Endangered and Threatened Wildlife and Plants; Threatened Species Status for Streaked Horned Lark With Section 4(d) Rule, 19186-19207 [2021-06943]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 86, Number 69 (Tuesday, April 13, 2021)]
[Proposed Rules]
[Pages 19186-19207]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06943]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0153; FF09E21000 FXES11110900000 212]
RIN 1018-BE76


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Streaked Horned Lark With 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 
affirm the listing of the streaked horned lark (Eremophila alpestris 
strigata), a bird species from Washington and Oregon, as a threatened 
species under the Endangered Species Act of 1973, as amended (Act). 
After a review of the best available scientific and commercial 
information, we again conclude that listing the species as threatened 
is warranted. We also propose to revise the rule issued under section 
4(d) of the Act (``4(d) rule'') for this bird. If we finalize this rule 
as proposed, it will maintain this species as a threatened species on 
the List of Endangered and Threatened Wildlife and continue to extend 
the Act's protections to the species.

DATES: We will accept comments received or postmarked on or before June 
14, 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 must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by May 28, 2021.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R1-ES-2020-0153, 
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-2020-0153, 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 https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).

FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, U.S. 
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 
98th Avenue, Suite 100, Portland, OR 97266; telephone 503-231-6179. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
a species is an endangered or threatened species throughout all or a 
significant portion of its range, we are required to promptly publish a 
proposal in the Federal Register and make a determination on our 
proposal within 1 year. To the maximum extent prudent and determinable, 
we must designate critical habitat for any species that we determine to 
be an endangered or threatened species under the Act. Listing a species 
as an endangered or threatened species and designation of critical 
habitat can only be completed by issuing a rule.
    What this document does. We propose to affirm the listing of the 
streaked horned lark as a threatened species, and we propose to revise 
the 4(d) rule for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or 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 have determined that the streaked horned lark 
is threatened due to the ongoing loss and degradation of suitable 
habitat (Factor A), as well as land management activities and related 
effects, and recreation (Factor E), combined with the synergistic 
effects of small population size and climate change (Factor E), such 
that it is likely to become an endangered species within the 
foreseeable future.
    Supporting documents and peer review. The Service prepared a 
species status assessment (SSA) report for the streaked horned lark 
(U.S. Fish and Wildlife Service 2021, entire). The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species. In accordance with our joint policy on peer 
review published in the Federal Register on July 1, 1994 (59 FR 34270), 
and our August 22, 2016, memorandum updating and clarifying the role of 
peer review of listing actions under the Act, we sought the expert 
opinions of five appropriate specialists regarding the SSA report; we 
received three responses. We also sent the SSA report to six partners, 
including scientists with expertise in ornithology and streaked horned 
lark biology and habitat, for review. We received review from three 
partners. The purpose of peer review is to ensure that our listing 
determinations and 4(d) rules are based on scientifically sound data, 
assumptions, and analyses.

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) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species

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and existing regulations that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (5) Information on regulations that are necessary and advisable to 
provide for the conservation of the streaked horned lark and that the 
Service can consider in revising the 4(d) rule for the species. In 
particular, information concerning the extent to which we should 
include any of the Act's 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 https://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 https://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 https://www.regulations.gov.
    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 is 
endangered instead of threatened, or we may conclude that the species 
does not warrant listing as either an endangered species or a 
threatened species. In addition, we may change the parameters of the 
prohibitions or the exceptions to those prohibitions in our proposed 
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 additional activities if we 
conclude that those additional activities are not compatible with 
conservation of the species. Conversely, we may establish additional 
exceptions to the incidental take prohibitions in the final rule if we 
conclude that the activities would facilitate or are compatible with 
the conservation and recovery of the species.

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 regulations at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    On October 3, 2013, we published in the Federal Register (78 FR 
61452) a final rule listing the streaked horned lark as a threatened 
species under the Act; that rule includes a 4(d) rule to exempt certain 
activities from the take prohibitions of the Act and our regulations in 
order to provide for the conservation of the streaked horned lark.
    In addition, on October 3, 2013, we published in the Federal 
Register (78 FR 61506) a final rule designating critical habitat for 
the streaked horned lark in Washington and Oregon.
    On February 28, 2018, the Center for Biological Diversity filed 
suit against the Department of the Interior and the Service on the 
listing and 4(d) rules for the streaked horned lark. The plaintiff 
challenged the adequacy of our significant portion of the range 
analysis, and the 4(d) rule's exception to the take prohibition for 
agricultural activities in the Willamette Valley. The court did not 
vacate the rules but remanded them to us for reconsideration. In July 
2019, the Service was ordered, upon agreement of the parties, to submit 
a new proposed listing rule (and, as applicable, a new 4(d) rule) to 
the Federal Register by March 31, 2021. To facilitate reconsideration 
of new information and the proposed rule in general, the Service 
determined that a full, new analysis of the best available scientific 
information according to our now standard SSA framework (Service 2016a, 
entire) was appropriate. This proposed rule reflects an updated 
assessment of the status of the subspecies (including an updated 
analysis of any significant portions of the range) based on the 2021 
SSA for the Streaked Horned Lark, and proposed revisions to the current 
4(d) rule.

I. Proposed Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
streaked horned lark is presented in the SSA report (U.S. Fish and 
Wildlife Service 2021, pp. 4-19).
    The streaked horned lark, a small songbird endemic to the Pacific 
Northwest, is one of 42 subspecies of horned lark worldwide and one of 
five breeding subspecies of horned larks in Washington and Oregon 
(Beason 1995, p. 2). Adults are pale brown, but shades of brown vary 
geographically among the subspecies. The male's face has a yellow wash 
in most subspecies. Adults have a black bib, black whisker marks, black 
``horns'' (feather tufts that can be raised or lowered), and black tail 
feathers with white margins (Beason 1995, p. 2). Adults feed mainly on 
grass and forb seeds, but feed insects to their young (Beason 1995, p. 
6). At coastal sites, streaked horned larks forage in the wrack line 
and in intertidal habitats (Pearson and Altman 2005, p. 8), and 
streaked horned larks in the Willamette Valley eat seeds of introduced 
weedy grasses and forbs, focusing on the seed source that is most 
abundant (Moore 2008a, p. 9).
    Streaked horned larks historically selected habitat in relatively 
flat, open areas maintained by flooding, fire, and sediment transport 
dynamics. The interruption of these historical processes due to flood 
control dams, fire suppression, and reduction of sediment transport by 
dams resulted in a steep decline in the extent of historical habitat 
for the lark. Currently, larks are found in open areas free from visual 
obstructions like grasslands, prairies, wetlands, beaches, dunes, and 
modified or temporarily disturbed habitats (such as agricultural or 
grass seed fields, airports, dredged material placement

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sites, and gravel roads). Streaked horned larks need relatively flat 
landscapes with sparse vegetation, preferring habitats with an average 
of 17 percent bare ground for foraging and 31 percent of bare ground 
for nesting (Altman 1999, p. 18). Typically, preferred habitats contain 
short vegetation, contain forbs and grasses that are less than 13 
inches (in) (33 centimeters (cm)) in height, and have few or no trees 
or shrubs (Altman 1999, p. 18; Pearson and Hopey 2005, p. 27). The 
large, open areas used by populations of larks are regularly disturbed 
via burning, mowing, herbicide application, crop rotation, dredging 
material placement, and/or other anthropogenic regimes.
    Habitat characteristics of agricultural lands used by streaked 
horned larks include: (1) Bare or sparsely vegetated areas within or 
adjacent to grass seed fields, pastures, or fallow fields; (2) recently 
planted (0 to 3 years) conifer farms with extensive bare ground; and 
(3) wetland mudflats or ``drown outs'' (i.e., washed out and poorly 
performing areas within grass seed or row crop fields). Currently, in 
the Willamette Valley, there are approximately 420,000 acres (ac) 
(169,968 hectares (ha)) of grass seed fields and an additional 
approximately 500,000 ac (202,343 ha) of other agriculture. In any 
year, some portion of these 920,000 ac (372,311 ha) will have suitable 
streaked horned lark habitat, but the geographic location of those 
areas may not be consistent from year to year due to variable 
agricultural practices (fallow fields, crop rotation, etc.), and we 
cannot predict the changing and dynamic locations of those areas.
    Horned larks form breeding pairs in the spring (Beason 1995, p. 
11), and territory size is variable. Territory size can range from 1.5 
to 2.5 ac (0.61 to 1.0 ha) (Altman 1999, p. 11), and varies widely 
between sites and across years; for 16 pairs of larks, territories 
ranged in size from 4.0 to 20.6 ac (1.6 to 8.3 ha) (Wolf et al. 2017, 
p. 12). Territories overlap substantially, which is not surprising 
given the semi-colonial breeding behavior of the species (breeding 
territories are adjacent to other pairs at the same site but nests are 
not in extremely close proximity) (Wolf et al. 2017, p. 12). The 
nesting season (i.e., clutch initiation to fledging) for streaked 
horned larks begins in mid-April and ends in late August, with peaks in 
May and early June (Pearson and Hopey 2004, p. 11; Moore 2011, p. 32; 
Wolf 2011, p. 5; Wolf and Anderson, 2014, p. 19). After the first 
nesting attempt in April, streaked horned larks will often re-nest in 
late June or early July (Pearson and Hopey 2004, p. 11). Nests are 
positioned adjacent to vegetation or other structural elements and are 
lined with soft vegetation (Pearson and Hopey 2005, p. 23; Moore and 
Kotaich 2010, p. 18). Streaked horned lark nesting success (i.e., the 
proportion of nests that result in at least one fledged chick) is 
highly variable, consistent with ground-nesting passerines (Best 1978, 
pp. 16-20; Johnson and Temple 1990, p. 6).
    The average minimum viable population (MVP) for the groups Aves and 
Passerines has been identified as 5,269 and 6,415 individuals 
respectively; this number was determined using methodology described in 
a meta-analysis of multiple taxa (birds, fish, mammals, reptiles and 
amphibians, plants, insects, and marine invertebrates) (Anderson 2015, 
p. 2). Though we don't know what the historical abundance was for 
streaked horned lark rangewide, based on the MVPs for similar species, 
it was most likely larger than the current abundance. The most recent 
rangewide population estimate for streaked horned larks is 1,170 to 
1,610 individuals; this estimate is based on data compiled from 
multiple survey efforts, plus extrapolation to areas of potential 
suitable habitat not surveyed (e.g., inaccessible private lands), 
particularly in the Willamette Valley (Altman 2011, p. 213).
    The streaked horned lark currently occurs at local populations 
(defined here as scattered breeding sites or areas of habitat to which 
individuals return each year) in three regions across the range: The 
South Puget Lowlands in Washington, the Pacific Coast and Lower 
Columbia River in Washington and Oregon, and the Willamette Valley in 
Oregon. Based on 2013 to 2019 survey data from some regularly monitored 
sites across the range of the subspecies, the number, distribution, and 
size of streaked horned lark local populations appear to have 
increased. Regional population breeding pair counts and the rangewide 
total are summarized in Table 1 and Figure 1, below.

