[Federal Register Volume 78, Number 213 (Monday, November 4, 2013)]
[Proposed Rules]
[Pages 65938-65953]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26122]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2013-0113: 4500030113]
RIN 1018-AY80


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition and Proposed Rule To Remove the Inyo California Towhee 
(Pipilo crissalis eremophilus = Melozone crissalis eremophilus) From 
the Federal List of Endangered and Threatened Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of petition finding; proposed rule; notice of 
availability of a draft post-delisting monitoring plan.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
remove the Inyo California towhee (Pipilo crissalis eremophilus = 
Melozone crissalis eremophilus) from the Federal List of Endangered and 
Threatened Wildlife due to recovery. This action is based on a review 
of the best available scientific and commercial information, which 
indicates that the species is no longer threatened with extinction. 
This proposed rule, if made final, would also remove the currently 
designated critical habitat for the Inyo California towhee throughout 
its range. This document also constitutes our 12-month finding on a 
petition to remove the Inyo California towhee from the Federal List of 
Endangered and Threatened Wildlife. We are seeking information and 
comments from the public on this proposed rule and the post-delisting 
monitoring plan. The Inyo California towhee occurs only in Inyo County, 
California.

DATES: The finding announced in this document was made on November 4, 
2013. We will accept comments received or postmarked on or before 
January 3, 2014. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES), the deadline for submitting an 
electronic comment is Eastern Standard Time on this date. We must 
receive requests for public hearings, in writing, at the address shown 
in the FOR FURTHER INFORMATION CONTACT section by December 19, 2013.

ADDRESSES: Comment submission: You may submit comments on the proposed 
rule and the post-delisting monitoring plan by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R8-ES-2013-0113, 
which is the docket number for this rulemaking. You may submit a 
comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R8-ES-2013-0113; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information).
    Document availability: A copy of the post-delisting monitoring plan 
can be viewed at http://www.regulations.gov under Docket No. FWS-R8-ES-
2013-0113, or at the Ventura Fish and Wildlife Office's Web site at 
http://www.fws.gov/ventura/.

FOR FURTHER INFORMATION CONTACT: Stephen P. Henry, Deputy Field 
Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES); by 
telephone 805-644-1766; or by facsimile (fax) at 805-644-3958. If you 
use a telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

Purpose of Regulatory Action

    In 2011, we received a petition from The Pacific Legal Foundation 
to remove from the Federal List of Endangered and Threatened Wildlife 
(delist) the Inyo California towhee based on the analysis and 
recommendations contained in our 2008 5-year status review of the 
species (Service 2008, p. 20). In 2012, we published a 90-day finding 
(77 FR 32922) that concluded that the petition presented substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted and initiated a status review. After review of 
all available scientific and commercial information, we find that 
delisting the Inyo California towhee is warranted due to recovery and 
we propose to remove this taxon from the Federal List of Endangered and 
Threatened Wildlife. This document consists of: (1) A 12-month finding 
in response to a petition to remove the Inyo California towhee from the 
Federal List of Endangered and Threatened Wildlife; (2) a proposed rule 
to delist the Inyo California towhee; and (3) a notice of availability 
of a draft post-delisting monitoring plan.

Basis for Finding

    Under the Endangered Species Act (Act), a species may be determined 
to be endangered or threatened because of any of five factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence. We must consider the 
same factors in delisting a species. We may delist a species if the 
best scientific and commercial data indicate the species is neither 
threatened nor endangered for one or more of the following reasons: (1) 
The species is extinct; (2) the species has recovered and is no longer 
threatened or endangered; or (3) the original scientific data used at 
the time the species was classified were in error.
    Threats to the Inyo California towhee at the time of listing 
included grazing by feral equines, recreational activities (hiking, 
camping, hunting, and off-highway vehicle (OHV) use), water diversion, 
and mining. Potential threats identified since listing include energy 
development, invasive and nonnative plants, predation (including nest 
parasitism), and climate change. We consider the Inyo California towhee 
to be recovered because all substantial

[[Page 65939]]

threats to the towhee have been ameliorated or reduced since listing. 
All remaining potential threats to the species and its habitat have 
been determined not to constitute a threat, or are being managed. Our 
finding is based on the following:
     Data indicate that, since 1998, the total rangewide 
population of Inyo California towhees has ranged from 640 to 741 
individuals, indicating a self-sustaining (productivity equals or 
exceeds mortality rate) population for the past 13 years that has 
increased from the estimated population of less than 200 Inyo 
California towhees at time of listing in 1987 (52 FR 28780 (August 3, 
1987)).
     Substantial threats to the Inyo California towhee and its 
habitat have been or are being addressed such that they have been 
ameliorated or reduced to the point where the species is not likely to 
become endangered in the foreseeable future throughout its range.
     The Service has entered into a cooperative management 
agreement with land managers to show their ongoing commitment to the 
conservation of the Inyo California towhee and its habitat (Service et 
al. 2010, entire) (see Recovery section for additional details).

Information Requested

    We intend that this proposed rule and any final action resulting 
from it will be based on the best scientific and commercial data 
available, and be as accurate and as effective as possible. Therefore, 
we request comments or information from the public, other governmental 
agencies, Native American tribes, the scientific community, industry, 
or other interested parties concerning this proposed rule. We 
particularly seek comments concerning:
    (1) Any threat (or lack thereof) to the Inyo California towhee;
    (2) The range, distribution, and location of any additional 
populations, and population size of the Inyo California towhee;
    (3) Habitat destruction and/or preservation in relation to the Inyo 
California towhee;
    (4) Current or planned activities in the towhee's habitat and the 
possible impacts to the towhee;
    (5) Data on population trends;
    (6) The life history of the Inyo California towhee; and
    (7) Information pertaining to the requirements for post-delisting 
monitoring of the towhee, including information on how best to conduct 
post-delisting monitoring should the proposed delisting lead to a final 
delisting rule (see Post-Delisting Monitoring Plan Overview section 
below, which briefly outlines the goals of the draft Post-Delisting 
Monitoring plan (PDM) plan). Such information might include suggestions 
regarding the draft objectives, monitoring procedures for establishing 
population and habitat baselines, or for detecting variations from 
those baselines over the course of at least 5 years.
    We will post your entire comment on http://www.regulations.gov. 
Before including your address, phone number, email address, or other 
personal identifying information in your comment, you should be aware 
that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment during normal business hours at the Ventura Fish and 
Wildlife Office (see ADDRESSES section).

Public Hearing

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be received by the date specified in DATES. 
Such requests must be made in writing and addressed to the Deputy Field 
Supervisor (see FOR FURTHER INFORMATION CONTACT section above).

Background

    Section 4(b)(3)(B) of the Act requires that, for any petition to 
revise the Federal Lists of Endangered and Threatened Wildlife and 
Plants that contains substantial scientific or commercial information 
that reclassifying the species may be warranted, we make a finding 
within 12 months of the date of receipt of the petition. In this 
finding, we will determine whether the petitioned action is: (a) Not 
warranted, (b) warranted, or (c) warranted, but the immediate proposal 
of a regulation implementing the petitioned action is precluded by 
other pending proposals to determine whether species are endangered or 
threatened, and expeditious progress is being made to add or remove 
qualified species from the Federal Lists of Endangered and Threatened 
Wildlife and Plants. We must publish these 12-month findings in the 
Federal Register.

Previous Federal Actions

    We first classified the Inyo California towhee as a category 1 
species in the December 30, 1982, Notice of Review of Candidate Species 
(47 FR 58454) as a result of habitat loss and degradation. Category 1 
candidates were those taxa for which we had substantial information on 
hand to support the biological appropriateness of proposing to list the 
species as endangered or threatened. We proposed the towhee for listing 
as threatened on November 23, 1984 (49 FR 46174); critical habitat was 
proposed concurrently with the proposed listing. The final listing rule 
with critical habitat for the towhee was published on August 3, 1987 
(52 FR 28780). On the same day the final listing rule for the towhee 
was published, we published a proposal to designate additional critical 
habitat (52 FR 28787); however, the designation of this additional 
critical habitat was never finalized.
    We published a notice announcing active review and requested 
information from the public concerning the status of the Inyo 
California towhee under section 4(c)(2) of the Act on March 22, 2006 
(71 FR 14538). No information regarding the status of the Inyo 
California towhee was received during the public comment period. In 
September 2008, we completed the 5-year review of the Inyo California 
towhee in which we recommended that the Inyo California towhee be 
removed from the Federal List of Endangered and Threatened Wildlife 
(Service 2008, p. 20). We notified the public of completion of the 5-
year review on March 25, 2009 (74 FR 12878). A copy of the 2008 5-year 
review for the Inyo California towhee is available on the Service's 
Environmental Conservation Online System. (http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=B07Q) and at http://www.regulations.gov.
    On December 21, 2011, we received a petition dated December 19, 
2011, from The Pacific Legal Foundation, requesting the Service to 
delist the Inyo California towhee based on the analysis and 
recommendations contained in the 2008 5-year review for the taxon. On 
June 4, 2012 (77 FR 32922), we published in the Federal Register a 90-
day finding that stated our conclusion that the petition presented 
substantial scientific or commercial information indicating that the 
petitioned action (delisting the Inyo California towhee) may be 
warranted.

[[Page 65940]]

