[Federal Register Volume 80, Number 195 (Thursday, October 8, 2015)]
[Proposed Rules]
[Pages 60850-60871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25260]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2014-0045; FXES11130900000C6-156-FF09E42000]
RIN 1018-BA30


Endangered and Threatened Wildlife and Plants; Reclassifying the 
Columbian White-Tailed Deer From Endangered to Threatened With a Rule 
Under Section 4(d) of the Act

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: Under the authority of the Endangered Species Act of 1973, as 
amended (Act), we, the U.S. Fish and Wildlife Service (Service), 
propose to reclassify the Columbia River distinct population segment 
(DPS) of Columbian white-tailed deer (Odocoileus virginianus leucurus) 
from endangered to threatened, and we propose a rule under section 4(d) 
of the Act to enhance conservation of the species through range 
expansion and management flexibility. This proposal is based on a 
thorough review of the best available scientific data, which indicate 
that the species' status has improved such that it is not currently in 
danger of extinction throughout all or a significant portion of its 
range. We seek information, data, and comments from the public 
regarding the Columbian white-tailed deer and this proposal.

DATES: We will accept comments received or postmarked on or before 
December 7, 2015. Please note that if you are using the Federal 
eRulemaking Portal (see ADDRESSES), the deadline for

[[Page 60851]]

submitting an electronic comment is 11:59 p.m. Eastern 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 
November 23, 2015.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R1-ES-2014-0045, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!'' Please ensure that you 
have found the correct rulemaking before submitting your comment.
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R1-ES-2014-0045; U.S. Fish and Wildlife 
Service, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3808.
    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: The proposed rule is available on http://www.regulations.gov. In addition, the supporting file for this proposed 
rule will be available for public inspection, by appointment, during 
normal business hours, at the Oregon Fish and Wildlife Office, 2600 SE 
98th Avenue, Portland, OR 97266; telephone 503-231-6179. Persons who 
use a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Services (FIRS) at 800-877-8339.

FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, 
telephone: 503-231-6179. Direct all questions or requests for 
additional information to: Columbian White-tailed Deer Information 
Request, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife 
Office, 2600 SE 98th Avenue, Portland, OR 97266. Individuals who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
reclassification from endangered to threatened if it no longer meets 
the definition of endangered (in danger of extinction). The Columbia 
River DPS of Columbian white-tailed deer (CWTD) is listed as 
endangered, and we are proposing to reclassify the DPS as threatened 
because we have determined it is no longer in danger of extinction. 
Reclassifications can only be made by issuing a rulemaking. 
Furthermore, changes to the take prohibitions in section 9 of the Act, 
such as those we are proposing for this species under a section 4(d) 
rule, can only be made by issuing a rulemaking.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the CWTD is no longer at 
risk of extinction and therefore does not meet the definition of 
endangered, but is still impacted by habitat loss and degradation of 
habitat to the extent that the species meets the definition of a 
threatened species (a species which is likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range) under the Act.
    We are proposing to promulgate a section 4(d) rule. We are 
considering whether to exempt from the Act's take prohibitions (under 
section 9), certain activities conducted on State, Tribal, and private 
lands where CWTD occur or where they would occur if we were to 
reintroduce them to areas of their historic distribution. Under the 
proposed 4(d) rule, take of CWTD caused by CWTD damage management 
activities (such as hazing, use of non-lethal projectiles, or lethal 
control), and accidental misidentification during damage management 
activities and hunting of Columbian black-tailed deer (Odocoileus 
hemionus columbianus) (black-tailed deer) would be exempt from section 
9 of the Act. The proposed 4(d) rule targets these activities to 
provide protective mechanisms to private landowners and State and 
Tribal agencies so they may continue with normal activities in the 
presence of CWTD and therefore facilitate the natural movement, 
translocation, and range expansion of CWTD.

Public Hearing

    Section 4(b)(5)(E) of the Act provides for a public hearing on this 
proposal, if requested. We must receive a request for a public hearing, 
in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
the date specified in the DATES section. We will schedule a public 
hearing on this proposal, if requested, and announce the date, time, 
and place of the hearing, as well as how to obtain reasonable 
accommodations, in the Federal Register at least 15 days before the 
hearing.