    Table 1--Regional Summaries of Breeding Pairs, With Number of Local Populations, Based on Sites Regularly
                                           Monitored From 2013 to 2019
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  Regional population (with
number of local populations)     2013          2014           2015       2016       2017       2018       2019
----------------------------------------------------------------------------------------------------------------
South Puget Lowlands (8)....         75  97                      116        124        142        121        121
Pacific Coast and Lower              81  89                       77         85         77         86         97
 Columbia River (24).
    Pacific Coast (5).......         10  12                       11          9         13         13         10
    Lower Columbia River             71  77                       66         76         64         73         87
     (19).
Willamette Valley (10)......         42  * incomplete            109        127         92        133        165
                             -----------------------------------------------------------------------------------
        Rangewide total.....        198  * 186                   302        336        311        340        383
----------------------------------------------------------------------------------------------------------------
* Several of the locations were not surveyed in 2014; other sites have no data available.


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[GRAPHIC] [TIFF OMITTED] TP13AP21.028


 
 
 
   Figure 1. Regional population trends based on 2013-2019 survey data
 

    The South Puget Lowlands region consists of eight local populations 
at three municipal airports and five sites at Joint Base Lewis McChord 
(JBLM). Since streaked horned larks were listed in 2013, this regional 
population has stabilized to some degree, but two of its local 
populations continue to experience declining trends (Keren and Pearson 
2019, p. 4).
    The Pacific Coast and Lower Columbia River region currently 
consists of twenty-four local populations, including the new population 
recently detected at Clatsop Spit in Oregon. The region currently 
appears stable (Keren and Pearson 2019, p. 3), although local 
population surveys are inconsistent and do not occur at each site every 
year. Two of the sites on the coast of Washington (Oyhut Spit and Johns 
River) have no positive records since the 2013 listing and appear to be 
extirpated. Although the current abundance of local populations on the 
Pacific Coast is low compared to other areas, it has been low for many 
years, the size of those coastal sites is relatively small compared to 
other local populations (and therefore naturally limits the number of 
breeding pairs), and there is no apparent declining trend in this area 
based on survey data between 2013 and 2019.
    The Willamette Valley regional population was previously estimated 
at 900 to 1,300 individuals based on data compiled and extrapolated 
from multiple survey efforts between 2008 and 2010 (Altman 2011, p. 
213), including estimates from the many known occupied but inaccessible 
sites on private lands in the region. Surveys from the ten regularly 
monitored accessible occupied sites in the Willamette Valley counted 
165 breeding pairs in 2019. These monitored sites include four at 
municipal airports, three at National Wildlife Refuges, two at natural 
areas, and one on private land. One historical site for a local 
population in this region (Salem Municipal Airport) has no positive 
records since 2013 and appears to be extirpated. The Willamette Valley 
regional population appears to be well distributed and increasing, but 
the limited surveys of accessible sites may not accurately reflect the 
trend in the whole region. The subspecies appears to be more abundant 
in the southern end of the valley where there is more suitable habitat.
    While the number of local populations in the South Puget Lowlands 
has not increased, the local populations at JBLM have increased in 
size. Furthermore, two additional sites in the Lower Columbia River 
area, and at least two additional sites in the Willamette Valley, have 
increased the number and distribution of local populations throughout 
the range since 2013. Despite recent observations of individual larks 
at Clatsop Spit (i.e., not breeding pairs), the number, distribution, 
and size of local breeding populations along the Pacific Coast has 
remained relatively constant.
    Across the range of the subspecies, the number of breeding pairs at 
some regularly monitored sites increased from 198 in 2013, to 383 in 
2019. However, because a rangewide population estimate has not been 
reanalyzed since 2011, we are unable to state conclusively that the 
rangewide population has increased. The North American Breeding Bird 
Survey (BBS) analyzes regional data to provide a trend for rangewide 
breeding populations. In contrast to the data from site-specific 
surveys for the streaked horned lark from 2013-2019, the most recent 
BBS analysis for the region encompassing streaked horned larks 
indicates a 6.52 percent decline for the subspecies between 2005 and 
2015 (95 percent confidence interval: -12.66 to -2.26 percent) (Sauer 
et al. 2017, p. 3). It is important to keep in mind however, that when 
a species is listed and recovery actions begin, it may still be many 
years before the abundance recovers to the point where the species 
demonstrates a rangewide increasing population trend. The streaked 
horned lark was listed in 2013, only two years before the last data set 
that was included in the most recent BBS analysis.

Regulatory and Analytical Framework

Regulatory 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

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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 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 expected response by the species, 
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 the 
Services 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.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent a decision by 
the Service on whether the species should be proposed for listing as an 
endangered or threatened species under the Act. It does, however, 
provide the scientific basis that informs our regulatory decisions, 
which involve the further application of standards within the Act and 
its implementing regulations and policies. The following is a summary 
of the key results and conclusions from the SSA report; the full SSA 
report can be found at Docket No. FWS-R1-ES-2020-0153 on https://www.regulations.gov.
    To assess streaked horned lark 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 species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species 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 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences in the future. Throughout 
all of these stages, we used the best available information to 
characterize viability as the ability of a species to sustain 
populations in the wild over time. We use this information to inform 
our regulatory decision.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.

Factors Influencing the Species

    In our October 3, 2013, listing rule (78 FR 61452), we found that 
the streaked horned lark was a threatened species due to loss and 
degradation of habitat from development, fire suppression, and invasive 
(native and nonnative) plants; dredge spoil deposition timing and 
placement on Columbia River islands; incompatibly timed burning and 
mowing regimes; activities associated with military training; 
conversion of large grass seed production fields to

[[Page 19191]]

incompatible agricultural commodities; predation; small population 
effects; activities associated with airports; and recreation.
    In our SSA, we carefully analyzed these previously identified 
threats, as well as additional potential threats and positive 
conservation measures, to determine if they operate at a scope and 
magnitude as to influence the condition, or resiliency, of populations 
rather than only some individuals (U.S. Fish and Wildlife Service 2021, 
pp. 19-38). Based on our assessment, disease and pesticides do not rise 
to the level of affecting the condition of local or regional 
populations. Although the 2013 listing rule stated that predation was 
likely to be a significant and ongoing threat to the subspecies 
(particularly in the South Puget Lowlands region), our SSA did not find 
evidence of effects to the subspecies from predation beyond effects to 
individuals in any local population (U.S. Fish and Wildlife Service 
2021, p. 20). Although predation does occur, we did not find that it 
occurred at a level beyond regular life-history dynamics. We 
acknowledge, however, that predation combined with the effects of small 
population size may reduce the resiliency of some local populations, as 
noted below under ``Synergistic Effects.'' In 2013, a predator control 
program under the Wildlife Services Predator Damage Management Program 
of the Animal and Plant Health Inspection Service, U.S. Department of 
Agriculture was initiated at Leadbetter Point and Midway Beach on the 
Washington coast (U.S. Fish and Wildlife Service 2011). Data shows that 
western snowy plovers have shown improved nesting success since the 
program was implemented; however, monitoring data for streaked horned 
larks are inconclusive, and we cannot reliably determine if predator 
control has improved nesting success for larks at these sites.
    The primary driver of the status of streaked horned lark has been 
the scarcity of large, open spaces with very early seral stage 
vegetation. Historically, habitat was created and maintained by natural 
ecological processes of flooding, fire, and coastal sediment transport 
dynamics, as well as prairies maintained by Native American burning. 
The loss of regular disturbance regimes that created these open spaces 
impacted the abundance and distribution of historical populations, but 
the impact occurred decades ago and is not ongoing. Though this loss of 
historical disturbance led to displacement of lark into less suitable 
alternative habitat and subsequent population declines, it is not 
considered a significant influence on the condition of current 
populations. Furthermore, our current and future condition analyses 
take into consideration the quality of habitat, so the condition 
ranking of any populations that were displaced into lower quality 
habitat due to loss of historical disturbance is reflective of that 
displacement.
    The primary factors currently influencing the condition of streaked 
horned lark populations are the ongoing loss and conversion of suitable 
habitat, land management activities and related effects, and 
recreation. Since we listed the streaked horned lark as threatened 
under the Act in 2013, multiple entities have implemented a series of 
regulatory and voluntary conservation measures (section 7 consultations 
due to the listing of the subspecies under the Act) to offset negative 
impacts to larks and lark habitat, reducing the overall impact of 
stressors influencing local populations. We discuss these primary 
influence factors and associated conservation actions below.
Ongoing Loss and Conversion of Suitable Habitat
    Following Euro-American settlement of the Pacific Northwest in the 
mid-19th century, fire was actively suppressed on grasslands in the 
Willamette Valley, allowing encroachment by woody vegetation into 
prairie habitat and oak woodlands (Franklin and Dyrness 1973, p. 122; 
Boyd 1986, entire; Kruckeberg 1991, p. 286; Agee 1993, p. 360; Altman 
et al. 2001, p. 262). Native and nonnative species that have encroached 
on these habitats throughout the lark's range include native Douglas 
fir (Pseudotsuga menziesii), nonnative Scotch broom (Cytisus 
scoparius), and nonnative grasses such as tall oatgrass (Arrhenatherum 
elatius) and false brome (Brachypodium sylvaticum) (Dunn and Ewing 
1997, p. v; Tveten and Fonda 1999, p. 146). This expansion of woody 
vegetation and nonnative plant species, including noxious weeds, has 
reduced the quantity and quality and overall suitability of prairie 
habitats for larks (Tveten and Fonda 1999, p. 155; Pearson and Hopey 
2005, pp. 2, 27). On JBLM alone, over 16,000 ac (6,600 ha) of prairie 
has been converted to Douglas fir forest since the mid-19th century 
(Foster and Shaff 2003, p. 284). Trees and/or other woody vegetation 
infiltrate open areas with formerly low vegetation and long sight lines 
preferred by streaked horned larks.
    The introduction of Eurasian beachgrass (Ammophila arenaria) and 
American beachgrass (Ammophila breviligulata) in the late 1800s, 
currently found in high and increasing densities in most of coastal 
Washington and Oregon, has dramatically altered the structure of dunes 
on the coast (Wiedemann and Pickart 1996, p. 289). Beachgrass creates 
areas of dense vegetation unsuitable for larks (MacLaren 2000, p. 5). 
The spread of beachgrass has reduced the available nesting habitat for 
streaked horned larks in Washington at Damon Point and at Grays Harbor 
and Leadbetter Point on Willapa National Wildlife Refuge (NWR) 
(Washington Department of Fish and Wildlife 1995, p. 19; Stinson 2005, 
p. 65; U.S. Fish and Wildlife Service 2011, p. 4-2). On the Oregon 
coast, the low abundance of streaked horned lark is attributed to the 
invasion of exotic beachgrasses and resultant dune stabilization 
(Gilligan et al. 1994, p. 205). Without management (mechanical and 
chemical) to maintain the open landscape at sites like these, invasive 
beachgrasses will continue to influence current and future local 
populations of streaked horned larks and reduce suitability of these 
habitats, particularly in the Pacific Coast and Lower Columbia River 
region.
    Habitat restoration work on Leadbetter Point by the Service's 
Willapa NWR has successfully reduced the cover of encroaching 
beachgrasses into streaked horned lark habitat. In 2007, the area of 
open habitat measured 84 ac (34 ha). However, after mechanical and 
chemical treatment to clear beachgrass (mostly American beachgrass) and 
spreading oyster shells across 45 ac (18 ha), there is now 121 ac (50 
ha) of sparsely vegetated habitat available, increasing the extent of 
open habitat (Pearson et al. 2009b, p. 23). The main target of the 
Leadbetter Point restoration project was the federally listed western 
snowy plover (Charadrius alexandrinus nivosus), but the restoration 
actions also benefited streaked horned larks. Before the restoration 
project, this area had just 2 streaked horned lark territories (Stinson 
2005, p. 63); after the project, an estimated 7 to 10 territories were 
located in and adjacent to the restoration area (Pearson in litt. 
2012b).
    Human activity has converted native prairie and grassland habitats 
to residential and commercial development, reducing habitat 
availability for streaked horned larks throughout their range. About 96 
percent of the Willamette Valley is privately owned, and it is home to 
almost three-fourths of Oregon's human population, which is anticipated 
to nearly double in the next 50 years (Oregon Department of Fish and 
Wildlife 2016, p. 17). The Willamette Valley provides about half of the 
State's

