (NOAA 2017, pp. vi-vii, 1-55 and Appendices A-D). This 
is highly relevant to Hawaiian stilt conservation because, even at the 
lowest current estimate, substantial habitat may be lost or degraded.
    Sea level rise is not expected to be uniform throughout the world, 
due to factors including, but not limited to: (1) Variations in 
oceanographic factors such as circulation patterns; (2) changes in 
Earth's gravitational field and rotation, and the flexure of the crust 
and upper mantle, due to melting of land-based ice; and (3) vertical 
land movement due to glacial isostatic adjustments, sedimentation 
compaction, groundwater and fossil fuel withdrawals, and other non-
climactic factors (Spada et al. 2013, p. 484; NOAA 2017, pp. vi-vii, 9, 
19). The Hawaiian Islands are expected to receive higher increases in 
sea level rise than the GMSL rise (Spada et al. 2013, p. 484; Polhemus 
2015, p. 7; NOAA 2017, p. 9). Further, sea level rise in Hawaii will 
not be uniform across the islands due, in part, to vertical land motion 
resulting from the actively growing Hawaii Island (Kane 2014, p. 3 and 
references therein; Polhemus 2015, p. 3). Both marine inundation and 
groundwater inundation will contribute to wetland habitat loss and 
modification, but as sea level rise increases beyond 2.4 ft (0.74 m), 
marine inundation will be the dominant source of inundation (Polhemus 
2015, p. 25). Lastly, sea level rise is not expected to be a slow, 
gradual, and linear

[[Page 15867]]

phenomenon; it is anticipated to accelerate and at times be quite rapid 
(Polhemus 2015, pp. 6-7). Sea level rise is of particular concern for 
conservation of the Hawaiian stilt because most of Hawaii's wetlands 
are located just inland of a narrow coastal strand and are dependent 
upon natural or pumped groundwater sources to maintain pond water 
levels (Kane 2014, p. 7 and references therein).
    Our assessment of sea level rise and its effects on Hawaiian stilt 
wetland habitat has been limited to the foreseeable future. We have 
assessed the foreseeable future as through the year 2040, based that 
many climate models diverge at year 2040, and the medium-term forecast 
of 0.98 ft (0.3 m) sea level rise effects on Hawaiian coastal wetlands 
(Kane and Fletcher 2013, entire). Availability of climate change models 
for this timeframe and localized area is limited.
    By 2040, marine flooding and inundation resulting from sea level 
rise is anticipated to result in coastal flooding in Hawaii (Kane and 
Fletcher 2013, pp. 1-33, and Appendix). Marine flooding and inundation 
is expected to occur through a combination of storm surge (rising sea 
level associated with a storm), marine overwash (waves overtopping sand 
dunes) and tidal waves (periodic tidal fluctuations caused by 
gravitational pull), intensified by sea level rise and increases in 
tropical storm frequency and intensity (see Tropical Cyclone Intensity 
and Frequency) (Fletcher et al. 1995, p. 193). This wave action can 
change coastal geomorphology, increasing the flooding risks of the 
coastal floodplain (Theuerkauf et al. 2014, p. 5146) and low-island 
overwash (Hoeke et al. 2013, p. 137). In coastal wetlands with no 
significant barrier from the ocean, marine inundation is expected to 
have a greater effect on Hawaiian stilt habitat than groundwater 
inundation by approximately 2040 (Kane and Fletcher 2013, p. 16; 
Jenkins 2016, in litt.).
    Marine overwash poses a substantial threat to Hawaiian stilt 
reproduction. Flooding from marine overwash during the breeding season 
(February thru July) will destroy nests with eggs (Coleman 1981, p. 
57), although Hawaiian stilts have been observed re-nesting if nest 
failure occurs early in the breeding season (Coleman 1981, p. 59; 
Browning 2020, in litt.). If re-nesting did not occur over many years 
at wetlands on Kauai, Oahu, and Maui, the resilience and redundancy of 
this subspecies (Reed et al. 2007, p. 616) would decrease due to lack 
of natural recruitment.
    Marine flooding and inundation also will cause an increase in 
salinity levels, changing the composition of vegetation in coastal 
wetlands (Kane et al. 2014, p. 1685). This could impact shallow 
foraging and nesting mudflat areas by allowing invasive, salt-tolerant, 
emergent vegetation to become established which could in turn reduce 
nesting habitat for the Hawaiian stilt. However, Hawaiian stilts 
currently occupy core wetlands that are hypersaline (e.g., the Waiawa 
unit of Pearl Harbor NWR). Usually there is a freshwater source 
somewhere near these highly saline wetlands in Hawaii as there are many 
springs scattered across the islands, even occurring in ocean tidal 
zone.
    Some of the most vulnerable wetlands in Hawaii are on the south 
shore of Molokai. Palaau and Kahanui wetlands--both supporting 
wetlands--may be completely inundated at 1 ft (0.3 m) and 2 to 3 ft 
(0.6 to 0.9 cm), respectively, and Ohiapilo may similarly be inundated 
at 2 ft (0.6 m) (Jenkins 2016, in litt.). Even under some of the most 
conservative sea level rise estimates, a large portion of Molokai's 
wetlands may be obliterated. A critical elevation point is when sea 
level rise impacts will rapidly accelerate after a particular increase 
of sea level occurs. At Kanaha State Wildlife Sanctuary on Maui, the 
critical elevation point is 0.7 ft (0.2 m) and it is predicted to be 
exceeded by year 2028 [25 years] (Kane and Fletcher 2013, 
p. 18). The critical elevation point at Kealia Pond NWR (Maui) and 
James Campbell NWR (Oahu) is 2 ft (0.6 m) and is predicted to be 
exceeded by year 2066 [16 years] (Kane and Fletcher 2013, 
p. 18). As on Molokai, even the more conservative estimates of sea 
level rise place these wetlands at risk.
Tropical Cyclone Intensity and Frequency
    Tropical cyclone frequency and intensity are projected to change as 
a result of increasing temperature and changing circulation associated 
with climate change (Vecchi and Soden 2007, pp. 1068-1069, Figures 2 
and 3; Emanuel et al. 2008, p. 360, Figure 8; Yu et al. 2010, p. 1371, 
Figure 14). A projected shift in the path of the subtropical jet stream 
northward, away from Hawaii, will increase the number of storms 
reaching the Hawaiian Islands from an easterly direction similar to 
Hurricane Iselle in 2014 (Murakami et al. 2013, p. 751). This shift may 
result in extreme rainfall events and associated flooding impacts to 
core and supporting wetland sites located on the northern and eastern 
shores of the affected islands. Between 1950 and 1997, 22 hurricanes 
passed near or over the Hawaiian Islands; five of these caused serious 
damage to the islands, including stilt habitat (Businger 1998, in 
litt.). Impacts from a tropical cyclone can degrade and destroy habitat 
as well as cause direct mortality of eggs and chicks (e.g., flooding of 
nests and separation of chicks from parents).