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
published in the Federal Register on July 1, 1994 (59 FR 34270), we 
will seek the expert opinion of at least three appropriate independent 
specialists regarding scientific data and interpretations contained in 
this proposed rule. We will send copies of this proposed rule to the 
peer reviewers immediately following publication in the Federal 
Register. This assessment will be completed during the public comment 
period. The purpose of such review is to ensure that our decisions are 
based on scientifically sound data, assumptions, and analysis. 
Accordingly, the final decision may differ from this proposal.

Information Requested

    We intend that any final action resulting from this proposal will 
be based on the best available scientific and commercial data and will 
be as accurate and as effective as possible. Therefore, we invite 
Native American Tribes, governmental agencies, the scientific 
community, industry, or any other interested parties to submit comments 
or recommendations concerning any aspect of this proposed rule. 
Comments should be as specific as possible. We are specifically 
requesting comments on:
    (1) The appropriateness of our proposal to reclassify this CWTD DPS 
from endangered to threatened.
    (2) The factors that are the basis for making a reclassification 
determination for a species under section 4(a) of the Act (16 U.S.C. 
1531 et seq.), which are:
    (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;

[[Page 60852]]

    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this DPS and existing regulations that 
may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (5) Any information on the biological or ecological requirements of 
the species and ongoing conservation measures for the species and its 
habitat.
    (6) Any information on foreseeable changes to land use or County 
land use planning within the boundaries of the DPS that may affect 
future habitat availability for CWTD.
    (7) The appropriateness of a rule to exempt certain take 
prohibitions of CWTD under section 4(d) of the Act.
    (8) Any additional information pertaining to the promulgation of a 
rule to exempt certain take prohibitions of CWTD under section 4(d) of 
the Act.
    (9) Relevant data on climate change and potential impacts to CWTD 
and its habitat.
    We will take into consideration all comments and any additional 
information we receive. Such communications may lead to a final rule 
that differs from this proposal. All comments, including commenters' 
names and addresses, if provided to us, will become part of the 
supporting record. Please include sufficient information with your 
submission (such as scientific journal articles or other publications) 
to allow us to verify any scientific or commercial information you 
include. Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    We will post all hardcopy submissions on http://www.regulations.gov. Comments and materials we receive, as well as 
supporting documentation we used in preparing this proposed rule, will 
be available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours at the U.S. Fish and Wildlife 
Service, Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT).

Previous Federal Action

    On March 11, 1967, the Secretary of the Interior identified the 
CWTD as an endangered species (32 FR 4001), under the authority of the 
Endangered Species Preservation Act of October 15, 1966 (80 Stat. 926; 
16 U.S.C. 668aa(c)). On March 8, 1969, the Secretary of the Interior 
again identified the CWTD as an endangered species (34 FR 5034) under 
section 1(c) of the Endangered Species Preservation Act of 1966. On 
August 25, 1970, the Acting Secretary of the Interior proposed to list 
the CWTD as an endangered subspecies (35 FR 13519) under the authority 
of the new regulations implementing the Endangered Species Conservation 
Act (ESCA) of 1969. On October 13, 1970, the Director of the Bureau of 
Sport Fisheries and Wildlife listed the CWTD as an endangered 
subspecies (35 FR 16047) under the authority of the new regulations 
implementing the ESCA of 1969. Species listed as endangered under the 
ESCA of 1969 were automatically included in the List of Endangered and 
Threatened Wildlife when the Endangered Species Act was enacted in 
1973. In December 1971, the Service established the Julia Butler Hansen 
Refuge for CWTD (JBHR), in Cathlamet, Washington.
    On October 21, 1976, the Service released the CWTD Recovery Plan. 
On June 14, 1983, the Service released the Revised CWTD Recovery Plan. 
The plan addressed the two main populations of CWTD, Columbia River and 
Douglas County, separately. On July 24, 2003, the Service published a 
rule (68 FR 43647) that: (1) Recognized the Douglas County and Columbia 
River populations as DPSs under the Service's 1996 Policy Regarding the 
Recognition of Distinct Vertebrate Population Segments under the Act 
(see 61 FR 4722; February 7, 1996), and (2) removed the Douglas County 
population of CWTD from the List of Endangered and Threatened Wildlife. 
It was determined that recovery criteria for the Douglas County 
population had been met, as it achieved benchmarks in both population 
size and amount of secure habitat.
    A 5-year status review of the Columbia River DPS was completed on 
November 5, 2013 (U.S. Fish and Wildlife Service 2013a); this review 
concluded that CWTD's status had substantially improved since listing, 
that the DPS no longer met the definition of an endangered species 
under the Act, and recommended the DPS should be downlisted from 
endangered to threatened.

