[Federal Register Volume 74, Number 231 (Thursday, December 3, 2009)]
[Proposed Rules]
[Pages 63337-63343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28868]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R6-ES-2009-0081; MO 922105 0082-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List Sprague's Pipit as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status 
review.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list Sprague's pipit (Anthus spragueii) 
as threatened or endangered under the Endangered Species Act of 1973, 
as amended (Act). Based on our review, we find that the petition 
presents substantial scientific or commercial information indicating 
that listing the Sprague's pipit may be warranted. Therefore, with the 
publication of this notice, we are initiating a status review of the 
species to determine if listing the species is warranted. To ensure 
that this status review is comprehensive, we are requesting scientific 
and commercial data and other information regarding this species. Based 
on the status review, we will issue a 12-month finding on the petition, 
which will address whether the petitioned action is warranted, as 
provided in section 4(b)(3)(B) of the Act.

DATES: To allow us adequate time to conduct this review, we request 
that we receive information on or before February 1, 2010. After this 
date, you must submit information directly to the North Dakota Field 
Office (see FOR FURTHER INFORMATION CONTACT section below). Please note 
that we may not be able to address or incorporate information that we 
receive after the above requested date.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for docket FWS-R6-ES-2009-0081 and then follow the instructions 
for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R6-ES-2009-0081; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will post all information received on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Solicited 
section below for more details).

FOR FURTHER INFORMATION CONTACT: Jeffrey K. Towner, Field Supervisor, 
North Dakota Field Office, 3425 Miriam Avenue, Bismarck, North Dakota 
58501-7926, telephone (701) 250-4481, extension 508. If you use a 
telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: 

Information Solicited

    When we make a finding that a petition presents substantial 
information indicating that listing a species may be warranted, we are 
required to promptly review the status of the species (status review). 
For the status review to be complete and based on the best available 
scientific and commercial information, we request information on 
Sprague's pipit from governmental agencies, Native American Tribes, the 
scientific community, industry, and any other interested parties. We 
seek information on:
    (1) The species' biology, range, and population trends, including:
    (a) 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 or its 
habitat.
    (2) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:

[[Page 63338]]

    (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.
    Please include sufficient information with your submission (such as 
full references) to allow us to verify any scientific or commercial 
information you include.
    If, after the status review, we determine that listing the 
Sprague's pipit is warranted, we will propose critical habitat (see 
definition in section 3(5)(A) of the Act) to the maximum extent prudent 
and determinable at the time we propose to list the species. Therefore, 
within the geographical range currently occupied by the Sprague's 
pipit, we request data and information on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species'';
    (2) Where these features are currently found; and
    (3) Whether any of these features may require special management 
considerations or protection.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential to the conservation of the species.'' Please provide 
specific comments and information as to what, if any, critical habitat 
you think we should propose for designation if the species is proposed 
for listing, and why such habitat meets the requirements of section 
3(5)(A) and section 4(b) of the Act.
    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. Section 
4(b)(1)(A) of the Act directs that determinations as to whether any 
species is an endangered or threatened species must be made ``solely on 
the basis of the best scientific and commercial data available.''
    You may submit your information concerning this status review by 
one of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
website. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying information from public review. 
However, we cannot guarantee that we will be able to do so. We will 
post all hardcopy submissions on http://www.regulations.gov.
    Information and supporting documentation that we received and used 
in preparing this finding will be available for you to review at http://www.regulations.gov, or you may make an appointment during normal 
business hours at the U.S. Fish and Wildlife Service, North Dakota 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Background

    Section 4(b)(3)(A) of the Act requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information indicating that the 
petitioned action may be warranted. We are to base this finding on 
information contained in the petition, supporting information submitted 
with the petition, and information otherwise readily available in our 
files. To the maximum extent practicable, we are to make this finding 
within 90 days of our receipt of the petition and publish our notice of 
this finding promptly in the Federal Register.
    Our standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted'' (50 CFR 
424.14(b)). If we find that substantial scientific or commercial 
information was presented, we are required to promptly review the 
status of the species, which is subsequently summarized in our 12-month 
finding.

Petition History

    On October 10, 2008, we received a petition dated October 9, 2008, 
from WildEarth Guardians (hereinafter referred to as the 
``petitioner'') requesting that the Sprague's pipit be listed as 
endangered under the Act. The petition clearly identified itself as 
such and included the requisite identification information for the 
petitioner, as required at 50 CFR 424.14(a). In a December 5, 2008, 
letter to the petitioner, we responded that we had reviewed the 
petition and determined that an emergency regulation temporarily 
listing the species under section 4(b)(7) of the Act was not warranted. 
We also stated that we had received a draft budget allocation to 
complete the 90-day finding for this species in Fiscal Year 2009. On 
January 28, 2009, we received a 60-day Notice of Intent (NOI) to sue 
from the petitioner stating that the Service was in violation of the 
Act by failing to take action under section 4(b)(3)(A) of the Act. On 
August 20, 2009, the petitioner filed a complaint on the Service's 
failure to complete the 90-day finding. This finding addresses the 
October 10, 2008, petition.