Groundwater Inundation and Flooding

    As sea level rises, the water table will rise simultaneously, 
eventually rising above the land surface, creating new wetlands and 
expanding others (Rotzoll and Fletcher 2012, p. 477). This will 
subsequently change surface drainage, saturate the soil, and inundate 
land in lower lying areas (Rotzoll and Fletcher 2012, p. 447). The 
rising groundwater table will change certain aspects of spatial 
configuration and vegetative zonation in some wetlands, and the 
freshwater resources will degrade in quality due to the underlying 
saltwater intrusion (Polhemus 2015, p. 21 and references therein). 
There are also several reports that note although ecogeopmorphic 
(interactions between organisms and the development of landforms) 
feedbacks will allow some coastal wetlands to adapt to the lower 
estimates of sea level rise, they all predict that more rapid and 
higher estimates of sea level rise will likely submerge many wetlands 
by the year 2100 (Kirwan et al. 2010, pp. 1-5; Langley et al. 2009, p. 
6182).
    Effects of groundwater flooding may have already begun at Kealia 
Pond NWR and wetlands with similar characteristics (Kane 2014, p. 13). 
The net effect, or expected rate of change, on the narrow band of 
habitat suitable for Hawaiian stilt has not been specifically analyzed 
and remains unclear. More research needs to be conducted to better 
understand how much wetland losses and gains we can anticipate in 
Hawaii due to sea level rise, as well as the impacts on the Hawaiian 
stilt and other Hawaiian waterbirds, and wetland ecosystems in general. 
Some actively managed wetlands, such as NWR units in Hawaii, will have 
some management flexibility to provide both foraging and breeding 
habitat for Hawaiian stilts at least during the early signs of 
groundwater inundation. However, as marine flooding and inundation 
exacerbates this threat, NWR units may run out of land area to meet the 
needs of the subspecies. Other core and supporting wetland managers may 
not be able to manage for adaptation as readily due to lack of funding 
or support, or they may too find there is no land left for which to 
manage.

[[Page 15868]]

    Although the upslope expansion or creation of new wetlands from 
groundwater and marine flooding and inundation (ecogeomorphic feedback) 
could help to counteract at least some habitat losses from sea level 
rise, many of these sites would be outside of current landownership as 
well as predator control programs on current core or supporting 
wetlands. To take advantage of these changes, State and Federal 
agencies would need to commit and potentially increase funding to 
adjust predator control programs at newly created or expanded core and 
supporting wetlands, and perhaps acquire new lands; historically, 
predator control funding has not always been consistent (Nadig 2018, 
pers. comm.). Additionally, urban development directly adjacent to 
coastal wetlands, or surrounding wetlands as is the situation at Kanaha 
Pond State Wildlife Sanctuary, will limit or prohibit such wetlands 
from a natural landward migration or ecogeomorphic shift (Kane 2014, p. 
29).
    Because Hawaiian stilts compete for brood territories and nesting 
ground in mudflats and shallow water, reduction of this habitat may 
have negative impacts on the population, specifically reduced 
resiliency, redundancy, representation, and therefore reduced 
viability. Hawaiian stilts that are forced to use nest sites and brood-
rearing habitat outside predator control areas are likely to suffer 
higher mortality (Price 2020, p. 10).
Predation
    Predation by nonnative animals is one of the greatest threats 
influencing the overall viability of the Hawaiian stilt (USFWS 2011, p. 
v; Underwood et al. 2013, pp. 1-2; Underwood et al. 2014, pp. 32-38; 
Price 2020, p. 1; Harmon 2020, in litt.). Introduced predators have 
negatively influenced the overall viability of the Hawaiian stilt since 
the mid-1800s (Griffin et al. 1989, pp. 1165-1174). Birds in the 
Hawaiian Islands evolved in the absence of mammalian predators and are 
consequently highly vulnerable to these introduced animals. Predators 
of Hawaiian stilts include both introduced and native animals, 
including mongooses (Herpestes javanicus), black rats (Rattus rattus), 
feral cats (Felis catus), feral dogs (Canis lupus familiaris), black-
crowned night herons or aukuu (Nycticorax nycticorax), cattle egrets 
(Bubulcus ibis), Hawaiian short-eared owl or pueo (Asio flammeus 
sandwichensis), barn owls (Tyto alba), common mynas (Acridotheres 
tristis), and bullfrogs (Anas wyvilliana) (Coleman 1981, pp. 70-73; 
Robinson et al. 1999, p. 13; Eijzenga 2004, in litt.; K. Viernes pers. 
comm. 1994, in Service 2011, p. 58).
    Mongooses were first introduced to the island of Hawaii in 1883, 
and subsequently to Oahu, Maui, and Molokai. They do not seem to have 
established on Kauai, although sightings continue to be reported 
(Phillips and Lucey 2016, pp. 1-23). Mongoose have become a serious 
threat to Hawaiian stilts where they occur, taking eggs, young birds, 
and nesting adults. Feral cats became established in Hawaii shortly 
after European contact and were common in Oahu forests as early as 1892 
(Tomich 1986, pp. 101-102). Feral cats range from sea level to at least 
2,900 m (9,500 ft) on Hawaii Island (Hu et al. 2001, p. 236) and 3,055 
m (10,000 ft) on Maui (Hodges and Nagata 2001, pp. 308, 312). The 
proliferation of feral cat feeding stations near parks and other areas 
that support Hawaiian stilts contributes toward the predation. Cats 
have been observed taking adult Hawaiian waterbirds (including Hawaiian 
stilts) and are presumed to take chicks as well (Dibben-Young 2017, in 
litt.). Rats are known to prey on eggs and young Hawaiian stilts 
(Underwood et al. 2014, pp. 32, 37). Other introduced species, such as 
the cattle egret, bullfrog, and barn owl, are known to prey on Hawaiian 
waterbirds. The introduced bullfrog is considered a voracious predator 
of all small animals (Berger 1981, p. 86; Viernes 1995 cited in Adams 
and Pearl 2007, p. 680; Robinson et al. 1999, p. 13; Eijzenga 2004, in 
litt.). Underwood and Letchworth (2016, pp. 380-383) hypothesize that 
improving bullfrog trapping will result in the improved survival of 
waterbird chicks. Cattle egrets play an unquantified role as a predator 
of nestling birds. Nonnative cats, rats, mongooses, dogs, and, to a 
lesser extent, pigs, barn owls, cattle egrets, predatory fish and 
bullfrogs all directly depredate either eggs, young, or adult Hawaiian 
waterbirds (Underwood et al. 2013, p. 1).
    The effect of predation on reproductive success is a known point of 
vulnerability for viability of Hawaiian stilt populations and if 
unmanaged could result in rangewide population declines. Predator 
control programs in wetlands result in higher fledgling success rates 
and overall population densities of Hawaiian stilts (Underwood et al. 
2014, p. 35). Without active predator control, survival is expected to 
be lower, particularly in the hatch-year class (Reed et al. 2015, p. 
183). Some predation of hatch-year individuals continues to occur even 
where extensive predator control programs are in effect (Coleman 1981, 
p. 89; Reed et. al. 2015, p. 183). Analysis of data collected over two 
nesting seasons across Oahu revealed hatching success (number of nests 
that produced at least one chick per number of total nests) averaged 
between 40 and 60 percent across wetlands, with predation at 65 percent 
of all nest failures (Harmon 2020, in litt.). All data used in this 
analysis were collected in wetlands that actively trap and remove 
introduced predators, thus predation is expected to be higher without 
predator removal. Managed wetlands using mammal exclusion fences (e.g., 
Honouliuli Unit of Pearl Harbor NWR) result in a greater number of eggs 
laid per nest and a greater number of eggs hatched per nest than 
managed wetlands that rely solely on mammalian trapping methods (e.g., 
Waiawa Unit of Pearl Harbor NWR and most other managed wetlands in 
Hawaii) (Price 2020, p. 7; Christensen 2020, in litt. in Harmon 2020, 
in litt.). Notably, nearly as many nests were abandoned as were 
depredated in this study. Cause of abandonment is often difficult to 
determine as there are several potential causes: Presence or harassment 
from predators, competition between Hawaiian stilts, poor egg 
development, undetected flooding, and human disturbance (Price 2020, p. 
19).
    Predator control programs continue to be implemented in most core 
wetland areas (See Recovery Criteria and Table 1); the resulting level 
of reproductive success, has been sufficient to support stable to 
increasing population indices over several decades. Improvements in 
predator control continue to be implemented (e.g., predator-proof 
fencing at the Honouliuli Unit of Pearl Harbor NWR). New trapping 
technologies are also being implemented (e.g., automatic self-resetting 
traps such as Goodnature A-24 devices). Because this technology is less 
labor-intensive to implement, effective trapping areas can be increased 
so that predator populations can be reduced over broader areas. As 
previously summarized above, ongoing management and predation control 
programs need to continue into the foreseeable future. For core and 
supporting wetlands under federal or state control, we expect these 
efforts to continue so long as supporting budgets are funded at current 
levels. This effort has currently resulted in a stable or slightly 
increasing population to the point at which it is approaching 
population equilibrium under current management practices (See Recovery 
Criteria discussion above). Continuation of, and expansion of, these 
predator control and habitat management actions