Species Information

    The Columbian white-tailed deer is the westernmost representative 
of 38 subspecies of white-tailed deer in North and Central America 
(Gavin 1984, p. 6). It resembles other white-tailed deer subspecies, 
ranging in size from 39 to 45 kilograms (kg) (85 to 100 pounds (lb)) 
for females and 52 to 68 kg (115 to 150 lb) for males (Oregon 
Department of Fish and Wildlife 1995, p. 2). Generally, the species 
displays a red-brown color in summer and gray in winter, with distinct 
white rings around the eyes and a white ring just behind the nose 
(Oregon Department of Fish and Wildlife 1995, p. 2). Its tail is 
relatively long, brown on top with a white fringe and white underneath 
(Verts and Carraway 1998, p. 479).
    Although white-tailed deer can live up to 20 years, their mean 
lifespan is probably closer to 6 years, though 9- to 12-year olds are 
common. One Service study showed a median age at death of 3 years for 
bucks and 5 years for does (Gavin 1984, p. 490). More recent data from 
CWTD translocated in 2013 and 2014 showed a median age at death of 5 
years for bucks and 9 years for does. Does can reach sexual maturity by 
6 months of age or when their weight reaches approximately 36 kg (80 
lb), however their maturation and fertility depends on the nutritional 
quality of available forage (Verme and Ullrey 1984, p. 96). Breeding 
will occur from mid-September through late February, and the peak of 
the breeding season, or rut, occurs in November. Fawns are born in the 
early summer after an approximate 200-day gestation period. In their 
first pregnancy, does usually give birth to a single fawn, although 
twins are common in later years if adequate forage is abundant (Verme 
and Ullrey 1984, p. 96).
    The subspecies was formerly distributed throughout the bottomlands 
and prairie woodlands of the lower Columbia, Willamette, and Umpqua 
River basins in Oregon and southern

[[Page 60853]]

Washington (Bailey 1936, p. 92; Verts and Carraway 1998, p. 479). 
Although white-tailed deer are considered generalist browsers that also 
graze on grasses and forbs, Suring and Vohs (1979, p. 616) and Gavin et 
al. (1984, p. 13) reported that CWTD on the JBHR Mainland Unit were 
primarily grazers. This probably reflects browse and forage 
availability rather than a predisposition toward forage. Observations 
by JBHR biologists suggest fawns on the JBHR Mainland Unit are most 
often associated with pastures of tall, dense reed canary grass 
(Phalaris arundinacea L.) and tall fescue (Festuca arundinacea), as 
well as mixed deciduous and Sitka spruce (Picea sitchensis) forest 
(U.S. Fish and Wildlife Service 1983, p. 10; Brookshier 2004, p. 2).
    Early accounts indicate that CWTD were locally common, particularly 
in riparian areas along major rivers (Crews 1939, p. 5). The subspecies 
occupied a range of approximately 60,000 square kilometers (km\2\) 
(23,170 square miles (mi\2\)) west of the Cascades Mountains: From the 
Dalles, Oregon, in the east, to the Pacific Ocean in the west; and Lake 
Cushman in Mason County, Washington, in the north, to Grants Pass, 
Oregon, in the south (Crews 1939, p. 3; Smithsonian 2014, p. 1). The 
decline in CWTD numbers was rapid with the arrival and settlement of 
pioneers in the fertile river valleys (Crews 1939, p. 2). Conversion of 
brushy riparian land to agriculture, urbanization, uncontrolled sport 
and commercial hunting, and perhaps other factors apparently caused the 
extirpation of this deer over most of its range by the early 1900s 
(Crews 1939, pp. 2, 5). By 1940, a population of 500 to 700 animals 
along the lower Columbia River in Oregon and Washington, and a disjunct 
population of 200 to 300 in Douglas County, Oregon, survived (Crews 
1939, p. 3; Gavin 1984, p. 487; Verts and Carraway 1998, p. 480). These 
two remnant populations remain geographically separated by about 320 km 
(200 mi), much of which is unsuitable or discontinuous habitat. The 
Columbia River DPS has a discontinuous current range of approximately 
240 km\2\ (93 mi\2\) or about 24,281 hectares (ha) (60,000 acres (ac)) 
(Smith 1985, p. 247) (Figure 1) in limited areas of Clatsop and 
Columbia Counties in Oregon, and Cowlitz, Wahkiakum, and Clark Counties 
in Washington. Within that range, CWTD currently occupy an area of 
approximately 6,475 ha (16,000 ac) (U.S. Fish and Wildlife Service 
2013a, p. 7), with a 2014 population estimate of about 830 deer (U.S. 
Fish and Wildlife Service, unpublished data).
BILLING CODE 4333-15-D