Previous Federal Actions

    There have been no previous Federal actions concerning this 
species.

Species Information

    The Sprague's pipit is a small passerine of the family Motacillidae 
that is endemic to the Northern Great Plains (Robbins and Dale 1999, p. 
1). The genus Anthus contains over 21 species. It is one of the few 
endemic birds of the North American grasslands. The Sprague's pipit is 
about 10-15 centimeters (cm) (3.9-5.9 inches (in.)) in length, and 
weighs 22-26 grams (g) (0.8-0.9 ounce (oz)), with buff and blackish 
streaking on the crown, nape, and underparts. It has a plain buffy face 
with a large eye-ring. The bill is relatively short, slender, and 
straight, with a blackish upper mandible. The lower mandible is pale 
with a blackish tip. The wings and tail have two indistinct wing-bars, 
and the outer retrices (tail feathers) are mostly white (Robbins and 
Dale 1999, p. 3-4). Juveniles are slightly smaller, but similar to 
adults, with black spotting rather than streaking (Robbins and Dale 
1999, p. 3).
    Sprague's pipits are generally ground feeders, eating primarily 
arthropods, although they may feed on seeds during migration and the 
wintering period (Audubon 2007, p. 3). When flushed, they have an 
undulating flight. The males have a territorial flight display that can 
last up to 3 hours (Robbins and Dale 1999, p. 22).
    The nest is generally constructed in dense, relatively tall grass 
with a low forb density and little bare ground (Sutter 1997, p. 462). 
The nest is usually dome shaped. It is constructed from woven grasses 
and is generally at the end of a covered, sharply curved runway up to 
15 cm (5.9 in.) long which may serve as heat-stress protection (Sutter 
1997, p. 467; Dechant et al. 2003, p. 2). The female lays four to five 
eggs (Wells 2007, p. 297), which she incubates for 11 to 17 days. It is 
thought that females do most or all of the incubation (Sutter et al. 
1996, p. 695), but both parents may feed the young (Wells 2007, p. 
297). Parental care may continue well past fledging (Sutter et al. 
1996, p. 695). The female will renest if

[[Page 63339]]

the first nest fails and some females have been documented to double 
brood (Sutter et al. 1996, p. 694). However, long intervals between 
nesting attempts suggest that the breeding pairs produce an average of 
only 1.5 clutches per year (Sutter et al. 1996, p. 694).
    During the breeding season, Sprague's pipits prefer large patches 
of native grassland with a minimum size of approximately 72 acres (29 
hectares) (Davis 2004, pp. 1130, 1134-1135). They are much less common 
or not present in areas with introduced grasses than in areas 
containing native prairie (Madden 1996, p. 104). Nests are located in 
areas with relatively tall, dense cover (Dieni and Jones 2003, p. 392), 
dominated by grasses and sedges (Sutter 1997, p. 464). They will use 
nonnative replanted grassland if the vegetative structure is suitable, 
but strongly prefer native prairie (Dechant et al. 2003, pp. 1, 4). The 
species prefers to breed in well-drained open grasslands, and avoids 
grasslands that contain even low densities of shrubs (Wells 2007, p. 
297). Sprague's pipits can be found in light to moderately grazed areas 
(Dechant et al. 2003, p. 4), but in North Dakota, a greater abundance 
of Sprague's pipits have been reported from moderately to heavily 
grazed areas (Kantrud 1981, p. 414). However, these descriptions are 
relative; vegetation described as lightly grazed in one study may be 
called heavily grazed in another (Madden et al. 2000, p. 388). The 
species is rarely found in cultivated areas (Owens and Myres 1973, p. 
705). They appear to avoid roads, presumably because the ditches are 
often replanted with non-native species (Sutter et al. 2000, p. 114). 
Migration and wintering ecology are poorly known, but migrating and 
wintering Sprague's pipits are found in grassland, pastures, and fallow 
cropland (Wells 2007, p. 297).
    The native prairie habitat that Sprague's pipits use is disturbance 
dependant. Without disturbance (historically grazing by bison or fire, 
today more often grazing by cattle or mowing for hay), the species mix 
changes and grasslands are ultimately overgrown with woody vegetation 
(Grant et al. 2002, p. 808). While Sprague's pipits prefer areas that 
are regularly disturbed (Madden 1996, p. 48), their preference for 
vegetation of intermediate height means that they will not use a mowed 
or burned area until the vegetation has had a chance to grow which may 
be late in the following breeding season (Dechant et al. 2003, pp. 1-2. 
Kantrud 1981, p. 414).