Species Information

    When the Inyo California towhee was listed in 1987, it was 
classified as the Inyo brown towhee (Pipilo fuscus eremophilus), which 
was one of eight subspecies of what was then considered the brown 
towhee (Pipilo fuscus) (52 FR 28780, August 3, 1987). In 1989, the 
American Ornithologists' Union (AOU) (p. 536) split the brown towhee 
into two unique species, the canyon towhee (Pipilo fuscus) and the 
California towhee (Pipilo crissalis), dropping the name brown towhee 
altogether. The Inyo California towhee (Pipilo crissalis eremophilus) 
is classified as a subspecies of the California towhee. More recently, 
the AOU (2010, p. 727) changed the scientific name of the California 
towhee to Melozone crissalis, changing the Inyo California towhee 
scientific name to Melozone crissalis eremophilus. The Inyo California 
towhee is listed as Pipilo crissalis eremophilus on the Federal List of 
Endangered and Threatened Wildlife (50 CFR 17.11), which we consider 
equivalent to Pipilo crissalis eremophilus. These changes did not alter 
where or to what individuals protections of the Act apply.
    The Inyo California towhee is restricted to the southern Argus 
Mountains in the Mojave Desert, Inyo County, California (Service 2008, 
p. 23). The towhee was thought to have been more widespread prior to 
climate changes at the beginning of the Pliocene Epoch (roughly 5.4-2.4 
million years ago) that constrained the subspecies to its current 
distribution (Davis 1951, pp. 1-120). Because the range of Inyo 
California towhee has not changed post-Pliocene Epoch, it is considered 
to currently occupy its entire historical range, though there are 
indications that individuals have dispersed outside this range in 
recent years. Within its historical range, the Inyo California towhee 
occupies dense riparian vegetation and adjacent upland habitats. The 
riparian habitat, which the towhee relies on for nesting, protection 
from predators, and shade from the desert sun, is supported by 
groundwater-fed springs in most cases. However, the amount, quality, 
and location of habitat is dynamic and varies annually due to its 
dependence on water and location in the desert. The surrounding upland 
habitat on adjacent slopes is used extensively for foraging, making 
these upland areas an important component of the towhee's habitat. The 
distribution of the Inyo California towhee's range occurs predominantly 
on Federal lands: 68 percent on Department of Defense (Navy) land 
within the Naval Air Weapons Station, China Lake (NAWS China Lake); 26 
percent on Bureau of Land Management (BLM) land; 5 percent on 
California Department of Fish and Wildlife (CDFW) land; and less than 1 
percent on private property (LaBerteaux and Garlinger 1998, p. 7; 
LaBerteaux 2004, p. 1; 2008, p. 1; 2011, p. 1; Service 2008, p. 23).
    California towhees, including the Inyo California towhee, are 
omnivorous, feeding on seeds, grain, invertebrates and fruit, with the 
composition of their diet changing with food availability (Davis 1957, 
pp. 129-166). Inyo California towhees are year-round residents, and 
territories, which range from 25 to 62 acres (ac) (10 to 25 hectares 
(ha)), are defended by both the male and female, which mate for life. 
The breeding season generally starts in early spring, coinciding with 
local plant growth and flowering periods. The most frequent clutch size 
is four eggs, but can range from two to four. Incubation takes about 14 
days, and nestlings may fledge in as little as 8 days after hatching. 
Fledglings are fed by the adults for at least 4 weeks, and juveniles 
are independent by about 6 weeks of age, but remain within their natal 
territory through the subsequent fall and winter. The birds reach 
sexual maturity in the first breeding season after hatching (LaBerteaux 
1989, pp. 42-48). For additional information on range and biology of 
the Inyo California towhee, see the 2008 5-year status review of the 
species (Service 2008, entire).
    We listed the Inyo California towhee as threatened and designated 
critical habitat in 1987 (52 FR 28780, August 3, 1987) because of the 
loss and degradation of the dense riparian habitat the towhee requires. 
Riparian vegetation is naturally limited in extent in the desert, and 
destruction of this vegetation from feral animal grazing, recreational 
activities, water diversion, and mining (specifically from water 
diversion for mining activities) had significantly degraded and reduced 
the towhee's already limited habitat.
    From 1978 to 1979, towhee populations were estimated to be 72-138 
individuals (Cord and Jehl 1979, p. 154). At the time of listing in 
1987, we estimated the population to have been fewer than 200 
individuals (52 FR 28780). LaBerteaux estimated the minimum population 
size of the Inyo California towhee in 1994 to be 180 adults based on a 
combination of her own observations and data from several other 
researchers (LaBerteaux 1994, p. 6). In 1998, LaBerteaux and Garlinger 
conducted the first systematic surveys for the Inyo California towhee 
of what was then considered to be nearly all the potential habitat in 
the southern Argus Range, including NAWS China Lake, BLM, and CDFW 
lands. LaBerteaux and Garlinger detected towhees at 210 (81 percent) of 
the 258 sites (areas of suitable riparian habitat often, but not 
always, associated with springs) surveyed and estimated the total 
towhee population to be 640 adults (1998, p. 7). A portion of this 
increase over 1994 estimates was likely the result of differences in 
methodology; however, the species was occupying areas not occupied 
during the earlier surveys, and there were a greater number of towhees 
occupying areas that were included in previous surveys, indicating that 
an actual increase had occurred.
    In 2004, LaBerteaux conducted systematic surveys of 93 sites 
located on BLM and CDFW lands (31 percent of the towhee's range) and 
detected towhees at 70 (75 percent) of the sites (LaBerteaux 2004, p. 
11). LaBerteaux (2004, pp. ii, 57) estimated the BLM and CDFW 
population had increased 13.6 percent at those sites that were surveyed 
in both 1998 and 2004. Extrapolating the results to the 69 percent of 
the range not included in the survey, LaBerteaux estimated the 
rangewide population to be 725 adults (LaBerteaux 2004, pp. ii, 60).
    In 2007, LaBerteaux (2008, entire) conducted systematic surveys of 
185 sites on NAWS China Lake land (68 percent of the towhee's range) 
and detected towhees at 140 (76 percent) of the sites (LaBerteaux 2008, 
p. 10). LaBerteaux (2008, pp. iii, 11) estimated the NAWS China Lake 
population had increased by 2.8 percent for those sites that were 
surveyed in both 1998 and 2007. Based on the results of the 2007 
surveys, in combination with the 2004 surveys on BLM and CDFW lands, 
LaBerteaux (2008, pp. iii, 85) estimated the Inyo California towhee 
population to be 706 to 741 adults rangewide.
    In 2011, LaBerteaux (2011, entire) conducted systematic surveys of 
93 sites on BLM and CDFW lands and detected towhees at 74 (80 percent) 
(LaBerteaux 2011, p. 12). This represents a population increase of 6.3 
percent for those sites that were surveyed in both 2004 and 2011 
(LaBerteaux 2011, pp. ii, 12, 63). Based on the results of the 2011 
surveys (227 individuals; LaBerteaux 2011, pp. ii, 12), and in 
combination with the 2007 surveys on NAWS China Lake (502 individuals; 
LaBerteaux 2008, p. 10), the total range-wide population is estimated 
to be 729 adults.
    Based on the results of the four systematic surveys conducted over 
the 13-year period from 1998 to 2011, the estimated total range-wide 
population of the towhee has ranged between 640 and

[[Page 65941]]

741 individuals (LaBerteaux 2011, p. 66). Though the total range-wide 
population has fluctuated, the survey results show that abundance has 
increased at previously surveyed sites, towhees are occupying new areas 
in their historical range in the Argus Range, and there has been as 
much as a four-fold increase in towhee abundance since the time of 
listing when the population was less than 200 individuals. Furthermore, 
the results of these surveys indicate there are stable to increasing 
population numbers and that the population is self-sustaining, which is 
likely a positive response to those conservation actions implemented by 
the NAWS China Lake, BLM, and CDFW. Finally, indications of potential 
range expansion, outside of the Argus Range, have been noted with 
observations of single birds in the Panamint Range. Although portions 
of the Coso Range (west of the Argus Range) and the Panamint Range 
(east of the Argus Range) have been included in surveys since 1998, no 
towhees were detected in these areas (LaBerteaux, and Garlinger 1998, 
p. 7; LaBerteaux 2011, pp. ii, 12, 19, 64). However, in April 2012, two 
towhees were observed in Surprise Canyon in the Panamint Range, which 
is roughly 20 miles (mi) (32 kilometers (km)) east of the Argus Range 
(Ellis 2012b, in litt.). While information on the species expanding 
outside the Argus Range is preliminary, these observations could 
indicate that current populations in the Argus Range may in some years 
be producing more individuals than the habitat can support (than there 
are territories available) with excess individuals dispersing to other 
areas with potentially suitable habitat. It is a possible indication of 
resilient populations with positive demographic trends where 
productivity is equal to or exceeds mortality.

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include: 
``Objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of [section 4 of the 
Act], that the species be removed from the list.'' However, revisions 
to the list (adding, removing, or reclassifying a species) must reflect 
determinations made in accordance with sections 4(a)(1) and 4(b) of the 
Act. Section 4(a)(1) requires that the Secretary determine whether a 
species is endangered or threatened (or not) because of one or more of 
five threat factors. Section 4(b) of the Act requires that the 
determination be made ``solely on the basis of the best scientific and 
commercial data available.'' Therefore, recovery criteria should help 
indicate when a species is no longer an endangered species or 
threatened species because of any of the five statutory factors.
    Thus, while recovery plans provide important guidance to the 
Service, States, and other partners on methods of minimizing threats to 
listed species and measurable objectives against which to measure 
progress towards recovery, they are not regulatory documents and cannot 
substitute for the determinations and promulgation of regulations 
required under section 4(a)(1) of the Act. A decision to revise the 
status of or remove a species from the Federal List of Endangered and 
Threatened Wildlife (50 CFR 17.11) is ultimately based on an analysis 
of the best scientific and commercial data then available to determine 
whether a species is no longer an endangered species or a threatened 
species, regardless of whether that information differs from the 
recovery plan.
    The following discussion provides a brief review of recovery 
planning and implementation for the Inyo California towhee, as well as 
an analysis of the recovery criteria and goals as they relate to 
evaluating the status of the taxon.
    The Recovery Plan for the Inyo California Towhee (Recovery Plan; 
Service 1998) included criteria for delisting the species. The Recovery 
Plan described, in part, the need for the establishment of a population 
of at least 400 individuals for a 5-year period (Service 1998, pp. iii, 
14). This population goal, based on the best available information at 
the time, was estimated to be the carrying capacity of the towhee's 
habitat and represented a reproductively self-sustaining population 
(Service 1998, p. 14). In addition, the delisting criteria stated that 
threats to the species' habitat must be reduced and managed, and 
degraded habitat must be restored and maintained (Service 1998, p. 
iii). The recovery strategy focused on monitoring the population; 
managing, reducing, or eliminating threats to the habitat; and 
rehabilitating destroyed or degraded habitat.
    The Recovery Plan identified reduction of threats to the towhee's 
limited riparian habitat as critical to its recovery (Service 1998, pp. 
15-18). The most serious threats to the towhee's riparian habitat were 
grazing by feral equines, recreational activities, and water diversion; 
however, these threats have now all been reduced. Since 1980, Navy- and 
BLM-funded round-ups have removed more than 9,400 feral equines (5,884 
burros (Equus asinus) and 3,539 horses (Equus caballus)) from the 
region where the towhee occurs (Easley 2012, in litt.). In addition, 
both the BLM and NAWS China Lake have installed and are maintaining 
fencing around some affected springs occupied by towhees to limit 
grazing by feral equines (LaBerteaux 2011, p. 65; Campbell 2012, in 
litt.; Ellis 2012a, in litt., 2013a, in litt.). Habitat degradation 
from recreation has also been reduced in many riparian areas by fencing 
installed to protect habitat from feral grazers (Service 2008, pp. 12-
13). Also, since 1998, the number of springs where water diversion was 
occurring has been reduced from six to four sites, or by about 33 
percent (LaBerteaux and Garlinger 1998, p. 80; LaBerteaux 2008, 
Appendix C, Record No. 229, 230; LaBerteaux 2011, p. 15; Ellis pers. 
comm. 2012). For a more detailed discussion of threats to the towhee 
and measures taken to reduce those threats, see below under Summary of 
Factors.
    The efforts by the BLM and NAWS China Lake to protect, improve, and 
expand the towhee's riparian habitat corresponded with as much as a 
four-fold increase in towhee abundance since the time of listing. From 
1978 to 1979, towhee populations were estimated to be 72-138 
individuals (Cord and Jehl 1979, p. 154). At the time of listing in 
1987, the population was estimated to have been fewer than 200 
individuals (52 FR 28780). Based on the results of subsequent surveys 
(see Background section for details), LaBerteaux (2011, p. 66) 
estimates the towhee population ranged from 640 to 741 adults over the 
13-year period from 1998 through 2011. At the time the recovery plan 
was prepared, we considered that a population of 400 adults represented 
a self-sustaining population based on carrying capacity of the habitat. 
Based on current population estimates (640 to 741) and surveys (as 
detailed in the Background section), the carrying capacity of available 
towhee habitat is considered to be greater than that estimated at the 
time of the recovery plan. Given the stable-to-increasing population 
numbers over the last 13 years (and possible range expansions), the 
recovery goal of achieving a self-sustaining population has been 
achieved.
    The continuation of currently implemented conservation measures 
will be important for maintaining the Inyo California towhee's 
recovery. In

[[Page 65942]]