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[GRAPHIC] [TIFF OMITTED] TP08OC15.000

BILLING CODE 4333-15-C

Review of the Recovery Plan

    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

[[Page 60855]]

be removed from the list.'' However, revisions to the Lists of 
Endangered and Threatened Wildlife and Plants (adding, removing, or 
reclassifying a species) must be based on 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.'' 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 a species on, or to 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.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all criteria being fully met. For 
example, one or more criteria may be exceeded while other criteria may 
not yet be accomplished. In that instance, we may determine that the 
threats are minimized sufficiently and the species is robust enough to 
delist. In other cases, recovery opportunities may be discovered that 
were not known when the recovery plan was finalized. These 
opportunities may be used instead of methods identified in the recovery 
plan. Likewise, information on the species may be learned that was not 
known at the time the recovery plan was finalized. The new information 
may change the extent to which criteria need to be met for recognizing 
recovery of the species. Recovery of a species is a dynamic process 
requiring adaptive management that may, or may not, fully follow the 
guidance provided in a recovery plan.
    In the 1983 Revised Recovery Plan for CWTD (U.S. Fish and Wildlife 
Service 1983), the Service established the following criteria for 
downlisting the Columbia River DPS from endangered to threatened: (1) 
Maintain a minimum of at least 400 CWTD across the Columbia River DPS; 
and (2) maintain 3 viable subpopulations, 2 of which are located on 
secure habitat (U.S. Fish and Wildlife Service 1983, pp. 31-33). Viable 
is defined as a minimum November population of 50 individuals or more. 
Secure habitat is defined as free from adverse human activities in the 
foreseeable future and relatively safe from natural phenomena that 
would destroy the habitat's value to CWTD.
    The recovery plan established the following criteria for delisting 
(i.e., removing the species from the Federal List of Endangered and 
Threatened Wildlife): (1) Maintain a minimum of at least 400 CWTD 
across the Columbia River DPS; and (2) maintain 3 viable 
subpopulations, all located on secure habitat. Recovery actions 
specified in the recovery plan to achieve the downlisting and delisting 
goals include management of existing subpopulations and protection of 
their habitat, establishment of new subpopulations, and public 
education and outreach to foster greater understanding of CWTD and its 
place in the natural environment of its historic range (U.S. Fish and 
Wildlife Service 1983, pp. 31-33).
    Recovery Plan Implementation for the Columbia River DPS. At the 
time of the Revised Recovery Plan's publication, the JBHR Mainland Unit 
subpopulation was the only subpopulation considered viable and secure. 
The Revised Recovery Plan recommended increasing the Tenasillahe Island 
subpopulation to a minimum viable herd of 50 deer, maintaining a total 
population minimum of 400 deer, and securing habitat for one additional 
subpopulation (U.S. Fish and Wildlife Service 1983, p. 31).
    Forty-eight years have passed since the CWTD was federally listed 
as endangered, and the species is now more abundant and better 
distributed throughout the lower Columbia River Valley. The improvement 
is due in part to the support and augmentation of existing 
subpopulations, and the establishment of new subpopulations via 
successful translocations within the species' historical range. 
Currently, there are six main CWTD subpopulations: JBHR Mainland Unit 
(88 deer), Tenasillahe Island (154 deer), Upper Estuary Islands (39 
deer), Puget Island (227 deer), Westport/Wallace Island (154 deer), and 
Ridgefield National Wildlife Refuge (NWR) (48 deer) (see Table 1, 
below). Threats to the species have been substantially ameliorated and 
CWTD have met all of the criteria for downlisting to threatened in the 
Revised Recovery Plan. A review of the species' current status relative 
to the downlisting criteria follows.
    Downlisting Criterion 1: Maintain a minimum of at least 400 CWTD 
across the Columbia River DPS. This criterion has been met. The total 
population of the Columbia River DPS has been maintained at over 400 
deer annually since regular surveys began in 1984, and the population 
estimate for 2014 is more than double this figure. See Table 1, below, 
for CWTD subpopulations and their current population sizes.
    Downlisting Criterion 2: Maintain three viable subpopulations, two 
of which are located on secure habitat. This criterion has been met. 
There are currently four viable subpopulations of CWTD: Tenasillahe 
Island at 154 deer, Puget Island at 227 deer, Westport/Wallace Island 
at 154 deer, and the JBH Mainland Unit at 88 deer (see Table 1, below). 
The Tenasillahe Island and Puget Island subpopulations are located on 
secure habitat, as explained in the following status discussion.