Historic and Current Distribution

    The species was described as abundant in the late 1800's (Coues 
1874, p. 42; Seton 1890, p. 626). Currently in the United States, 
Sprague's pipits breed throughout North Dakota, except for the 
easternmost counties; in northern and central Montana east of the Rocky 
Mountains; in northern portions of South Dakota; and in northeastern 
Minnesota. In Canada, Sprague's pipits breed in southeastern Alberta, 
the southern half of Saskatchewan, and in southwest Manitoba. Their 
wintering range includes south-central and southeast Arizona, Texas, 
southern Oklahoma, southern Arkansas, northwest Mississippi, southern 
Louisiana, and northern Mexico. There have been sightings in Michigan, 
western Ontario, Ohio, Massachusetts, and Gulf and Atlantic States from 
Mississippi east and north to South Carolina. Sprague's pipits have 
also been sighted in California during fall migration (Robbins and Dale 
1999, p. 6).
    Sprague's pipit is included on a number of Federal, State, and 
nongovernmental organization lists as a sensitive species. For example, 
its status is listed as vulnerable on the International Union of 
Conservation Networks Red List (International Union of Conservation 
Networks 2008). It has a NatureServe Global Rank of G4, indicating that 
the population is apparently secure (NatureServe 2008). The species is 
ranked as yellow on the Audubon 2007 watch list, indicating that it is 
``either declining or rare. These typically are species of national 
conservation concern'' (Audubon 2007, p. 2). Partners in Flight also 
has placed Sprague's pipit on its yellow list, indicating that the 
species is a species of conservation concern at the global scale, a 
species in need of management action, and a high priority candidate for 
rapid status assessment (Rich et al. 2004).
    The petitioner reported that several States have identified the 
Sprague's pipit in various rankings indicating that it is sensitive 
including: Arizona (species of greatest conservation need), Minnesota 
(endangered), Montana (species of concern), New Mexico (species of 
greatest conservation need, vulnerable), North Dakota (Level I species 
in greatest need of conservation), and South Dakota (Level III--modest 
conservation priority but low abundance score) (WildEarth Guardians 
2008, pp. 31-32).
    Due to its cryptic coloring and secretive nature, the Sprague's 
pipit has been described as ``one of the least known birds in North 
America'' (Robbins and Dale 1999, p. 1), and specific range-wide 
surveys for the species have not been conducted. However, long-term 
estimates of Sprague's pipit abundance have come from the Breeding Bird 
Survey (BBS), a long-term, large-scale survey of North American birds 
that began in 1966. The BBS is generally conducted by observers driving 
along set routes, stopping every half-mile to sample for birds. Since 
there is some evidence that Sprague's pipits avoid roads (Sutter et al. 
2000, p. 114), roadside surveys may not be the best measure of 
abundance of Sprague's pipits. Nonetheless, the methods of the BBS have 
been consistent through time, and the BBS provides the best available 
trend information at this time. The available information suggests that 
the population is in steep decline (Peterjohn and Sauer 1999, p. 32), 
with a 79 percent decrease from 1966 through 2005 rangewide 
(approximately 4.1 percent annually) (Wells 2007, p. 296).

Evaluation of Information for This Finding

    Section 4 of the Act (16 U.S.C. 1533) and implementing regulations 
at 50 CFR part 424 set forth the procedures for adding a species to, or 
removing a species from, the Federal Lists of Endangered and Threatened 
Wildlife and Plants. A species may be determined to be an endangered or 
threatened species due to one or more of the five factors described in 
section 4(a)(1) of the Act: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the Sprague's pipit, as presented in the petition 
and other information available in our files, is substantial, thereby 
indicating that the petitioned action may be warranted. Our evaluation 
of this information is presented below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range

Information Provided in the Petition

    The petition outlines numerous assertions regarding the present or 
threatened destruction, modification, or curtailment of the Sprague's 
pipit's habitat or range, including:

[[Page 63340]]

    (1) The loss of native prairie throughout the Northern Great Plains 
range of the species as a result of agricultural conversion, invasion 
of exotic plants, haying practices, livestock grazing, and fire 
suppression;
    (2) Changes in prairie management since European colonization that 
have allowed shrub, tree, and weed encroachment throughout the prairie;
    (3) The infrastructure associated with oil and gas exploration and 
extraction;
    (4) The proliferation of roads throughout the Sprague's pipit's 
range, which reduce the amount of suitable habitat available for their 
use; and
    (5) Ongoing fragmentation of prairie habitat that may leave 
grassland areas too small for Sprague's pipit use.

