[Federal Register Volume 75, Number 13 (Thursday, January 21, 2010)]
[Proposed Rules]
[Pages 3424-3434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-951]



Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To Remove the Marbled Murrelet (Brachyramphus marmoratus) 
From the List of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS), 
announce a 12-month finding on a petition to remove the Washington/
Oregon/California population of the marbled murrelet (Brachyramphus 
marmoratus) (murrelet) from the Federal List of Endangered and 
Threatened Wildlife (List) pursuant to the Endangered Species Act of 
1973, as amended (ESA) (16 U.S.C. 1531 et seq.). Based on a thorough 
review of the best scientific and commercial data available, we find 
that the Washington/Oregon/California population of the murrelet is a 
valid distinct population segment (DPS) in accordance with the 
discreteness and significance criteria in our 1996 DPS policy. 
Furthermore, we find that this DPS continues to be subject to a broad 
range of threats, such as nesting habitat loss, habitat fragmentation, 
and predation. Although some threats, such as gillnet bycatch and lack 
of regulatory mechanisms, have been reduced since the murrelet's 1992 
listing, the primary threats to the species' persistence continue. 
Furthermore, the species faces newly identified threats, such as 
abandoned fishing gear, harmful algal blooms, and observed changes in 
the quality of the bird's marine food supply. Population surveys 
conducted from 2000 through 2008 from San Francisco Bay to the Canadian 
border document a population decline during this period. Given our 
current understanding of the species' population size and trajectory, 
and in light of the scope and magnitude of existing threats, we 
conclude that the species continues to meet the definition of a 
threatened species under the ESA. Therefore, we have determined that 
removing the murrelet from the List is not warranted.

DATES: The finding announced in this document was made on January 21, 

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number [FWS-R1-ES-2008-0095]. Supporting 
documentation we used in preparing this notice will be available for 
public inspection, by appointment, during normal business hours at the 
U.S. Fish and Wildlife Service, Washington Fish and Wildlife Office, 
510 Desmond Drive, SE., Suite 102, Lacey, WA 98503, (360) 753-9440; 
(360) 753-9405 fax. New information, materials, comments, or questions 
concerning this species may be submitted to the Service at the above 

FOR FURTHER INFORMATION CONTACT: Ken Berg, Field Supervisor, U.S. Fish 
and Wildlife Service, Washington Fish and Wildlife Office, (see 
ADDRESSES section). If you use a telecommunications device for the deaf 
(TDD), you may call the Federal Information Relay Service (FIRS) at 
(800) 877-8339.



    Section 4 of the ESA (16 U.S.C. 1533 et seq.) and implementing 
regulations (50 CFR part 424) set forth procedures for adding species 
to, removing species from, or reclassifying species on the Federal List 
of Endangered and Threatened Wildlife. Section 4(b)(3)(A) of the ESA 
requires that, for any petition containing substantial scientific and 
commercial information that listing, delisting, or reclassification may 
be warranted, we make a finding within 12

[[Page 3425]]

months of receiving the petition (12-month finding), on whether the 
petitioned action is: (a) Not warranted; (b) warranted; or (c) 
warranted, but that immediate proposal of a regulation implementing the 
petitioned action is precluded by other pending proposals to determine 
whether other species are threatened or endangered. This document 
represents our 12-month finding on a May 28, 2008, petition by the 
American Forest Resources Council, the Carpenters Industrial Council, 
Douglas County, Oregon, and Ron Stuntzner to delist the Washington/
Oregon/California population of the murrelet (see Previous Federal 
Actions, below).

Previous Federal Actions

    The Washington/Oregon/California population of the murrelet was 
listed as a threatened species on October 1, 1992 (57 FR 45328).
    On September 1, 2004, we issued a 5-year review of the Washington/
Oregon/California population of the murrelet (USFWS 2004). This review 
found that the population was not a valid DPS, but that delisting 
should not be proposed until a rangewide status review was concluded. 
As noted below (see Distinct Population Segment Analysis), we now 
believe that our DPS analysis in that review was fundamentally flawed.
    On May 28, 2008, we received a petition from the American Forest 
Resource Council; the Carpenters Industrial Council of Douglas County, 
Oregon; and Ron Stuntzner requesting that we delist the Washington/
Oregon/California DPS of murrelet, primarily based on the DPS 
conclusion in our 2004 5-year review.
    On October 2, 2008, we published a 90-day finding (73 FR 57314) on 
the May 28, 2008, petition and found that, although the petitioners 
based their arguments primarily on our flawed 2004 5-year review, a 12-
month status review was nevertheless warranted because we had not 
formally revisited our DPS conclusion since then, and a reasonable 
person could find that the petitioned action may be warranted. Thus our 
90-day finding initiated a 12-month status review.
    On June 12, 2009, we issued a revised 5-year review of the 
Washington/Oregon/California murrelet population (USFWS 2009). This 
review found the murrelet population to be a valid DPS and recommended 
that the murrelet DPS remain listed as threatened.

Species Information

    The murrelet is a small diving seabird of the Alcidae family. 
Murrelets spend most of their lives in the marine environment where 
they forage in near-shore areas and consume a diversity of prey 
species, including small fish and invertebrates. In their terrestrial 
environment, the presence of platforms in trees (large branches or 
deformities) used for nesting is the most important characteristic of 
their nesting habitat. Murrelet habitat use during the breeding season 
is positively associated with the presence and abundance of mature and 
old-growth forests, large core areas of old-growth, low amounts of edge 
habitat, reduced habitat fragmentation, proximity to the marine 
environment, and forests that are increasing in stand age and height. 
Additional information on murrelet taxonomy, biology, and ecology can 
be found in Ralph et al. (1995) and McShane et al. (2004).

Population Size and Trends

    Our recent 5-year review (USFWS 2009, pp. 19-21), summarized below, 
analyzed the best available information on murrelet population size and 
trends in its listed range (Washington/Oregon/California). See this 
review (USFWS 2009, pp. 19-21, 26-68) for a more detailed analysis of 
population status, trends, and threats.
    The best available data on murrelet population size for the area 
from San Francisco Bay, CA, to the Canadian border come from the 
results of the Effectiveness Monitoring Program of the Northwest Forest 
Plan (NWFP), which has conducted annual at-sea population surveys 
during the breeding season since 2000, using a uniform survey protocol 
(Huff 2006, p. 6; Miller et al. 2006, p. 31; Raphael et al. 2007b, pp. 
44-45; Falxa et al. 2009, p. 2). The area surveyed includes five of the 
six murrelet conservation zones (Zones 1 through 5) established by the 
recovery plan for the murrelet (USFWS 1997, p. 114). (Zone 6 represents 
the areas south of San Francisco Bay, CA, and offshore breeding habitat 
between Half Moon Bay and Santa Cruz, CA.) As of 2008, the estimated 
population of murrelets in Zones 1-5 was 17,800 (95 percent confidence 
interval (CI): 14,600 to 21,000; Falxa et al. 2009, p. 2). The 2007 and 
2008 population estimates represent the lowest estimates since 
monitoring began in 2000, and, as described below, the monitoring 
survey results indicate a statistically significant population decline 
since 2000.
    Peery et al. (2008, p. 3) conducted at-sea population surveys for 
murrelets in Conservation Zone 6 in 2007 and 2008, following a method 
used previously to survey the same area during 1999 through 2003 (Peery 
et al. 2006a, pp. 1519-1522). No population estimates are available for 
2005 and 2006 as surveys were not conducted. Using the same distance 
sampling estimation techniques applied to Conservation Zones 1-5, they 
estimated the 2007 Conservation Zone 6 population to be 367 birds (95 
percent CI: 240-562) and the 2008 Conservation Zone 6 population to be 
174 birds (95 percent CI: 91-256; Peery et al. 2008, p. 4).
    Using the combined survey estimates from Conservation Zones 1-5 and 
Conservation Zone 6, the 2008 estimated population size within the 
listed range is approximately 18,000 birds (95 percent CI: 14,700-
21,200, figures rounded to nearest 100) (USFWS 2009, p. 16).
    Demographic models have predicted murrelet populations in the 
listed range to be declining at an estimated rate of 3 to 7 percent per 
year (USFWS 1997, p. 5; McShane et al. 2004, p. 3-15). Recent 
information, based on population size estimates conducted by 
standardized protocols for nearly a decade, provides empirical data 
with which to evaluate population trends in the listed range.
    Trends were evaluated for two periods: (1) 2000 through 2008, and 
(2) 2001 through 2008. The latter was evaluated because inspection of 
the data set suggested that the 2000 estimate may have been unusually 
low, considering the pattern of estimates from subsequent years (Falxa 
et al. 2009, p. 6).
    A significant population decline was detected for the combined 5-
Conservation Zone area (Zones 1-5), both for the 2000-2008 and 2001-
2008 periods (Falxa et al. 2009, p. 13). The 2000-2008 data represent 
an estimated 2.4 percent annual decline, while the 2001-2008 data 
represent an annual decline of about 4.3 percent (Falxa et al. 2009, p. 
13). The 2.4 and 4.3 percent values represent two valid estimates for 
the annual rate of decline based on the best available information. The 
2.4 and 4.3 percent annual decline rates represent overall declines of 
the population of 19 and 34 percent, respectively, in Conservation 
Zones 1 through 5. In terms of numbers of birds, the estimated average 
annual decline for this period was 490 birds per year (standard error: 
241 birds) based on the 2000-2008 data, or about 870 birds per year 
(standard error: 129 birds) based on the 2001-2008 data (Falxa et al. 
2009, p. 13).
    The murrelet population in central California underwent a 
particularly significant and rapid decline between 2003 and 2008 (Peery 
et al. 2008, p. 4). The 2008 population estimate for Conservation Zone 
6 represented a decline of about 55 percent since 2007, and a 75 
percent decline since 2003