[[Page 15869]]

will further the stability (and expansion) of the conservation-reliant 
Hawaiian stilt population and its ability to withstand stochastic 
(i.e., resiliency) and catastrophic (i.e., redundancy) events, as well 
as maintain its widespread distribution on multiple islands (i.e., 
representation) and therefore its long-term viability.
Avian Disease
    Avian botulism is the most prevalent disease affecting waterbirds 
in Hawaii, including Hawaiian stilts, and has been documented at two 
dozen or more wetlands (including many core and supporting wetlands) 
across the State (Dibben-Young 2016, p. 4; USFWS 2016, in litt.). Some 
wetlands have more recurrence than others (e.g., Kauai: Hanalei NWR; 
Oahu: James Campbell NWR, Kaelepulu Pond, Kawainui Marsh; Maui: Kanaha 
Pond State Wildlife Sanctuary, Kealia Pond NWR; Molokai: Ohiapilo Pond) 
(Dibben-Young 2016, p. 4). Since December 2011, Hanalei NWR has 
experienced year-round avian botulism type C and has reported deaths of 
Hawaiian stilts from this disease (USFWS 2016, in litt.). Avian 
botulism is caused by a toxin produced by the anaerobic bacteria 
Clostridium botulinum type C in stagnant water. The disease may 
reappear annually and can affect all native and migratory waterbirds, 
causing paralysis evidenced by staggering and the eventual loss of use 
of legs. Death is likely due to respiratory failure or drowning from 
the inability to hold their head above water.
    Botulism is an ongoing issue for mortality risk, and we have no 
specific data or information suggesting the degree of threat will 
change in the future. Procedures have been developed for response to 
botulism outbreaks through Hawaii's State Wildlife Action Plan, in 
coordination with the DOFAW, wildlife centers, and veterinarians. 
Improvements in response to outbreaks may benefit in reducing mortality 
rates, as quick carcass disposal is essential to contain the diseases' 
spread. This threat remains persistent and rangewide.
Environmental Contaminants
    Many wetlands in Hawaii are adjacent to urban development (Kane 
2014, p. 29). This proximity results in potential for the Hawaiian 
stilt to be exposed to contaminants from storm drains and roadside 
ditches that empty into streams, wetlands, and the ocean (Stone 1989, 
p. 132; Wright et al. 2006, pp. 13-60). Some wetlands used as flood 
control basins, such as Kawai Nui marsh, are expected to accumulate 
contaminants from urban runoff. Non-point source pollution from septic 
wastewater, agricultural runoff, roads, and contaminated storm water 
can overwhelm the filtering capacity of wetlands, including wetlands in 
Hawaii, impacting downstream coastal waters (DeCarlo and Anthony 2002, 
p. 490; Zhang and Zhang 2011, entire; DOFAW 2015, in litt.; Einoder et 
al. 2018, p. 102; van Reese 2018, p. 38). Additionally, two featherless 
chicks have been found at Marine Corp Base Hawaii, one each in the 
2018-2019 and 2019-2020 nesting seasons, the latter of which is 
undergoing a toxicology analysis (DOD 2017, entire; Fry 2020, pers. 
comm.). Several core wetlands are on or adjacent to military 
installations and airports which further increase the risk of 
contaminants (Fry 2020, pers. comm.). Contaminants in wetlands can 
enter the diet of waterbirds, resulting in accumulation of toxins 
(Ratner 2000, entire; Einoder et al. 2018, p. 103). In Switzerland, 
polychlorinated biphenyls have been detected in waterbirds at levels 
within the range that could result in reproductive impairment 
(Zimmerman et al. 1997, p. 1379). Due to ocean current patterns and 
Hawaii's location in the Pacific Ocean, Hawaii receives an enormous 
amount of plastic marine debris each year. This debris not only impacts 
Hawaii's beaches, but also pollutes Hawaii's coastal wetlands. At this 
time, we know of no contaminant surveys being conducted in Hawaii 
wetlands or specific information about contaminant effects on the 
Hawaiian stilt; however, because Hawaiian stilts eat fish and aquatic 
invertebrates, they are particularly at risk from elevated 
concentrations of contaminants that accumulate in streams around 
Hawaii, many of which are tributaries to Hawaii's coastal wetlands 
(Brasher and Wolff 2007, p. 284).

Cumulative Threats Analysis

    The Hawaiian stilt is threatened by ongoing predation, combined 
with loss or degradation of habitat resulting from urban development, 
ground and surface water alterations associated with urban development, 
nonnative plants, and flooding and inundation of habitat resulting from 
sea level rise. Threats such as botulism and environmental contaminants 
are also rangewide and persistent. Torrential rains associated with 
increases in hurricane frequency and intensity will increase urban 
runoff of oil, heavy metals, and other undesirable chemicals into 
Hawaii's lowland coastal wetlands. Similarly, torrential rain will 
increase sedimentation which, among other factors (increased 
temperature, pH, and salinity), is linked to increased botulism 
outbreak events (Rocke and Samual 1999, pp. 1250, 1255-1256). However, 
Hawaiian stilts have demonstrated strong resilience and adaptability, 
as long as active management of predators, vegetation, and water levels 
give them a safe place with suitable habitat to meet their needs for 
breeding, foraging, and sheltering. More wetlands are being fenced to 
exclude predators and most core wetlands are managed to some extent to 
meet the needs of Hawaiian stilts (see Recovery Criteria).
    Management is the influencing factor that counters all of the above 
influence factors, easing the burden of predation, habitat loss and 
modification, and disease. Continuing the current level of habitat 
management and predation control efforts has resulted in a largely 
stable population to a point at which the subspecies may have reached 
an equilibrium population size (the number of birds the existing 
habitat can support) (See Recovery Criteria discussion above). 
Expansion of management on additional acreage and at additional 
locations should create enhanced stability (and expansion of) of the 
Hawaiian stilt population rangewide. Further, expansion and 
continuation of these essential actions will allow the subspecies to 
withstand stochastic (i.e., resiliency) and catastrophic (i.e., 
redundancy) events, as well as maintain its widespread distribution on 
multiple islands (i.e., representation) and therefore its long-term 
viability.