Response

    We generally find that the information presented by the petitioner 
appears to be reliable and substantial in regard to the amount of 
habitat modification and alteration that has occurred within the range 
of the Sprague's pipit. Sprague's pipits do not nest in cropland (Owens 
and Myres 1973, p. 697; Wells 2007, p. 297), so widespread conversion 
from prairie to cropland negatively impacts the species because it 
reduces the amount of habitat available for nesting. Between 2006 and 
2007 alone, as corn prices increased by more than one dollar a bushel, 
approximately 15 million additional acres (6 million hectares) were 
planted in corn in the United States, although this was not necessarily 
all newly plowed areas and not all within the range of the Sprague's 
pipit (U.S. Department of Agriculture 2009, p. 2).
    Land cover images of the Great Plains in the United States and 
Canada indicate that only 30 percent of prairie habitat remains from 
pre-colonial times (Samson et al. 2004, p. 7); this remnant prairie 
habitat is not all necessarily located within the range of the 
Sprague's pipit. Although Sprague's pipit will use nonnative replanted 
grassland under some circumstances (Higgins et al. 2002, pp. 46-47; 
Dechant et al. 2003, p. 3), the species is generally closely associated 
with native prairie (Owens and Myres 1973, p. 705; Davis 2004, pp. 
1138-1139; McMaster et al. 2005, p. 219).
    Sprague's pipits are strongly tied to native prairie (land which 
has never been plowed) (Owens and Myres 1973, p. 708), in general 
avoiding cropland and land in the Conservation Reserve Program (a 
program whereby marginal farmland is replanted with grass) (Higgins et 
al. 2002, pp. 46-47). However, it is not clear that they avoid areas 
with exotic plant species. While Sprague's pipits appear to favor large 
grassland areas, vegetation structure is a better predictor than 
species composition of songbird occurrence (Davis 2004, pp. 1135, 
1137). Other studies also have suggested that the vegetation structure, 
rather than its specific composition, may influence which species are 
present (Naugle et al. 2000, p. 2; Ribic et al. 2009, p. 239).
    Even in areas that remain in native prairie, management changes, 
including fencing, augmentation of water sources, replacing bison with 
cattle as the primary herbivore, and fire suppression, all have changed 
the landscape (Knopf 1994, pp. 248-250; Weltzin et al. 1997, pp. 758-
760). Much of the prairie is now grazed more uniformly and is often 
overgrazed, leading to a decline in species diversity and an increase 
in woody structure (Walker et al. 1981, pp. 478-481; Towne et al. 2005, 
pp. 1550-1558). Fire suppression has allowed suites of plants, 
especially woody species, to flourish, especially in the winter range 
(Knopf 1994, p. 251; Samson et al. 1998, p. 11). These changes have led 
to steep declines in many grassland bird species, including the 
Sprague's pipit (Knopf 1994, pp. 251-254; Grant et al. 2004, p. 812; 
Lueders et al. 2006, pp. 602-604).
    It should be noted that substituting cattle for bison alone does 
not necessarily lead to a change in grassland vegetation. In a study 
comparing native prairie stocked with moderate levels of cattle or 
bison, Towne et al. (2005, pp. 1552-1558) found that while there were 
some differences in the grazing habits of the two species, after 10 
years the diversity and plant density in the two areas were similar. 
They suggest that the vegetation differences many studies find between 
cattle and bison are due to different herd management and grazing 
intensity, rather than an inherent difference in the effect of the two 
herbivores on vegetation. Ranchers currently allow cattle to graze at 
high densities compared to the historic grazing densities of bison, 
which could lead to a greater probability of overgrazing in grasslands. 
However, one study (Lueders et al. 2006, p. 602) found that Sprague's 
pipits were more common on areas grazed by cattle. The management 
regimes (i.e., fire regimes, grazing densities) and sampling 
intensities of studies conducted on the two areas were quite disparate, 
precluding firm conclusions.
    Fire suppression since European settlement throughout the Sprague's 
pipit's range has impacted the composition and structure of native 
prairie, favoring the incursion of trees and shrubs in areas that were 
previously grassland (Knopf 1994, p. 251). This change of structure 
negatively impacts Sprague's pipits, which avoid grasslands containing 
even moderate densities of shrubs (Wells 2007, p. 297). Fire and 
grazing may differentially affect the vegetative species composition of 
grasslands, so eliminating fire from the landscape has likely changed 
the overall composition of the prairie. Trees and shrubs can be 
eliminated through grazing or regular mowing, although these management 
practices may result in selection for yet a different suite of 
grassland plant species (Owens and Myres 1973, pp. 700-701).
    Mowing (i.e. haying) in the breeding range could negatively impact 
Sprague's pipits by directly destroying nests, eggs, nestlings, and 
young fledglings, and by reducing the amount of available nesting 
habitat for a certain amount of time. While Sprague's pipits 
occasionally will renest if the first nest fails or if nestlings from 
the first clutch fledge early enough in the season, long intervals 
between nesting attempts suggest that renesting is relatively uncommon 
(Sutter et al. 1996, p. 694). Thus, early mowing can negatively impact 
reproductive success for the year. Even mowing done later in the season 
after nests have hatched may impact the availability of breeding 
habitat the following year, because Sprague's pipits will not use areas 
with short grass until later in the season when the grass has grown 
(Owens and Myres 1973, p. 708; Kantrud 1981, p. 414). On the other 
hand, as noted above, mowing can improve Sprague's pipit habitat in the 
long term by removing trees and shrubs (Owens and Myres 1973, p. 700). 
Nest success of ground-nesting birds is already low, with an estimated 
70 percent of nests destroyed by predators (cited in Davis 2003, p. 
119). In addition to nest and egg loss due to predation, some Sprague's 
pipit nests are parasitized by brown-headed cowbirds (Molothrus ater) 
dropping the percent of successful nests even further (Davis 1994, p. 
15; Peterjohn and Sauer 1999, p. 39).
    In the United States, approximately 5 percent of Sprague's pipit 
breeding, migratory, and wintering range (not including Texas for which 
data are not available) is encroached on by oil and gas wells or active 
leases (WildEarth Guardians 2008, p. 20). Much of the Sprague's pipit's 
breeding range overlaps with major areas of oil production in Montana 
and North Dakota. Oil production spiked in 2007 (the most recent year 
for which this information is available), with 494 drilling permits 
issued in 2007 in North