[[Page 3426]]

(Peery et al. 2008, p. 4). Compared to the 2003 Zone 6 estimate of 699 
birds (95 percent CI: 567 to 680; Peery 2007), the 2008 estimate of 174 
birds represents an average annual decline of about 15 percent, about 
105 birds per year, between 2003 and 2008. The 2007 and 2008 population 
estimates in Zone 6 are the lowest since surveys began in 1999.


    McShane et al. (2004, p. 3-2) considered murrelet breeding success 
to be a function of nest predation, timing, foraging conditions, prey 
availability, and adult survival during the breeding season. Impacts to 
breeding success from predation are discussed under Factor C in the 
Summary of Factors Affecting the Species section, below. Data on nest 
success from radio telemetry studies and from adult:juvenile ratios at 
sea, as an index of breeding success, continue to confirm that murrelet 
reproduction in Washington, Oregon, and California is too low to 
sustain populations (USFWS 2009, p. 23). Recent information from 
studies in British Columbia and Conservation Zone 6 suggest that one 
potential cause for the observed poor reproductive success is related 
to changes in the marine environment that have resulted in murrelets 
eating prey at a lower trophic level--which is lower quality--
particularly during the breeding season (USFWS 2009, pp. 22, 41-42). 
The trophic level shift is likely to have contributed to a decline in 
murrelet reproduction, at least in Conservation Zone 6, and perhaps 
elsewhere. The relative contributions of nest predation and trophic 
level shifts in prey consumption to reduced reproductive output are not 
well known, and probably change between years and areas. However, in 
combination, they are suspected to be largely responsible for current 
observations of poor reproductive success.

Distinct Population Segment Analysis

    The petition to delist (AFRC et al. 2009) primarily cited the DPS 
conclusion in our 2004 5-year review (USFWS 2004, pp. 14-17) as 
sufficient reason to delist the Washington/Oregon/California DPS of 
murrelet. In our 2009 5-year review for the murrelet, we completed a 
thorough reevaluation of our previous DPS analysis of the murrelet 
(USFWS 2009, pp. 3-12). Below, we present the discreteness and 
significance analyses for the Washington/Oregon/California population 
of the murrelet based on our most recent 5-year review (USFWS 2009, pp. 
    Under the ESA (section 3(16)), a species is defined to include 
``any subspecies of fish or wildlife or plants, and any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' The ESA does not further define what is 
meant by a distinct population segment. We, along with the National 
Marine Fisheries Service (now the National Oceanic and Atmospheric 
Administration-Fisheries), developed the Policy Regarding the 
Recognition of Distinct Vertebrate Population Segments (DPS Policy) 
(February 7, 1996; 61 FR 4722) to help us in determining what 
constitutes a DPS, and thus what may be considered a species for 
listing under the ESA. The policy identifies three elements that we are 
to consider in making a DPS determination. These elements include: (1) 
The discreteness of the population segment; (2) the significance of the 
population segment to the taxon to which it belongs; and (3) the 
population segment's conservation status in relation to the ESA's 
standards for listing. If we determine that a population segment is 
discrete and significant, it is evaluated for endangered or threatened 
status based on the ESA's definition of those terms and a review of the 
five listing factors established in section 4(a) of the ESA.


    Discreteness refers to the separation of a population segment from 
other members of the taxon based on either: (1) Physical, 
physiological, ecological, or behavioral factors; or (2) international 
boundaries within which significant differences in control of 
exploitation, habitat management, conservation status, or regulatory 
mechanisms exist in light of section 4(a)(1)(D) of the ESA.
    There is no evidence of marked genetic or morphological 
discontinuity between murrelet populations at the United States-Canada 
border, nor is there evidence of differences in the control of 
exploitation. However, we find that there are significant differences 
in management of habitat, conservation status, and regulatory 
mechanisms between the countries. In our analysis of discreteness at 
the international border, we compare existing regulatory mechanisms in 
Canada with non-ESA regulatory mechanisms in the United States. This 
approach ensures that our analyses for listing and delisting a species 
are the same with respect to the international border discreteness test 
per our 1996 DPS policy.
    Management of Habitat: The management of habitat would be different 
across the United States-Canada border without the protections of the 
ESA because the two countries would rely on regulatory mechanisms that 
are not equally protective of the murrelet or its habitat (see 
Regulatory Mechanisms, below).
    Conservation Status: There is a difference in conservation status 
between the United States and Canada. If the murrelet were not listed 
under the ESA, no Federal protections would be afforded it under the 
ESA. Under Canada's endangered species legislation (the Species at Risk 
Act (SARA), 2002), the murrelet would remain classified as 
``threatened,'' that is, ``a wildlife species that is likely to become 
an endangered species if nothing is done to reverse the factors leading 
to its extirpation or extinction.'' SARA's prohibition of harm to the 
species and its residence would mean the species would have 
significantly greater legal protection on the Canadian side of the 
border. The murrelet is listed as threatened in Oregon and Washington, 
and endangered in California under the individual State endangered 
species acts. However, these statutes, individually and collectively, 
provide less protection to the species as compared to regulatory 
protections under SARA. Hence, in the absence of ESA protections there 
would be a significant difference in the conservation status of the 
murrelet across the United States and Canadian border from a legal 
standpoint. See the Differences in Regulatory Mechanisms section below 
for additional information.
    There is also a significant difference in conservation status from 
a population standpoint. The continental United States has a 
substantially smaller population of murrelets (approximately 18,000; 
USFWS 2009, p. 16), than does Canada (approximately 66,000; Burger 
2002, p. 25). In addition, based on at-sea surveys of juvenile to adult 
ratios, the productivity of murrelets in Washington, Oregon, and 
California (Cresent Coastal Research, 2008, p. 13; Beissinger and Peery 
2007, p. 299; Raphael et al. 2007a, p. 16; Long et al. 2008, pp. 18-19) 
is considerably lower than in British Columbia (Bellefleur and others, 
2005 as cited in Piatt et al. 2007, p. 18). British Columbia reports 
higher productivity values than anywhere outside of Kachemak Bay in 
    In addition, estimates of loss of old-growth forests in the United 
States' Pacific Northwest since pre-industrial times (National Research 
Council 2000, pp. 67-73), compared to the amount of forests within the 
range of the murrelet in British Columbia that have become unsuitable 
due to anthropogenic causes (e.g., industrial logging and