[[Page 19192]]

agricultural sales and is the location of 16 of the top 17 private-
sector employers (manufacturing, technology, forestry, agriculture, and 
other services). In the South Puget Lowlands, prairie habitat continues 
to be lost, particularly via the removal of native vegetation and the 
excavation and conversion to non-habitat surfaces in the process of 
residential development (i.e., buildings, pavement, residential 
development, and other infrastructure) (Stinson 2005, p. 70; Watts et 
al. 2007, p. 736). The region also contains glacial outwash soils and 
deep layers of gravels underlying the prairies that are valuable for 
use in construction and road building.
    Industrial development has also reduced habitat available to 
breeding and wintering streaked horned larks. Rivergate Industrial 
Park, owned by the Port of Portland, is a large industrial site in 
north Portland near the Columbia River that was developed on a dredge 
disposal site. Rivergate has long been an important breeding site for 
streaked horned larks and a wintering site for large flocks of mixed 
lark subspecies. In 1990, the field used by streaked horned larks at 
Rivergate measured more than 650 ac (260 ha) of open sandy habitat 
(Dillon in litt. 2012). In the years since, the Port of Portland has 
constructed numerous industrial buildings on the site, subsequently 
reducing habitat availability for larks and likely displacing all 
breeding and wintering larks from the area (Port of Portland 2019, 
entire).
    As part of the section 10(a)(1)(B) permit associated with the 
development of a habitat conservation plan (HCP) under the Act, the 
Port of Portland mitigated for the loss of streaked horned lark habitat 
by securing a long-term easement on a 32-ac (13-ha) parcel at Sandy 
Island. Sandy Island is an occupied breeding site on the Columbia River 
about 30 miles (mi) (50 kilometers (km)) north of the Rivergate 
industrial site and is designated as critical habitat for the streaked 
horned lark (Port of Portland 2017, p. 4). The Port's 30-year 
commitment to manage the site and protect breeding streaked horned 
larks helps to offset impacts to the regional population from the loss 
of available habitat at the Rivergate site.
    Roughly half of all the agricultural land in the Willamette Valley, 
approximately 360,000 ac (145,000 ha), is devoted to grass seed 
production (Oregon Seed Council 2018, p. 1). Grasslands, both native 
prairies and grass seed fields, are important habitats for streaked 
horned larks in the Willamette Valley, as they are used as both 
breeding and wintering habitat (Altman 1999, p. 18; Moore and Kotaich 
2010, p. 11; Myers and Kreager 2010, p. 9). Demand for grass seed and 
the overall acreage of grass seed harvested in Oregon has declined 
since 2005 (Oregon State University 2005 and 2019, entire). In 2019, 
approximately 364,355 ac (147,450 ha) were planted for forage and turf 
grass seed crops in the Willamette Valley compared to approximately 
484,080 ac (195,900 ha) in 2005 (Oregon State University 2005 and 2019, 
entire). The reduction in grass seed production has resulted in growers 
switching to other commodities, such as wheat, stock for nurseries and 
greenhouses, grapes, blueberries, and hazelnuts (U.S. Department of 
Agriculture National Agricultural Statistics Service 2009, p. 3; Oregon 
Department of Agriculture 2011, p. 1; U.S. Department of Agriculture 
National Agricultural Statistics Service 2017, pp. 34, 55, 101). These 
other crop types do not have the low-statured vegetation and bare 
ground preferred by the streaked horned lark.
    The continued decline of the grass seed industry in the Willamette 
Valley due to the variable economics of agricultural markets will 
likely result in a continued conversion from grass seed fields to other 
agricultural types, and fewer acres of suitable habitat for streaked 
horned larks. Across the range, the conversion of streaked horned lark 
habitat into agricultural, industrial, residential, or urban 
development will continue to influence current and future streaked 
horned lark local or regional populations to some degrees throughout 
the range of the species, though the Pacific Coast is less affected 
than other areas.
Land Management Activities and Related Effects
    Streaked horned larks evolved in a landscape of ephemeral habitat 
with regular historical disturbance regimes that maintained the large, 
open spaces with very early seral stage vegetation relied upon by the 
subspecies. Human activity led to the stabilization of these historical 
disturbance regimes, as well as the unintentional creation of 
``replacement'' habitat for streaked horned larks that mimics their 
preferred large, open spaces. Replacement habitat occurs in a variety 
of settings across the range of the subspecies, including agricultural 
fields, at airports, and on dredge spoil islands. Open habitat is 
maintained in these areas by way of frequent human disturbance, 
including burning, mowing, cropping, chemical treatments (herbicide and 
pesticide application), or placement of dredged materials (Altman 1999, 
p. 19). Without regular large-scale, human-caused disturbance, the 
quantity of suitable habitat available to larks would decrease rapidly. 
These land management activities are key to providing and maintaining 
habitat for the streaked horned lark; without replacement habitat, the 
status of the subspecies would likely be much worse.
    However, when these same activities are conducted during the most 
active breeding season (mid-April to mid-June) for streaked horned 
larks, they have the potential to result in destruction of nests, 
crushing of eggs or nestlings, or flushing of fledglings or adults 
(Pearson and Hopey 2005, p. 17; Stinson 2005, p. 72). During the 
nesting seasons from 2002 to 2004, monitoring at Gray Army Airfield, 
McChord Airfield, and Olympia Airport in the South Puget Lowlands 
region documented nest failure at 8 percent of nests due to mowing over 
nests, forcing young to fledge early (Pearson and Hopey 2005, p. 18). 
Additionally, though dredge deposits can mimic sandy beach habitat 
typically used by larks, they have also been documented to destroy 
breeding sites and active nests (Pearson in litt. 2012a; Pearson et al. 
2008a, p. 21; MacLaren 2000, p. 3; Pearson and Altman 2005, p. 10).
    The list of threats to the subspecies in the 2013 listing rule (78 
FR 61452) included dredge spoil deposition timing and placement on 
Columbia River islands, incompatibly timed burning and mowing regimes, 
activities associated with military training, and activities associated 
with airports. Despite these threats noted at the time of listing, the 
Service determined that timing restrictions on these activities were 
not appropriate, stating in the rule: ``Our purpose in promulgating a 
special rule to exempt take associated with activities that 
inadvertently create habitat for the streaked horned lark is to allow 
landowners to continue those activities without additional regulation. 
We believe that imposing a timing restriction would likely reduce the 
utility of the special rule for land managers and could have the 
unintended side effect of causing landowners to discontinue their 
habitat creation activities'' (78 FR 61464). No timing restrictions 
were included in the 2013 4(d) rule and these land management 
activities continued across the range since that time. Since 2013, 
survey data from some regularly monitored sites across the range of the 
subspecies show an increase from 198 breeding pairs in 2013, to 383 
breeding pairs in 2019, despite a lack of timing restrictions on land 
management activities. While the loss of individuals is never welcome, 
the continuation of

[[Page 19193]]