[[Page 63341]]

Dakota, compared with only 146 permits issued in 2006 (North Dakota 
Petroleum Council 2008). Sprague's pipits have shown avoidance of oil 
wells up to 300 meters (984 feet) (Linnen 2008, pp. 1, 9-11), so wells, 
especially at high density, may decrease the amount of habitat 
available for nesting.
    Each well pad requires associated new road construction, often 
involving several miles (kilometers) of new road for each pad. Several 
researchers have noted that Sprague's pipits avoid roadsides (Sutter et 
al. 2000, p. 114; Linnen 2006, pp. 1, 6-9; Linnen 2008, pp. 9-13). This 
observed avoidance may be due to the shortness of mowed vegetation, or 
the reduction of suitable vegetation along the right-of-way (Sutter et 
al. 2000, p. 114).
    Birds that nest near a habitat edge, such as a road, may experience 
lower nest success because they may be more likely to be parasitized by 
cowbirds (Davis 1994, p. i) and because roads may serve as travel 
routes for predators (Pitman et al. 2005, p. 1267). Roads enable the 
spread of exotic species as propagules can be inadvertently transported 
along roads while the ground disturbance provides sites where they can 
readily germinate (Trombulak and Frissell 2000, p. 24; Simmers 2006, p. 
7). Furthermore, the dust and chemical runoff from roads selects for 
tolerant species to grow nearby, changing the plant composition even if 
the right-of-way was not actually disturbed and reseeded (Trombulak and 
Frissell 2000, p. 23). Simmers (2006, p. 24) found that even 20 years 
after reclamation, the nonnative seeds generally used on the reclaimed 
roadbed were still dominant in the area. Furthermore, these nonnatives 
spread into the nearby prairie, suggesting long-term impacts of road 
construction extending beyond the original footprint of the roadway 
(Simmers 2006, p. 24).
    Wind energy development has been exponentially increasing in recent 
years, with increases of more than 45 percent in 2007 and more than 50 
percent in 2008 (Manville 2009, p. 1). Like oil, wind projects may 
fragment the native habitat with turbines, roads, transmission 
infrastructure, and associated facilities. A recent white paper 
examining the potential impacts of the wind industry on fish and 
wildlife determined that wind farms may adversely impact grassland 
songbirds, a group that is already in decline (Casey 2005, p. 4, 
Manville 2009, p. 1). Several of the States where the Sprague's pipit 
nests or winters are listed in the top 20 States for wind energy 
potential (American Wind Energy Association 1991).
    Sprague's pipits appear to be area sensitive, preferring larger 
grassland patches, although the exact amount of habitat required is not 
known (Davis 2004, pp. 1135-1139). Davis (2004, p. 1139) found that the 
strongest predictor of Sprague's pipit presence was the amount of 
grassland within an 800-meter (2,500-foot) radius circle. An increase 
in all of the factors discussed above (i.e., cropland, trees and 
shrubs, oil and gas facilities, and roads) may negatively influence 
Sprague's pipits' use of an area.

Summary of Factor A

    Sprague's pipits have undergone a sharp decline in the past 50 
years as much of the once vast prairie habitat has been converted to 
other uses. One of the major causes of decline seems to be the loss of 
native grassland habitat throughout the species' range. On the basis of 
our evaluation, we determined that the petition presents substantial 
information that listing the Sprague's pipit as a threatened or 
endangered species may be warranted due to present or threatened 
destruction, modification, or curtailment of its habitat or range.

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

Information Provided in the Petition

    The petitioner asserts that there is no evidence that 
overutilization for commercial, recreational, scientific, or 
educational purposes is a threat at this time.