                                  Table 1--Estimated Population Size of the Columbia River DPS of CWTD by Subpopulation
                             [U.S. Fish and Wildlife Service 2013a, p. 7; U.S. Fish and Wildlife Service, unpublished data]
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                                                                                          Westport/       JBHR        Upper
                             Year                                 Puget     Tenasillahe    Wallace      Mainland     Estuary     Ridgefield     Total
                                                                  Island       Island       Island        unit     Islands \c\      NWR
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1984.........................................................          170           40          150          360            0            0          720
1985.........................................................          215           40          125          480            0            0          860
1986.........................................................          195           55          125          500            0            0          875
1987.........................................................          185           70          150          500            0            0          905
1988.........................................................          205           80          150          410            0            0          845
1989.........................................................          205           90          150          375            0            0          820
1990.........................................................          200          105          150          345            0            0          800
1991.........................................................          200          130          150          280            0            0          760

[[Page 60856]]

 
1992.........................................................          200          165          175          280            0            0          820
1993.........................................................          200          195          200          175            0            0          770
1994.........................................................          200          205          225          140            0            0          770
1995.........................................................          200          205          225          120            0            0          750
1996.........................................................          200          125          225           51            0            0          610
1997.........................................................          200          150          200          100            0            0          650
1998.........................................................          200          200          200          110            0            0          710
1999.........................................................          150          160          140          110           25            0          585
2000.........................................................          150          135          150          120           55            0          610
2001.........................................................          125          135          150          120           55            0          585
2002.........................................................          125          100          140          125           55            0          545
2003.........................................................          125          100          140          115           80            0          560
2004.........................................................          110          100          140          110           95            0          555
2005.........................................................          125          100          140          100          100            0          565
2006 \a\.....................................................          n/a           86          104           81           67            0
2007 \a\.....................................................          n/a           82          n/a           59       \e\ 41            0
2009 \a\.....................................................          138       \b\ 97          146       \b\ 74           28            0      \d\ 593
2010 \a\.....................................................          n/a          143          164           68           39            0      \d\ 630
2011.........................................................          171           90          n/a           83       \f\ 18            0      \d\ 603
2014.........................................................          227          154      \g\ 154           88           39           48      \d\ 830
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Estimates from 2006-2010 are derived from Forward-Looking Infrared (FLIR) survey results, but survey results from 2008 produced anomalous data
  because an alternative technique was used. These data are not considered representative of actual numbers, and are thus not included in this table.
\b\ Numbers reflect a post-survey translocation of 16 deer from Tenasillahe Island to the Refuge mainland.
\c\ Includes Lord, Walker, Fisher, Hump, and Crims Islands.
\d\ Includes estimates from residual populations in Cottonwood Island, Clatskanie Flats, Brownsmead, Willow Grove, Barlow Point, and Rainier.
\e\ Does not include Fisher and Hump Islands.
\f\ Assuming a white-tailed:black-tailed deer ratio of 20:1; this includes only Crims Island.
\g\ Approximate population estimate after 2014 translocation.
Note: Totals are not given in 2006 and 2007 due to incomplete data, and no surveys were conducted in 2012 or 2013.