Current Voluntary and Regulatory Conservation Efforts

    The recovery of Hawaiian stilt requires strong partnerships among 
Federal, State, local, and private groups. The State of Hawaii and the 
Department of Defense have been important partners with the NWRs' 
efforts to protect, manage, and conserve the significant wetland 
habitats and to support Hawaiian stilt populations over the last 30 
years. The U.S. Marine Corps Base--Hawaii has worked to maintain 
Hawaiian stilt habitat on its properties and facilitated events that 
promote Hawaiian stilt conservation and involve both the public and 
military personnel. Their overall goal is to contribute to regional 
recovery efforts of the Hawaiian stilt, with a view to building 
regional partnerships and strengthening the Hawaiian stilt population 
outside of the core habitat on the Marine Corps Base. The Navy's 
Pacific Missile Range Facility on Kauai has committed to habitat 
restoration and management actions in important nearby wetland habitat 
in proximity to actions involving military readiness associated with

[[Page 15870]]

implementation of their Integrated Natural Resources Management Plans 
and associated section 7 biological opinions. Several wastewater 
treatment facilities across the islands conduct predator control to 
protect nesting Hawaiian stilts and adults with chicks. Local and 
county governments also contribute to conservation actions. 
Additionally, several academic researchers continue to produce data 
that help guide management actions and inform policy.
    In addition to the protections afforded by the Endangered Species 
Act, the Hawaiian stilt is protected under a variety of other laws, 
including the Migratory Bird Treaty Act (MBTA). The MBTA (16 U.S.C. 
703-712, 50 CFR 10.13), is a domestic law that implements the U.S. 
commitment to four international conventions (with Canada, Japan, 
Mexico, and Russia) for the protection of shared migratory bird 
resources.
    The Hawaii Endangered Species law (Hawaii Revised Statutes (HRS) 
195D) prohibits take, possession, sale, transport, or commerce in 
designated species. This State law also recognizes as endangered or 
threatened those species determined to be endangered or threatened 
pursuant to the Federal Endangered Species Act. This Hawaii law states 
that a threatened species (under the Act) or an indigenous species may 
be determined to be an endangered species under State law. Protection 
of these species is under the authority of Hawaii's DLNR, and under 
administrative rule (Hawaii Administrative Rules (HAR) 13-124-11). 
Incidental take of threatened and endangered species may be authorized 
through the issuance of a temporary license as part of a safe harbor 
agreement (SHA) or habitat conservation plan (HCP) (HRS 195D-21, HCPs; 
195D-22, SHAs). Although this State law can address threats such as 
habitat modification, collisions, and other human-caused mortality 
through HCPs that address the effects of individual projects or 
programs on Hawaiian stilt, it does not address the pervasive threats 
to the Hawaiian stilt posed by introduced mammalian predators.
    The federal Clean Water Act (CWA) (33 U.S.C. 1251 et seq. (1972)) 
was designed, in part, to protect surface waters of the United States 
from unregulated pollution from point sources. The CWA provides some 
benefit to Hawaiian stilts through the regulation of discharge into 
surface waters through a permitting process. The CWA has significantly 
slowed the permanent loss of wetlands throughout Hawaii.
    In addition to these federal and state regulatory programs, a 
variety of voluntary conservation partnerships have been formed to 
protect and manage waterbird habitat. Examples of such partnership 
opportunities include our Pacific Coast Joint Venture, Partners for 
Fish and Wildlife Program, Coastal Program, and Habitat Conservation 
Plan and Safe Harbor Agreement Programs; the multiagency Coastal 
America program; restoration plans for hazardous materials spills that 
target waterbird habitat; and the Natural Resources Conservation 
Service's wetland restoration programs. Partnerships aim to encourage 
landowners and private citizens to protect and preserve waterbirds and 
their habitats through cooperative agreements and funding for habitat 
restoration and creation.
    Additional conservation organizations are contributing to the 
recovery of Hawaii's endangered waterbirds, including the Hawaiian 
stilt. The Nature Conservancy manages several ecological preserves in 
the State. Ahahui Malama I Ka Lokahi and Kawai Nui Heritage Foundation 
are watchdog organizations that oversee the future of Kawainui Marsh on 
Oahu. They sponsor and lead educational tours and coordinate plant 
restoration projects at Na Pohaku o Hauwahine. The Nature Center, 
Wildlife Society, and University of Hawaii's Pacific Cooperative 
Studies Unit all work on waterbird recovery issues. Private landowners 
that also contribute to waterbird recovery include Kamehameha Schools, 
Midler Family Trust, Arleone Dibben-Young (Nene O Molokai), and 
Kaelepulu Wetland Preserve. Additionally, Ducks Unlimited, a nonprofit 
wetlands conservation organization, works cooperatively with State and 
Federal agencies as well as with private landowners and local 
corporations on wetlands conservation and habitat restoration and 
protection efforts.
    The Service also facilitates recovery implementation, including a 
cooperative agreement with Chevron Refinery on Oahu during 1993-2004 
that implemented terms to manage Rowland's Pond to maintain it as 
nesting habitat for Hawaiian stilts. Activities included predator 
control and vegetation management at Rowland's Pond, the Impounding 
Basin, and Oxidation Ponds. From 2004 through 2016, Chevron Refinery 
continued to manage the refinery grounds for the benefit of the 
Hawaiian stilt and Hawaiian coot under a Safe Harbor Agreement. As a 
result of this agreement, at least 419 Hawaiian stilt chicks fledged at 
Chevron Refinery Hawaii during this period. In 2016, the complex was 
purchased by IES Downstream, LLC (IES), and in 2018, IES sold a portion 
of the refinery to PAR Hawaii Refining, LLC (PAR). Rowland's pond 
remains within the IES owned portion of the refinery but IES has not 
yet reached out to the Service for consultation. The Service is 
currently providing technical assistance to PAR, who is currently 
seeking a Habitat Conservation Plan for a low level of take. There are 
no recent updates regarding the status of the Hawaiian stilts at this 
site.
    The Service has also worked with a variety of partners implementing 
management techniques that benefit Hawaiian stilts throughout its 
range. Habitat management activities for the conservation of the 
Hawaiian stilt include activities that maintain suitable habitat 
conditions. These include vegetation management activities (for 
example, weeding, mowing, herbicide application, out-planting of native 
plants, mud flat creation), activities that maintain water levels 
suitable for breeding or that maintain water quality (for example, 
irrigating wetland habitat for conservation purposes), activities for 
minimizing disease outbreaks (for example, monitoring for and 
addressing dead or decaying animals, emergency botulism outbreak 
responses), and large-scale restoration of native habitat (e.g., feral 
ungulate, rat, and mongoose, control, and fencing).