2010, the Service entered into a cooperative management agreement with 
the NAWS China Lake, BLM, and CDFW for the ongoing conservation of the 
Inyo California towhee (Service et al. 2010, entire). Although not a 
regulatory document and subject to funding availability, this agreement 
includes a commitment by all signatories to continue implementing 
conservation measures for the towhee regardless of a change in its 
Federal and/or State status. The agreement is in effect until 
terminated by one of the parties, which requires written notification 
that termination is being considered and a meeting by all parties to 
attempt to resolve concerns. Conservation measures in the agreement 
include: The ongoing removal of feral equines; protection of riparian 
areas by fencing when necessary; maintaining existing fencing; 
regulating recreational use; monitoring and controlling or eliminating 
nonnative plants; and conducting periodic surveys of towhee abundance, 
habitat condition, and threats. These conservation measures mirror 
those described in the Recovery Plan, and are intended to protect, 
restore, and conserve the towhee's habitat. The agreement also includes 
a provision that it will be reviewed by all the agencies every 5 years 
to ensure that it is up to date, that conservation measures continue to 
be effective, and that any new threats to the towhee or its habitat are 
being addressed. Conservation measures that have been carried out since 
the agreement was signed in 2010 include the removal of additional 
feral equines from the towhee's range, inspections and repairs of 
fencing around springs, and surveys of towhee abundance, habitat, and 
threats on BLM and State lands.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for listing species, reclassifying 
species, or removing species from listed status. ``Species'' is defined 
by the Act as including any species or subspecies of fish or wildlife 
or plants, and any distinct vertebrate population segment of any 
species of fish or wildlife that interbreeds when mature (16 U.S.C. 
1532(16)). A species may be determined to be an endangered or 
threatened species because of any one or a combination of the five 
factors described in section 4(a)(1) of the Act: (A) The present or 
threatened destruction, modification, or curtailment of its habitat or 
range; (B) overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or humanmade 
factors affecting its continued existence. A species may be 
reclassified on the same basis. 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 (as is the case 
with the Inyo California towhee); and/or (3) the original scientific 
data used at the time the species was classified were in error.
    A recovered species is one that no longer meets the Act's 
definition of threatened or endangered. Determining whether a species 
is recovered requires consideration of the same five categories of 
threats specified in section 4(a)(1) of the Act. For species that are 
already listed as threatened or endangered, this analysis of threats is 
an evaluation of both the threats currently facing the species and the 
threats that are reasonably likely to affect the species in the 
foreseeable future following the delisting or downlisting and the 
removal or reduction of the Act's protections.
    A species is an ``endangered species'' for purposes of the Act if 
it is in danger of extinction throughout all or a ``significant portion 
of its range'' (section 3(6) of the Act) and is a ``threatened 
species'' if it is likely to become an endangered species within the 
foreseeable future throughout all or a ``significant portion of its 
range'' (section 3(20) of the Act). The Act does not define the term 
``foreseeable future.'' For the purposes of this rule, we define the 
``foreseeable future'' to be the extent to which, given the amount and 
substance of available data, we can anticipate events or effects, or 
reliably extrapolate threat trends, such that reliable predictions can 
be made concerning the future as it relates to the status of the Inyo 
California towhee. Specifically, for the Inyo California towhee, we 
consider two factors: the management of threats and the response of the 
species to management. First, the threats to the species have been 
successfully ameliorated, largely due to management plans that are 
currently in place and expected to stay in place, and that are expected 
to successfully continue to control potential threats (BLM 1999, 
entire; BLM 2001, entire; BLM 2005, entire; NAWS China Lake 2000, 
entire; NAWS China Lake 2001, entire). Management plans that consider 
natural resources are required by law for all Federal lands on which 
the Inyo California towhee occurs, which encompass almost 95 percent of 
the species' range. Management plans are required to be in effect at 
all times (in other words, if the revision does not occur, the previous 
plan remains in effect) and to be in compliance with various Federal 
regulations. Those plans can be amended to update information or change 
management direction. The Regional Plans covering the range of the 
towhee were amended in the mid-2000's, after approximately 25 years of 
implementation. We anticipate the existing plans will be implemented 
approximately another 25 years before being amended again. Further, all 
Federal and State landowners have signed the cooperative management 
agreement to provide protection for the species (Service et al. 2010, 
entire). We anticipate that this cooperative management agreement will 
be considered in any future land management plan amendments completed 
by BLM. Second, the Inyo California towhee has demonstrated a quick 
positive response to management over the past 25 years since the 
species was listed; based on this, we anticipate being able to detect a 
species' response to any changes in the management that may occur 
because of a plan amendment. Therefore, in consideration of the Inyo 
California towhees' positive response to management, and the 
expectation that the next revision of the management plans will address 
continued management that benefits the towhee, we define the 
foreseeable future for the Inyo California towhee to be the remaining 
lifespan of the BLM's Regional Management Plans (last updated in 2001 
and 2005, 15 years remaining) and that of the next revision (25 years), 
for a total of 40 years. The word ``range'' in the significant portion 
of its range (SPR) phrase refers to the range in which the species 
currently exists. For the purposes of this analysis, we will evaluate 
whether the currently listed species, the Inyo California towhee, 
should be considered threatened or endangered. Then we will consider 
whether any portions of Inyo California towhee's range are in danger of 
extinction or likely to become endangered within the foreseeable 
future.
    The following analysis examines all five factors currently 
affecting, or that are likely to affect, the Inyo California towhee 
within the foreseeable future.

[[Page 65943]]

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

    Under Factor A in the final listing rule (52 FR 28780), we stated 
that threats to the Inyo California towhee and its habitat included 
grazing by feral equines, recreational activities, water diversion, and 
mining. Since listing, nonnative and invasive plants and climate change 
have also been identified as potential threats (LaBerteaux 2008, pp. 
80, 83, 85; Service 2008, pp. 10, 12-13; LaBerteaux 2011, p. 67). We 
did not identify climate change as a potential threat to the Inyo 
California towhee in our 2008 5-year review. However, since that time, 
we have assessed new information about climate changes (See Climate 
Change, below). LaBerteaux (2011, p. 67) also identified energy 
development as a potential new threat to the towhee; however, there are 
no existing energy projects within the range of the Inyo California 
towhee, and the best available information does not indicate that any 
proposed energy development projects are in its range. Therefore, we do 
not consider energy development to be a threat to the Inyo California 
towhee. Additionally, we identified fire and flood as threats to the 
towhee and its habitat in the 2008 5-year review (Service 2008, pp. 10, 
18-19). All of the above-mentioned impacts can potentially affect the 
towhee through degradation, fragmentation, and destruction of its 
habitat, as further discussed below.
Feral Equines
    One of the most serious threats to the Inyo California towhee at 
the time of listing was loss or degradation of habitat, which was 
partly due to feral equines (52 FR 28780). According to Cord and Jehl 
(1979, pp. 79-118) and Laabs et al. (1992, Table 2), most springs that 
supported Inyo California towhees or riparian vegetation were degraded 
by feral burro use and/or human activities (mining, for example, 
discussed below). At the time of listing, grazing was widespread 
throughout the towhee's range and had substantially reduced the ability 
of these habitats to support towhees. Grazing by feral equines damages 
and destroys habitat through trampling and browsing of the vegetation 
(52 FR 28780). Feral burros are destructive to towhee habitat due to 
their practice of taking dust baths by rolling and rubbing themselves 
on the ground. Up to 10 feet (3 meters) in diameter, these ``burro 
baths'' destroy vegetation and create miniature dust bowls (Cord and 
Jehl 1979, pp. 79-118).
    The threat of grazing has been reduced by the NAWS China Lake and 
BLM through the reduction in the number of feral equines within the 
range of the Inyo California towhee. For example, in the early 1980s as 
many as 7,000 feral equines were estimated to occur on NAWS China Lake 
(NAWS China Lake 2011, pp. i, 35). Since 1980, roundups funded by the 
NAWS China Lake and BLM have resulted in the removal of more than 9,400 
feral equines (5,884 feral burros and 3,539 feral horses) from the 
region where the towhee occurs (Easley 2012, in litt.). This has 
reduced the feral equine population on NAWS China Lake to 682 feral 
equines, a reduction of about 90 percent of the number in the early 
1980s (NAWS China Lake 2011, pp. i, 35). The BLM and NAWS China Lake 
have committed through a cooperative management agreement with the 
Service to continue working together to remove feral equines from the 
Argus Range, with the goal of eliminating feral burros (Service et al. 
2010, pp. 5, 7). Based on the results of their 1998 rangewide survey, 
LaBerteaux and Garlinger identified 12 springs as critically in need of 
fencing to protect them from feral equines (1998, pp. 66-79, 91). To 
date, NAWS China Lake and BLM have fenced a total of 17 springs and are 
committed to fencing additional areas if high levels of impacts by 
feral equines occur (Service et al. 2010, entire).
    Although vandals and erosion occasionally compromise the integrity 
of fencing, the BLM periodically monitors the condition of fences and 
makes repairs when necessary (Ellis 2006, pers. comm.; Ellis 2013a, in 
litt.). For example, in 2011, the BLM (Ellis 2012a, in litt.) repaired 
fencing at Christmas Spring after LaBerteaux (2011, p. 65) alerted them 
that feral equines were accessing the water source (LaBerteaux 2011, p. 
65). NAWS China Lake has repaired, expanded, or installed fencing at 
several springs; however, monitoring occurs infrequently and as time 
allows (Campbell 2012, in litt.). These actions are sufficient to 
maintain the improved status of the habitat, and both BLM and NAWS 
China Lake have committed to continue actions that control threats in 
the cooperative management agreement (Service et al. 2010, entire).
    Since 1998, surveys have been conducted to evaluate impacts of 
feral equines on the habitat around springs where towhees occur 
(referred to as ``water source surveys''). Towhee habitat on BLM and 
CDFW lands was surveyed in 1998 (LaBerteaux and Garlinger 1998, pp. 5-
6, 65-80, Appendix C), 2004 (LaBerteaux 2004, pp. 8-10, 41-51), and 
2011 (LaBerteaux 2011, pp. 8-10, 14-16, 51-56, Appendix C), while NAWS 
China Lake lands were surveyed in 1998 (LaBerteaux and Garlinger 1998, 
pp. 5-6, 65-80, Appendix C) and 2007 (LaBerteaux 2008, pp. 8-9, 55-71, 
Appendix C). The data from these surveys show that recovery actions 
have resulted in improvements in the quality of towhee habitat 
throughout the species' range. On BLM and CDFW lands, the proportion of 
sites classified as having moderate to severe impacts from feral 
equines declined from 69.3 percent in 1998 to 37.4 percent in 2011. On 
NAWS China Lake lands, the proportion of sites classified as having 
moderate to severe impacts from feral equines declined from 61.1 
percent in 1998 to 46.4 percent in 2007. Based on the best available 
information, we conclude that the current level of feral equines does 
not constitute a substantial threat to Inyo California towhee as 
population numbers have increased.
    Management of feral equines is an ongoing challenge, and often 
funding and space at storage facilities for captured animals are 
limiting factors; however, the BLM and NAWS China Lake continue to 
coordinate their efforts and are committed to managing feral equines 
per the cooperative management agreement (Service et al. 2010, entire) 
and land management plans on both BLM and NAWS China Lake property. For 
example, the NAWS China Lake has secured funding for feral burro 
removals in fall 2013, and has repaired and fenced several springs 
(Campbell 2013, in litt.). All Department of Defense installations, 
including the NAWS China Lake, are required to operate under an 
Integrated Natural Resources Management Plan (INRMP), which is designed 
to provide for the conservation and rehabilitation of natural resources 
on military lands consistent with the use of military installations, 
per the Sikes Act (16 U.S.C. 670) (Factor D below).
    As part of their updated INRMP, NAWS China Lake has developed a 
Wild Horse and Burro Management Plan that identifies several goals that 
would benefit the Inyo California towhee and its habitat. To summarize, 
these goals include: (1) Maintaining the Centennial Horse Herd (the 
herd in the Centennial Herd Management Area, which occurs adjacent to 
and overlaps to some degree with the range of the towhee) within a 
range of 100 to 168 animals, (2) achieving and maintaining a zero burro 
population, and (3) reducing the horse herd to minimize damage to water 
resources, riparian areas, and uplands, which would promote the 
recovery of