[[Page 3427]]

urbanization) (Demarchi and Button 2001a and Demarchi and Button 2001b 
as adapted by Burger 2002, Chapter 4), show a higher percentage of 
murrelet habitat has been lost historically in Washington, Oregon, and 
California than in Canada.
    Finally, there are differences in the amount of nesting habitat 
remaining for murrelets between the United States and Canada. There are 
approximately 1.5 to 2 million hectares (3.7 to 4.9 million acres) of 
nesting habitat remaining in British Columbia (Piatt et al. 2007, p. 
118), while there are only 890,000 to 1.6 million hectares (2.2 to 4.0 
million acres) of suitable nesting habitat remaining in the contiguous 
United States (McShane et al. 2004, pp. 4-5; Raphael et al. 2006, pp. 
117-118, 123). Furthermore, the contiguous U.S. estimate is likely an 
overestimate because some administrative units used northern spotted 
owl habitat as a surrogate for murrelet habitat, and owl habitat 
includes younger forest than typical murrelet habitat.
    In conclusion, the conservation status of the murrelet is 
significantly different across the international border. Murrelet 
population numbers are lower in the United States (less than one-third 
of the Canadian population), productivity is lower, the loss of old-
growth forests has been more severe, and there is probably less habitat 
remaining (although the habitat estimates overlap somewhat). This 
difference in conservation status is likely to be exacerbated when one 
compares status across the border without the ESA's protections in the 
United States.
    Differences in Regulatory Mechanisms: Compared with protection in 
Canada, there would be significantly less regulatory protection for the 
murrelet in Washington, Oregon, and California if the species were not 
    Regulatory Mechanisms in Canada: In 2003, Canada implemented its 
Federal endangered species legislation, the Species At Risk Act (SARA). 
Under SARA the murrelet is classified as a ``threatened'' species 
(Statutes of Canada (S.C.) Chapter (ch). 29, Schedule 1, Part 3 
(2002)). SARA defines a ``threatened'' species as ``a wildlife species 
that is likely to become an endangered species if nothing is done to 
reverse the factors leading to its extirpation or extinction'' (S.C. 
ch. 29 Sec.  2). It is illegal to kill, harm, harass, capture, or take 
an individual of a wildlife species that is listed as an extirpated 
species, an endangered species, or a threatened species, or to possess, 
collect, buy, sell, or trade an individual of a wildlife species that 
is listed as an extirpated species, an endangered species, or a 
threatened species, or any part or derivative of such an individual 
(S.C. ch. 29 Sec.  32). SARA also prohibits any person from damaging or 
destroying the residence of a listed species, or from destroying any 
part of its critical habitat (S.C. ch. 29 Sec. Sec.  33, 58). For many 
of the species listed under SARA, the prohibitions on harm to 
individuals and destruction of residences are limited to Federal lands, 
but this limitation does not apply to migratory birds protected under 
the Migratory Birds Convention Act, including the murrelet (S.C. ch. 29 
Sec.  34). Hence, SARA protects murrelets from harm and destruction of 
their residences, not only on Federal lands, but also on provincial and 
private lands, where most of the remaining habitat for the species 
occurs. (Because critical habitat has not yet been designated for the 
murrelet, SARA's provisions protecting critical habitat are not yet 
effective.) SARA defines the ``residence'' of a species to mean ``a 
dwelling-place, such as a den, nest or other similar area or place, 
that is occupied or habitually occupied by one or more individuals 
during all or part of their life cycles, including breeding, rearing, 
staging, wintering, feeding or hibernating'' (S.C. ch. 29, Sec.  2). 
Hence, to receive SARA's protection, a ``residence'' need not be 
continuously occupied by the species. Thus, SARA protects the murrelet, 
not only from direct killing, but also from indirect harm through 
destruction of its residence. Moreover, SARA mandates development and 
implementation of a recovery strategy and action plans (S.C. ch. 29 
Sec. Sec.  37, 47).
    Violations of SARA are punishable by a fine of up to $250,000 for 
an individual, or $1,000,000 for a corporation, or imprisonment for up 
to 5 years, or both (S.C. ch. 29 Sec.  97). SARA provides that each day 
of a continuing violation constitutes a separate offense, and makes 
corporate officers and employers vicariously liable for actions of 
their agents and employees (S.C. ch. 29 Sec. Sec.  97-99).
    The murrelet is also protected under Canada's Federal Migratory 
Birds Convention Act, 1994 (MBCA) (S.C. ch 22), which is their domestic 
legislation similar to our Migratory Bird Treaty Act of 1918 (MBTA). 
The MBCA and its implementing regulations prohibit the hunting of 
migratory nongame birds and the possession or sale of ``migratory 
birds, their nests, or eggs'' (S.C. ch. 22 Sec. Sec.  5, 12).
    Although British Columbia has no stand-alone endangered species 
act, the provincial Wildlife Act protects virtually all vertebrate 
animals from direct harm, except as allowed by regulation (e.g., 
hunting or trapping). Legal designation as endangered or threatened 
under this act increases the penalties for harming a species, and also 
enables the protection of habitat in a Critical Wildlife Management 
Area (British Columbia Wildlife Act 1996). The murrelet is not listed 
under this act as an endangered or threatened species.
    The murrelet is designated as a ``species at risk'' and as an 
``identified wildlife species'' under the British Columbia Forest and 
Range Practices Act (FRPA) (2002). Under this act, guidelines for 
murrelet management are contained in the Identified Wildlife Management 
Strategy (IWMS). Under the IWMS, murrelet habitat in British Columbia 
is divided into six conservation regions. Within each of these regions, 
a recommended maximum decline in population and habitat by 2032 has 
been identified. In four of the six regions, a limit of a 31 percent 
decline in population and habitat has been recommended. The other two 
regions have a zero to 10 and 15 percent recommended maximum decline. 
Management of habitat is implemented through several mechanisms, 
including wildlife habitat areas (WHAs) and strategic land use plans. 
The required size and characteristics of the WHAs (essentially 
protected suitable habitat) have been identified, yet ``the amount of 
habitat to be established as WHAs remains constrained by existing 
policy,'' such as the 1 percent timber supply impact cap on the timber 
harvesting land base (British Columbia Ministry of Environment 1999, p. 
    Under a directive issued pursuant to the FRPA, timber licensees on 
provincial lands must conserve all murrelet nesting habitat in the non-
contributing land base (areas not economically viable to harvest) plus 
a small area in the timber harvesting land base (British Columbia 
Forest and Range Practices Board (BCFPB) 2008, p. 1). British Columbia 
has set a general objective under the FRPA to conserve sufficient 
habitat for the survival of all species at risk, without unduly 
reducing the timber supply (BCFPB 2008, p. 6). In 2004, British 
Columbia designated the murrelet as a species at risk, and issued a 
notice requiring the primary licensee on the southern coast to prepare 
a Forest Stewardship Plan (FSP) consistent with the murrelet 
conservation objective. The licensee met this requirement by preparing 
a strategy that avoids road-building and timber harvest in some 
murrelet nesting habitat. The BCFPB has determined that the effect of 
the FSP requirement will be to conserve 23,500 hectares (58,070 acres), 
or 67 percent, of remaining