Determination of Hawaiian Stilt Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an ``endangered species'' or 
a ``threatened species.'' The Act defines endangered species as a 
species that is ``in danger of extinction throughout all or a 
significant portion of its range,'' and a threatened species as a 
species that is ``likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range.'' The Act requires that we determine whether a species meets the 
definition of ``endangered species'' or ``threatened species'' because 
of any of the following factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
Overutilization for commercial, recreational, scientific, or 
educational purposes; (C) Disease or predation; (D) The inadequacy of 
existing regulatory mechanisms; or (E) Other natural or manmade factors 
affecting its continued existence.

[[Page 15871]]

Status Throughout All of Its Range

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Hawaiian stilt and its habitat. After evaluating threats to the 
subspecies and assessing the cumulative effect of the threats under the 
section 4(a)(1) factors, we have concluded that threats identified in 
the earlier 5-year status review (USFWS 2010, entire) and the recovery 
plan (USFWS 2011, entire) are ongoing at similar to increasing levels 
(USFWS 2020, p. 20). The main threats to the Hawaiian stilt continue to 
be the loss and degradation of habitat, including urban development, 
alteration in ground and surface water associated with urban 
development, invasion of habitat by nonnative plants, and sea level 
rise (Factor A); predation by a variety of introduced mammalian species 
(Factor C); and botulism (Factor C). Environmental contaminants are 
also considered a rangewide threat (Factor E). A variety of voluntary 
and regulatory conservation measures have helped to limit or reduce the 
impact of these threats to the subspecies, and are anticipated to 
continue into the foreseeable future (Factor D). A summary of these 
efforts are outlined in Current Voluntary and Regulatory Conservation 
Efforts, above. The best available information does not suggest that 
collection of Hawaiian stilt is a current or future concern (Factor B) 
and no other natural or manmade factors that operate at a scope, 
magnitude, and intensity as to affect the viability of the subspecies, 
either currently or in the future (Factor E).
    The three key aspects of successful management of Hawaiian stilt 
breeding populations are predator control, vegetation management to 
provide more open areas, and water-level controls. These actions are in 
place for the vast majority of the core wetlands (see Recovery Criteria 
and Table 1). Further, 15 of the 34 supporting wetlands are in 
protected status, and 11 have some form of either habitat or predator 
management (see Recovery Criteria and Table 2).
    Based on predictions of groundwater and coastal flooding and 
inundation in Hawaiian coastal wetlands, sea level rise is likely to 
continue to progressively affect Hawaiian stilt habitat (Factor A), as 
by 2040, wetlands that exist at elevations near sea level without dune 
barriers may be most affected (Kane and Fletcher 2013, p. 10). The 
resulting groundwater and marine flooding and inundation can change the 
amount of available Hawaiian stilt foraging and breeding habitat. 
Expansion of current wetlands and newly created wetlands from rising 
groundwater will create some new shallow water and mudflat areas for 
foraging and breeding; however, currently existing shallow water and 
mudflat areas will also be flooded (Rotzoll and Fletcher 2012, p. 477). 
Coastal plain wetlands are also at risk of marine flooding and 
inundation by storm surges, marine overwash, and high tides due to 
coastal erosion from rising sea levels that elevate normal tides 
(Fletcher et al. 1995, p. 203). Inundation can cause mortality to eggs 
and chicks, with impacts that vary temporally and spatially (Peakall 
1970, p. 73; Staples et al. 2005, p. 1910; Holmes and York 2003, p. 
1795; Miles et al. 2015, p. 1). Creation of new or expansion of 
existing wetlands due to marine flooding and inundation may also change 
the salinity in wetlands which may encourage the expansion of salt 
tolerant nonnative plants on mudflats. Increased vegetation on mudflats 
can reduce available Hawaiian stilt nesting habitat. Marine inundation 
and groundwater inundation will modify wetland habitat, but whether 
there will be a net gain or loss of habitat is unknown (Polhemus 2015, 
p. 25). Increases in foraging and breeding habitat from expanding or 
newly created wetlands could offset losses from sea level rise; 
however, this may occur outside of the area of current predator control 
programs (Factor C). State and Federal land managers may need to adjust 
existing programs and/or acquire lands in order to effectively support 
Hawaiian stilt habitat in the new areas.
    Avian botulism (Factor C) continues to be documented at wetlands 
Statewide as a cause of mortality events in Hawaiian stilt and other 
waterbird and waterfowl species (Dibben-Young 2016, pp. 4-5). 
Environmental contaminants (Factor E) may also be a threat to Hawaiian 
stilts using wetland habitats near urban areas.
    As previously stated, the Hawaiian stilt is a conservation-reliant 
subspecies (Reed et al. 2012, p. 888; Underwood et al. 2013, p. 1), 
which means that it will require active management in perpetuity (Scott 
et al. 2005, pp. 383-389; Scott et al. 2010, pp. 92-93: Goble et al. 
2012, pp. 869-872). Management actions aimed at reducing or eliminating 
predators and control of both vegetation and water levels occurs in the 
majority of the core wetlands. Sea level rise due to climate change 
adds a high degree of uncertainty to the net gain or loss of foraging 
and breeding habitat, which will likely challenge current management 
strategies.
    Despite these ongoing threats, the Hawaiian stilt population is 
stable to increasing population (Reed et al. 2011b, pp. 475-476, 478-
479; USFWS 2011a, p. iv; DOFAW 2020). We conclude that the Hawaiian 
stilt population has maintained resiliency, redundancy, and 
representation over the past few decades. Having multiple breeding 
populations spread out across the main Hawaiian Islands affords the 
subspecies some protection from both stochastic and catastrophic 
events. Additionally, the subspecies will continue to be monitored in 
the biannual waterbird count, as well as at numerous NWRs across the 
State, to detect any changes that reflect a change in the current 
status of the subspecies. The current status of the subspecies has 
improved from the time of listing.
    Considering the best available information, including the stability 
of the population demonstrated over decades, the new data presented in 
the preliminary 2019 PVA, and the demonstrated adaptability and 
resiliency of the subspecies, in combination with the expectation that 
existing conservation actions at their present scope and intensity will 
continue into the foreseeable future, we conclude that the subspecies 
no longer meets the Act's definition of an endangered species 
throughout all of its range. Therefore, we proceed with determining 
whether the Hawaiian stilt is likely to become endangered within the 
foreseeable future throughout all of its range.
    To determine if a species is considered a threatened species under 
the Act, we look to future threats facing the species and how the 
species will likely respond to those threats. The foreseeable future 
considers population status, trends, and threats for the species. 
Collective management efforts aimed at the subspecies for the 
conservation of Hawaiian stilt have been sufficient to maintain a 
stable population, and it appears that the subspecies is at or near 
carrying capacity--limited primarily by amount of managed wetland 
habitat as this is a conservation-reliant subspecies. Hawaiian stilts 
continue to face significant ongoing threats, as discussed under 
Summary of Biological Status and Threats. The threat of predation of 
Hawaiian stilt eggs, chicks, and adults by a myriad of animals is 
ongoing, despite implementation of predator control at most core 
wetlands and many supporting wetlands (Tables 1 and 2). Impacts of sea 
level rise are expected to progressively increase, resulting in 
moderate impacts on coastal habitat by 2040. Pressure to alter ground 
and