[[Page 65944]]

native plant and animal populations (NAWS China Lake 2011, pp. i, 36). 
Overall, the numbers of feral equines have been reduced on the NAWS 
China Lake by about 90 percent (NAWS China Lake, pp. i, 35). Although 
some feral equines remain within the range of the towhee, and 
management of feral equines continues to be an ongoing issue, 
landowners are managing for them as per the cooperative management 
agreement. Further, the number of towhees has increased substantially 
and their habitat quality has improved since listing, primarily as a 
result of the reduced and managed numbers of feral equines and 
secondarily due to the management of feral equine access to towhee 
habitat through fencing. Because the INRMP is a required document of 
all Department of Defense installations per the Sikes Act (16 U.S.C. 
670) with the overarching goal of conserving and rehabilitating natural 
resources, we anticipate that this or a similar plan that addresses 
feral equine management will be in place in the future. Therefore, we 
conclude that the management of feral equines has successfully 
decreased this threat to towhees, and management of this threat will 
continue in the future.
Recreational Activities
    Recreation (hiking, camping, hunting, and OHV use) may result in 
loss and degradation of habitat through crushing by vehicles; trampling 
by hikers, hunters, and campers; cutting for firewood; and soil 
compaction. Recreational impacts mainly occur on BLM and CDFW lands, 
which are open to the public. The NAWS China Lake is closed to most 
public uses (Pennix 2006, pers. comm.), and surveys of NAWS China Lake 
lands in 1998 and 2007 found that most sites had negligible or no 
human-caused impacts (86 and 96 percent of sites, respectively) 
(LaBerteaux and Garlinger 1998, pp. 66-79; LaBerteaux 2008, pp. 56-64).
    As of 2011, recreational impacts mainly occur on BLM and CDFW lands 
(approximately 31 percent of the species range), but those impacts are 
limited in scope and severity (approximately 10 percent of sites 
surveyed had moderate impacts; LaBerteaux 2011, pp. 51-56). Human-
caused impacts from recreation on BLM and CDFW lands have remained 
generally the same from 1998 through 2011 (LaBerteaux and Garlinger 
1998, pp. 66-79; LaBerteaux 2011, pp. 51-56). Many of the sites have 
had little to no human-caused impacts, likely due to remoteness of the 
sites and lack of access (range, 37-48 percent of all sites), and where 
impacts do occur, they are at a low level (defined as those sites with 
slight impact on vegetation, few foot trails, no OHV activity, and no 
heavily used campsites) in most cases (range, 74-88 percent of affected 
sites) (LaBerteaux and Garlinger 1998, pp. 66-79; LaBerteaux 2004, pp. 
42-46). In 1998, severe human-caused impacts on BLM and CDFW lands 
occurred at four sites, mainly from heavy OHV use and camping 
activities (LaBerteaux and Garlinger 1998, pp. 65, 71, 72, 74). 
However, results from the 2011 survey (LaBerteaux 2011, pp. 51, 53, 54) 
indicated that recreational impacts at these same four sites were 
reduced. This reduction was likely due to the fact that three of the 
four springs had been fenced to exclude feral grazers, which also 
excluded recreational users.
    In 2004, human-caused impacts on BLM and CDFW lands were mostly low 
to negligible (93 percent of sites), and no springs were considered to 
be severely affected (LaBerteaux 2004, pp. 42-46, 47). In 2011, severe 
human impacts occurred at three sites on BLM lands (LaBerteaux 2011, p. 
56). However, these sites were all located in the Panamint Range, which 
is outside the known historical range of the species. No breeding 
towhees are known to occur in the Panamint Range (LaBerteaux 2011, p. 
41), although a few individual towhees have been observed there. 
Although recreational activities will continue within the range of the 
towhee, they have been reduced and are expected to remain at very low 
levels in the future due to ongoing management actions and the existing 
cooperative management agreement (Service et al. 2010, entire). Current 
levels of recreation are not having a major impact on the towhee as 
indicated by the increases in the number of towhees and amount and 
quality of habitat. The current level of recreation is expected to 
continue or decrease into the future based on management commitments. 
Therefore, based on the best available information, we conclude that 
recreational activities do not constitute a substantial threat to the 
Inyo California towhee now or in the future.
Water Diversion
    Although water diversion has the potential to impact towhee 
breeding habitat, it occurs at only a few springs within the range of 
the towhee. Water diversion can reduce the amount of water available to 
maintain healthy riparian vegetation. As described in the Species 
Information section, towhees rely on riparian vegetation for nesting, 
protection from predators, and shade from the desert sun; consequently, 
a reduction in riparian vegetation due to water diversion could impact 
their survival and breeding success. Water rights have been 
appropriated on most springs situated on BLM-administered lands for 
activities such as livestock grazing and mining (52 FR 28780). In 1998, 
water diversion was occurring at 6 (2.3 percent) of the 264 sites 
surveyed for towhees (LaBerteaux and Garlinger 1998, pp. 80, 91-92). In 
2007 (NAWS China Lake lands) and 2011 (BLM/State lands), water 
diversions were occurring at only three (two on BLM lands and one on 
NAWS China Lake) of the original six sites or about 1.1 percent of the 
278 sites surveyed for towhees (LaBerteaux 2011, p. 15). The water 
diversions occurring at the two sites on BLM land are for small, 
domestic use, for which the landowners have legal water rights (Ellis 
pers. comm. 2012), while excess water from the other site is diverted 
by NAWS China Lake to ponds downslope (Easley 2012, in litt.). The NAWS 
China Lake may also occasionally use spring water for certain 
activities such as dust abatement during construction or maintenance 
activities. However, the INRMP includes a commitment to ensure 
protection of groundwater resources, which is necessary to ensure the 
long-term population viability of the Inyo California towhee, an 
objective of the plan (NAWS China Lake 2000, pp. 112, 135).
    Despite these water diversions, habitat remains suitable at these 
sites. Researchers observed towhees with young, or displaying behavior 
that suggests they have young or a nest nearby at the two BLM sites 
during surveys in 1992, 1998, and 2004 (LaBerteaux 2011, Appendix C, 
Record No. 20, 31). Juveniles were also observed at the spring located 
on NAWS China Lake in 1998 (LaBerteaux 1998, pp. 59, 64). The presence 
of suitable habitat and observation of towhees indicate that sufficient 
water remains at these springs to support towhees and their habitat. 
Further, the number of water diversions at towhee-occupied sites has 
decreased slightly and represents approximately 1 percent of the sites 
(associated with water sources) surveyed in 2007 and 2011 (Service 
2013). Despite the ongoing diversions, increases in the overall number 
of towhees and amount and quality of habitat have occurred, indicating 
the quantity of water diversion is not sufficient to make habitat 
unsuitable for the towhee. Therefore, because of the limited number of 
springs where water diversions occur and the limited amount of water 
diverted, we conclude that current levels of water diversion do

[[Page 65945]]

not pose a substantial threat to the Inyo California towhee now or in 
the future.
Mining
    Mining was considered a threat at the time of listing, but is no 
longer occurring within the species' range. Mining operations usually 
require the use of water, and at the time of listing, numerous mining 
claims on BLM land occurred within the range of the towhee and were 
often associated with springs (52 FR 28780). Since our 2008 5-year 
status review, the one mine that remained within the Argus Mountains 
has been closed, and all mining claims have been relinquished (Ellis 
2013b, in litt.). Mining was eliminated entirely from the NAWS China 
Lake in 1943 (52 FR 28780). Because there are no longer any mines or 
mining claims in Inyo California towhee habitat, we conclude that 
mining and associated activities, such as water diversion, are not a 
threat to the Inyo California towhee now or in the future.
Invasive and Nonnative Plants
    A potential threat identified subsequent to listing is encroachment 
of invasive and nonnative plant species (LaBerteaux 2008, p. 80; 
Service 2008, pp. 10, 12-13). Disturbed areas, such as those caused by 
feral grazers, allow for the establishment of nonnative plant species 
including salt cedar (Tamarix spp.) and athel (Tamarix aphylla) 
(collectively referred to as tamarisk). Although a native plant, the 
invasive carrizo (Phragmites australis) may choke out other riparian 
vegetation and may not be optimal habitat for towhees. While both 
tamarisk and carrizo continue to occur in towhee habitat, the available 
information does not establish that they are increasing, and both the 
BLM and NAWS China Lake have active programs to remove tamarisk from 
springs (Service et al. 2010, pp. 5, 7). On the NAWS China Lake, the 
proportion of sites with tamarisk increased from 2 percent in 1998 
(LaBerteaux and Garlinger 1998, pp. 66-79) to 6 percent in 2007 
(LaBerteaux 2008, pp. 56-63), while that for carrizo remained at 10 
percent. However, subsequently, personnel at the NAWS China Lake 
removed tamarisk from several areas (Service et al. 2010, entire; 
Campbell 2012, in litt.) and have indicated their commitment in the 
cooperative management agreement to removing tamarisk from towhee 
habitat in the future (Service et al. 2010, p. 7). The proportion of 
sites with tamarisk on BLM and CDFW lands increased from 4 percent in 
1998 (LaBerteaux and Garlinger 1998, pp. 66-79) to 8 percent in 2004 
(LaBerteaux 2004, pp. 42-46). However, the BLM has been removing 
tamarisk from several sites, and, as of 2011, the proportion of sites 
with tamarisk on BLM and CDFW lands had been reduced to 5 percent 
(LaBerteaux 2011, pp. 51-56, 65-66). The BLM has also indicated their 
commitment in the cooperative management agreement to removing tamarisk 
from towhee habitat in the future (Service et al. 2010, p. 5).
    Little information exists on the effects of these plant species on 
the Inyo California towhee. The monitoring reports do not indicate that 
any towhees have been observed utilizing tamarisk, and there is no 
information regarding the towhee's ability to establish breeding 
territories in riparian habitat dominated by tamarisk (LaBerteaux 2008, 
p. 83). However, in 2011 an adult towhee was observed feeding its 
fledglings in carrizo (LaBerteaux 2011, p. 16). Additionally, other 
species that are adapted to riparian habitat in the southwest, such as 
the southwestern willow flycatcher (Empidonax trailli extimus), have 
been documented to use tamarisk when nesting and do not appear to 
suffer from negative physiological effects (Owen et al. 2005, entire), 
reduced survivorship, or productivity (Sogge et al. 2006 in Sogge et 
al. 2008; Paxton et al. 2007, p. 140). Although we do not know if or 
how these plant species (carrizo, tamarisk) affect the habitat of the 
towhee, these invasive and nonnative plants currently comprise only a 
small portion of the total amount of habitat available to the towhee 
and there is no indication that these plant species may negatively 
affect the towhee.
    In summary, while these plants occur within towhee habitat, there 
is no indication that they are spreading to the point of being the 
dominant vegetation type in these riparian areas or having a negative 
impact on the towhee, and the BLM and NAWS China Lake are working to 
control, or in some cases, eliminate them (Service et al. 2010, pp. 5, 
7). The best available information does not indicate that nonnative and 
invasive plants are threats to the towhee. Therefore, we do not 
consider the current abundance and distribution of a nonnative and 
invasive species in a small portion of the towhee's range a threat to 
the species now or in the future.
Fires and Floods
    We did not identify fires or floods as a threat to the Inyo 
California towhee in the final listing. However, these natural and 
manmade disturbances may temporarily reduce the habitat of the Inyo 
California towhee in some areas. For example, in 2005 a human-caused 
fire burned about 10 percent of the towhee habitat on NAWS China Lake, 
and subsequently was followed by a flash flood that resulted in the 
additional loss of vegetation and increased erosion (LaBerteaux 2006, 
entire). However, within one year, LaBerteaux observed the recovery of 
upland and riparian vegetation and observed towhees in most of the 
areas impacted by the fire and flood (LaBerteaux 2006, pp. 11-14). 
LaBerteaux (2006, pp. 13-14) also observed nonnative plant species such 
as red brome (Bromus madritensis) and cheatgrass (Bromus tectorum) in 
the upland habitat and tamarisk in the riparian habitat.
    These natural and manmade events may have had a greater impact on 
the Inyo California towhee had they occurred at the time when towhee 
numbers were low and riparian habitat had been reduced and degraded. 
However, towhees have increased in abundance and now have a wider 
distribution, and the condition of their habitat has improved, 
lessening the impact of such events. In addition, prior to the 2005 
fire, the Navy updated their wildland fire response to include Inyo 
California towhee habitat as a protection priority (Pennix 2006, pers. 
comm.). Presently, we consider these natural and manmade factors to 
have the potential for short-term (one to two breeding seasons) effects 
on a few individuals or pairs of towhees in a few localized areas at 
any one time. If these natural and manmade events were to occur in the 
future, it is unlikely these events would cause long-term population-
level effects (i.e., population declines, extirpation from a site, 
reduced nesting range, etc.) because these events typically result in 
temporary, localized impacts and only affect a small portion of the 
towhee's range at a time. Therefore, we conclude that fire and flood 
events do not constitute a threat to the Inyo California towhee now or 
in the future.
Climate Change
    Our analysis under the Act includes consideration of ongoing and 
projected changes in climate. The terms ``climate'' and ``climate 
change'' are defined by the Intergovernmental Panel on Climate Change 
(IPCC). ``Climate'' refers to the mean and variability of different 
types of weather conditions over time, with 30 years being a typical 
period for such measurements, although shorter or longer periods also 
may be used (IPCC 2007a, p. 78). The term ``climate change'' thus 
refers to a change in the mean or variability of one or more measures 
of climate (temperature or precipitation, for example) that persists