    At the time of the CWTD Revised Recovery Plan publication in 1983, 
the number of deer in the Columbia River DPS was thought to be 300 to 
400. The first comprehensive survey effort in 1984 resulted in an 
estimate of 720 deer, suggesting that prior estimates were probably 
low. Beginning in 1996, the Service began using Forward-Looking 
Infrared (FLIR) thermography camera systems affixed to a helicopter 
(or, in 2008, a fixed-wing Cessna 206) to conduct aerial CWTD surveys 
within the Columbia River DPS, in addition to annual fall ground 
counts. Fall ground counts have been conducted since 1985, and have 
been used to provide more clarity in establishing long-term population 
trends by indicating gross population changes. In years when FLIR 
surveys were not completed, ground counts were used to estimate whether 
there had been any unusual decrease or increase in a subpopulation. The 
current estimate (2014) of the Columbia River DPS population is 
approximately 830 deer (Table 1).
    The JBHR Mainland Unit subpopulation has fluctuated in numbers 
since regular surveys began, with a high of 500 deer in 1987 to a low 
of 51 deer in 1996 (after a catastrophic flood event). The declining 
population trend seen in the JBHR Mainland Unit subpopulation over the 
last 30 years (Table 1) is likely the result of overpopulation that 
occurred after the area became a refuge in 1971. With the protected 
status of the refuge and the cessation of hunting, the deer increased 
in numbers to levels that were unsustainable given the amount of 
available habitat, culminating with the peak of 500 CWTD. Refuge 
biologists established a goal of approximately 125 deer for the JBHR 
Mainland Unit to maintain long-term stability (U.S. Fish and Wildlife 
Service 2010, p. 2:62). Flooding on the JBHR Mainland Unit has occurred 
three times over the history of the refuge, in 1996, 2006 and 2009. 
Although the refuge saw short-term population declines after each 
flood, the numbers returned to prior levels within a few years. From 
1997 to the present, the JBHR Mainland Unit subpopulation stabilized 
and consistently maintains population numbers above the recovery 
criteria minimum of 50 deer (Table 1).
    In March of 2011, JBHR personnel discovered erosion of the dike 
that protects the Mainland Unit from flooding by the Columbia River. 
The progressive erosion led to the closure of Steamboat Slough Road, 
which runs on top of the dike. A geotechnical assessment determined 
that the dike was at ``imminent risk'' of failure (U.S. Fish and 
Wildlife Service 2013b, p. 2) and a breach at that location would 
result in the flooding of the JBHR Mainland Unit at high tides. In 
response to this threat, the Service conducted an emergency 
translocation of 37 CWTD from the JBHR Mainland Unit to unoccupied but 
suitable habitat at Ridgefield NWR in early 2013 (U.S. Fish and 
Wildlife Service 2013c, p. 8). The U.S. Army Corps of Engineers 
subsequently constructed a set-back levee on JBHR to prevent flooding 
of the refuge and to restore salmonid habitat (U.S. Army Corps of 
Engineers 2013, p. 11). Though the set-back dike, completed in fall 
2014, reduces available CWTD habitat on the JBHR Mainland Unit by 
approximately 28 ha (70 ac), or approximately 3.5 percent of the total 
797 ha (1,970 ac), it will restore the stability of the remaining 
habitat for the Mainland Unit subpopulation. After the removal of 37 
CWTD in 2013, the population of the JBHR Mainland Unit has rebounded 
quickly to an estimated 88 deer (2014).