[[Page 15872]]

surface water continues with ongoing urban development. Although the 
preliminary results from a 2019 PVA predict a zero percent chance of 
extinction over 80 years as long as current management practices 
continue, it also notes that the population is sensitive to changes in 
vital rates. For example, if adult mortality increases by just 10 
percent, the species has a high probability of extinction (Reed and van 
Rees 2019 p. 1). Thus, the best available information is consistent 
with these threats (excluding sea-level rise) having been managed 
sufficiently over the past several decades such that reproductive 
success in managed sites supports a stable Statewide population, so 
that the subspecies is not immediately in danger of extinction. The PVA 
does have several limitations that suggests this is only one tool for 
us to consider reclassification. Foremost is that the PVA does not 
account for changes in quality or availability of currently managed 
habitat due to the effects of sea level rise.
    The Hawaiian stilt remains vulnerable to the continuing threat of 
predation and habitat loss and degradation by several means, and 
maintaining current population levels (and viability) is contingent 
upon ongoing commitment to management of wetland habitat and predators 
at their present scope and intensity. In particular, the demographic 
data used to provide working assumptions of the preliminary results of 
the 2019 PVA derives from studies on sites with active habitat and 
predator management, so reducing management efforts would render its 
conclusions less applicable; risk of extinction appears particularly 
sensitive to increases in adult mortality (Reed and van Rees 2019 p. 
24). Sustained management commitments are necessary to keep these vital 
rates at manageable levels (e.g., below 34 percent annual adult 
mortality). Expansion of existing efforts on current core and 
supporting wetlands and expansion of the habitat and predator 
management onto new sites (other core, other supporting wetlands or 
other suitable locations) would greatly enhance the recovery potential 
of this subspecies.
    The threat of sea level rise is also likely to increase over time 
and can be expected to alter the spatial distribution and quality of 
wetland habitats and require adaptive changes in which sites will be 
the focus of management. Thus, after assessing the best available 
information, we conclude that the Hawaiian stilt is not currently in 
danger of extinction, but is likely to become in danger of extinction 
in the foreseeable throughout all of its range (i.e., meets the Act's 
definition of a threatened species).

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological 
Diversity), vacated the aspect of the 2014 Significant Portion of its 
Range Policy that provided that the Services do not undertake an 
analysis of significant portions of a species' range if the species 
warrants listing as threatened throughout all of its range. Therefore, 
we proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and (2) the species is in danger of extinction in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
subspecies' range where the subspecies is in danger of extinction now 
(i.e., endangered). In undertaking this analysis for Hawaiian stilt, we 
choose to address the status question first--we consider information 
pertaining to the geographic distribution of both the subspecies and 
the threats that the subspecies faces to identify any portions of the 
range where the subspecies is endangered.
    Based upon best available information, Hawaiian stilts disperse 
frequently between the main Hawaiian Islands and they readily colonize 
newly restored or created habitats suggesting that Hawaiian stilt in 
Hawaii form one large population (van Rees et al.. 2020, p. 3, with 
supporting literature). Thus, there is no biologically meaningful way 
to break this subspecies' range into portions, and the threats that the 
subspecies faces affect the subspecies throughout its entire range. 
This means that no portions of the subspecies' range have a different 
status from its rangewide status. Therefore, no portion of the 
subspecies' range can provide a basis for determining that the 
subspecies is in danger of extinction in a significant portion of its 
range, and we determine that the subspecies is likely to become in 
danger of extinction within the foreseeable future throughout all of 
its range. Our analysis is consistent with the courts' holdings in 
Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 
2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Hawaiian stilt meets the definition of a 
threatened subspecies. Therefore, we propose to reclassify the Hawaiian 
stilt as a threatened subspecies in accordance with sections 3(20) and 
4(a)(1) of the Act.

Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the ``Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation'' of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean ``the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to [the Act] are no longer necessary.'' Additionally, the second 
sentence of section 4(d) of the Act states that the Secretary ``may by 
regulation prohibit with respect to any threatened species any act 
prohibited under section 9(a)(1), in the case of fish or wildlife, or 
section 9(a)(2), in the case of plants.'' Thus, the combination of the 
two sentences of section 4(d) provides the Secretary with wide latitude 
of discretion to select and promulgate appropriate regulations tailored 
to the specific conservation needs of the threatened species. The 
second sentence grants particularly broad discretion to us when 
adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have

[[Page 15873]]

upheld rules developed under section 4(d) as a valid exercise of agency 
authority where they prohibit take of threatened wildlife or include a 
limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 
2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental 
Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 
5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not 
address all of the threats a species faces (see State of Louisiana v. 
Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to him with regard to the permitted activities for those 
species. He may, for example, permit taking, but not importation of 
such species, or he may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    Exercising this authority under section 4(d), we have developed a 
proposed rule that is designed to address the specific threats to and 
conservation needs of the Hawaiian stilt. Although the statute does not 
require us to make a ``necessary and advisable'' finding with respect 
to the adoption of specific prohibitions under section 9, we find that 
this proposed rule as a whole satisfies the requirement in section 4(d) 
of the Act to issue regulations deemed necessary and advisable to 
provide for the conservation of the Hawaiian stilt.
    As discussed under Summary of Biological Status and Threats, we 
have concluded that the Hawaiian stilt is likely to become in danger of 
extinction within the foreseeable future primarily due to predation by 
nonnative animals (i.e., mongooses, rats, cats, dogs, carnivorous 
birds, and bullfrogs); habitat loss and degradation by urban 
development, altered ground and surface water for urban expansion, 
overgrowth of nonnative plants, sea level rise associated with climate 
change (both coastal and groundwater flooding and inundation); disease, 
primarily botulism caused by the bacterium Clostridium botulinum (type 
C); and environmental contaminants. Additionally, Hawaiian stilt 
habitat is anticipated to be negatively impacted in the near future by 
an increase in frequency and intensity of hurricanes associated with 
climate change, which may also directly harm individuals, eggs, or 
nesting success through flooding.
    The provisions of this proposed 4(d) rule would promote 
conservation of the Hawaiian stilt by encouraging activities that 
facilitate conservation and management of the Hawaiian stilt and its 
habitat where it currently occurs and may occur in the future. Thus, we 
are encouraging management of the landscape in ways that meet both land 
management considerations and the conservation needs of the Hawaiian 
stilt. The provisions of this proposed rule are one of many tools that 
we would use to promote the conservation of the Hawaiian stilt. This 
proposed 4(d) rule would apply only if and when we make final the 
reclassification of the Hawaiian stilt as a threatened subspecies.

Provisions of the Proposed 4(d) Rule

    This proposed 4(d) rule would provide for the conservation of the 
Hawaiian stilt by prohibiting the following activities, except as 
otherwise authorized or permitted: Take (i.e., harass, harm, pursue, 
hunt, shoot, wound, kill, trap, capture, or collect, or attempt to 
engage in any such conduct); importing or exporting; possession and 
other acts with unlawfully taken specimens; delivering, receiving, 
transporting, or shipping in interstate or foreign commerce in the 
course of commercial activity; or selling or offering for sale in 
interstate or foreign commerce. These prohibitions would result in 
regulating a range of human activities that have the potential to 
affect the viability of the Hawaiian stilt, including agricultural or 
urban development; recreational and commercial activities; introduction 
of predators; and direct capture, injury, or killing of Hawaiian 
stilts. Regulating these activities will help preserve the Hawaiian 
stilt population. This proposed 4(d) rule would also provide for the 
conservation of the subspecies by providing select exceptions to the 
prohibitions for the purpose of promoting conservation of Hawaiian 
stilt and expansion of their range by increasing flexibility in 
management activities for State and private landowners. Below we 
outline each prohibition and any exceptions, as well as provide our 
justification for their inclusion in this proposed 4(d) rule.