[[Page 65946]]

for an extended period, typically decades or longer, whether the change 
is due to natural variability, human activity, or both (IPCC 2007a, p. 
78). Various types of changes in climate can have direct or indirect 
effects on species. These effects may be positive, neutral, or 
negative, and they may change over time, depending on the species and 
other relevant considerations, such as the effects of interactions of 
climate with other variables (e.g., habitat fragmentation) (IPCC 2007a, 
pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh 
relevant information, including uncertainty, in our consideration of 
various aspects of climate change.
    Projecting future climate change still includes a considerable 
degree of uncertainty, due in part to uncertainties about future 
emissions of greenhouse gases and to differences among climate models 
and simulations (Stainforth et al. 2005, pp. 403-406; Duffy et al. 
2006, pp. 873-874), and to the difficulty in predicting change at a 
local scale. Global climate projections are informative, and, in some 
cases, the only or the best scientific information available for us to 
use. However, projected changes in climate and related impacts can vary 
substantially across and within different regions of the world (e.g., 
IPCC 2007a, pp. 8-12). Therefore, we use ``downscaled'' projections 
when they are available and have been developed through appropriate 
scientific procedures, because such projections provide higher 
resolution information that is more relevant to spatial scales used for 
analyses of a given species (see Glick et al. 2011, pp. 58-61, for a 
discussion of downscaling). Regional climate change models are 
available for the area, but lack detail to make meaningful predictions 
for specific areas such as the range of the Inyo California towhee 
(Parmesan and Matthews 2005, p. 354).
    The Western Regional Climate Center's California Climate Tracker 
has developed 11 climate-monitoring regions for California, including a 
region that includes the western Mojave Desert, where the Inyo 
California towhee occurs. Data collected from this region indicate that 
mean, maximum, and minimum temperatures have increased during the last 
110 years (Redmond 2008, pp. 36-46). How precipitation in the western 
Mojave Desert may change is less certain. The IPCC models predict that 
precipitation will decrease, but the frequency and magnitude of extreme 
precipitation events will increase. On the other hand, Kelly and 
Goulden (2008, p. 11824) predict that the amount and duration of 
precipitation may increase for California (in general).
    Based on the information discussed above, temperatures in the 
western Mojave Desert, where the Inyo California towhee occurs, have 
increased and are likely to continue increasing. The uncertainty of 
evaluating the potential impacts of climate change is complicated by 
the difficulty in predicting how an animal or plant species will 
respond to climate change. Some published studies describe how biotic 
communities may respond to such changes in temperature and 
precipitation in the near future (Parmesan and Matthews 2005, pp. 333-
374; IPCC 2007a, pp. 1-21; IPCC 2007b, pp. 1-22; Jetz et al. 2007, pp. 
1211-1216; Kelly and Goulden 2008, pp. 11823-11826; Loarie et al. 2008, 
pp. 1-10; Miller et al. 2008, pp. 1-17). Climate change can affect 
plants and animals in a number of ways, including changes in 
distribution, population size, behavior, and even changes in 
physiological and physical characteristics (Parmesan and Matthews 2005, 
p. 373). Depending on the nature and degree of change within the 
species range, the towhee and its habitat could be negatively affected 
in several ways. For example, desert birds are anticipated to 
experience reduced survival during extreme heat waves, which could 
result in more frequent large mortality events (McKechnie and Wolf 
2010, entire). Based on research on other species, higher temperatures 
could also result in shifts in nesting phenology (timing of egg laying, 
hatching, fledging, etc., in relationship to climatic conditions) and 
changes in clutch size (McCarty 2001, pp. 322-323; Both and Visser 
2005, pp. 1610-1611).
    As discussed in the ``Species Information'' section, the Inyo 
California towhee relies on dense, riparian vegetation. Although there 
is a degree of uncertainty about the effect of climate change on 
precipitation in the Mojave Desert, a decrease in precipitation could 
result in a reduction in the areal extent of riparian patches or a 
reduction of the density of riparian vegetation, or potentially both 
could occur. In some areas the amount of riparian vegetation could be 
reduced to the point where it could no longer support towhees. However, 
none of the models provide information about how climate change might 
affect the towhee or its habitat directly. For example, we lack the 
tools to assess how climate change may affect groundwater levels, which 
feed the springs that support the towhee's riparian habitat.
    Another uncertainty in predicting the potential impact of climate 
change is the occurrence of periodic droughts, which are a natural 
feature of the Mojave Desert. The State of California has experienced 
cycles of drought for many years. For example, between 1928 and 1987, 
the U.S. Geological Survey (USGS) reported five severe droughts across 
California, including the longest drought in the State's history during 
the period 1929-1934 (USGS 2004, p. 2). Increasing temperature could 
result in more severe and frequent drought, especially in the Southwest 
(Karl et al. 2009, p. 42). However, we are not aware of any formal 
studies on the direct effect of rising global temperature on drought 
severity or frequency (Karl et al. 2009, p. 5). Drought severity and 
frequency are a function of a complex series of factors, such as the 
El-Ni[ntilde]o-Southern Oscillation (ENSO) intensity and duration, as 
well as geographic variations in sea surface temperature, which may 
also be affected by increasing temperatures (Karl et al. 2009, p. 105), 
thereby compounding the uncertainty associated with precipitation 
projections (Karl et al. 2009, p. 105). Therefore, at this time, we 
lack sufficient tools to predict how climate change may influence the 
duration or severity of drought within the range of the Inyo California 
towhee, or how changes in drought patterns might impact the species.
    In summary, predicting the effects of climate change upon the Inyo 
California towhee is difficult due to the uncertainties of climate 
projection models, the lack of models for projecting climate change for 
relatively small geographic areas, and the complexity of interacting 
factors that may influence vegetation changes. Because we cannot 
predict how climate may change within the towhee's range, we cannot 
make meaningful projections on how the towhee may react to climate 
change or how its habitat may be affected. Therefore, at this time, the 
best available information does not suggest that climate change is 
adversely affecting the Inyo California towhee.
Summary of Factor A
    Impacts to the towhee identified under Factor A in the 1987 listing 
rule (52 FR 28780) have all been reduced. Habitat destruction from 
feral equines has been substantially reduced through actions taken by 
the NAWS China Lake and BLM. Although feral equines remain within the 
range of the towhee, and not all riparian areas occupied by towhees 
have been fenced, the current level of grazing has not hindered the 
recovery of the species. Habitat losses from recreation have also been 
reduced in many riparian areas by fencing installed to protect the 
habitat from feral

[[Page 65947]]

grazers. Water diversion has been reduced, and is occurring at only two 
springs occupied by towhees. There are no active mining operations 
within the range of the towhee, and all mining claims have been 
relinquished. No available information suggests that nonnative and 
invasive plants are affecting the towhee. While these plants occur 
within towhee habitat, we have no indication that they are spreading to 
the point of being the dominant vegetation type in these riparian 
areas, and the BLM and NAWS China Lake are committed to controlling, or 
in some cases eliminating, them (Service et al. 2010, pp. 5, 7). 
Additionally, as discussed below in Factor D, multiple laws provide 
protections for the Inyo California towhee and their habitat, including 
multiple BLM land designations that overlap with portions or the entire 
range of the Inyo California towhee, that will continue if the species 
is delisted. These regulations and land designations, and their 
associated land management plans, have guided many of the activities 
discussed above that ameliorated these threats. Further, although 
natural and manmade events such as fire and floods may occur within the 
Inyo California towhee range, they are not likely to occur on a scale 
or frequency to constitute a threat to the species.
    Average temperatures have been rising in the western Mojave Desert, 
and this trend will likely continue because of climate change. Climate 
change may also affect precipitation and the severity, duration, or 
periodicity of drought. However, a great deal of uncertainty exists as 
to the rate at which the average temperature may increase, and the 
effect of climate change on both precipitation and drought. In addition 
to the uncertainty associated with how the overall climate of the 
Mojave Desert may change, the impact of climate change on the Inyo 
California towhee will depend on a complex array of other factors, 
including how the species and its habitat respond to climate change. In 
light of all the factors involved, the best available information does 
not suggest climate change is adversely impacting the Inyo California 
towhee now or in the future.
    In addition to the progress that has been made to improve and 
protect the Inyo California towhee's habitat to the point that the 
towhee can now be delisted, we have entered into a cooperative 
agreement with the NAWS China Lake, BLM, and CDFW to continue 
protecting the towhee's habitat after delisting by means of maintaining 
feral equines at current levels or further reducing their numbers, 
maintaining existing fences or installing new fencing where necessary, 
monitoring towhee habitat, and controlling or eliminating nonnative and 
invasive plants. This agreement has resulted in actions that have 
decreased threats to the species and supported recovery, and it is also 
intended to ensure the long-term survival of the towhee following 
delisting. We do not consider grazing by feral equines, recreational 
activities, water diversion, mining, nonnative and invasive plants, or 
climate change to constitute a substantial threat to the Inyo 
California towhee now or in the future.