[[Page 3428]]

suitable murrelet habitat on the southern coast of the province (BCFPB 
2008, p. 13).
    Murrelet habitat is also protected in British Columbia in several 
provincial and national parks. These designations, along with WHAs, 
protect about 490,000 hectares (1.2 million acres) of murrelet habitat, 
or about 25 percent of the total available in British Columbia in 2002 
(Burger 2008, p. 6).
    In accordance with SARA, the federally led Canadian Marbled 
Murrelet Recovery Team has developed a draft murrelet recovery 
strategy, which has been approved by the Province, but has not been 
posted on the SARA public registry. One of the three action plans 
identified by the Recovery Team has been drafted but has not yet been 
approved (Burger 2008, p. 4). Given that the murrelet is a migratory 
bird and, therefore, comes under Federal jurisdiction across all lands, 
including Provincial lands, the recovery and action plans will apply to 
the murrelet over its entire range in Canada (Bertram 2006). However, 
because it is unclear how the recovery and action plan elements (which 
are awaiting approval or are still being drafted) will interact with 
the IWMS, it is unclear how management of murrelet habitat in Canada 
will occur into the future.
    Regulatory Mechanisms in Washington, Oregon, and California: If the 
murrelet were not federally listed in Washington, Oregon, and 
California, prohibitions under section 9 of the ESA would no longer 
apply. Thus, there would be no Federal prohibitions against take 
through habitat destruction or harassment of the murrelet. In addition, 
absent protection of the ESA, Federal agencies would have no duty under 
section 7 of the ESA to consult with the Service on the effects of 
their actions on the species, to avoid jeopardizing the species, or to 
avoid adversely modifying previously identified critical habitat.
    The murrelet would continue to receive some protection under the 
MBTA (16 U.S.C. 703), which makes it unlawful to take migratory birds, 
including the murrelet. However, the MBTA's definition of ``take'' 
includes direct pursuit, killing, and capturing, but does not include 
harm through habitat destruction, nor harassment (16 U.S.C. 715n). The 
Ninth Circuit has held that the MBTA does not protect migratory birds 
from habitat destruction such as logging of old growth forest (Seattle 
Audubon Society v. Evans, 952 F.2d 297 (9th Cir. 1991)). SARA, by 
contrast, protects the murrelet from not only direct killing, but also 
harm, harassment, and destruction of the species' ``residence''. 
Moreover, the MBTA's sanctions for violations are significantly lighter 
than SARA's, imposing only misdemeanor penalties of 6 months 
imprisonment and $15,000 in fines (16 U.S.C. 707), compared with the 
felony-level sanctions under SARA.
    The murrelet receives some protection under State laws in 
Washington, Oregon, and California, but these laws are less protective 
than SARA. Washington law prohibits ``maliciously'' killing or 
harassing murrelets or destroying their nests, but does not prohibit 
indirect harm through habitat modification (Revised Code of Washington 
(RCW) Sec.  77.15.120; and Washington Administrative Code (WAC) Sec.  
232-12-011). Violation of this law is a gross misdemeanor, punishable 
by no more than 1 year of imprisonment or a fine of no more than 
$5,000. This law is less protective than SARA because, by limiting its 
reach to ``malicious'' conduct, it does not govern as broad a range of 
conduct as does SARA's strict liability standard, and because the 
penalties it imposes are substantially lighter. Washington forest 
practice regulations limit, but do not entirely prohibit, timber 
harvest that would constitute ``take'' under the ESA (WAC Sec. Sec.  
222-10-042, 222-16-080). Washington law (WAC 232-12-297) requires that 
recovery plans be written for species listed as endangered or 
threatened by the Washington Fish and Wildlife Commission; however, 
currently there is no State recovery plan for the murrelet. In order to 
delist the species, Washington Department of Fish and Wildlife would 
have to develop criteria for reclassifying to a species of concern and 
delisting and then show how the species has met these criteria.
    In Washington, the State Forest Practices Rules (FPR) (Wash. Admin. 
Code Title 222, Chapt. 10 & 16) specifically establish murrelet 
suitable habitat definitions, survey requirements, and review processes 
for forest practices that may impact murrelet habitat. The FPRs provide 
protection to occupied (as defined by FPR) murrelet sites during the 
nesting season on private forest lands where the landowner owns more 
than 500 acres of land that are less than 50 miles from marine waters. 
For those lands that are presumed to have at least a 30 percent 
probability of occupancy, landowners are subject to survey requirements 
and those areas where occupancy is found are protected. The FPRs 
provide for protection of murrelets through minimization of take and 
jeopardy pursuant to the Washington Endangered Species Act and the 
Federal Endangered Species Act. However, the FPR definitions of 
suitable habitat, inland distance, and occupied site do not include all 
of the lands the Service considers to have features essential for 
conservation of murrelet. Therefore, some suitable habitat may be 
harvested without review. In addition, landowners have the option to go 
through the State Environmental Policy Act process and get approval to 
harvest; although this has not occurred to date. Current FPRs protect 
occupied (as defined by State) habitat and a 300-foot managed buffer 
around occupied habitat. However, there are no reasonable assurances 
that the maximum site size and managed buffers are adequate to protect 
and maintain complex-structured forest isolated from human development 
such that the risk of predation, windthrow, and changes in microclimate 
are reduced.
    Oregon has listed the murrelet as a threatened species under State 
law (Oregon Administrative Regulations (OAR) 635-100-0125(3)(i)), but 
the Oregon Endangered Species Act (Oregon ESA) is less protective than 
SARA. It includes no take prohibition (ORS 496.182). In fact, the 
statute expressly exempts private landowners from any obligation to 
protect listed species (ORS 496.192(1)). The Oregon ESA provides some 
protection on State lands, but less than SARA provides on public lands 
in Canada. Under the Oregon ESA, each State agency is permitted to make 
its own determination as to how to balance the needs of listed species 
with the ``social and economic impacts'' that conservation would have 
on the State (ORS 496.182(8)(a)(B)). A State agency is permitted to 
take an action that would jeopardize a State-listed species, provided 
the agency determines that the public benefits of the action outweigh 
the harm to the species (ORS 496.182(4)(a)). Moreover, State lands 
comprise a relatively small proportion of occupied murrelet habitat in 
Oregon; the majority of known occupied habitat is on Federal land. 
Finally, the murrelet could lose any State protection in Oregon if it 
is delisted under the Federal ESA, because the Oregon ESA provides that 
the State may delist a species if it has been determined not to qualify 
for listing under the Federal ESA (ORS 496.176(6)(c)).
    In Oregon, the Oregon Forest Practices Act (ORS 527.610 to 527.992 
and OAR Chapter 629, Divisions 600 to 665) lists protection measures 
specific to private and State-owned forested lands in Oregon. These 
measures include specific rules for resource protection, including some 
threatened and endangered species such as the northern spotted owl, but 
the rules do not

[[Page 3429]]