Prohibition of Take

    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
incidental and intentional take will help preserve the Hawaiian stilt 
population and decrease synergistic, negative effects from other 
threats.
    Rangewide threats continue to act on the subspecies, and its 
viability remains reliant on the implementation of conservation actions 
(see Summary of Biological Status and Threats). However, as explained 
below, there are a few circumstances in which allowing either 
intentional or incidental take will benefit the Hawaiian stilt as a 
subspecies and further its recovery. We have outlined three 
circumstances below as proposed exceptions to the proposed prohibition 
of take. By allowing take under these three circumstances, the proposed 
rule would provide needed protection to the subspecies while allowing 
management flexibility to benefit the subspecies' long-term 
conservation.
Proposed Take Exceptions
    1. Take that is incidental to conducting lawful nonnative predator 
control or conducting lawful habitat management activities (from a 
Service and DOFAW-approved list of such activities) for the 
conservation benefit of Hawaiian stilts or other native waterbirds.
    Rationale: Control of introduced predators and habitat management 
are identified as primary recovery actions for the Hawaiian stilt 
(USFWS 2011, p. 10). Predation is the greatest threat to Hawaiian 
stilts, followed by habitat loss and degradation or modification. We 
propose a take exception for the incidental take of stilts during 
control of predators (e.g., mongoose, dogs (feral and domestic), feral 
pigs, cats (feral and domestic), rats, bullfrogs, cattle egrets, and 
barn owls) designed to protect stilts (or other native waterbirds) or 
habitat management activities designed to protect stilts (or other 
native waterbirds). This exception to the prohibition of take will help 
to reduce or eliminate the depredation of Hawaiian stilts during all 
life stages, provide sufficient nesting habitat to support the 
reproductive needs of the population, and provide our conservation 
partners the flexibility to practice adaptive management to meet the 
needs of the subspecies. The Service and DOFAW will maintain a list of 
acceptable habitat conservation management activities; for the current 
list, contact the Service or DOFAW. We propose this exception to take 
year-round.
    Predators are managed using a variety of methods, including 
fencing, trapping,

[[Page 15874]]

shooting, and toxicants. All methods must be used in compliance with 
State and Federal regulations. In addition to the application of the 
above tools, predator control as defined includes activities related to 
predator control, such as performing efficacy surveys, trap checks, and 
maintenance duties. Nesting success is higher for Hawaiian stilts that 
nest earlier in the season; therefore, implementing predator control 
during this time may be most beneficial to the subspecies (Price 2020, 
p. 1).
    During lawful predator control, or lawful habitat management 
activities from the Service and DOFAW-approved list, incidental take of 
Hawaiian stilts (eggs, chicks, fledglings, or adults) may occur in the 
form of temporary displacement due to human presence, unintentional 
injury, or death (e.g., accidental ingestion of chemical approved for 
predator control, collision or crushing by means of mechanical 
machinery). Reasonable care must be practiced to minimize the effects 
of such taking and may include, but is not limited to: (a) Procuring 
and implementing technical assistance from a qualified biologist(s) on 
predator control or habitat management methods, techniques, and 
protocols prior to application of methods; (b) compliance with all 
applicable regulations and following principles of integrated pest 
management and habitat management; and (c) judicious use of methods and 
tool adaptations to reduce hazards to Hawaiian stilts (e.g., ingest 
bait, injury or death from an interaction with mechanical devices).
    2. Take by authorized law enforcement officers for the purposes of 
aiding or euthanizing sick, injured, or orphaned Hawaiian stilts; 
disposing of dead specimens; and salvaging a dead specimen that may be 
used for scientific study.
    Rationale: The increased interaction of Hawaiian stilts with the 
human environment subsequently increases the likelihood of encounters 
with orphaned, injured, sick, or dead Hawaiian stilts. By providing an 
exception for law enforcement officers in consultation with State 
wildlife biologists to provide aid to orphaned, injured, or sick 
Hawaiian stilts, or disposal or salvage of dead Hawaiian stilts, we 
increase the odds for saving orphaned, injured, or sick Hawaiian stilts 
and may maximize the use of carcasses for research purposes that may 
inform management decisions and further the recovery of the subspecies.

Prohibition of Import, Export, and Interstate and Foreign Commerce

    We have proposed to include the prohibition of import, export, 
interstate and foreign commerce, and sale or offering for sale in such 
commerce of the Hawaiian stilt in this proposed rule to complement and 
support our proposal to include the prohibition of take. Because the 
Hawaiian stilt is not known to be held in captivity for commercial, 
recreational, scientific, or educational purposes, any such exchange of 
the subspecies would require removing one or more individuals 
(including eggs) from the sole population of the subspecies resulting 
in take. Additionally, because the Hawaiian stilt is a conservation-
reliant subspecies and likely to become in danger of extinction within 
the foreseeable future due to the threats discussed above and under 
Summary of Biological Status and Threats, any major reduction in 
population size by intentional removal of individuals would negatively 
impact the viability of the subspecies. Therefore, regulating the 
import, export, and interstate and foreign commerce of Hawaiian stilt 
will help to preserve their population. There are no proposed 
exceptions for these prohibitions.

Prohibition of Possession and Other Acts With Unlawfully Taken 
Specimens

    Although the Hawaiian stilt population is currently stable, it is 
considered a conservation-reliant subspecies and requires active 
management to maintain this stability. The Hawaiian stilt is not 
thriving to the degree that its population is considered capable of 
sustaining unrestricted capture or collection from the wild without the 
likelihood of negative impacts to the long-term viability of the 
subspecies. Because capture and collection of Hawaiian stilts remains 
prohibited as discussed above, maintaining the complementary 
prohibition on possession and other acts with illegally taken Hawaiian 
stilts will further discourage such illegal take. Thus, we propose to 
prohibit the possession, sale, offering for sale, delivery, receiving, 
carrying, transporting, or shipping of illegally taken Hawaiian stilts 
intrastate (within State), interstate (between States), and 
internationally in order to maintain the viability of the Hawaiian 
stilt population. Regulating these human activities will contribute to 
the preservation of the subspecies. There are no proposed exceptions to 
these prohibitions.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened wildlife under 
certain circumstances. Regulations governing permits are codified at 50 
CFR 17.32. With regard to threatened wildlife, a permit may be issued 
for the following purposes: Scientific purposes, to enhance propagation 
or survival, for economic hardship, for zoological exhibition, for 
educational purposes, for incidental taking, or for special purposes 
consistent with the purposes of the Act. There are also certain 
statutory exemptions from the prohibitions, which are found in sections 
9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed subspecies. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we shall cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with us in accordance with section 6(c) of the Act, who is designated 
by his or her agency for such purposes, would be able to conduct 
activities designed to conserve the Hawaiian stilt that may result in 
otherwise prohibited take without additional authorization.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or our ability to 
enter into partnerships for the management and protection of the 
Hawaiian stilt. However, interagency cooperation may be further 
streamlined through planned programmatic consultations for the 
subspecies between us and other Federal agencies, where appropriate. We 
ask the public, particularly State agencies and other interested 
stakeholders that may be affected by the proposed 4(d) rule, to provide 
comments and suggestions regarding additional guidance and methods that 
we could provide or use, respectively, to streamline the implementation 
of this proposed 4(d) rule (see Information Requested).