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

    Overutilization for commercial, recreational, scientific, or 
educational uses was not mentioned as a threat when the Inyo California 
towhee was listed (52 FR 28780), and the best available information 
does not indicate such threats exist at the present time. Therefore, 
based on the best available information, we conclude that 
overutilization is not a threat to the Inyo California towhee now or in 
the future.

C. Disease or Predation

    Disease or predation was not mentioned as a threat when the Inyo 
California towhee was listed (52 FR 28780). Subsequent to the listing, 
LaBerteaux (2011, pp. 13-14) suggested that the nest parasitism by 
brown-headed cowbirds (Molothrus ater) or predation of nestlings by 
common ravens (Corvus corax) may negatively affect nesting success of 
the Inyo California towhee because both species have been observed to 
occur in towhee habitat. However, LaBerteaux did not provide any 
information that would indicate that either brown-headed cowbirds or 
common ravens are having an impact or are an actual threat to towhees. 
For example, during surveys in 2011, LaBerteaux (2011, p. 13) 
documented brown-headed cowbirds at only 1 (1.1 percent) of the 93 
sites on BLM and CDFW lands and found no evidence of nest parasitism at 
any of the sites occupied by towhees. The number of cowbirds within the 
range of the towhee is extremely low and does not pose a threat to 
towhees.
    Common ravens are more abundant within the range of the towhee than 
cowbirds. For example, in 2011 LaBerteaux (2011, p. 14) documented 
common ravens at 39 sites (41.9 percent) surveyed on BLM and CDFW 
lands, which was an increase from 13 sites in 2004. Although common 
ravens have not been observed preying on towhee eggs or nestlings, they 
have at least once been observed preying on eggs and nestlings of other 
desert bird species that occur in the area (LaBerteaux and Garlinger 
1998, p. 64), from which it may be inferred that they also prey on 
towhees. However, towhee population numbers have remained stable to 
increasing over the last 13 years, which indicates that any predation 
that may be occurring is not at a level sufficient to cause negative 
population-level effects.
    While ravens and brown-headed cowbirds have been documented in 
towhee habitat, towhee population numbers have remained stable to 
increasing over the last 13 years. This indicates that while nest 
parasitism and predation may occur or have the potential to occur, they 
are not occurring at a level sufficient to cause negative population-
level effects (i.e., population declines, extirpation from a site, 
reduced nesting range, etc.). The best available information does not 
indicate that predation (including nest parasitism) is a threat to the 
Inyo California towhee; therefore, we conclude that predation 
(including nest parasitism) is not a threat to Inyo California towhee 
now or in the future.
D. The Inadequacy of Existing Regulatory Mechanisms
    If this proposal to delist the Inyo California towhee is finalized, 
the towhee will no longer be protected under the Act. However, other 
regulatory mechanisms will remain in place after delisting that will 
continue to help ensure that future impacts will be reduced or 
minimized, including the protective provisions of: the California 
Endangered Species Act of 1984 (CESA; California Fish and Game Code, 
section 2080 et seq.), the California Ecological Reserve Act of 1968, 
the Migratory Bird Treaty Act of 1918 (MBTA; 16 U.S.C. 703-711; 40 
Stat. 755), the Sikes Act (16 U.S.C. 670), the Federal Land Policy and 
Management Act of 1976 (FLPMA; 43 U.S.C. 1701 et seq.), the Wilderness 
Act of 1964 (16 U.S.C. 1131-1136, 78 Stat. 890), and the National 
Environmental Policy Act of 1970 (NEPA; 42 U.S.C. 4321 et seq.). These 
protections, taken together, provide adequate regulatory mechanisms to 
prevent the Inyo California towhee from becoming threatened or 
endangered after it is removed from the Federal List of Endangered and 
Threatened Wildlife. The cooperative management agreement, while not a 
regulatory document, memorializes the commitment of the Service, BLM, 
NAWS China Lake, and CDFW to coordinating and implementing those

[[Page 65948]]

measures that will result in the long-term conservation of the species.
    The Inyo California towhee is listed as endangered under the 
California Endangered Species Act (CESA), and the removal of the towhee 
from the Federal List of Endangered and Threatened Wildlife will not 
automatically result in its removal from the State list. We are not 
aware of any plans by CDFW to remove the towhee from the State list. 
CESA prohibits unpermitted possession, purchase, sale, or take of 
listed species. However, the CESA definition of take does not include 
harm, which under the Federal Act can include destruction of habitat 
that actually kills or injures wildlife by significantly impairing 
essential behavioral patterns (50 CFR 17.3). CESA requires State 
agencies to consult with CDFW on activities that may affect a State-
listed species and mitigate for any adverse impacts to the species. The 
provisions of CESA protections would apply only on State or private 
lands, which make up about 5 percent of the species range while the 
remainder of the range is on Federal land where other regulatory 
mechanisms apply (see below). Therefore, the protections provided by 
CESA will not change if the Inyo California towhee is delisted.
    The Migratory Bird Treaty Act (MBTA) affords certain regulatory 
protections to all native migratory bird species, including the 
prohibition of take, capture, killing, or possession of migratory 
birds, their eggs, parts, and nests. The MBTA does not protect habitat 
except where activities would directly kill or injure birds (such as 
felling a tree with an active nest), and does not provide regulatory 
procedures for permitting incidental take. Executive Order 13186 
(January 10, 2001) was issued to address the responsibilities of 
Federal agencies to protect migratory birds. This Executive Order 
directs Federal agencies whose actions have a measurable negative 
impact on migratory bird populations to develop Memoranda of 
Understanding (MOU) with the Service to promote the conservation of 
migratory birds. For example, under the July 31, 2006, MOU between the 
Service and the Department of Defense, migratory birds will receive 
certain benefits on military lands by incorporation of migratory bird 
conservation into their INRMP, including developing and implementing 
monitoring programs. The MOU also provides for habitat protection on 
Department of Defense installations, with specific attention to 
riparian habitats, fire and fuels management, and invasive species 
management. Like INRMPs, the MOU is subject to budgetary limits; 
however, it provides an added level of recognition to the importance of 
conserving migratory birds and their habitats that are not listed under 
the Act. The protections of the MBTA and the requirements of the MOU 
will continue if the Inyo California towhee is delisted.
    The continued conservation of the Inyo California towhee on the 
NAWS China Lake lands will also be enhanced by the provisions of the 
Sikes Act. The Sikes Act authorizes the Secretary of Defense to develop 
cooperative plans with the Secretaries of Agriculture and the Interior 
for natural resources on public lands. The Sikes Act Improvement Act of 
1997 requires Department of Defense installations to prepare INRMPs 
that provide for the conservation and rehabilitation of natural 
resources on military lands consistent with the use of military 
installations to ensure the readiness of the Armed Forces. INRMPs 
incorporate, to the maximum extent practicable, ecosystem management 
principles and provide the landscape necessary to sustain military land 
uses. INRMPs are updated every 5 years, and each version must be 
approved by the Service for compliance with the Sikes Act. While INRMPs 
are not technically a regulatory mechanism because their implementation 
is subject to funding availability, they are an added conservation tool 
for improving and maintaining wildlife populations and habitat on 
military lands.
    The Navy owns approximately 68 percent of the range of the Inyo 
California towhee. The NAWS China Lake developed an INRMP (NAWS China 
Lake 2000, pp. 112-113) that clearly defines objectives and guidelines 
to aid in the recovery of the Inyo California towhee. Specifically, the 
INRMP's objectives for the Inyo California towhee are to ensure the 
long-term population viability; continue to resolve baseline, 
biological data gaps, and continue habitat enhancement efforts; and 
support recovery plan efforts to establish stable towhee populations or 
eventual delisting (NAWS China Lake, pp. 112-113). Guidelines for the 
Inyo California towhee include such actions as: conduct range-wide 
surveys for towhees, assess activities that could affect riparian 
habitat within the towhee's range, enhance springs impacted by horses 
by fencing areas with a minimum of 3,500 square feet, maintain adjacent 
upland habitat for towhee foraging and nesting, fund and support 
research efforts to support towhees, survey potential habitat and 
riparian habitat that has not been previously surveyed for towhees, and 
coordinate with BLM and CDFW (NAWS China Lake, pp. 112-113). 
Additionally, the INRMP for NAWS China Lake has an ecosystem approach 
that includes conservation of water resources, control of exotic 
species, and other activities that benefit the towhee and its habitat 
(NAWS China Lake, entire).
    Through implementation of the INRMP, NAWS China Lake has made 
significant contributions to recovery of the Inyo California towhee, 
such as reduction of impacts to habitat by initiating management 
prescriptions that eliminate feral equines from riparian areas. The 
NAWS China Lake is currently working to update their INRMP, which 
includes continuation of management of feral equines, fencing of 
springs as needed, and other activities that benefit the towhee. 
Additionally, as an active military installation, the NAWS China Lake 
is closed to most public uses (Pennix 2006, pers. comm.).
    The Federal Land Policy and Management Act of 1976 (FLPMA) is the 
primary Federal law governing most land uses on BLM land, which 
constitutes about 26 percent of the range of the Inyo California 
towhee. FLPMA established a public land policy for the BLM; it provides 
for the management, protection, development, and enhancement of the BLM 
lands. FLPMA directs the development and implementation of resource 
management plans (RMPs), which direct management at a local level, and 
requires public notice and participation in the formulation of such 
plans and programs for the management of BLM lands. RMPs authorize and 
establish allowable resource uses, resource condition goals and 
objectives to be attained, program constraints, general management 
practices and sequences, intervals and standards for monitoring and 
evaluating RMPs to determine effectiveness, and the need for amendment 
or revision (43 CFR 1601.0-5(n)).
    Through FLPMA in 1976, Congress designated 25 million acres as the 
California Desert Conservation Area (CDCA) (Sec 601 (c)), of which 
approximately half (12 million acres) is BLM property, and includes the 
entire range of the Inyo California towhee. Congress noted the 
fragility of the California desert ecosystem that is ``easily scarred 
and slow to heal; the historical, scenic, archeological, environmental, 
biological, cultural, scientific, educational, recreational, and 
economic resources in the California desert; and that certain rare and 
endangered species of wildlife, plants, and fishes, and numerous 
archeological