address protection of murrelet habitat (OAR 629-665).
    The murrelet is listed as endangered under California law 
(California Code of Regulations (CA Code of Regs), tit. 14, Sec.  
670.5(a)(5)(R)). The California Endangered Species Act (CESA) (CA Code 
of Regs, tit. 14, Sec.  2080, et seq.) prohibits ``take'' of endangered 
species (CA Code of Regs, tit. 14, Sec.  2080). ``Take'' is defined by 
California Fish and Game Code section 86. This definition includes 
capturing or killing or attempting to capture or kill, but not harming 
or harassing, which is prohibited under the Federal ESA and SARA. 
Therefore, some actions that would be prohibited under SARA would not 
be prohibited under CESA. Activities that may disrupt a bird's behavior 
such that it constitutes ``harm'' or ``harassment'' under SARA would 
not constitute ``take'' under CESA if the disruption does not result in 
mortality of the bird through nest abandonment or other means. Damaging 
or destroying a bird's residence is prohibited under SARA even without 
evidence that the bird died, while CESA would require at least 
circumstantial evidence showing that the bird died as a result of the 
action. Nothing in California State law requires recovery planning. 
Recovery actions can be voluntarily undertaken, however, pursuant to 
authorities such as the Natural Community Conservation Planning Act (CA 
Code of Regs, tit. 14, Sec.  2080).
    In California, the California Forest Practice Rules (CFPR) (CA Code 
of Regs., tit. 14, chapters 4, 4.5 and 10) were established to regulate 
timber harvest on non-Federal lands within the State of California. The 
CFPRs are implemented through the review and approval processes for the 
California Department of Forestry and Fire Protection (CALFIRE) 
individual Timber Harvest Plans (THP) and Nonindustrial Timber 
Management Plans (NTMP). With the exception of plans that are exempted 
from the preparation and submission requirements under the CFPRs, all 
commercial timber harvest must go through this process.
    The CFPRs do not contain a definition of suitable murrelet nesting 
habitat. Consequently, each plan has a decision on habitat suitability 
on a stand-by-stand basis, and they may or may not disclose the 
presence of murrelet habitat. Under the CFPR's Special Conditions 
section 898.2, CALFIRE is required to disapprove a plan if 
implementation of the plan would result in take or jeopardy in 
violation of the Federal Endangered Species Act. When recommendations 
to avoid unauthorized take of murrelets are provided, they are 
typically included in THPs or NTMPs. However, because only some of 
these plans are reviewed by California Department of Fish and Game or 
the Service, suitable murrelet habitat and possibly even occupied 
nesting habitat likely has been lost due to this lack of oversight. In 
summary, the practical application of the CFPRs are only partially 
effective at protecting suitable habitat pursuant to the Federal ESA 
due to the lack of a detailed description of habitat suitability within 
the CFPRs and the lack of adequate resource agency staff to review THPs 
and NTMPs that may contain suitable murrelet nesting habitat.
    The adoption of the Northwest Forest Plan (NWFP) by the U.S. Forest 
Service (Forest Service) and the Bureau of Land Management (BLM) has 
greatly reduced the annual rate of habitat loss on Federal land in the 
United States since 1994. Nonetheless, estimated potential total loss 
of suitable murrelet habitat since the 1992 listing of the species is 
about 10 percent of the current estimate of suitable habitat (USFWS 
2004, p. 16). If the murrelet were delisted, the NWFP could be amended 
to reduce protection for the species. The murrelet would still derive 
some incidental benefit from continued protection of the reserve system 
under the NWFP, although conservation benefits would not likely extend 
to all areas currently protected for the murrelet. In addition, even if 
the NWFP were not amended, delisting would relieve the Forest Service 
and the BLM of any obligation to consult with the Service on site-
specific actions that may adversely affect the murrelet. These agencies 
would also be relieved of their duty under section 7(a)(1) of the 
Federal ESA to carry out programs for the conservation of the species. 
The British Columbia murrelet conservation assessment, by comparison, 
states a central recovery goal is to downlist the species from 
Threatened to Special Concern, by creating conditions that will limit 
the decline of the British Columbia population and its nesting habitat 
to less than 30 percent over three generations (30 years) (Bertram et 
al. 2003, p. 5), roughly the same habitat loss in arithmetical terms as 
that experienced during the period 1992 to 2003 in the United States.
    Absent listing under the Federal ESA, State laws would not 
necessarily protect murrelets on Federal lands. Other Federal laws 
governing management of Federal lands could preempt State law to the 
extent there is an irreconcilable conflict (National Audubon Society v. 
Davis, 307 F.3d 835, 854 (9th Cir. 2002)).
    There appears to be a difference in management of marine habitat 
between Canada and the United States as well. In the United States 
there is a ban on exploitation of forage fishes and regulated take of 
protected species under the Magnuson-Stevens Fishery Conservation and 
Management Act. For regulation purposes, the National Marine Fisheries 
Service considers forage species to include the prey species important 
to murrelets; however, some important prey species (such as Pacific 
herring) are commercially fished. In British Columbia, there are no 
restrictions on exploitation of forage species (Piatt et al. 2007, p. 
94). In the United States, murrelets are protected from commercial 
fisheries in California and Oregon through State laws. However in 
Washington State, protections afforded the commercial fishery are tied 
specifically to section 7 of the Federal ESA, and are implemented 
through interagency consultation with the National Oceanic and 
Atmospheric Administration (NOAA) and the Bureau of Indian Affairs. 
Without the ESA, murrelets in Washington do not appear to be protected 
from bycatch. In British Columbia, although the MBCA does afford them 
some protections, there have been limited direct efforts to reduce 
bycatch (Piatt et al. 2007, p. 92). SARA's take prohibitions, however, 
are applicable in the marine environment, and hence, commercial fishing 
operations that harm murrelets by ensnaring them in nets would violate 
the statute.
    As described above, the differences in regulatory mechanisms that 
would exist on each side of the border would be significant in light of 
section 4(a)(1)(D) of the ESA and would result in differences in 
management of habitat. The loss of Federal protective measures afforded 
by the ESA is likely to place the species at greater risk of 
extirpation in the coterminous United States.


    If we determine that a population meets the DPS discreteness 
element, we then consider whether it also meets the DPS significance 
element. The DPS policy (61 FR 4722) states that, if a population 
segment is considered discrete under one or more of the discreteness 
criteria, its biological and ecological significance will be considered 
in light of Congressional guidance that the authority to list DPSs be 
used ``sparingly'' while encouraging the conservation of genetic 
diversity. In making this determination, we consider available 
scientific evidence of the discrete population's importance to the

[[Page 3430]]

taxon to which it belongs. Since precise circumstances are likely to 
vary considerably from case to case, the DPS policy does not describe 
all the classes of information that might be used in determining the 
biological and ecological importance of a discrete population. However, 
the DPS policy does provide four possible reasons why a discrete 
population may be significant. As specified in the DPS policy (61 FR 
4722), this consideration of significance may include, but is not 
limited to, the following:
    (1) Persistence of the discrete population segment in a unique or 
unusual ecological setting;
    (2) Evidence that loss of the discrete segment would result in a 
significant gap in the range of the taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of the taxon that may be more 
abundant elsewhere as an introduced population outside of its historic 
range; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    Loss of the DPS would result in a significant gap in the range of 
the murrelet. This gap is significant because the Washington, Oregon, 
and California area accounts for roughly 18 percent of the total 
coastal distribution of the species, encompassing 17 degrees of 
latitude. In addition, the Washington, Oregon, and California area is 
located at the southern-most extent of the range. This DPS contains an 
ecologically distinct forest system, the coastal redwood zone. 
Moreover, peripheral and disjunct populations may play an important 
role in maintaining opportunities for speciation and future 
biodiversity (Fraser 1999, p. 50). Recovery of species without the 
conservation of these peripheral populations may be impossible if these 
populations are eliminated or severely damaged (Fraser 1999, p. 50).
    Although there is no genetic distinction at the border, researchers 
have found significant genetic distinction throughout the range of the 
species. Friesen et al. (2005, pp. 611-612) reported significant 
differentiation of birds from peripheral sites (i.e., California and 
the Aleutian Islands), with the Aleutian and California populations 
each having one or more private control region haplotypes that occurred 
at high frequency. Friesen et al. (2007, pp. 13-14) results indicate 
that genetic variation changes clinally in this species, and provided 
additional resolution showing that murrelets in western and central 
Aleutian Islands and central California differ significantly from 
murrelets in the rest of the species' range. They concluded that 
murrelets appear to comprise three genetic units: (1) Western and 
central Aleutian Islands; (2) eastern Aleutian Islands to northern 
California; and, (3) central California. Loss of any of these 
populations would result in the loss of a portion of the species' 
genetic resources and/or local adaptations, and may compromise its 
long-term viability (Piatt et al. 2007, p. 43). Since the currently 
listed population encompasses all of one genetic unit as mentioned 
above and a portion of another, loss of the population could compromise 
the long-term viability of the species as a whole.
DPS Conclusion
    We consider the Washington/Oregon/California population of 
murrelets to be a valid distinct population segment under the 1996 DPS 
Policy. This population of murrelets is discrete at the international 
border because: (1) The coterminous United States has a substantially 
smaller population of murrelets (approximately 18,000) than does Canada 
(approximately 66,000); (2) breeding success of the murrelet in 
Washington, Oregon, and California is considerably lower than in 
British Columbia; and (3) there are differences in the amount of 
habitat, the rate of habitat loss, and regulatory mechanisms between 
the countries (USFWS 2009, pp. 4-5). The coterminous United States 
population of murrelets is also considered significant in accordance 
with the criteria of the DPS Policy, as the loss of this distinct 
population segment would result in a significant gap in the range of 
the taxon and the loss of unique genetic characteristics that are 
significant to the taxon (USFWS 2009).
    Having found that the population of murrelets in Washington, 
Oregon, and California is a valid DPS, we next evaluate the status of 
the population based on the ESA's five listing factors to determine 
whether the DPS continues to warrant listing as a threatened species.