land management activities that create replacement habitat is very 
important to the conservation of the subspecies, and the benefits 
appear to outweigh the cost of any loss of individuals.
    In the Willamette Valley, some habitats in agricultural areas are 
consistently maintained and therefore available throughout the year 
(e.g., on the margins of gravel roads), while other patches of suitable 
habitat shift as areas such as large fields are mowed, harvested, 
sprayed, or burned. In 2017, the Willamette Valley NWR entered into a 
4-year programmatic consultation with the Service for its farming and 
pesticide use program (U.S. Fish and Wildlife Service 2016b, entire). 
This programmatic consultation documents the Refuge program's 
commitment to adapting its farming activities to improve the status of 
the streaked horned lark on the William L. Finley, Ankeny, and Baskett 
Slough units of the complex. Conservation measures include ensuring 
that farming activities minimize disturbance to larks, and that 
pesticides used in agricultural fields have a low risk of adverse 
effects to larks and their food sources.
    Airports implement hazardous wildlife management programs that 
include vegetation management around roads and runways, to discourage 
the presence of wildlife near the runways and thereby promote human 
safety for flights. Streaked horned lark are very attracted to the 
wide-open spaces created by vegetation management, and several airports 
in the range are now sites for local populations of the subspecies. In 
the South Puget Lowlands, the streaked horned lark might have been 
extirpated if not for mowing at airports to maintain large areas of 
short grass (Stinson 2005, p. 70). Five of the eight streaked horned 
lark nesting sites in the South Puget Lowlands are located on or 
adjacent to airports and military airfields (Rogers 2000, p. 37; 
Pearson and Hopey 2005, p. 15). At least five breeding sites are found 
at airports in the Willamette Valley, including the largest known local 
population at Corvallis Municipal Airport (Moore 2008b, pp. 14-17). The 
Port of Olympia's Updated Master Plan includes recommendations to 
minimize impacts to larks at the airport by avoiding mowing during the 
breeding season; however, mowing still occurs during the breeding 
season (Port of Olympia/Olympia Regional Airport 2013, pp. 10-11) and 
the local population at the airport has fluctuated (both increased and 
decreased) in surveys from 2013 to 2019 (Wolf et al. 2020, p. 16). The 
overall count in 2019 of 27 breeding pairs was slightly lower that the 
count in 2013 (30), however, in 2019 there were six more breeding pairs 
than were counted in 2018.
    In 2017, the JBLM finalized a programmatic consultation with the 
Service that covered multiple activities affecting streaked horned lark 
including mowing (U.S. Fish and Wildlife Service 2017) (although mowing 
is allowed during the breeding season under emergency circumstances 
(Wolf et al. 2017, p. 34)). The consultation has resulted in a 
significant reduction in adverse effects to larks from mowing at 
military airfields. The breeding population of larks on JBLM increased 
from fewer than 100 pairs when the streaked horned lark was listed in 
2013 (Wolf and Anderson 2014, p. 12), to over 120 pairs in 2019 (Wolf 
et al. 2020, p. 6). However, there are no conservation measures at 
several municipal airports in the Puget Lowlands region and none of the 
airports in the Willamette Valley region to reduce effects to streaked 
horned larks from operations and maintenance activities, including 
mowing.
    Individual lark in these local populations near runways are at 
increased risk of aircraft strikes and collisions. Horned lark strikes 
are frequently reported at military and civilian airports throughout 
the country, but because of the bird's small size, few strikes result 
in significant damage to aircraft (Dolbeer et al. 2011, p. 48; Air 
Force Safety Center 2012, p. 2). Juvenile males seem to be struck most 
often, perhaps because they are trying to establish new territories in 
unoccupied but risky areas on runway margins (Wolf et al. 2017, p. 31). 
With respect to streaked horned larks in particular, in the 5-year 
period from 2013 to 2017, McChord Airfield had seven confirmed strikes, 
and Gray Army Airfield recorded one confirmed streaked horned lark 
strike (Wolf in litt. 2018). Since January 2017, 16 adults have been 
killed by strikes on JBLM, including 10 adults and 2 juveniles killed 
by strikes at McChord Airfield in 2020 (Wolf in litt. 2020).
    The increased number of strikes in 2020 were a direct result of 
construction activities that redirected aircraft traffic to the 
northern half of the runway where lark density is highest and lark 
abundance was relatively high; this led to a higher than normal 
mortality rate from aircraft strikes. Aside from the 12 strikes in 
2020, JBLM recorded a total of 12 strikes in the seven years between 
2013 and 2019, for a rate of 1.7 strikes per year. While aircraft 
strikes do occur in several local populations at airports throughout 
the range of the species (particularly in the South Puget Lowlands), 
the rate appears relatively low and the vegetation management conducted 
by these airports also maintains replacement habitat that supports 
breeding pairs (Pearson et al. 2008a, p. 13; Camfield et al. 2011, p. 
10; FAA 2020, entire).
    The streaked horned lark uses islands in the Lower Columbia River 
for both breeding and wintering habitat. The river channel is regularly 
dredged by the U.S. Army Corps of Engineers (Corps), and dredge 
deposits can both benefit and harm streaked horned larks depending on 
the location and timing of deposition. In 2014, the Corps entered into 
a programmatic consultation with the Service for the Corps' navigation 
channel dredging and dredge materials placement program in the Lower 
Columbia River (U.S. Fish and Wildlife Service 2014, entire). In this 
consultation, the Corps committed to planning for the placement of 
dredge material to minimize adverse effects to the lark on the Corps' 
network of placement sites and to maintain enough habitat in suitable 
condition to maintain the current regional population of breeding larks 
and allow for additional population growth. The 5-year program has been 
successful; from 2014 to 2019, numbers in the Lower Columbia River 
increased from an estimate of 77 pairs to 87 pairs, with the increases 
occurring at dredge deposition sites (Center for Natural Lands 
Management 2019, pp. 3-4). The original 5-year consultation was 
extended through 2022. The Corps is currently working on a 20-year 
dredge material management plan, which will build on the success of the 
previous consultation.
    Military training activities at the 13th Division Prairie at JBLM, 
including bombardment with explosive ordnance and hot downdraft from 
aircraft, as well as civilian events, have caused nest failure and 
abandonment at JBLM's Gray Army Airfield and McChord Airfield (Stinson 
2005, pp. 71-72). JBLM is also used for helicopter operations 
(paratrooper practices, touch-and-go landings, and load drop and 
retrievals) and troop training activities. Artillery training, off-road 
use of vehicles, and troop maneuvers at the 13th and 91st Division 
Prairies have been conducted in areas used by streaked horned larks 
during the nesting season, contributing to nest failure and low nest 
success. In addition to military training activities, McChord Airfield 
hosts an international military training event known as the Air 
Mobility Rodeo, which is held in odd-numbered years. In even-numbered 
years, McChord Airfield hosts a public air show known as the Air Expo; 
this event incorporates simulated bombing

[[Page 19194]]

and fire-bombing, including explosives and pyrotechnics launched from 
an area adjacent to one of JBLM's most densely populated streaked 
horned lark nesting sites. The Expo and Rodeo can affect the streaked 
horned lark through disturbance from aircraft, temporary 
infrastructure, and spectator-related nest abandonment, nest failure, 
and adverse effects to fledglings (Pearson et al. 2005, p. 18; Stinson 
2005, p. 27). The 2017 programmatic consultation JBLM entered into with 
the Service covers military training and these other regular activities 
(U.S. Fish and Wildlife Service 2017, entire). The consultation has 
significantly reduced adverse effects to larks from military activities 
(including training at military airfields), and resulted in an increase 
in the breeding population of larks on JBLM from fewer than 100 pairs 
in 2013 (Wolf and Anderson 2014, p. 12), to over 120 pairs in 2019 
(Wolf et al. 2020, p. 6).
Recreation
    Recreation at coastal sites can cause the degradation of streaked 
horned lark habitat, as well as disturbance to adults and juveniles, 
and direct mortality to eggs, nestlings, and fledglings. Activities 
such as the annual spring razor clam digs, dog walking, beachcombing, 
off-road vehicle use, camping, fishing, and horseback riding in coastal 
habitats may directly or indirectly increase predation (primarily by 
corvids), resulting in nest abandonment and nest failure for streaked 
horned larks (Pearson and Hopey 2005, pp. 19, 26, 29). Streaked horned 
larks nest in the same areas as western snowy plovers along the 
Washington coast, and it is highly likely that recreation has caused 
nest failures for larks at sites that have documented nest failure for 
plovers; both species are ground nesters and, therefore, similarly at 
risk of effects of recreation. During western snowy plover surveys 
conducted between 2006 and 2010 at coastal sites in Washington, human-
caused nest failures were reported in 4 of the 5 years (Pearson et al. 
2007, p. 16; Pearson et al. 2008b, p. 17; Pearson et al. 2009a, p. 18; 
Pearson et al. 2010, p. 16), and one of 16 monitored nests at Midway 
Beach on the Washington coast was crushed by a horse in 2004 (Pearson 
and Hopey 2005, pp. 18-19).
    In 2002, JBLM began restricting recreational activity at the 13th 
Division Prairie to protect lark nesting sites; JBLM prohibited model 
airplane flying, dog walking, and vehicle traffic in the area used by 
streaked horned larks (Pearson and Hopey 2005, p. 29). JBLM continues 
to restrict recreational activities during the lark breeding season at 
the 13th Division Prairie, although enforcement, especially on 
weekends, is intermittent (Wolf et al. 2016, p. 43). In addition, the 
2017 programmatic consultation JBLM entered into with the Service (U.S. 
Fish and Wildlife Service 2017) included recreation. The programmatic 
consultation has resulted in a marked increase in the breeding 
population of larks on JBLM from fewer than 100 pairs in 2013 (Wolf and 
Anderson 2014, p. 12), to over 120 pairs in 2019 (Wolf et al. 2020, p. 
6).
Summary of Threats
    Table 2, below, summarizes the scope and magnitude of factors 
influencing the viability of streaked horned lark.

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[GRAPHIC] [TIFF OMITTED] TP13AP21.029

Synergistic Effects
    Climate Change--The effects of climate change have already been 
observed in the Pacific Northwest. Temperatures have risen 1.5 to 2 
degrees Fahrenheit ([deg]F) (0.83 to 1.1 degrees Celsius ([deg]C)) over 
the past century, and the past three decades have been warmer than any 
other historical period (Frankson et al. 2017a, p. 1; Frankson et al. 
2017b, p. 1). Climate change is widely expected to affect wildlife and 
their habitats in the Pacific Northwest by increasing summer 
temperatures, reducing soil moisture, increasing wildfires, reducing 
mountain snowpack, and causing more extreme weather events (Bachelet et 
al. 2011, p. 414). Climate change may increase the frequency and 
severity of stochastic weather events, which may have severe negative 
effects on small local populations throughout the range of the streaked 
horned lark. During the breeding season, small local populations of 
larks are distributed across the range; in the winter, however, 
streaked horned larks congregate mainly in the Willamette Valley and on 
islands in the Lower Columbia River. Such concentration exposes the 
wintering populations to potentially disastrous stochastic events such 
as ice storms or flooding, which could kill individuals, destroy 
limited habitat and food availability, or skew sex ratios. Severe 
winter weather could potentially impact one or more regional 
populations when birds congregate as larger flocks (Pearson and Altman 
2005, p. 13).
    Despite the climate projections for the region, the effects of 
climate change specific to prairie ecosystems are not anticipated to 
decrease the resiliency of regional populations in the South Puget 
Lowlands, Lower Columbia River, and Willamette Valley regions. The 
grasslands and prairies of Washington and Oregon span a wide geographic 
and climatic range, encompassing a rich variety of soil types, 
vegetation cover, elevations, and weather patterns. This heterogeneity 
will likely provide substantial buffering from the effects of changing 
weather and climate (Bachelet et al. 2011, p. 412). It is possible that 
increased summer droughts may affect less drought-tolerant trees and 
other forest species adjacent to prairies, possibly resulting in 
prairie expansion that could benefit the streaked horned lark (Bachelet 
et al. 2011, p. 417). Prairie and grassland ecosystems are well adapted 
to warm and dry conditions--periodic soil drought and future increases 
in temperature and drought for the region ``are unlikely to 
disadvantage (and may benefit) these systems'' (Washington Department 
of Fish and Wildlife 2015, p. 5-31).
    The outlook for streaked horned larks along the Pacific Coast is 
less encouraging due to the effects of climate change. Sea level rise, 
increased coastal erosion, and more severe weather events will cause 
significant effects to lark habitats on the coast. Projected sea level 
rise could increase erosion or landward shift of dunes; similarly, 
increased severe weather events with greater wave and wind action from 
storms could magnify disturbance of dune habitats (Washington 
Department of Fish and Wildlife 2015, p. 5-31) and imperil nesting 
larks. Given these stressors, we expect that climate change may limit 
the resiliency of some local populations on

[[Page 19196]]

the coast by amplifying the negative effects from habitat loss or the 
spread of invasive species where not managed. A conservation measure 
that may help reduce effects from climate change in one area of the 
coast in the range of the streaked horned lark is the Shoalwater Bay 
Shoreline Erosion Control Project (U.S. Fish and Wildlife Service 
2018), which is a long-term commitment by the Corps and the Shoalwater 
Bay Tribe to protect the reservation from coastal erosion. It has 
created and is maintaining habitat for both western snowy plovers and 
streaked horned larks and provides secure nesting area on the coast for 
both species.
    Small Population Size--Most species' populations fluctuate 
naturally, responding to various factors such as weather events, 
disease, and predation. These factors have a relatively minor impact on 
a species with large, stable local populations and a wide and 
continuous distribution. However, populations that are small, isolated 
by habitat loss or fragmentation, or impacted by other factors are more 
vulnerable to extirpation by natural, randomly occurring events (such 
as predation or stochastic weather events), and to genetic effects that 
plague small populations, collectively known as small population 
effects (Purvis et al. 2000, p. 3). These effects can include genetic 
drift, founder effects (over time, an increasing percentage of the 
population inheriting a narrow range of traits), and genetic 
bottlenecks leading to increasingly lower genetic diversity, with 
consequent negative effects on adaptive capacity and reproductive 
success (Keller and Waller 2002, p. 235).
    Various effects of small population size, including low 
reproductive success, loss of genetic diversity, and male skewed sex-
ratio, have been noted in the range of the streaked horned lark, 
particularly at some local populations in the South Puget Lowlands 
region and the Lower Columbia River (Anderson 2010, p. 15; Camfield et 
al. 2010, p. 277; Drovetski et al. 2005, p. 881; Pearson 2019, Figures 
1 and 2; Drovetski et al. 2005, p. 881; Wolf et al. 2017, p. 27). Any 
local population of streaked horned larks with very low abundance that 
does not interbreed with other local populations will be at more risk 
in the future due to small population effects.