[[Page 65949]]

and historic sites, are seriously threatened by air pollution, 
inadequate Federal management authority, and pressures of increased 
use, particularly recreational use, which are certain to intensify 
because of the rapidly growing population of southern California.''
    Congress charged the BLM with developing and implementing an RMP 
for the CDCA that provides for the immediate and future protection and 
administration of the public lands in the California desert within the 
framework of a program of multiple-use and sustained yield, and the 
maintenance of environmental quality. Within the range of the Inyo 
California towhee, the current BLM land management documents are the 
California Desert Conservation Area (CDCA) Plan 1980, as amended (BLM 
1999) and other amendments to the CDCA Plan, including the West Mojave 
RMP (WEMO Plan) and EIS (BLM et al. 2005) and the Northern and Eastern 
Mojave RMP (NEMO) and EIS (BLM et al. 2002). WEMO and NEMO management 
areas, whose boundaries encompass the range of the Inyo California 
towhee, are two of six planning areas within the CDCA. Typically, RMPs 
are updated every 30 years, but may be done updated or less frequently. 
The overarching CDCA Plan defined elements, such as Wildlife Elements, 
which have specific goals (BLM 1999, p. 21).
    Further, BLM designated Areas of Critical Environmental Concern 
(ACEC) as a tool to meet goals of the Wildlife Element of the CDCA 
Plan. The FLPMA defined ACECs as ``areas within the public lands where 
special management attention is required ... to protect and prevent 
irreparable damage to important historic, cultural, or scenic values, 
fish and wildlife resources or other natural systems or processes, or 
to protect life and safety from natural hazards'' (Sec. 103(a)). The 
CDCA Plan states that management prescriptions for ACECs for identified 
wildlife resources will include aggressive management actions to halt 
reverse declining trends and to ensure the long-term maintenance of 
wildlife resources (BLM 1999, p. 29). Recognizing the significance of 
the Inyo California towhee, the BLM established the 9000-acre Great 
Falls Basin/Argus Range ACEC, primarily to benefit the Inyo California 
towhee, with the goals of protecting and enhancing the towhee's habitat 
and protecting scenic resources (BLM 1987, pp. 4, 9). In the 
development and revision of land-use plans, the BLM is to ``give 
priority to the designation and protection of areas of critical 
environmental concern'' (Sec. 202(c)(3)).
    In 1964, Congress enacted the Wilderness Act with the intent of 
establishing a National Wilderness Preservation System composed of 
federally owned wilderness areas to be protected in their natural 
condition for the use and enjoyment of the people of the United States. 
As originally enacted, the Wilderness Act directed only the Secretary 
of Agriculture to identify areas suitable for wilderness in the 
National Forests. In FLPMA, Congress directed the Secretary of the 
Interior to identify areas suitable for wilderness on BLM lands. The 
65,000-acre Argus Range Wilderness Area owned by BLM was designated in 
1994 and includes a portion of the Inyo California towhee's range.
    Biological resources in designated wilderness areas are afforded 
the highest level of protection due to restriction on uses. The general 
management goals that apply to wilderness areas require that the BLM 
provide for and manage wilderness areas for long-term protection and 
preservation of wilderness, scenic, cultural, and natural 
characteristics for recreational, scientific, and educational purposes. 
To maintain the primeval character and provide for solitude, a variety 
of activities are prohibited by the Wilderness Act within designated 
wilderness areas. Some of the activities not allowed in wilderness 
areas include building roads and structures, commercial activities, use 
of motorized vehicles or equipment (including OHVs), and landing of 
aircraft.
    In 1994, the State of California purchased Indian Joe Canyon, which 
was the only parcel of Inyo California towhee critical habitat under 
private ownership (Service 1998, p. 14). The area around Indian Joe 
Springs includes about 5 percent of the range of the Inyo California 
towhee. Under the State of California's Ecological Reserve Act of 1968, 
CDFW designated the acquired land as the Indian Joe Springs Ecological 
Reserve to protect the towhee and its habitat. Ecological Reserves are 
managed under the California Code of Regulations (CCR), Title 14, 
Section 630. The purpose of ecological reserves is ``to provide 
protection for rare, threatened or endangered native plants, wildlife, 
aquatic organism and specialized terrestrial or aquatic habitat 
types.'' (14 CCR 630) Under 14 CCR 630(a)(1), it is prohibited in any 
Ecological Reserve to ``take or disturb any bird or nest, or eggs 
thereof, or any plant, mammal, fish, mollusk, crustacean, amphibian, 
reptile, or any other form of plant or animal life.'' Therefore, this 
Ecological Reserve is to be managed consistent with the needs of the 
towhee, including restriction of activities that negatively impact the 
towhee or its habitat.
    All Federal agencies are required to adhere to the National 
Environmental Policy Act of 1970 (NEPA; 42 U.S.C. 4321 et seq.) for 
projects they fund, authorize, or carry out. The Council on 
Environmental Quality's regulations for implementing NEPA (40 CFR parts 
1500-1518) state that agencies shall include a discussion on the 
environmental impacts of the various project alternatives (including 
the proposed action), any adverse environmental effects that cannot be 
avoided, and any irreversible or irretrievable commitments of resources 
involved (40 CFR 1502). NEPA does not itself regulate activities that 
might affect the Inyo California towhee, but it does require full 
evaluation and disclosure of information regarding the effects of 
contemplated Federal actions on sensitive species and their habitats. 
Although Federal agencies may include conservation measures for Inyo 
California towhee as a result of the NEPA process, any such measures 
are typically voluntary in nature and are not required by the statute.
    The inadequacy of existing regulatory mechanisms was not indicated 
as a threat to the Inyo California towhee at listing. Because more than 
99 percent of the range of the towhee is under Federal or State 
ownership, existing regulatory mechanisms, including various laws, 
regulations, and policies administered by the U.S. Government and CDFW, 
aid in abating known threats and provide protective mechanisms for the 
species and its habitat. Primary laws that provide some benefit for the 
species and its habitat include the CESA, MBTA, Sikes Act, FLPMA, 
Wilderness Act, and NEPA. While most of these laws, regulations, and 
policies are not specifically directed toward protection of towhee, 
they mandate consideration, management, and protection of resources 
that benefit towhees. Additionally, these laws contribute to and 
provide mechanisms for agency planning and implementation directed 
specifically toward management of towhees and their habitat. Because 
most of these laws and regulations are national in scope and are not 
conditional on the listed status of the towhee, we expect these laws 
and regulatory mechanisms to remain in place after the towhee is 
delisted. Therefore, the inadequacy of existing regulatory mechanisms 
is not a threat to Inyo California towhee now or in the future.

[[Page 65950]]

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    We did not identify any threats to the Inyo California towhee under 
Factor E in the final listing rule (52 FR 28780). However, natural and 
manmade disturbances, such as flooding, erosion, and fires, may result 
in the temporary loss or reduction of suitable habitat for the Inyo 
California towhee in some areas, which could result in adverse effects 
to the species. Because the potential effects to the towhee are due to 
habitat loss or destruction, these are discussed under Factor A. We 
conclude there are no natural or manmade factors that are a threat to 
Inyo California towhee now or in the future.
Conclusion of 5-Factor Analysis
    The reasons for the population decline of the Inyo California 
towhee and its listing as threatened were habitat loss and degradation 
from feral grazers, recreational use, water diversion, and mining. New 
potential threats identified since the time of listing include invasive 
and nonnative plants, climate change, nest parasitism by brown-headed 
cowbirds and predation by common ravens. Although invasive and 
nonnative plants and brown-headed cowbirds and common ravens have been 
documented in Inyo California towhee habitat, the best available 
information does not support that they are having a negative impact on 
the species. Climate change may have some effect on the species. 
However, at this time, the best available information does not indicate 
that climate change is a threat to this species.
    Although none of the factors discussed above is having a major 
impact on the towhee, a combination of factors could potentially have a 
much greater effect. For example, effects of feral equines on towhee 
habitat could worsen during periods of prolonged, severe drought when 
some water sources may dry up, resulting in greater pressure from feral 
equines on the remaining available water sources, which would likely 
degrade towhee habitat. However, the impacts of feral equines on towhee 
habitat can be greatly reduced or eliminated by installing fencing 
around springs. Almost the entire range of the towhee is under Federal 
and State ownership, and the BLM, NAWS China Lake, and CDFW have 
committed to controlling the number of feral equines and protecting 
towhee habitat with fences as needed in the 2010 cooperative management 
agreement (Service et al., 2010, entire). Although the types, 
magnitude, or extent of cumulative impacts are difficult to predict, we 
are not aware of any combination of factors that has not already or 
would not be addressed through ongoing conservation measures.
    As stated previously, NAWS China Lake and BLM own about 94 percent 
of the towhee's range. Conservation measures implemented by the NAWS 
China Lake and BLM to reduce or eliminate grazing, recreational use, 
water diversions, and mining throughout most of the towhee's range have 
improved the habitat of the towhee, which in turn, has led to a 
substantial increase in towhee abundance. Since 1980, the NAWS China 
Lake and BLM have removed more than 9,400 feral equines and have fenced 
17 springs occupied by towhees to exclude equines. The NAWS China Lake 
is closed to the public, and the BLM has reduced recreational impacts 
on its land through fencing of springs (LaBerteaux 2004, p. 47). In 
2007 and 2011, water diversions were occurring at approximately only 1 
percent of the sites included in the surveys (LaBerteaux 2011, p. 15). 
The NAWS China Lake is closed to mining, and all mines on BLM land have 
been relinquished. These conservation measures have been highly 
effective in the recovery and protection of the towhee's riparian 
habitat and have resulted in a major increase in towhee abundance, from 
less than 200 at the time of listing (52 FR 28780) to a total 
population that, since 1998, has ranged from 640 to 741 individuals 
(LaBerteaux and Garlinger 1998, pp. ii, 7, 63; LaBerteaux 2004, pp. ii, 
60; LaBerteaux 2008, pp. iii, 85; LaBerteaux 2011, pp. 3, 12). The 
towhee and its habitat are expected to continue to be protected through 
ongoing conservation measures, laws, and regulations. The NAWS China 
Lake, BLM, and CDFW own approximately 99 percent of the towhee's range. 
Multiple regulations provide protection for Inyo California towhee, and 
additionally, these agencies have entered into a cooperative management 
agreement with the Service to continue conducting conservation measures 
after the towhee is delisted (Service et al. 2010, entire).
    As discussed above, survey results indicate that over the last 13 
years the number of Inyo California towhees have been stable to 
increasing and that the population is self-sustaining, which meets one 
of the criterion for recovery outlined in the Recovery Plan. In 
addition, an assessment of factors that may be impacting the species 
did not reveal any significant threats to the species, now or in the 
future. We have carefully assessed the best scientific and commercial 
data available and determined that Inyo California towhee is no longer 
in danger of extinction throughout all of its range, nor is it likely 
to become so in the future.
Significant Portion of the Range Analysis
    Having determined that the towhee does not meet the definition of 
threatened throughout its range, we next consider whether there are any 
significant portions of its range that are in danger of becoming 
endangered in the foreseeable future or becoming extinct. The range of 
a species can theoretically be divided into portions in an infinite 
number of ways. However, there is no purpose in analyzing portions of 
the range that have no reasonable potential to be significant or in 
analyzing portions of the range in which there is no reasonable 
potential for the species to be endangered or threatened. To identify 
only those portions that warrant further consideration, we determine 
whether there is substantial information indicating that: (1) The 
portions may be ``significant'' and (2) the species may be in danger of 
extinction there or likely to become so within the foreseeable future. 
Depending on the biology of the species, its range, and the threats it 
faces, it might be more efficient for us to address the significance 
question first or the status question first. Thus, if we determine that 
a portion of the range is not ``significant,'' we do not need to 
determine whether the species is endangered or threatened there; if we 
determine that the species is not endangered or threatened in a portion 
of its range, we do not need to determine if that portion is 
``significant.'' In practice, a key part of the determination that a 
species is in danger of extinction in a significant portion of its 
range is whether the threats are geographically concentrated in some 
way. If the threats to the species are essentially uniform throughout 
its range, no portion is likely to warrant further consideration. 
Moreover, if any concentration of threats to the species occurs only in 
portions of the species' range that clearly would not meet the 
biologically based definition of ``significant,'' such portions will 
not warrant further consideration.
    Applying the process described above, we evaluated the range of the 
Inyo California towhee to determine if any area could be considered a 
significant portion of its range. As noted above in our Species 
Information section, the Inyo California towhee is considered to 
currently occupy its entire historical range, so there has been no loss 
of historic range for this species.