Summary of Factors Affecting the Species

    Under section 4 of the ESA, a species may be determined to be 
endangered or threatened on the basis of any of the following 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 must consider these same five factors in 
delisting a species. We may delist a species according to 50 CFR 
424.11(d) if the best available scientific and commercial data indicate 
that the species is neither endangered nor threatened for the following 
reasons: (1) The species is extinct; (2) the species has recovered and 
is no longer endangered or threatened; or (3) the original scientific 
data used at the time the species was classified were in error.
    We are using the extensive evaluation undertaken in our 2009 5-year 
review as the foundation for our 12-month finding (USFWS 2009, pp. 26-
68). Below, we present a summary of our recent 5-year review (USFWS 
2009), which is available at: [http://www.fws.gov/westwafwo/pdf/Mamu2009_5yr_review%20FINAL%2061209.pdf]. The reader is referred to 
that document for a more detailed analysis of the threats to the 

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

Terrestrial Habitat Modification
    At the time the murrelet was listed in 1992, we determined that the 
species' decline was due in part to habitat removal across the DPS (57 
FR 45328). In addition, we noted that, while modification of historical 
harvest practices could help decrease the amount of time it would take 
an area to again become suitable habitat for the murrelet, this was 
unlikely over the short-term. Historic and ongoing loss and 
fragmentation of remaining suitable nesting habitat for murrelets 
continues to be a threat throughout most of the forested range of the 
    In our 2004 5-year review (USFWS 2004, p. 19; citing McShane et al. 
2004), we found that habitat loss and fragmentation were expected to 
continue in the near future, but at an uncertain rate. Information 
presented in our 2009 5-year review does not suggest this threat has 
abated (USFWS 2009, pp. 33-34). Raphael et al. (2006, p. 137) suggest 
that habitat losses in the past decade were likely greater than 
previously estimated, notably on non-Federal lands. Thus, nesting 
habitat loss continues to be a threat to the murrelet.
Climate Change in the Terrestrial Environment
    Though considerable uncertainty exists with respect to any 
regional-scale impacts of climate change due to the differences in 
trajectories of climate change scenarios, modeling results

[[Page 3431]]

underscore the potentially large impacts on the Pacific Northwest and 
California ecosystems. Adverse consequences to forest ecosystems are 
likely to increase as a result of climate change (Kliejunas et al. 
2008, p. 25), potentially negatively impacting habitat for many 
species, including the murrelet.
    Climate change is likely to further exacerbate some existing 
threats such as the projected potential for increased habitat loss from 
drought-related fire, mortality, insects and disease, and increases in 
extreme flooding, landslides, and windthrow events in the next 10 to 30 
years. While it appears likely that the murrelet will be negatively 
affected by these changes, we lack adequate information to quantify the 
magnitude of effects to the species from climate change projections.
Threats to the Marine Environment
    Threats in the murrelet's marine environment include harmful algal 
blooms, dead zones, changes in prey availability and quality, and the 
potential exacerbation of these conditions from climate change.
    Murrelets in the listed range are affected by changes in the 
California Current System, the Straits of Juan de Fuca, and Puget 
Sound. The California Current System is dominated by a southward 
surface current of colder water from the north Pacific (Miller et al. 
1999, p. 1; Dailey et al. 1993, pp. 8-10) and is characterized by 
upwellings, particularly in the spring and summer. This system is 
affected by inter-annual El Ni[ntilde]o-Southern Oscillation and inter-
decadal (Pacific Decadal Oscillation) climatic processes, which result 
in warm and cool phases. The Strait of Juan de Fuca is where deep in-
flowing oceanic waters mix with out-flowing Puget Sound and Georgia 
Basin surface waters. The marine conditions in the Straits are in 
response to upwelling and downwelling patterns generated by coastal 
winds and changes in coastal circulation. The Puget Sound is an estuary 
within which the subtidal circulation is largely driven by the 
differences in salinity between fresher waters within the Sound and the 
saltier waters in the Strait of Juan de Fuca. Shallow sills within 
Puget Sound restrict the entry of deep oceanic waters, reducing 
flushing of these inland marine and estuarine waters and resulting in 
hydrologic isolation that puts aquatic organisms at higher risk because 
toxic chemicals, nutrients, and pathogens remain in the system longer, 
resulting in increased exposure (Puget Sound Action Team 2007, p. 129).
    Based on available information, murrelet prey species abundance 
appears to be in decline (USFWS 2009, pp. 39-41). There are commercial 
and recreational fisheries for some prey species stocks, and the 
Pacific herring in Puget Sound are carrying high body loads of PCBs 
(polychlorinated biphenyls) (Puget Sound Action Team (PSAT) 2007, p. 
129). In addition, new information indicates prey quality has declined 
over the last decade and murrelets are now feeding at lower trophic 
levels in central California and Puget Sound (Becker and Beissinger 
2006, p. 475; Norris et al. 2007, p. 879) and possibly throughout the 
3-State area; however, prey quality has not been assessed in other 
portions of the murrelet's listed range.
    Shifts to lower trophic-level food items may be compromising 
murrelet reproduction. Egg production is energetically costly and 
dependent on the availability of adequate prey, especially during egg 
development (Becker and Beissinger 2006, p. 477). In central 
California, a large proportion (50-90 percent) of murrelets forego 
breeding and may do so because they cannot find sufficient food 
resources during preparation for breeding (Peery et al. 2004, pp. 1094-
1095). Norris et al. (2007, p. 879) found murrelet breeding success 
increased when their pre-breeding diet consisted of higher trophic-
level prey (i.e., they found a strong correlation between the pre-
breeding diet and murrelet abundance 3-4 years later (the time lag for 
young-of-the-year to attain breeding age)).
    Murrelets are exposed to harmful algal blooms (HABs) and dead zones 
throughout the DPS, although the potential effects may be more 
pronounced in specific areas, such as the Oregon coast, Monterey Bay, 
and Puget Sound (USFWS 2009, pp. 36-39). These events result in 
significant mortality of fish and invertebrates and may contribute to 
low food availability during the murrelet breeding season, thereby 
contributing to low murrelet reproductive success. In addition to the 
impacts to prey resources, HABs from certain algae species produce 
biotoxins that result in domoic acid poisoning or paralytic shellfish 
poisoning, causing murrelet mortality (Peery et al. 2006b, p. 83; 
McShane et al. 2004, pp. 3-67). HABs and dead zones may have been 
occurring all along and have just begun to be studied; however, 
scientists (Chan et al. 2008, p. 1; Rucklehaus and McClure 2007, p. 54) 
predict the scope and length of these events are likely to increase in 
the future.
Climate Change in the Marine Environment
    Climate change is likely to result in changes to the murrelet's 
marine environment. While physical changes to the near-shore 
environment appear likely, much remains to be learned about the 
magnitude, geographic extent, and temporal and spatial patterns of 
change, and their effects on murrelets. Effects on the murrelet food 
supply (amount, distribution, quality) provide the most likely 
mechanism for climate change impacts to murrelets. However, limitations 
on our knowledge of murrelet prey, and how climate change could affect 
those prey, constrain our ability to forecast effects with confidence.
    While the differing climate change predictions prevent a conclusive 
threat assessment, the predicted direction of change for most variables 
considered suggests that few changes are likely to benefit murrelets, 
with many more having the potential to negatively affect murrelets, 
through direct mortality, changes to food supply, or interactions with 
other threats. While seabirds such as the murrelet have life-history 
strategies adapted to variable marine environments, ongoing and future 
climate change could present changes of a rapidity and scope outside 
the adaptive range of murrelets. The ability of the species to respond 
to shifts in prey conditions is constrained by several factors. Nesting 
habitat distribution is limited, and nesting birds may be restricted to 
foraging in waters relatively near their inland nest sites (USFWS 2009, 
p. 14). Furthermore, the available information indicates substantial 
nest site fidelity, and does not suggest that individual murrelets will 
abandon a nesting area that becomes unsuitable, and move to a new, 
distant nest site (Nelson 1997, pp. 16-17; Meyer et al. 2002, pp. 112-
113; Hebert and Golightly 2006, pp. 257-282).
    We conclude that the information suggests there is an increase in 
the level of threats in the marine environment including HABs, dead 
zones, prey availability and quality, and the potential exacerbation of 
these conditions from climate change.