Current Condition

    To maintain adequate resiliency, populations of streaked horned 
larks need large open spaces with suitable habitat structure--
specifically, low-stature vegetation and scattered patches of bare 
ground--and an appropriate disturbance regime sufficient to maintain 
habitat and support increased numbers of breeding birds. The size of 
populations with high resiliency varies among regions, depending on the 
extent and quality of available habitat. Needs of the streaked horned 
lark in relation to degree of estimated population resiliency are 
summarized below in Table 3; to evaluate current condition, we assigned 
each condition category a number as shown.

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[GRAPHIC] [TIFF OMITTED] TP13AP21.030

    Parameters that are in high condition support adequate population 
resiliency, whereas parameters that are in low condition reduce 
resiliency and increase the risk from stochastic events. Each of the 
five parameters were given equal weight, and the resulting scores were 
averaged to come up with an overall condition score for each local 
population unit as follows: High (>=1.7), Moderate (1.6 to 1.1), Low 
(1.0 to 0.2), and Extirpated (<=0.1). The overall condition score 
thresholds were based on the difference between the highest and lowest 
possible actual scores (2.4 and 0.2, respectively) for extant 
populations. If survey data showed a site had no detections of streaked 
horned larks, then the entire site is categorized as extirpated, 
regardless of the condition category assigned to the habitat or 
disturbance factors (e.g., Oyhut Spit and Johns River Island in the 
Pacific Coast region).
    The resulting current condition rankings of extant local 
populations varied between high to low condition. Some local 
populations ranked high (those that scored 1.7 or greater) as a result 
of abundant populations and high-quality habitat; other populations 
ranked lower (those that scored 1.0 or less) in part because of a 
combination of low abundance, declining population trends between 2013 
and 2019, poor quality habitat, and effects of land management 
activities.
    While the overall number of occupied sites represent a reduction 
from its historical range, of the 42 extant local populations across 
the three representational regions, there are eight in high condition, 
15 in moderate condition, and 19 in low condition. Three sites that 
were occupied in years prior to the 2013 listing are currently 
considered extirpated. In general, the local populations with low 
condition have low abundance that has declined since 2013, and occur in 
locations that have less habitat availability and therefore limited 
capacity to support high numbers of birds. In addition, certain land 
management activities at these locations, such as construction and 
development or sand-borrow activities on the Columbia River, would not 
support long-term resiliency even if population abundance stabilized 
and increased. Use of these sites is opportunistic based on habitat 
availability, and most of these sites are not anticipated to 
meaningfully contribute to subspecies viability or support high numbers 
of birds.
    The South Puget Lowlands region has an overall increasing 
population trend (based on the 2013-2019 survey data). The region 
contains four local populations with high condition, one local 
population with moderate condition, and three local populations with 
low condition. Those local populations with low condition have

[[Page 19198]]

small, declining populations and occur in areas where management 
activities have negative impacts on adult and juvenile birds, currently 
limiting resiliency. The populations at the JBLM airfields and 13th 
Division increased between 2013 and 2019 and movement between sites and 
habitat quality supports high resiliency. The Shelton Airport has a 
declining population trend. The Olympia Airport has good connectivity 
and its condition is moderate, but the condition of the Shelton and 
Tacoma airports are low.
    The Pacific Coast and Lower Columbia region has an overall stable 
population trend (based on the 2013-2019 survey data). It has two local 
populations in high condition (including Sandy Island which is managed 
for the conservation of streaked horned lark), nine local populations 
in moderate condition, 13 local populations with low condition, and two 
locations that have no breeding pairs and are assumed extirpated (Oyhut 
Spit and Johns River Island). While Leadbetter Point is managed to 
improve habitat quality for larks and reduce corvid predation, the 
local population has fluctuated in the last several years and is 
currently considered unstable. A number of coastal sites and several 
Columbia River sites have low resiliency due to low abundance, small 
patches of high-quality habitat that currently limit potential 
abundance, limited connectivity, and/or management activities that are 
not optimal for successful breeding. While the Pacific Coast area 
currently has low numbers of breeding pairs, recent detections at 
Clatsop Spit (a previously unoccupied site) indicate the species could 
recolonize areas with suitable habitat. Streaked horned larks, however, 
have not recolonized new sites in the South Puget Lowlands despite 20 
years of prairie restoration and intensive monitoring, suggesting 
recolonization is site-specific and difficult to predict.
    The number of breeding pairs in Willamette Valley region appears to 
have increased for 10 local populations (based on the 2013-2019 survey 
data), and the region supports two local populations in high condition, 
five in moderate condition, and three in low condition. One historical 
location at Salem Airport had no breeding pairs in surveys from 2013-
2019 and is assumed extirpated. The survey results reported in Table 1, 
above, may represent a small portion of the total number of streaked 
horned larks in the Willamette Valley due to lack of access on private 
lands, and there is no information to infer the condition of these 
potential populations.
    The draft recovery plan for streaked horned lark (U.S. Fish and 
Wildlife Service 2019, entire) provides some thoughts on potential 
adequate redundancy and representation for the subspecies. The plan 
recommends that 38 resilient sites be managed for long-term 
conservation: Eight sites in the South Puget Lowlands; three sites 
along the Pacific Coast and six sites in the Lower Columbia River; and, 
21 sites in the Willamette Valley. The current redundancy of streaked 
horned lark is characterized by 42 local populations across the range 
of the subspecies (eight in the South Puget Lowlands, five along the 
Pacific Coast and 19 in the Lower Columbia River, and 10 (accessible 
sites for surveys) in the Willamette Valley). Across the range, eight 
sites are considered high condition, 15 are ranked moderate, and 19 
ranked low. There are at least two local populations ranked high in 
each regional population, suggesting relatively good representation in 
varying habitats, including prairies, wetlands, coastal dunes, sandy 
islands, airports and road margins, and agricultural fields. The 
rangewide distribution of 42 local populations confers some measure of 
protection against catastrophic events, particularly in the Willamette 
Valley where relatively large numbers of birds move about in response 
to changing habitat conditions. Recent detections of birds at sites 
previously unoccupied (i.e., Clatsop Spit) suggest individuals are 
actively moving between sites, adapting to new areas and potentially 
recolonizing areas with suitable habitat. Additional local populations 
in high and moderate condition throughout the range would benefit the 
overall level of redundancy and representation for the subspecies.

Future Condition

    The main factors influencing the future viability of the streaked 
horned lark include ongoing and sustained habitat loss; continued land 
management activities and related effects; recreation; and, the 
synergistic effects of climate change and small population size. We 
used the same habitat and population metrics to assess future condition 
of the local populations in response to projected land use changes and 
climate conditions. We forecasted the condition of local populations 
over time under three scenarios and use this information to forecast 
the viability of the streaked horned lark over the next 30 years. We 
chose 30 years because it is within the range of the available 
hydrological and climate change model forecasts, encompasses 
approximately five generations, and represents a biologically 
meaningful timeframe in which we could expect to observe any plausible 
changes in the status of the streaked horned lark.
    We evaluated land use trends by looking at data on the quantity and 
type of agricultural crops in production throughout the State every 5 
years from the U.S. Department of Agriculture, National Agricultural 
Statistics Service. In the State of Oregon, where larks largely occur 
on private agricultural lands, we evaluated trends in land use and crop 
type over the past 20 years to inform future trends. Specifically, we 
used these data to evaluate trends in the overall quantity of grass and 
other seed farms, and compared the changes to trends in the quantity of 
crop types that do not provide suitable habitat for larks, such as 
hazelnut orchards, blueberry farms, and wine grapes for viticulture.
    To assess effects to the streaked horned lark from climate change, 
we relied on projections to mid-century from the U.S. Geological 
Survey, Land Change Science Program National Climate Change Viewer 
(Alder and Hostetler 2013, entire). The Coupled Model Intercomparison 
Project 5 provides a range of variability in climate projections for 
the time period 2025 to 2049. We used the combined range of the 
projection from two model scenarios, representative concentration 
pathways (RCP) 4.5 and RCP 8.5, to evaluate a range of potential future 
conditions. RCP 4.5 predicts that greenhouse gas emissions stabilize by 
the end of the century; RCP 8.5 predicts emissions continue to rise 
unchecked through the end of the century. Climate model results largely 
follow the same trajectory until mid-century (e.g., 2040s to 2050s) and 
diverge beyond that point, resulting in greater uncertainty beyond 
2050. For this analysis, we evaluated possible future conditions using 
these climate scenarios and the resulting impacts on species and 
habitat through the year 2050. Climate change is not expected to 
decrease the resiliency of any local populations in the prairie 
ecosystem because prairie and grassland ecosystems are well adapted to 
warm and dry conditions like the periodic soil drought and future 
increases in temperature and drought forecasted for those areas. With 
respect to coastal populations however, sea level rise, increased 
coastal erosion, and more severe weather events will cause significant 
effects to lark habitats. Climate change may limit the resiliency of 
some local populations on the coast by amplifying the negative effects 
from habitat loss or the spread of invasive species where not managed.