[[Page 65951]]

We consider the ``range'' of the Inyo California towhee to be the 
southern Argus Mountains in the Mojave Desert, Inyo County, California. 
We considered whether any portions of the range of the Inyo California 
towhee were likely to be both significant and in danger of extinction 
or likely to become so. One possible way to identify portions would be 
to consider land ownership because conservation actions, and, 
therefore, management of threats, could potentially differ depending on 
the policies and regulations implemented by the land owner. As noted 
earlier, 68 percent of the towhee's range is on Navy land, 26 percent 
is on BLM land, 5 percent is on CDFW land, and less than 1 percent is 
on private property. Potentially, the portions of the towhee's range on 
Navy and BLM land could be significant because of the size of those 
portions. However, while these lands are managed by different agencies 
with different laws and policies governing management practices, there 
is no substantial difference in the conservation actions implemented to 
control threats or the status of the species among the differing land 
ownerships.
    We also considered whether any threats are geographically 
concentrated in some way that would indicate the species could be 
threatened or endangered in that area. The major threats to the Inyo 
California towhee at the time of listing were the loss and degradation 
of riparian habitat attributed to feral equines, recreational 
activities, water diversion, and mining. As noted above, feral equines 
still occur throughout the range of the towhee, and have the potential 
to adversely affect all towhee habitat. However, feral equines are 
being adequately managed throughout the range of the species, and no 
portion of the species range is experiencing an increased level of 
impacts from feral equines. Recreational activities are excluded from 
the NAWS China Lake because it is closed to the public; impacts on the 
towhee's habitat from recreational activities primarily occur on BLM 
and CDFW lands but are subject to management and restrictions and are 
considered to be occurring at low levels at a limited number of sites. 
This level of recreational activity does not appear to be having an 
impact on towhees and their habitat. Water diversion and mining were 
also more prevalent on BLM lands historically, but are now eliminated 
or reduced to negligible levels.
    As we explained in detail in our analysis of the status of the 
species, all major threats (feral equines, recreational activities, 
water diversions, and mining) have been reduced across the range of the 
species, and the towhee population has rebounded. Another way to 
identify portions would be to identify natural divisions within the 
range that might be of biological or conservation importance. The range 
of the Inyo California towhee is small, but may be naturally divided by 
streams or watershed. However, given their patchy distribution and 
ability of the species to fly across land barriers, no area is likely 
to be of greater biological or conservation importance than any other 
area. We did not find that any portion of the species range has a 
concentration of threats or that any natural divisions in the range 
exist that would indicate any portion is of greater conservation 
importance than others and, therefore, conclude that no portion 
warrants further consideration. Therefore, based on our evaluation of 
the current and potential threats to the Inyo California towhee, we 
conclude that these threats are neither sufficiently concentrated nor 
of sufficient magnitude to indicate the species is in danger of 
extinction or likely to become so in any of the areas that support the 
species, and thus, it is likely to persist throughout its historical 
range.
    We have carefully assessed the best scientific and commercial data 
available and determined that the Inyo California towhee is no longer 
in danger of extinction throughout all or significant portions of its 
range, nor is it likely to become so in the future. As a consequence of 
this determination, we are proposing to remove this species from the 
List of Endangered and Threatened Species under the Act.

Effects of This Rule

    This proposal, if made final, would revise 50 CFR 17.11(h) to 
remove the Inyo California towhee from the List of Endangered and 
Threatened Wildlife and would revise 50 CFR 17.95(b) to remove 
designated critical habitat for the species. The prohibitions and 
conservation measures provided by the Act, particularly through 
sections 7 and 9, would no longer apply to this species. Federal 
agencies would no longer be required to consult with the Service under 
section 7 of the Act in the event that activities they authorize, fund, 
or carry out may affect the Inyo California towhee.
    Other regulatory mechanisms will remain in place after delisting 
that will continue to ensure that future impacts will be reduced or 
minimized, including the protective provisions of: The California 
Endangered Species Act of 1984 (CESA; California Fish and Game Code, 
section 2080 et seq.), the Migratory Bird Treaty Act of 1918 (MBTA; 16 
U.S.C. 703-711; 40 Stat. 755), the Sikes Act (16 U.S.C. 670), the 
Federal Land Policy and Management Act of 1976 (FLPMA; 43 U.S.C. 1701 
et seq.), and the Wilderness Act of 1964 (16 U.S.C. 1131-1136, 78 Stat. 
890). These protections, taken together, will provide adequate 
regulatory mechanisms to prevent the Inyo California towhee from 
becoming endangered throughout all of its range in the foreseeable 
future after it is removed from the Federal List of Endangered and 
Threatened Wildlife.

Peer Review

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (50 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule and the draft post-delisting monitoring 
(PDM) plan. The purpose of peer review is to ensure that decisions are 
based on scientifically sound data, assumptions, and analyses. We have 
invited these peer reviewers to comment during this comment period on 
this proposed rule and draft PDM plan, and the specific assumptions and 
conclusions regarding the proposed delisting. Accordingly, the final 
decision may differ from this proposal.

Post-Delisting Monitoring Plan

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 years for 
all species that have been recovered and delisted (50 CFR 17.11, 
17.12). The purpose of this post-delisting monitoring (PDM) is to 
verify that a species remains secure from risk of extinction after it 
has been removed from the protections of the Act. The PDM is designed 
to detect the failure of any delisted species to sustain itself without 
the protective measures provided by the Act. If, at any time during the 
monitoring period, data indicate that protective status under the Act 
should be reinstated, we can initiate listing procedures, including, if 
appropriate, emergency listing under section 4(b)(7) of the Act. 
Section 4(g) of the Act explicitly requires us to cooperate with the 
States in development and implementation of PDM programs, but we remain 
responsible for compliance with section 4(g) and, therefore, must 
remain actively engaged in all phases of PDM. We also seek active 
participation of other entities that are expected to assume 
responsibilities for the species' conservation post-delisting.

[[Page 65952]]

Post-Delisting Monitoring Plan Overview

    The Service has developed a draft PDM plan for the Inyo California 
towhee. The PDM plan is designed to verify that the towhee remains 
secure from risk of extinction after removal from the Federal List of 
Endangered and Threatened Wildlife by detecting changes in its status 
and habitat throughout its known range. The PDM plan would accomplish 
the objectives through cooperation with the NAWS China Lake, BLM, and 
CDFW, thus fulfilling the goal to prevent the species from needing 
Federal protection once again, per the Act. The following briefly 
describes the measures in the draft PDM plan that will be implemented 
during the monitoring period. These measures are discussed in more 
detail in the draft PDM plan.
    Although the Act has a minimum PDM requirement of 5 years, the Inyo 
California towhee should be monitored for 12 years following delisting. 
A 12-year monitoring period is necessary to account for environmental 
variability (e.g., drought) that may affect the condition of riparian 
habitat and to provide for a sufficient number of surveys to document 
any changes in the abundance of the species. Based on the frequency of 
past surveys, a complete survey of known and potential towhee habitat 
should be conducted every 4 years. The abundance surveys should 
continue to be accompanied by habitat and threats surveys, as in 
previous years. Therefore, the 12-year monitoring period will result in 
a minimum of three complete surveys of the towhee's abundance, habitat 
condition, and threats in its known and potential range during the 
period of the PDM plan. However, if a decline in abundance is observed 
or a substantial new threat arises, post-delisting monitoring may be 
extended or modified as described below.
    Abundance for the duration of the post-delisting monitoring period 
will be determined using the same survey methodology developed by 
LaBerteaux and Garlinger (1998), which has been used for all Inyo 
California towhee surveys conducted on Federal and State lands 
beginning with the 1998 survey. This methodology will be used because 
it is effective at detecting towhees and provides an accurate 
population estimate. Additionally, use of this methodology will 
maintain consistency between data sets and allow for comparison with 
previous population estimates. Observations from those sites visited in 
a single season are compared with those made at the same sites in 
previous years to determine any change or trend in towhee abundance. At 
the end of each complete survey, all observations will be used to 
estimate the total number of birds, number of breeding pairs, and 
number of unmated birds across the range of the species.
    In addition to the survey methodology for determining towhee 
abundance, LaBerteaux and Garlinger (1998) also developed a methodology 
for assessing habitat condition and threats. These surveys will 
continue to be conducted throughout the 12-year post-delisting 
monitoring period to maintain consistency between data sets and allow 
for comparison with previous surveys. Data from these surveys will be 
used to calculate the percent change in the number of affected sites 
from the previous survey.
    After each survey, the Service and its partners will compare the 
results with those from previous surveys and consider the implication 
of any observed change in abundance or threats to the conservation of 
the species. At the end of the PDM period, the Service will conduct a 
final internal review and prepare a final report summarizing the 
results of monitoring. The final report will include a discussion of 
whether monitoring should continue beyond the 12-year period for any 
reason.
    With this notice, we are soliciting public comments and peer review 
on the draft PDM Plan including its objectives and procedures (see 
Public Comments Solicited). All comments on the draft PDM plan from the 
public and peer reviewers will be considered and incorporated into the 
final PDM plan as appropriate. The draft PDM plan will be posted on our 
Endangered Species Program's national Web page (http://endangered.fws.gov) and the Ventura Fish and Wildlife Office Web page 
(http://fws.gov/ventura) and on the Federal eRulemaking Portal at 
http://www.regulations.gov. We anticipate finalizing this plan, 
considering all public and peer review comments, prior to making a 
final determination on the proposed delisting rule. Although separate 
from the cooperative management agreement with NAWS China Lake, BLM, 
and CDFW, many of the actions in the PDM plan are consistent with those 
committed to in the agreement.

Required Determinations

Clarity of the Rule

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

Paperwork Reduction Act of 1995

    Office of Management and Budget (OMB) regulations at 5 CFR part 
1320, which implement provisions of the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.), require that Federal agencies obtain approval 
from OMB before collecting information from the public. This rule does 
not contain any new collections of information that require approval by 
OMB under the Paperwork Reduction Act. This rule will not impose 
recordkeeping or reporting requirements on State or local governments, 
individuals, businesses, or organizations. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act

    We determined that we do not need to prepare an Environmental 
Assessment or an Environmental Impact Statement, as defined under the 
authority of the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.), in connection with regulations adopted pursuant to 
section 4(a) of the Act. We published a notice outlining our reasons 
for this determination in the Federal Register on October 25, 1983 (48 
FR 49244).

Government-to-Government Relationship With Tribes

    In concurrence with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with

[[Page 65953]]

recognized Federal tribes on a government-to-government basis. We have 
determined that there are no tribal lands affected by this proposal.

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://regulations.gov or upon request from the 
Field Supervisor, Ventura Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT section).

Author

    The primary author of this proposed rule is the Ventura Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


Sec.  17.11  [Amended]

0
2. Amend Sec.  17.11(h) by removing the entry for ``Towhee, Inyo 
California'' under ``Birds'' in the List of Endangered and Threatened 
Wildlife.


Sec.  17.95  [Amended]

0
3. Amend Sec.  17.95(b) by removing the entry for ``Inyo Brown Towhee 
(Pipilo Fuscus Eremophilus)''.

    Dated: October 23, 2013.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-26122 Filed 11-1-13; 8:45 am]
BILLING CODE 4310-55-P