Response

    As noted above, Sprague's pipit has not been extensively studied 
for scientific purposes (e.g., Robbins and Dale 1999). A review of the 
literature provided in the petition or readily available in our files 
suggests that while a limited number of studies involve close 
observation or handling of Sprague's pipit adults, nests, or young 
(e.g., Sutter et al. 1996, pp. 694-696; Davis 2003, pp. 119-128; Dieni 
and Jones 2003, pp. 388-389), most research that includes the Sprague's 
pipit relies on passive sampling (i.e., point counts) rather than 
active manipulation. Such passive sampling is unlikely to have negative 
impacts on Sprague's pipits.

Summary of Factor B

    On the basis of our evaluation, we determined that the petition 
does not present substantial information indicating that listing the 
Sprague's pipit as a threatened or endangered species may be warranted 
due to the overutilization for commercial, recreational, scientific, or 
educational purposes. Additionally, we do not have substantial 
information in our files to suggest that overutilization for 
commercial, recreational, scientific, or educational purposes may 
threaten the Sprague's pipit. However, we will evaluate all factors, 
including threats from overutilization for commercial, recreational, 
scientific, or educational purposes, when we conduct our status review.

C. Disease and Predation

Information Provided in the Petition

    (1) The petitioner asserts that while disease does not appear to be 
a major threat at this time, it may become a threat due to changes in 
habitat distribution resulting from climate change and ensuing 
concentration of birds.
    (2) The petitioner asserts that predation and cowbird nest 
parasitism cause up to 70 percent of grassland bird nest failures, 
including nest failures of Sprague's pipits. Cowbird parasitism may be 
generally lower for Sprague's pipits than for other grassland birds 
because of Sprague's pipit's tendency to avoid edge habitat. However, 
if Sprague's pipits are forced to use more edge habitat due to habitat 
fragmentation, cowbird parasitism may increase in the future.

Response

    We are not aware of information to indicate that disease poses a 
significant threat to Sprague's pipits at this time. The petitioner 
suggests that botulism may pose a risk if habitat fragmentation and 
climate change cause birds to be more concentrated on the remaining 
habitat. While habitat fragmentation may negatively impact Sprague's 
pipit as discussed in Factor A, botulism is primarily associated with 
waterfowl (United States Geological Survey 1999, p. 274), and so would 
not be expected to impact Sprague's pipit. Other diseases, such as 
avian influenza and West Nile virus may impact the Sprague's pipit, but 
we are not aware of any information indicating that those diseases pose 
a risk at this time.
    The Intergovernmental Panel on Climate Change (2007, p. 51) 
suggests that the distribution of some disease vectors may change as a 
result of climate change. However, the Service has no information at 
this time to suggest that any specific disease may become problematic 
to Sprague's pipit.
    Predation is thought to destroy up to 70 percent of grassland bird 
nests (in Davis 2003, p. 119). We assume that the

[[Page 63342]]

predation rate of Sprague's pipits is similar. The species' tendency to 
choose taller vegetation and to build a covered nest with a runway 
presumably is at least in part an attempt to avoid being seen by 
predators (Sutter 1997, p. 467). Cowbird parasitism also leads to nest 
failures, because the cowbirds remove or damage host eggs and cowbird 
young outcompete the hosts for resources (Davis 2003, pp. 119, 127). 
Cowbird parasitism generally is thought to be higher in small remnant 
grassland plots near habitat edges (Davis 1994, p. i; in Linnen 2008, 
p. 4), so the Sprague's pipit's preference for larger tracts of 
grassland, when these are available, may make the species less 
susceptible to cowbird parasitism. However, continued loss and 
fragmentation of native grassland may be causing increased levels of 
cowbird parasitism that is as yet undetected.

Summary of Factor C

    On the basis of our evaluation, we determined that the petition 
does not present substantial information indicating that listing the 
Sprague's pipit as a threatened or endangered species may be warranted 
due to disease or predation. While the level of predation for all 
grassland birds is high, we do not have information at this time to 
suggest that predation or cowbird parasitism is impacting Sprague's 
pipits at a level that threatens the species. Because Sprague's pipits 
select large grassland patches for nesting, they may be less 
susceptible to cowbird parasitism than other grassland species. 
Additionally, we do not have substantial information in our files to 
suggest that disease or predation threaten the Sprague's pipit. 
However, we will evaluate all factors, including threats from disease 
and predation, when we conduct our status review.