[[Page 19199]]

    We forecasted what the streaked horned lark may experience in terms 
of resiliency, redundancy, and representation under three plausible 
future scenarios over the next 30 years: Status quo, improved 
conditions, and degraded conditions. Under the status quo, the adverse 
effects of habitat loss, climate change, and management activities and 
related effects are consistent with current levels (including current 
levels of conservation); the level of recreation increases in 
accordance with human population growth. Under improved conditions, the 
adverse effects of habitat loss and climate change are reduced compared 
to current conditions; management activities and related effects are 
consistent with current levels with additional conservation measures to 
protect larks; and the level of recreation increases in accordance with 
human population growth. However, both recreation and management 
activities and related effects act on larger lark populations, 
resulting in reduced impact to overall population status. Under 
degraded conditions, the adverse effects of habitat loss and climate 
change are increased; management activities and related effects 
continue with no additional conservation measures; and the level of 
recreation increases in accordance with human population growth. 
However, both recreation and management activities and related effects 
act on smaller population sizes, resulting in increased impact to 
overall population status.
    Under the three future scenarios selected for this analysis, the 
number and size of extant populations change in response to assumed 
habitat conditions and changes in management activities at individual 
sites. Changes in population condition impact the overall species' 
redundancy and representation. Under the status quo scenario, one 
population in the South Puget Lowlands drops from high to moderate 
condition, four local populations in the Pacific Coast and Columbia 
River region drop from moderate to low condition, and all five moderate 
populations in the Willamette Valley drop to low condition. Even though 
influence factors don't change in magnitude from current levels under 
this scenario, the synergistic effects of small population size would 
amplify the effect of negative influence factors in some local 
populations overtime. Under this scenario, the subspecies would 
continue to occupy roughly an equal number of habitat types and 
distribution of 42 local populations across the range, but some small, 
isolated populations may be at risk of eventual extirpation without 
intentional habitat management or conservation measures.
    Under the improved conditions scenario, careful management and 
conservation actions are implemented to increase the quantity, quality, 
and distribution of suitable habitats for streaked horned larks. One 
local population in the South Puget Lowlands and three in the Pacific 
Coast and Columbia River region improve from moderate to high 
condition, and one population in each of the South Puget lowlands and 
Willamette Valley regions move from low to moderate. As local 
populations become more resilient under this scenario, the species' 
ability to move between sites in response to changing environmental 
conditions and re-establish breeding populations would increase overall 
redundancy, buffering against adverse effects of catastrophic events. 
With respect to ecological representation, it is unlikely that birds 
would occupy new or different habitat types relative to current 
patterns of occupancy in the Pacific Coast and Lower Columbia region 
under this scenario, due to the limited availability of alternative 
habitats that provide the structural habitat features preferred by 
larks. In the South Puget Lowlands and Willamette Valley regions, the 
number of resilient local populations would increase; however it is 
unlikely that larks would disperse into the north Puget Lowlands 
region, or south into the Umpqua and Rogue Valley regions without 
substantial recovery efforts to support habitat development in these 
areas.
    Under the degraded conditions scenario, further habitat loss and 
increased instability would lead to reduced condition in many local 
populations with only one local population remaining in high condition 
in the range of the subspecies (Rice Island). Eighteen local 
populations would decrease in condition across the range of the 
streaked horned lark, leaving 10 moderate condition and 30 low 
condition populations distributed across the three regions. Under this 
scenario, Shelton Airport would become extirpated, reducing redundancy. 
Many other local populations would decrease in resiliency and be at 
higher risk of extirpation, putting the subspecies at risk of further 
reduction in redundancy. If local populations become less resilient, 
larks would be less able to move between sites in response to changing 
environmental conditions or re-establish local populations following a 
catastrophic event. Furthermore, the loss of local populations would 
decrease the species' representation and overall ability to adapt to 
changing environmental conditions.
    Because the streaked horned lark is dependent on land management 
activities that create and maintain suitable replacement habitat 
throughout the species' range, the future viability of the species 
relies upon the continuation of these actions. The synergistic effects 
of both small population size and the effects of climate change will 
likely amplify the negative effects of influence factors and reduce 
resiliency of some local populations, particularly along the Pacific 
Coast, the South Puget Lowlands, and the Lower Columbia River.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Determination of Streaked Horned Lark's 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 
in danger of extinction throughout all or a significant portion of its 
range, and ``threatened species'' as a species 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)

[[Page 19200]]

the inadequacy of existing regulatory mechanisms; or (E) other natural 
or manmade factors affecting its continued existence.

Status Throughout All of Its Range

    We evaluated threats to the streaked horned lark and assessed the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors. The primary driver of the status of streaked horned lark has 
been the scarcity of large, open spaces with very early seral stage 
vegetation. The loss of historical disturbance regimes that created 
these open spaces impacted the abundance and distribution of historical 
populations, but the impact occurred decades ago and is not ongoing. 
The best available information does not indicate that overutilization 
(Factor B), predation or disease (Factor C), pesticides, or loss of 
historical disturbance regimes (Factor A) are threats to the viability 
of the subspecies. The streaked horned lark has been affected through 
loss of preferred habitats (Factor A) as a result of successional 
changes in plant species composition and encroachment of woody 
vegetation; invasion of beach grasses; conversion of suitable habitat 
into unsuitable habitat through changes in land use; and changes in 
agricultural practices from crops that mimic preferred habitats (i.e., 
grass seed farms) to crops that diminish habitat suitability (i.e., 
hazelnut orchards and blueberry farms). The streaked horned lark is 
also affected by land management activities and related affects, as 
well as other human activities (Factor E) including agricultural 
activities, airport management activities and related airstrikes, 
military training and related activities, the placement of dredged 
materials, and recreation.
    Despite the ongoing influence of these factors, however, the 
subspecies does not appear to be currently in danger of extinction as 
none of these factors influence populations of the streaked horned lark 
or its habitat at a level that is currently impacting the viability of 
the subspecies. Survey data from some regularly monitored sites across 
the range of the subspecies show an increase from 198 breeding pairs in 
2013 to 383 breeding pairs in 2019. The subspecies has shown relative 
stability for the last 7 years based on survey data from known 
populations, with 42 redundant local populations across the range. 
Several local populations in all three representative regions have high 
condition, and a total of 23 local populations across the range have 
high or moderate condition. Negative influence factors on the 
subspecies have not fluctuated much for the last 20 years and are not 
of a scope or magnitude such that the subspecies is currently in danger 
of extinction. Local populations in South Puget Lowlands and Lower 
Columbia River populations have benefited from conservation efforts 
implemented as part of section 7 consultations under the Act.
    Abundance of larks across the Willamette Valley appears relatively 
high, but many of these local populations cannot be surveyed due to 
lack of access. Although the current abundance of local populations 
along the Pacific Coast is lower than other areas, it has been low for 
many years, and we see no apparent declining trend in this regional 
population based on survey data from 2013 to 2019. Recent detections of 
birds at Clatsop Spit, as well as sites with restored habitat on 
private lands in the Willamette Valley, indicate that individuals can 
move between sites, and there are a few instances of detections at 
previously unoccupied locations, but recolonization appears very low 
and difficult to predict.
    In the foreseeable future, however, there is potential for a 
decline in resiliency of local populations across the range. The loss 
of preferred habitat will continue from plant succession and 
encroachment of woody vegetation, invasion of beach grasses, changes in 
land use, and changes in beneficial agricultural practices. The regular 
large-scale, human-caused disturbance (burning, mowing, cropping, 
chemical treatments, or placement of dredged materials) that now 
creates and maintains replacement habitat for the streaked horned lark 
will continue, as will the related effects of these activities that can 
negatively impact individual lark (nest destruction, mortality, 
disturbance, and aircraft strikes). Recreation will also continue. Any 
negative effects from these factors will likely be amplified in some 
local populations due to the synergistic effects related to small 
population size and the increased effects of climate change in the 
range over the next 30 years, particularly along the Pacific Coast, the 
South Puget Lowlands, and Lower Columbia River. As climate change and 
small population size increase in influence, the realized benefit of 
these replacement habitats to the subspecies may decrease.
    Additionally, any future changes in the maintenance of these 
landscapes will affect the resiliency of larks in the area. Agriculture 
remains the primary influence on land use in the Willamette Valley, and 
the resilience of larks in that area is tied to practices that can 
change easily given market demands. This uncertainty regarding future 
land use and anthropogenic effects to habitat increases the potential 
risk of extinction in the foreseeable future. Numerous conservation 
measures resulting from section 7 consultation under the Act in the 
range of the streaked horned lark have helped reduce effects of threats 
on the subspecies (Factor D), but the continued effects of habitat loss 
(Factor A), land management activities and related effects, and 
recreation, in combination with small population size and the effects 
of climate change (Factor E), are expected to reduce viability of the 
subspecies over the next 30 years.
    Thus, after assessing the best available information, we conclude 
that the streaked horned lark is not currently in danger of extinction 
but is likely to become in danger of extinction within the foreseeable 
future throughout all of its range.

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 Final Policy on Interpretation of 
the Phrase ``Significant Portion of Its Range'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014) that provided that the Service 
does 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 
species' range where the species is in danger of

[[Page 19201]]

extinction now (i.e., endangered). In undertaking this analysis for the 
streaked horned lark, we choose to address the status question first--
we consider information pertaining to the geographic distribution of 
both the species and the threats that the species faces to identify any 
portions of the range where the species is endangered.
    For the streaked horned lark, we considered whether the threats are 
geographically concentrated in any portion of the species' range at a 
biologically meaningful scale. We examined the following influence 
factors (including cumulative effects): Loss of preferred habitats as a 
result of successional changes in plant species composition and 
encroachment of woody vegetation; invasion of beach grasses; conversion 
of suitable habitat into unsuitable habitat through changes in land 
use; changes in agricultural practices from crops that mimic preferred 
habitats to crops that diminish habitat suitability; land management 
activities and related effects including airport management activities, 
military training, and the placement of dredged materials; and 
recreation. The influence of these factors vary somewhat across the 
range, and there is no portion of the range where there is currently a 
biologically meaningful concentration of threats relative to other 
areas in the range. Although the current abundance of local populations 
along the Pacific Coast is low compared to other areas, it has been low 
for many years, the size of those coastal sites is relatively small 
compared to other local populations and therefore naturally limits the 
number of breeding pairs, and we see no apparent declining trend in 
this regional population based on survey data between 2013 and 2019. 
However, in the foreseeable future, the synergistic effects of small 
population size and climate change will likely amplify the effects of 
any ongoing threats on some local populations in the range of the 
subspecies, particularly along the Pacific Coast, in the South Puget 
Lowlands, and along the Lower Columbia River.
    We found no concentration of threats in any portion of the streaked 
horned lark's range at a biologically meaningful scale. Thus, there are 
no portions of the species' range where the species has a different 
status from its rangewide status. Therefore, no portion of the species' 
range provides a basis for determining that the species is in danger of 
extinction in a significant portion of its range, and we determine that 
the species is likely to become in danger of extinction within the 
foreseeable future throughout all of its range. This 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 streaked horned lark meets the 
definition of a threatened species. Therefore, we propose to affirm the 
current listing of the streaked horned lark as a threatened species in 
accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies; private 
organizations; and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. A notice of the draft recovery plan for streaked horned 
lark was published in the Federal Register on October 30, 2019 (84 FR 
58170); the draft plan is available on our website (https://www.fws.gov/endangered), or from our Oregon Fish and Wildlife Office (see FOR 
FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    Funding for recovery actions is available from a variety of 
sources, including Federal budgets, State programs, and cost-share 
grants for non-Federal landowners, the academic community, and 
nongovernmental organizations. In addition, pursuant to section 6 of 
the Act, the State(s) of Oregon and Washington are eligible for Federal 
funds to implement management actions that promote the protection or 
recovery of the streaked horned lark. Information on our grant programs 
that are available to aid species recovery can be found at: https://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for this species. Additionally, we invite you to 
submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning

[[Page 19202]]

purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include management and any other landscape-altering 
activities on Federal lands administered by the Service; issuance of 
section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the 
Corps; and road construction by the Federal Highway Administration in 
cooperation with the Service at Baskett Slough NWR.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of the species. The 
discussion below regarding protective regulations under section 4(d) of 
the Act complies with our policy.