[[Page 15875]]

    If finalized, the provisions in this proposed 4(d) rule would 
address only Federal Endangered Species Act requirements, and would not 
change State law. State law requires the issuance of a temporary 
license for the take of endangered and threatened animal species, if 
the activity otherwise prohibited is: (1) For scientific purposes or to 
enhance the propagation or survival of the affected species (HRS 195D-
4(f)); or (2) incidental to an otherwise lawful activity (HRS 195D-
4(g)). Incidental take licenses require the development of a habitat 
conservation plan (HRS 195D-21) or a safe harbor agreement (HRS 195D-
22), and consultation with the State's Endangered Species Recovery 
Committee. Therefore, if this rule is finalized, persons would still 
need to obtain a State permit for some of the actions described in this 
proposed 4(d) rule.

Required Determinations

Clarity of the Rule

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

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental analyses as defined under the 
authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.), need not be prepared in connection with determining and 
implementing a species' listing status under the Endangered Species 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at http://www.regulations.gov and upon request from the 
Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the U.S. Fish and Wildlife Service's Species Assessment Team and the 
Pacific Islands Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.11(h) by revising the entry for ``Stilt, Hawaiian'' 
under Birds in the List of Endangered and Threatened Wildlife to read 
as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name              Scientific name        Where listed          Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
 
              Birds
 
 
                                                  * * * * * * *
Stilt, Hawaiian (aeo)...........  Himantopus           Wherever found.....               T   35 FR 16047, 10/13/
                                   mexicanus knudseni.                                        1970; [Federal
                                                                                              Register citation
                                                                                              of the final
                                                                                              rule]; 50 CFR
                                                                                              17.41(j)4d.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.41 by adding paragraph (j) to read as follows:


Sec.  17.41   Special rules--birds.

* * * * *
    (j) Hawaiian stilt (Himantopus mexicanus knudseni) (aeo).
    (1) Definition. For the purposes of this paragraph (j), ``qualified 
biologist'' means an individual with a combination of academic training 
in the area of wildlife biology or related discipline and demonstrated 
field experience in the identification and life history of the Hawaiian 
stilt.
    (2) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to the Hawaiian stilt. Except as 
provided under paragraph (j)(3) of this section and Sec. Sec.  17.4 
through 17.6, it is unlawful for any person subject to the jurisdiction 
of the United States to commit, to attempt to commit, to solicit 
another to commit, or cause to be committed, any of the following acts 
in regard to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (3) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife and

[[Page 15876]]

(c)(6) and (7) for endangered migratory birds.
    (iii) Take when the take is incidental to an otherwise lawful 
activity caused by:
    (A) Nonnative predator control or habitat management activities for 
Hawaiian stilt or other native waterbird conservation purposes. A 
qualified biologist, or personnel working under their direct 
supervision, may incidentally take Hawaiian stilt in the course of 
carrying out nonnative predator control or habitat management 
activities for Hawaiian stilt conservation purposes if reasonable care 
is practiced to minimize effects to the Hawaiian stilt as follows:
    (1) Nonnative predator control activities for the conservation of 
the Hawaiian stilt, or other native Hawaiian waterbirds, which may 
include the use of fencing, trapping, shooting, and toxicants to 
control predators, and related activities such as performing efficacy 
surveys, trap checks, and maintenance duties. Reasonable care for 
predator control activities may include, but is not limited to, 
procuring and implementing technical assistance from a qualified 
biologist on predator control methods and protocols prior to 
application of methods; compliance with all State and Federal 
regulations and guidelines for application of predator control methods; 
and judicious use of methods and tool adaptations to reduce the 
likelihood of Hawaiian stilt ingesting bait or being injured or dying 
from interaction with mechanical devices. A list of currently 
acceptable predator control methods is available by contacting the 
Service or State of Hawaii Department of Land and Natural Resources, 
Division of Forestry and Wildlife.
    (2) Habitat management activities for the conservation of the 
Hawaiian stilt, or other native waterbirds, as long as the activities 
benefit Hawaiian stilts, which may include: Weeding, mowing, 
fertilizing, herbicide application, water level maintenance, water 
quality monitoring and maintenance, sedimentation and dead or decaying 
animal monitoring and maintenance, outplanting native plants, creating 
mudflats, and irrigating wetland habitat for conservation purposes (if 
mechanical mowing of pastures adjacent to wetlands for conservation 
management purposes is not feasible, alternate methods of keeping grass 
short may be used, such as grazing); emergency botulism outbreak 
responses; and large-scale restoration of native habitat (e.g., feral 
ungulate control, fencing). Reasonable care for habitat management may 
include, but is not limited to, procuring and implementing technical 
assistance from a qualified biologist on habitat management activities, 
and documented best efforts to minimize Hawaiian stilt exposure to 
hazards (e.g., predation, crushing by vehicle or machinery). A list of 
currently acceptable management activities is available by contacting 
the Service or State of Hawaii Department of Land and Natural 
Resources, Division of Forestry and Wildlife.
    (B) Actions carried out by law enforcement officers in the course 
of official law enforcement duties. When acting in the course of their 
official duties, State and local government law enforcement officers, 
working in conjunction with authorized wildlife biologists and wildlife 
rehabilitators in the State of Hawaii, may take Hawaiian stilt for the 
following purposes:
    (1) Aiding or euthanizing sick, injured, or orphaned Hawaiian 
stilt;
    (2) Disposing of a dead specimen; or
    (3) Salvaging a dead specimen that may be used for scientific 
study; or
    (4) Possession and other acts with unlawfully taken specimens as 
provided in Sec.  17.21(d)(2) through (4).
    (4) Reporting and disposal requirements. Any injury or mortality of 
Hawaiian stilt associated with the actions excepted under paragraphs 
(j)(3)(iii)(A) and (B) of this section must be reported to the Service 
and authorized State wildlife officials within 48 hours, and specimens 
may be disposed of only in accordance with directions from the Service. 
Reports should be made to the Service's Office of Law Enforcement 
(contact information is at 50 CFR 10.22) or the Service's Pacific 
Islands Fish and Wildlife Office (contact information for the Service 
regional offices is at 50 CFR 2.2). Alternatively, the State of Hawaii 
Department of Land and Natural Resources, Division of Forestry and 
Wildlife, may be contacted.

Signing Authority

    The Principal Deputy Director, Exercising the Delegated Authority 
of the Director, U.S. Fish and Wildlife Service, approved this document 
and authorized the undersigned to sign and submit the document to the 
Office of the Federal Register for publication electronically as an 
official document of the U.S. Fish and Wildlife Service. Martha 
Williams, Principal Deputy Director, Exercising the Delegated Authority 
of the Director, U.S. Fish and Wildlife Service, approved this document 
on March 16, 2021, for publication.

    Dated: March 16, 2021.
Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk 
Management, and Analytics, Joint Administrative Operations, U.S. Fish 
and Wildlife Service.

[FR Doc. 2021-05846 Filed 3-24-21; 8:45 am]
BILLING CODE 4333-15-P