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

    We have no information or evidence that indicates that 
overutilization of murrelets for commercial, recreational, scientific 
or educational purposes is a threat to the persistence of the species.

[[Page 3432]]

Factor C. Disease or Predation

    We did not identify disease as a threat to the murrelet in our 1992 
listing (USFWS 1992, p. 45334). More recently, it has been reported 
that bacterial, fungal, parasitic, and viral diseases and biotoxins 
affect numerous populations of seabirds, but no information on the 
effects of these threats to alcids was available (McShane et al. 2004, 
pp. 6-12). West Nile virus has been identified as a potential threat as 
it has been detected in other marine bird species, such as cormorants 
and many species of gulls, and forest-dwelling species, such as spotted 
owls, goshawks, corvids, and many passerine species (information 
available on the Centers for Disease Control (http://www.cdc.gov) and 
National Wildlife Health Center (http://www.nwhc.usgs.gov) Web sites). 
However, West Nile virus has not been observed in murrelets (McShane et 
al. 2004, pp. 6-12).
    In addition, the highly pathogenic avian influenza (HPAI) has also 
emerged since the murrelet's 1992 listing. However, no cases of this 
disease have been detected in wild birds anywhere in North America 
(U.S. Geological Survey 2007, p. 2; http://www.nwhc.usgs.gov/map), and, 
therefore, we have no information to indicate that HPAI is currently a 
threat to the murrelet.
    Predation was identified in our original 1992 listing rule and our 
analysis for the 2004 5-year review as a significant threat to murrelet 
demographic rates (USFWS 1992, p. 45334; McShane et al. 2004, p. 19). 
New information supports these findings (USFWS 2009, pp. 47-49). 
Predation has two primary components: Losses of adults or fledged 
juveniles and nest predation (eggs or chicks). Adult/juvenile predation 
may occur at sea or inland. There is no significant new information 
concerning at-sea or terrestrial non-nest predation on murrelets. 
Corvids remain the predator with the greatest impact on murrelets 
(USFWS 2009, p. 46).
    Nest failure rates of 68 to 100 percent (Hebert and Golightly 2003, 
p. 52; Peery et al. in prep as cited in McShane et al. 2004, p. 6-29) 
due to predation in real nests, and 81 to 95 percent in artificial 
nests (Luginbuhl et al. 2001, p. 563; Marzluff and Neatherlin 2006, p. 
312) have been reported. The key elements affecting nest predation 
rates appeared to be proximity to humans, abundance of avian predators, 
and proximity to, and type of, forest edge. The best available 
information indicates that murrelets are highly vulnerable to nest 
predation and confirms the importance of nest predation in limiting 
murrelet nest success throughout the DPS, particularly in areas where 
murrelet habitat is in close proximity to humans (e.g., parks) (USFWS 
2009, p. 48).

Factor D. Inadequacy of Existing Regulatory Mechanisms

    Information reviewed in the 2009 5-year review considered revisions 
of plans and regulations within the range of the murrelet that 
addressed increased or decreased regulatory protection with respect to 
murrelets (USFWS 2009, pp. 50-55). This analysis found that, while some 
regulatory mechanisms protecting the murrelet and its habitat have been 
enacted since listing, regulatory mechanisms would not be sufficiently 
protective of the murrelet or its habitats to ensure its long-term 
viability, without the continued protections of the ESA. See the 
discussion under the DPS discreteness factor above, as well as the 2009 
5-year review (USFWS 2009, pp. 50-55 and Appendix B) for an expanded 
explanation of the non-ESA regulatory mechanisms currently in place. 
Therefore, the threat posed by the inadequacy of existing mechanisms 
has been reduced since listing but not removed.

Factor E. Other Natural or Manmade Factors Affecting the Species' 
Continued Existence

Oil Spills
    Oil spills have resulted in observed or estimated mortality to 
marbled murrelets since the mid-1980s (USFWS 2009, p. 57). Individual 
spills have been estimated to kill anywhere from 6 to 350 murrelets 
from oiling (USFWS 2009, p. 57). Thus, localized impacts from oil 
spills can be severe and can result in direct mortality through oiling 
and impacts to reproductive success through changes in prey base, 
marine habitat, and disturbance.
Gill Net Bycatch
    Gill nets may be responsible for direct mortality of murrelets, but 
the impacts continue to be localized to the Puget Sound area and 
northern Washington coast. This threat may be increasing in Puget Sound 
where there appears to be an increase in fishing effort (USFWS 2009, p. 
Derelict Fishing Gear
    Entanglement in derelict fishing nets has recently been identified 
as a threat to marine mammals, seabirds, shellfish, and fish in Puget 
Sound and the Straits of Juan de Fuca. Derelict fishing gear consists 
of nets and crab pots that have been lost, abandoned, or discarded in 
the marine environment. This gear can persist in the marine environment 
and continue ``fishing'' (capturing sea life) for decades (Natural 
Resources Consultants, Inc. 2008, p. 3). Not only does derelict gear 
result in direct mortality of species, it destroys and degrades marine 
habitat by accumulating sediment, scouring bottom substrate, impeding 
plant and sessile animal growth, and blocking access to habitat used 
for foraging and escaping predators (June and Antonelis 2009, p. 3). 
Impacts from derelict fishing gear (nets and pots) are a newly 
identified threat since the murrelet's 1992 listing. While the scope 
and severity of the threat posed to murrelet prey from derelict pot 
fishing gear has yet to be determined, the threat posed by derelict 
fishing nets appears to be localized to the Puget Sound and Straits of 
Juan de Fuca. The severity of this threat in these areas is high due to 
the potential for significant and persistent direct mortality.
Wave and Tidal Energy Projects
    The threat(s) these projects may pose to murrelets varies greatly, 
depending upon the proposed location and type of equipment. In some 
cases, such as tidal energy projects that will use underwater turbines, 
the threat may be direct mortality to diving birds. In other cases, the 
projects may degrade marine habitat through shading, collision or 
entanglement obstacles, night-lighting, changes in prey abundance, and/
or increased human presence. The magnitude of threat to the murrelet 
from these types of activities is dependent upon their proximity to 
murrelet foraging and breeding habitat. There are new wave and/or tidal 
projects proposed in all three States within the murrelet's listed 
range (USFWS 2009, p. 61). However, at this time, it is uncertain how 
these projects will impact murrelets because the project plans are 
still under development and locations are undetermined at this time.
Wind Power Projects
    The threat(s) that wind development projects may pose to murrelets 
varies greatly, depending upon the proposed location and type of 
equipment. We are aware of four new on-shore wind projects proposed in 
Washington and one in California, within the murrelet's listed range 
(USFWS 2009, pp. 61-62). However, at this time, it is uncertain how 
these projects will impact murrelets because the project plans are 
still under development and locations are not finalized at this time. 
In some