D. The Inadequacy of Existing Regulatory Mechanisms

Information Provided in the Petition

    The petitioner asserts that the regulatory mechanisms to protect 
the Sprague's pipit in the United States are inadequate.
    (1) Sprague's pipits are protected under the Migratory Bird Treaty 
Act (MBTA) (16 U.S.C. 703 et seq.), which prohibits hunting, taking, 
capture, killing, possession, sale, purchase, shipment, transportation, 
carriage, or export of any such bird, or any part, nest or egg thereof, 
unless specifically permitted (i.e., for waterfowl hunting). The 
petitioner indicates that the MBTA does not protect bird habitat.
    (2) The petitioner reports that Sprague's pipit is listed as a 
State endangered species in Minnesota, and the Committee on the Status 
of Endangered Wildlife in Canada listed the Sprague's pipit as a 
threatened species in 2000. The species is on a number of watch lists 
from nongovernmental and quasi-governmental (supported by the 
government but privately managed) organizations. The petitioner states 
that, while these lists highlight concerns about the species, they do 
not provide substantial protection. The species enjoys no special 
protection throughout most of its range.

Response

    As the petitioner points out, while the Sprague's pipit is 
protected under the MBTA, this protection does not extend to the 
species' habitat. Habitat can be legally destroyed as long as it does 
not result in the direct take of birds protected by the MBTA.
    As discussed under Factor A, a substantial amount of new oil and 
gas production is occurring in the breeding range of the Sprague's 
pipit. Currently, no regulatory mechanisms exist for many of these 
activities to ensure that drilling and associated activities avoid 
nesting habitat. In addition, we know of no regulatory mechanisms that 
protect this species' habitat outside of the breeding season.
    Similarly, few regulations exist regarding the siting of wind farms 
in relation to wildlife resources. While the Service has developed 
interim guidelines for siting wind farms (Service 2003, pp. 1-57) to 
reduce impacts to wildlife and wildlife habitat, the guidelines are 
voluntary and are not consistently applied (or applied at all) on 
private land with no Federal nexus (Manville 2009, p.1). Special 
permits are required for wind energy development on National Wildlife 
Refuge System wetland and grassland easements. State permits are not 
required for wind farms in North Dakota or South Dakota unless they are 
larger than 100 megawatts, and no State permit is required in Montana 
(Association of Fish and Wildlife Agencies and U.S. Fish and Wildlife 
Service 2007). We are aware of no specific requirements in these State 
regulatory systems that protect migratory birds or their habitats.
    As noted in Factor A, favorable market prices often encourage 
farmers to plow new land for crop production. There are no regulatory 
mechanisms that govern conversion of native grassland to cropland when 
migratory birds will be impacted.

Summary of Factor D

    On the basis of our evaluation, we find that there is substantial 
information in the petition and readily available in our files to 
indicate that listing the Sprague's pipit as a threatened or endangered 
species may be warranted due to the inadequacy of existing regulatory 
mechanisms, particularly regarding the effects of habitat loss and 
fragmentation due to energy development and farming practices.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Information Provided in the Petition

    The petitioner asserts that several other factors may affect the 
Sprague's pipit's continued existence including the following:
    (1) The Sprague's pipit is sensitive to drought throughout its 
range;
    (2) Climate change is likely to increase drought, changing the 
habitat to make it less suitable for the Sprague's pipit; and
    (3) Activities to eradicate and harass birds in croplands, 
particularly programs to reduce the impacts of blackbirds on sunflower 
fields, are a threat to the Sprague's pipit.

Response

    In a short-term (3-year) study looking at drought and post-drought 
period in western North Dakota, George et al. (1992, pp. 275, 278-279) 
found that Sprague's pipit numbers declined in periods of drought, 
although they rebounded once the drought ended. By contrast, a study 
comparing numbers from the BBS to moisture levels in eastern and 
northern North Dakota found that Sprague's pipit numbers actually 
increased during dry periods (Niemuth et al. pp. 213-217). However, 
amount of moisture was a relative descriptor and not constant between 
studies. There is generally more precipitation in eastern versus 
western North Dakota (Niemuth et al. p. 216), so a dry period in the 
eastern part of the State may be roughly equivalent to a normal period 
in the western part.
    Sprague's pipits prefer areas with relatively tall grass. Extreme 
drought may lead to poor grass growth and thus less optimal habitat 
(Dieni and Jones 2003, pp. 393-395). While the species can increase in 
abundance after a short-term drought ends, climate change may lead to 
drier conditions in much of the Sprague's pipit's range (Johnson et al. 
2005, pp. 869-871), which may have more lasting impacts on the habitat 
and thus the population (George et al. 1992, pp. 281-283).