II. 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 the Service when 
adopting some or all of 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 upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited 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).
    On October 3, 2013, we issued a rule under the authority of section 
4(d) of the Act to provide for the conservation of the streaked horned 
lark (78 FR 61452) (see 50 CFR 17.41(a)). That rule applies all of the 
prohibitions of section 9 of the Act to the streaked horned lark, with 
the following exceptions for incidental take: (1) Certain activities on 
airports on non-Federal lands; (2) certain agricultural activities on 
non-Federal land in the range of the subspecies in Oregon and 
Washington; (3) certain noxious weed control activities on non-Federal 
lands; and (4) habitat restoration activities that benefit the 
conservation of streaked horned lark.
    Exercising authority under section 4(d), we developed a proposed 
revised 4(d) rule that is designed to address the streaked horned 
lark's specific threats and conservation needs. 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, for 
the reasons stated below we find that this 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 streaked 
horned lark. As discussed above under Summary of Biological Status and 
Threats, we have concluded that the streaked horned lark is likely to 
become in danger of extinction within the foreseeable future primarily 
due to the synergistic effects of small population size and climate 
change on continued loss and degradation of habitat, land management 
activities and related effects, and recreation. The influence of these 
factors is expected to continue into the foreseeable future.
    The provisions of this proposed revised 4(d) rule would promote 
conservation of the streaked horned lark by encouraging management of 
the landscape in ways that meet both land management considerations and 
the conservation needs of the streaked horned lark. The provisions of 
this proposed revised 4(d) rule are one of many tools that we would use 
to promote the conservation of the streaked horned lark. For these 
reasons, we find the proposed revised 4(d) rule as a whole is necessary 
and advisable to provide for conservation of the streaked horned lark.

Provisions of the Proposed Revised 4(d) Rule

    The provisions of the proposed revised 4(d) rule for the streaked 
horned lark are discussed in more detail below, but we note here that 
the substantive differences between the current 4(d) rule for the 
streaked horned lark at 50 CFR 17.41(a) and this proposed revised 4(d) 
rule are limited to the following: The expansion of the exception for 
incidental take for certain agricultural activities on non-Federal 
lands throughout the range of the subspecies in Oregon and Washington; 
and, the addition of an exception to the take prohibition for 
incidental take associated with habitat restoration

[[Page 19203]]

activities that benefit streaked horned lark. The primary driver of the 
status of streaked horned lark has been the scarcity of large, open 
spaces with very early seral stage vegetation. Therefore, this 4(d) 
rule is designed to support the continuation of activities taking place 
in the range of the subspecies that lead to these features, and to 
encourage the development of these features in new areas in the range 
of the subspecies in the future. The proposed revised 4(d) rule would 
provide for the conservation of the streaked horned lark by prohibiting 
take, except as otherwise authorized, permitted, or incidental to the 
following activities: Wildlife hazard management at airports and 
accidental strikes by aircraft, normal agricultural practices in Oregon 
and Washington, noxious weed control on non-Federal lands, and habitat 
restoration activities beneficial to streaked horned lark. The 
prohibition, and the exceptions, are, for the most part, already 
included in the current 4(d) rule for the streaked horned lark at 50 
CFR 17.41(a). All take not included in the exceptions would continue to 
be prohibited in order to support existing populations of the streaked 
horned lark.
    Some management actions taken at airports are generally beneficial 
to streaked horned larks and have led to the creation of replacement 
habitat the subspecies relies upon. Streaked horned larks breed 
successfully and maintain populations at airports in the South Puget 
Sound and Willamette Valley. Airports maintain safe conditions for 
aviation in part by routinely implementing programs to minimize the 
presence of hazardous wildlife on airfields; these activities 
unintentionally create suitable habitat for streaked horned larks. 
Activities involved in wildlife hazard management at airports that 
benefit streaked horned lark include hazing of hazardous wildlife 
(geese and other large birds and mammals) and modification and 
management of forage, water, and shelter to be less attractive to these 
hazardous wildlife, including vegetation management to maintain desired 
grass height on or adjacent to airports through mowing, discing, 
herbicide use, or burning. As with other land management activities, 
vegetation management during the nesting season has the potential to 
destroy streaked horned lark nests and young. However, despite concerns 
over potential adverse effect of vegetation management during the 
breeding season at airports, this activity is very important to the 
maintenance of the low-statured vegetation required by nesting and 
wintering larks in the area. Therefore, excepting hazardous wildlife 
management from the Act's prohibitions of take when conducted by 
airport staff or employees contracted by the airport to perform 
hazardous wildlife management activities, furthers the conservation of 
the subspecies by helping to prevent the spread of those noxious weeds 
that may render existing habitat unsuitable for the streaked horned 
lark.
    The listing of the streaked horned lark imposes a requirement on 
airport managers where the subspecies occurs to consider the effects of 
their management activities on this subspecies when actions are funded 
or approved by the Federal Aviation Administration. Excepting hazardous 
wildlife management and accidental aircraft strikes from prohibitions 
on take eliminates the incentive for airports to reduce or eliminate 
replacement habitat that supports populations of streaked horned larks 
from the airfields, and therefore provides for the conservation of the 
species by allowing current beneficial management activities to 
continue. Accidental aircraft strikes are an unavoidable consequence of 
the vegetation management that also maintains habitat that supports 
breeding pairs. While aircraft strikes do occur in several local 
populations at airports throughout the range of the species 
(particularly in the South Puget Lowlands), the rate appears relatively 
low. Additionally, the potential take of streaked horned lark 
associated with the routine management, repair, and maintenance of 
roads and runways is minimal. Therefore, in order to support activities 
involved in wildlife hazard management that maintain habitat features 
beneficial to streaked horned lark, incidental take associated with 
wildlife hazard management activities, as well as aircraft strikes and 
routine maintenance of existing roads and runways at airports is 
excepted from the prohibition on take. We recommend that airport 
operators follow the guidance provided in Federal Aviation 
Administration advisory circular 150/5200-33C, ``Hazardous Wildlife 
Attractants on or near Airports'' (FAA 2020, entire), and all other 
applicable related guidance.
    In the Willamette Valley, large expanses of burned prairie or the 
scour plains of the Willamette and Columbia Rivers may have provided 
suitable habitat for streaked horned larks in the past. With the loss 
of these historical habitats during the last century, alternative 
breeding and wintering sites, including active agricultural lands, have 
become critical for the continued survival and recovery of the streaked 
horned lark. The largest area of potential habitat for streaked horned 
larks is the agricultural land base in the Willamette Valley. Larks are 
attracted to the wide open landscape context and low vegetation 
structure in agricultural fields, especially in grass seed fields, 
probably because those working landscapes resemble the historical 
habitats formerly used by the subspecies when the historical 
disturbances associated with floods and fires maintained a mosaic of 
suitable habitats. Habitat characteristics of agricultural lands used 
by streaked horned larks include: (1) Bare or sparsely vegetated areas 
within or adjacent to grass seed fields, pastures, or fallow fields; 
(2) recently planted (0 to 3 years) conifer farms with extensive bare 
ground; and (3) wetland mudflats or ``drown outs'' (i.e., washed out 
and poorly performing areas within grass seed or row crop fields). 
Currently in the Willamette Valley, there are approximately 420,000 ac 
(169,968 ha) of grass seed fields and approximately 500,000 ac (202,343 
ha) of other agriculture. In any year, some portion of these 920,000 ac 
(372,311 ha) will have suitable streaked horned lark habitat, but the 
geographic location of those areas may not be consistent from year to 
year, nor can we predict their occurrence due to variable agricultural 
practices (crop rotation, fallow fields, etc.), and we cannot predict 
the changing and dynamic locations of those areas.
    While agricultural activities also have the potential to harm or 
kill individual streaked horned larks or destroy their nests, 
maintenance of extensive agricultural lands (primarily grass seed 
farms) in the Willamette Valley is crucial to maintaining the 
population of streaked horned larks in the valley and aiding in the 
recovery of the subspecies in Oregon. Although we are unaware of any 
current breeding populations of streaked horned larks on agricultural 
lands in Washington, use of these habitats by streaked horned larks 
would aid in recovery of the subspecies in Washington and is therefore 
encouraged. We propose to expand the exception for incidental take for 
certain agricultural activities on non-Federal lands in the proposed 
revised 4(d) rule to the entire range of the subspecies, to encourage 
management actions that would facilitate the use of areas other than 
civilian and military airports by streaked horned within the range of 
the subspecies in Oregon and Washington.
    Because landowners are free to allow vegetation growth that results 
in the conversion of lands into habitats

[[Page 19204]]