[[Page 3433]]

cases, the threats posed by on-shore wind energy projects may include 
direct mortality (i.e., collisions) and habitat removal.
    At this time we are unaware of any off-shore wind energy projects 
proposed along the coasts of Washington, Oregon, or California.
Liquefied Natural Gas Terminal and Pipeline Projects
    Four liquefied natural gas terminals have been proposed in Oregon 
(USFWS 2009, p. 62), each with associated pipelines through murrelet 
nesting habitat. At this time, it is uncertain how these projects will 
impact murrelets in either the terrestrial or marine environments 
because the projects are still under development. In some cases, the 
threat posed by the pipelines may include loss or fragmentation of 
nesting habitat.
Disturbance in the Marine Environment
    Little empirical data are available regarding the probability of 
lethal responses, sublethal injuries, physiological responses 
(particularly stress responses), behavioral responses, or social 
responses by murrelets to human activities in the marine environment. 
However, based on the best available information, murrelets may be 
affected by exposure to elevated underwater and above water sound 
levels, boat traffic, and reductions of prey or prey habitat. Most of 
these impacts occur in Puget Sound and Grays Harbor in Washington State 
(USFWS 2009, p. 63). Similar activities either do not take place along 
the outer coasts of Washington, Oregon, and California or have not yet 
been analyzed.
    Elevated sound pressure levels can be generated underwater by such 
activities as underwater detonations and pile driving. Exposure to 
elevated sound pressure levels may result in injuries that lead to 
death or significant impairment of an individual's ability to carry out 
essential life functions (USFWS 2009, p. 63). Murrelets may also be 
exposed and respond to elevated sound pressure levels while at the 
water's surface. While there are no known studies or data available 
that evaluate the behavioral response of murrelets (or other alcids) to 
noise in the marine environment, behaviors that we believe could 
indicate disturbance of murrelets in the marine environment include: 
Aborted feeding attempts, multiple delayed feeding attempts within a 
single day or across multiple days, multiple interrupted resting 
attempts, and precluded access to suitable foraging habitat.
    Boat traffic elicits behavioral responses in murrelets (McShane et 
al. 2004, pp. 5-36 through 5-37; Speckman et al. 2004, p. 33; 
Bellefleur et al. 2009, pp. 534-536) and may cause an energetic impact 
on murrelets due to the cost of flight compounded with being flushed 
off preferred feeding grounds (Bellefleur et al. 2009, p. 536). 
Murrelets may or may not habituate to boat traffic. While Bellefleur et 
al. (2009, p. 536) found the mean flushing distance decreased in areas 
with high boat density, suggesting murrelets may tolerate close 
encounters, they also found the percentage of murrelets that flushed in 
high boat density areas increased, suggesting murrelets are less 
committed to foraging in areas with many boats. Murrelet survival and 
reproduction are dependent upon an adequate quantity of high-quality 
food throughout the year, and human activities that limit access to 
select foraging sites may result in reduced reproduction or survival, 
especially if the human activities result in increased diving or 
relocation to a less favorable foraging area or a foraging area further 
from the nesting habitat (USFWS 2009, pp. 64-65). Although the 
relationship between disturbance in the marine environment and murrelet 
reproductive success or population abundance has not been sufficiently 
studied, it appears that within areas with high boat density or fast-
moving boats, murrelets are more likely to move away, possibly to a 
less desirable foraging location. Within the DPS, there are areas (such 
as Puget Sound and Monterey Bay) where murrelets co-occur with 
substantial boat traffic, both recreational and commercial. Within 
these areas, boat traffic may be causing energetic impacts on murrelets 
that they are unable to compensate for, especially during the pre-
breeding and breeding seasons.
Disturbance in the Terrestrial Environment
    Hebert and Golightly (2006, pp. 34-35) and Golightly et al. (2009, 
p. 18) found vehicular traffic noise appeared to have little or no 
effect on murrelet nesting success. However, murrelets were more likely 
to nest further away from paved roads (Golightly et al. 2009, pp. 8-
16), possibly due to noise disturbance or due to increased predation 
risk near roads regardless of sound levels (Golightly et al. 2009, p. 
    Observations of incubating adult and chick responses to disturbance 
events (such as chainsaw operations) resulted in no flushing and no 
significant increase in corvid presence (Hebert and Golightly 2006, pp. 
22, 28, 68). However, adults spent more time with their heads raised, 
and their bill up during the disturbances, compared to the pre- and 
post-disturbance periods. Chicks also spent more time with their heads 
raised, and their bill up during the disturbance trials, but the 
relevance of these behavioral changes is unknown (Hebert and Golightly 
2006, pp. 35-36).


    The petition to delist (AFRC et al. 2009) primarily cited the DPS 
conclusion in our 2004 5-year review (USFWS 2004, pp. 14-17) as 
sufficient reason to delist the Washington/Oregon/California DPS of 
murrelet. However, based on the analysis in our 2009 5-year review, we 
consider the Washington/Oregon/California population of murrelets to be 
a valid distinct population segment under the 1996 DPS Policy. The 
population is discrete due to differences in population size and 
breeding success, and differences in the amount of habitat, the rate of 
habitat loss, and regulatory mechanisms between the countries (USFWS 
2009, pp. 4-5). The Washington/Oregon/California population of 
murrelets is also considered significant in accordance with the 
criteria of the DPS Policy, as the loss of this distinct population 
segment would result in a significant gap in the range of the taxon and 
the loss of unique genetic characteristics that are significant to the 
taxon (USFWS 2009, p. 12).
    The Washington/Oregon/California population of murrelets was 
estimated to contain approximately 18,000 individuals in 2008, which 
represents a significant population decline since intensive monitoring 
efforts began in 2000, and a decline of approximately 26 percent 
compared to the population estimate in our 2004 5-year review (USFWS 
2004, p. 18). Historical population declines have been largely caused 
by extensive removal of late-successional and old-growth coastal 
forest, which serve as nesting habitat for murrelets. Ongoing factors 
contributing to continued population declines include high nest-site 
predation rates and human-induced mortality in the marine environment 
from disturbance, gillnets, and oil spills. Murrelet reproductive 
success is strongly correlated with the abundance of mid-trophic-level 
prey. Overfishing or oceanographic variation from weather or climate 
events are likely to affect the marine environment, negatively 
impacting the availability of murrelet prey and ultimately, murrelet 
reproductive success.
    Based on the evaluation of the threats and the murrelet's 
population status and

[[Page 3434]]

trends, we have determined that the murrelet is likely to become 
endangered in the foreseeable future unless the current population 
decline is arrested. Nothing in our assessment indicates that the 
currently observed population decline is transient. Rather, our threats 
assessment indicates that it is reasonable to expect that the species 
will continue to be exposed to a broad range of threats across its 
listed range. Although some threats have been reduced, most continue 
unabated and new threats now strain the ability of the murrelet to 
successfully reproduce. In summary, our analysis indicates that 
reproductive success is currently too low to sustain the population, 
manmade and natural threats are likely to continue at current or 
increased levels, and the population is likely to continue to decline 
such that the species is likely to become endangered in the foreseeable 
future and, therefore, continues to warrant threatened status.


    On the basis of the best available scientific and commercial 
information, as discussed above, we find that the Washington/Oregon/
California population of the murrelet is a valid DPS and is likely to 
become endangered within the foreseeable future (i.e., it is 
threatened, as defined by the ESA). Therefore, removing this DPS of the 
murrelet from the List is not warranted.

References Cited

    A complete list of all references cited herein is available upon 
request from the Washington Fish and Wildlife Office (see ADDRESSES).


    The primary authors of this document are the staff of the U.S. Fish 
and Wildlife Service (see ADDRESSES).


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

    Dated: December 22, 2009.
 Daniel M. Ashe,
Deputy Director, Fish and Wildlife Service.
[FR Doc. 2010-951 Filed 1-20-10; 8:45 am]