[[Page 63343]]

    There is some variability between models in projecting the effect 
of future climate change on Sprague's pipit habitat. One model 
projected that the Sprague's pipit's breeding range would experience a 
wetter climate by the end of this century (United States Global Change 
Research Program Great Plains 2009, p. 125). In contrast, another model 
suggested that much of the remaining suitable habitat for Sprague's 
pipit nesting would likely become drier due to climate change (Johnson 
et al. 2005, p. 871). Temperatures in the wintering range are also 
expected to rise, while precipitation is projected to decline (United 
States Global Change Research Program: Southwest 2009, p. 125). 
Substantial landscape changes are therefore expected in the wintering 
range (United States Global Change Research Program: Southwest 2009, p. 
131). These changes in temperature and precipitation throughout the 
species' range may have a large impact on ecosystems (United States 
Global Change Research Program Great Plains 2009, p. 126; United States 
Global Change Research Program: Southwest 2009, p. 131) and thus the 
Sprague's pipit.
    Long-term effects of global climate change on Sprague's pipit 
habitat could have significant, deleterious effects, and should be 
monitored in the future. However, the climate change models are based 
on projections with some uncertainty (Johnson et al. 2005, p. 869), and 
current data may not be reliable enough at the local level for us to 
draw conclusions regarding the degree to which climate change would 
affect Sprague's pipit and its habitat.
    The petitioner states that harassment of birds from cropland may 
negatively impact the birds' energy stores during migration, when they 
may already be low on reserves (Hagy et al. 2007, pp. 62, 69). Also, 
the petitioner contends that poisoning of sunflower fields with grain 
bait used to kill blackbirds may impact Sprague's pipits, which have 
been documented in sunflower fields during migration (Hagy et al. 2007, 
p. 66). Sprague's pipits primarily feed on arthropods, including those 
in sunflower fields (Hagy et al. 2007, p. 66). However, the impacts of 
harassment and poisoning on Sprague's pipits are unlikely to be 
substantial. Some sunflower growers harass birds, primarily several 
species of blackbirds that feed on their crops. Any Sprague's pipits 
that are present in sunflower fields could be incidentally harassed out 
of those fields along with blackbirds and any other species present. 
There have been experimental efforts in the past to selectively poison 
blackbirds that feed on sunflowers; however, these efforts have been 
limited to date and not applied on a systematic, widespread basis. 
Therefore, we deem the potential impacts of harassment and poisoning on 
Sprague's pipits to be primarily speculative and likely minimal at this 
time.

Summary of Factor E

    We find the information presented in the petition and readily 
available in our files on the subject of climate change to be 
insufficiently specific to the Sprague's pipit; however, the 
Intergovernmental Panel on Climate Change (IPCC) states that warming of 
the climate is unequivocal (IPCC 2007, p. 15). We intend to investigate 
the effects of climate change on the Sprague's pipit and its habitat 
further in the status review for the species.
    While all of the following factors may negatively impact the 
Sprague's pipit, on the basis of our evaluation of the material 
provided in the petition and available in our files, we determined that 
the petition does not present substantial evidence indicating that 
listing the Sprague's pipit may be warranted based on drought, climate 
change, harassment, or poisoning of cropland.

Finding

    On the basis of our determination under section 4(b)(3)(A) of the 
Act, we have determined that the petition presents substantial 
scientific or commercial information indicating that listing the 
Sprague's pipit throughout all or a significant portion of its range 
may be warranted. This finding is based on information provided under 
Factors A and D. Because we have found that the petition presents 
substantial information that listing the Sprague's pipit may be 
warranted, we are initiating a status review to determine whether 
listing the Sprague's pipit under the Act is warranted. We will issue a 
12-month finding as to whether the petitioned action is warranted.
    The ``substantial information'' standard for a 90-day finding 
differs from the Act's ``best scientific and commercial data'' standard 
that applies to a status review to determine whether a petitioned 
action is warranted. A 90-day finding does not constitute a status 
review under the Act. In a 12-month finding, we will determine whether 
a petitioned action is warranted after we have completed a thorough 
status review of the species, which is conducted following a 
substantial 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a substantial 90-
day finding does not mean that the 12-month finding will result in a 
warranted finding.
    We encourage interested parties to continue gathering data that 
will assist with the conservation and monitoring of the Sprague's 
pipit. You may submit information regarding the Sprague's pipit by one 
of the methods listed in the ADDRESSES section until the date shown in 
the DATES section of this document. After this date, you must submit 
information directly to the North Dakota Field Office (see FOR FURTHER 
INFORMATION CONTACT section below). Please note that we may not be able 
to address or incorporate information that we receive after the above 
requested date. The petitioner requested we designate critical habitat 
for this species. If we determine in our 12-month finding that listing 
the Sprague's pipit is warranted, we will address the designation of 
critical habitat at the time of the proposed listing rulemaking.

References Cited

    A complete list of references cited is available on the Internet at 
http://regulations.gov and upon request from the North Dakota Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary authors of this notice are the staff members of the 
North Dakota Field Office (see FOR FURTHER INFORMATION CONTACT).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: November 19, 2009.
Sam D. Hamilton,
Director, U.S. Fish and Wildlife Service.
[FR Doc. E9-28868 Filed 12-2-09; 8:45 am]
BILLING CODE 4310-55-P