unsuitable for the streaked horned lark, conservation of the species 
will benefit from the support of agricultural practices that result in 
the creation and maintenance of habitat that is suitable for the 
subspecies. This proposed revised 4(d) rule, if finalized, would remove 
the incentive for private landowners in Oregon to discontinue 
activities resulting in suitable habitat for larks on the highest-
priority agricultural lands based on section 9 liability concerns. 
Additionally, the rule would reduce any section 9 liability concerns of 
private landowners in Washington considering the implementation of 
agricultural practices that result in the creation and maintenance of 
habitat that is suitable for the subspecies. The primary crop type that 
results in habitat features preferred by lark is grass seed, and the 
typical harvest (combining) period for grass seed fields occurs in late 
June or early July, after the most active part of the breeding season 
for larks is done. Because the timing of ground disturbance for grass 
seed farms is after the primary part of the nesting season is over, it 
does not put the reproductive success of the subspecies at great risk, 
the benefits of encouraging the continuation of the inadvertent 
creation of lark habitat through normal grass seed farming practices 
outweigh the benefit of restricting the timing of this exception to 
take. Excepting routine agricultural activities on non-Federal lands 
from the prohibition on take would help provide an overall benefit to 
the subspecies by maintaining suitable habitat for the streaked horned 
lark. This exception to the prohibition on take for agricultural 
activities would be rangewide in Oregon and Washington, and we find 
that the definition of ``normal farming practices'' in this 4(d) rule 
is consistent with relevant Oregon and Washington State laws (Oregon 
Revised Statutes (ORS), chapter 30, section 30.930, and Revised Code of 
Washington (RCW), title 7, chapter 7.48, section 7.48.310, 
respectively).
    Streaked horned larks nest, forage, and winter on extensive areas 
of bare ground with low-statured vegetation. These areas include native 
prairies, coastal dunes, fallow and active agricultural fields, wetland 
mudflats, sparsely vegetated edges of grass fields, recently planted 
conifer farms with extensive bare ground, moderately to heavily grazed 
pastures, gravel roads or gravel shoulders of lightly traveled roads, 
airports, and dredge deposition sites in the Lower Columbia River. The 
suppression and loss of ecological disturbance regimes such as fire and 
flooding across vast portions of the landscape have resulted in altered 
vegetation structure and facilitated invasion by nonnative grasses and 
woody vegetation, including noxious weeds, rendering habitat unsuitable 
for streaked horned larks. By their nature, noxious weeds grow 
aggressively and multiply quickly, negatively affecting all types of 
habitats, including those used by larks. Some species of noxious weeds 
spread across long distances through wind, water, and animals, as well 
as via humans and vehicles, thereby affecting habitats far away from 
the source plants.
    Because noxious weed control maintains the low statured vegetation 
and the open landscape that streaked horned lark relies upon, this 
activity is essential to the retention of suitable nesting, wintering, 
and foraging habitat. As with other land management activities, noxious 
weed control during the nesting season has the potential to destroy 
streaked horned lark nests and young. On the other hand, streaked 
horned larks can benefit from weeds, as they eat the seeds of weedy 
forbs and grasses. However, despite any potential benefit from weeds or 
concerns over timing of control, the eradication (or removal) of 
noxious weeds wherever they may occur is important to the maintenance 
of the low-statured vegetation required by nesting and wintering larks. 
Therefore, excepting the routine mechanical or chemical management of 
noxious weeds from the Act's prohibitions of take, furthers the 
conservation of the subspecies by helping to prevent the spread of 
those noxious weeds that may render habitat unsuitable for the streaked 
horned lark. It also encourages landowners to manage their lands in 
ways that meet their property management needs and also help to prevent 
degradation or loss of suitable habitat for the streaked horned lark. 
Noxious weed control targets those species included on County, State, 
and Federal noxious weed lists (see State and Federal lists via links 
at https://plants.usda.gov/java/noxious; Washington State counties each 
have a noxious weed control website, and selected Oregon State counties 
maintain noxious weed lists).
    Finally, activities associated with streaked horned lark habitat 
restoration (e.g., removing non-native plants and planting native 
plants, creating open areas, and maintaining sparse vegetation through 
vegetation removal or suppression via controlled burns) would be very 
beneficial to the subspecies; any adverse effects to the subspecies 
from these activities would likely be only short-term or temporary, 
especially with respect to harassment or disturbance of individual 
lark. In the long term, the risk of adverse effects to both individuals 
and populations is expected to be mitigated as these types of 
activities will likely benefit the subspecies by helping to preserve 
and enhance the habitat of existing local populations over time. 
Reasonable care for habitat management may include, but would not be 
limited to, procuring and implementing technical assistance from a 
qualified biologist on habitat management activities, and best efforts 
to minimize streaked horned lark exposure to hazards (e.g., predation, 
habituation to feeding, entanglement, etc.). Therefore, we propose in 
the 4(d) rule an exception to the prohibition on take for any habitat 
restoration actions that would create or enhance streaked horned lark 
habitat, provided that reasonable care is taken to minimize such take.
    We acknowledge that all of these activities excepted from 
incidental take in this rule have the potential to result in 
destruction of nests, crushing of eggs or nestlings, or flushing of 
fledglings or adults when conducted during the active breeding season 
for streaked horned larks. The 2013 listing rule (78 FR 61452) included 
dredge spoil deposition timing and placement on Columbia River islands, 
incompatibly timed burning and mowing regimes, activities associated 
with military training, and activities associated with airports as 
threats to the subspecies. Despite these threats noted at the time of 
listing, the Service determined that timing restrictions on these 
activities were not appropriate, stating in the rule: ``Our purpose in 
promulgating a special rule to exempt take associated with activities 
that inadvertently create habitat for the streaked horned lark is to 
allow landowners to continue those activities without additional 
regulation. We believe that imposing a timing restriction would likely 
reduce the utility of the special rule for land managers, and could 
have the unintended side effect of causing landowners to discontinue 
their habitat creation activities'' (78 FR 61464). No timing 
restrictions were included in the 4(d) rule, and these land management 
activities have continued across the range since 2013. Survey data from 
some regularly monitored sites throughout the range of the subspecies 
now show an increase from 198 breeding pairs in 2013, to 383 breeding 
pairs in 2019, despite the lack of timing restrictions on land 
management activities. While the loss of individuals is never welcome, 
this 4(d) rule provides for the conservation of the subspecies by 
including provisions that

[[Page 19205]]

support the continuation of land management activities that create 
replacement habitat; the benefits of these provisions to the subspecies 
outweigh the cost of any loss of individuals.
    As discussed above under Summary of Biological Status and Threats, 
multiple factors are affecting the status of the streaked horned lark. 
A range of activities have the potential to affect the streaked horned 
lark, including the management of hazardous wildlife at airports and 
associated airstrikes, routine agricultural activities, and the routine 
removal or other management of noxious weeds. Prohibiting take 
rangewide under section 9 of the Act to the streaked horned lark, will 
help preserve the species' remaining populations, slow their rate of 
decline, and allow for the maintenance of suitable habitat for the 
species. However, these same activities also benefit streaked horned 
lark through the creation of the very habitat features (large open 
spaces with very early seral stage vegetation) that streaked horned 
lark prefer; without these replacement habitats throughout the range, 
the status of the subspecies would likely be much worse. Therefore, 
while we are extending the take prohibition for the streaked horned 
lark, we are excepting from this prohibition take that is incidental to 
the management of hazardous wildlife at airports, accidental airstrikes 
by aircraft, routine agricultural activities, the routine removal or 
other management of noxious weeds, and habitat restoration activities. 
As discussed above, we believe that that these exceptions will provide 
for the conservation of the species by supporting the maintenance and 
creation of habitat features that streaked horned lark rely upon.
    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 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
incidental take would help preserve the species' remaining populations, 
slow their rate of decline, and decrease synergistic, negative effects 
from other threats.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened wildlife under 
certain circumstances. Regulations governing permits for threatened 
species are codified at 50 CFR 17.32. With regard to threatened 
wildlife, a permit may be issued for the following purposes: For 
scientific purposes, to enhance propagation or survival, for economic 
hardship, for zoological exhibition, for educational purposes, for 
incidental taking, or for special purposes consistent with the purposes 
of the Act. There are also certain statutory exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. 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 the Services in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Services 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 the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
will be able to conduct activities designed to conserve streaked horned 
lark that may result in otherwise prohibited take without additional 
authorization.
    As a subspecies of the horned lark (Eremophila alpestris), the 
streaked horned lark is protected by the Migratory Bird Treaty Act 
(MBTA; 16 U.S.C. 703 et seq.). The MBTA makes it unlawful, at any time, 
by any means or in any manner, to pursue, hunt, take, capture, kill, 
attempt to take, capture, or kill, possess, offer for sale, sell, offer 
to barter, barter, offer to purchase, purchase, deliver for shipment, 
ship, export, import, cause to be shipped, exported, or imported, 
deliver for transportation, transport or cause to be transported, carry 
or cause to be carried, or receive for shipment, transportation, 
carriage, or export, any migratory bird, or any part, nest, or egg of 
any such bird included in the terms of four specific conventions 
between the United States and certain foreign countries (16 U.S.C. 
703). See 50 CFR 10.13 for the list of migratory birds protected by the 
MBTA.
    Like the current 4(d) rule for the subspecies, this proposed 
revised 4(d) rule adopts existing requirements under the MBTA as 
appropriate regulatory provisions for the streaked horned lark. 
Accordingly, under the proposed revised 4(d) rule, incidental take is 
not prohibited, and purposeful take is not prohibited if the activity 
is authorized or exempted under the MBTA, such as activities under a 
migratory bird rehabilitation permit necessary to aid a sick, injured, 
or orphaned bird. Thus, if a permit is issued for activities resulting 
in purposeful take of streaked horned larks under the MBTA, it will not 
be necessary to have an additional permit under the Act.
    Nothing in this proposed revised 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 the ability of 
the Service to enter into partnerships for the management and 
protection of the streaked horned lark. However, interagency 
cooperation may be further streamlined through planned programmatic 
consultations for the species between Federal agencies and the Service, 
where appropriate. We ask the public, particularly State agencies and 
other interested stakeholders that may be affected by the proposed 
revised 4(d) rule, to provide comments and suggestions regarding 
additional guidance and methods that the Service could provide or use, 
respectively, to streamline the implementation of this proposed revised 
4(d) rule (see Information Requested, above).

III. 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.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals

[[Page 19206]]

for the Tenth Circuit, we do not need to prepare environmental analyses 
pursuant to the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.) in connection with regulations adopted pursuant to section 4(a) 
of the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). We also determine that 4(d) rules that accompany regulations 
adopted pursuant to section 4(a) of the Act are not subject to the 
National Environmental Policy Act.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

IV. 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.  17.41 by revising paragraph (a) to read as set forth 
below:


Sec.  17.41  Special rules--birds.

    (a) Streaked horned lark (Eremophila alpestris strigata).
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to streaked horned lark. Except as 
provided under paragraph (a)(2) of this section and Sec. Sec.  17.4 and 
17.5, 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.
    (2) 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 (c)(6) and (7) for endangered migratory birds.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Take incidental to an otherwise lawful activity caused by:
    (A) The management of hazardous wildlife at airport facilities by 
airport staff or employees contracted by the airport to perform 
hazardous wildlife management activities. Hazardous wildlife is defined 
by the Federal Aviation Administration as species of wildlife, 
including feral animals and domesticated animals not under control, 
that are associated with aircraft strike problems, are capable of 
causing structural damage to airport facilities, or act as attractants 
to other wildlife that pose a strike hazard. Routine management 
activities include, but are not limited to, the following:
    (1) Hazing of hazardous wildlife;
    (2) Habitat modification and management of sources of forage, 
water, and shelter to reduce the attractiveness of the area around the 
airport for hazardous wildlife. This exception for habitat modification 
and management includes control and management of vegetation (grass, 
weeds, shrubs, and trees) through mowing, discing, herbicide 
application, or burning;
    (3) Routine management, repair, and maintenance of roads and 
runways (does not include upgrades or construction of new roads or 
runways);
    (B) Accidental aircraft strikes at airports on non-Federal lands.
    (C) Agricultural (farming) practices implemented on farms 
consistent with State laws on non-Federal lands in Washington and 
Oregon.
    (1) For the purposes of this rule, farm means any facility, 
including land, buildings, watercourses and appurtenances, used in the 
commercial production of crops, nursery stock, livestock, poultry, 
livestock products, poultry products, vermiculture products, or the 
propagation and raising of nursery stock.
    (2) For the purposes of this rule, an agricultural (farming) 
practice means a mode of operation on a farm that is or may be used on 
a farm of a similar nature; is a generally accepted, reasonable, and 
prudent method for the operation of the farm to obtain a profit in 
money; is or may become a generally accepted, reasonable, and prudent 
method in conjunction with farm use; complies with applicable State 
laws; and is done in a reasonable and prudent manner. Common 
agricultural (farming) practices include, but are not limited to, the 
following activities:
    (i) Planting, harvesting, rotation, mowing, tilling, discing, 
burning, and herbicide application to crops;
    (ii) Normal transportation activities, and repair and maintenance 
of unimproved farm roads (this exemption does not include improvement 
or construction of new roads) and graveled margins of rural roads;
    (iii) Livestock grazing according to normally acceptable and 
established levels;
    (iv) Hazing of geese or predators; and
    (v) Maintenance of irrigation and drainage systems.
    (D) Removal or other management of noxious weeds. Routine removal 
or other management of noxious weeds are limited to the following, and 
must be conducted in such a way that impacts to non-target plants are 
avoided to the maximum extent practicable:
    (1) Mowing;
    (2) Herbicide and fungicide application;

[[Page 19207]]

    (3) Fumigation; and
    (4) Burning.
    (E) Habitat restoration actions. Habitat restoration and 
enhancement activities for the conservation of streaked horned lark may 
include activities consistent with formal approved conservation plans 
or strategies, such as Federal or State plans that include streaked 
horned lark conservation prescriptions or compliance, which the Service 
has determined would be consistent with this rule.
    (v) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) through (d)(4).
* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2021-06943 Filed 4-12-21; 8:45 am]
BILLING CODE 4333-15-P