[[Page 60857]]

    The JBHR also includes Tenasillahe Island in Oregon. The 1983 
Revised Recovery Plan recommended increasing the Tenasillahe Island 
subpopulation to a minimum viable herd of 50 deer. The Service has 
accomplished this recovery goal through several translocation efforts 
and habitat enhancement, and the island's subpopulation, though still 
affected by flood events, has remained relatively stable. The most 
current FLIR survey at this location (in 2014) estimated the population 
at 154 deer (Table 1).
    The Revised Recovery Plan identified a series of islands near 
Longview, Washington, as suitable habitat to create a third 
subpopulation. These islands, known as the Upper Estuary Islands, 
included Fisher, Hump, Lord, and Walker, with a total area of 400 ha 
(989 ac), under a mix of private and State ownership. Fisher Island is 
a naturally occurring tidal wetland dominated by black cottonwood 
(Populus trichocarpa), willow (Salix spp.), and dogwood (Cornus 
nuttallii) (U.S. Fish and Wildlife Service 2005, p. 1). The remaining 
three islands are dredge material sites with dense cottonwood and shrub 
habitat. Translocations of CWTD to Fisher/Hump and Lord/Walker Islands 
began in 2003, and a total of 66 deer (33 to each set of islands) have 
been relocated there to date (U.S. Fish and Wildlife Service 2013a, p. 
23). The population goal for the 4-island complex is at least 50 CWTD 
(U.S. Fish and Wildlife Service 2005, p. 1), but as a unit, this 
complex has yet to maintain the target population of 50 deer. The 4-
island complex currently contains 10 CWTD. It is suspected that the low 
numbers of CWTD in the complex are a result of deer finding higher 
quality habitat in areas adjacent to the island complex. Telemetry data 
indicate that CWTD frequently move between the island complex and 
adjacent areas of Willow Grove, the Barlow Point industrial area, and 
Dibblee Point (U.S. Fish and Wildlife Service 2005, p. 3), so many of 
the translocated deer may be in these other locations. These adjacent 
areas averaged 44 CWTD between 2009 and 2011 (U.S. Fish and Wildlife 
Service 2013a, p. 23). However, further range expansion in this region 
is limited by its direct proximity to urban development. The potential 
for problems associated with translocations, particularly damage to 
private gardens and commercial crops, remains an issue with local 
landowners and therefore limits CWTD range expansion at this time.
    Crims Island was also designated in the Revised Recovery Plan as a 
suitable translocation site and has subsequently been added to the 
Upper Estuary Islands subpopulation for recovery purposes. Crims Island 
lies 1.6 km (1 mi) downstream from the original Upper Estuary Islands, 
and contributes to the interchange among CWTD of neighboring islands 
and mainland subpopulations (U.S. Fish and Wildlife Service 2005, p. 
4). It was secured for CWTD recovery in a 1999 agreement between the 
Bonneville Power Administration, the Columbia Land Trust, and the 
Service (U.S. Fish and Wildlife Service 2010, p. 1:19). Crims Island 
has received 66 CWTD through several translocation efforts (U.S. Fish 
and Wildlife Service 2013a, p. 21). The protected portion of the island 
(approximately 191 ha (473 ac)) contains about 121 ha (300 ac) of 
deciduous forest (black cottonwood, Oregon ash (Fraxinus latifolia), 
and willow), pasture, and marsh. Crims Island was formerly grazed but 
remains undeveloped. This area was originally considered able to 
support 50 to 100 deer (U.S. Fish and Wildlife Service 2000, p. 2) but 
has only supported between 8 and 33 deer since 2000, with the latest 
population estimate at 29 deer in 2014.
    Puget Island has supported one of the largest and most stable 
subpopulations of CWTD. While densities have historically been lower 
than refuge lands, the size of Puget Island (about 2,023 ha (5,000 ac)) 
has enabled it to support a healthy number of deer. Since regular 
surveys began in 1984, the population at Puget Island has averaged 
between 175 and 200 deer. The latest survey (2014) estimated the 
population at a high of 227 deer. Eleven deer were removed from the 
area for the 2014 translocation to Ridgefield NWR. Puget Island is a 
mix of private and public land. The private land consists mainly of 
pasture for cattle and goats, residential lots, and hybrid cottonwood 
plantations that provide food and shelter for the deer. Farmers and 
ranchers on the island often implement predator (coyote, Canis latrans) 
control on their lands to protect poultry and livestock, and this 
management activity likely benefits the CWTD population on the island.
    The Westport/Wallace Island subpopulation has also been stable and 
relatively abundant since regular surveys began. After reaching a peak 
of approximately 225 deer in 1995, the subpopulation's last estimate 
from 2010 was 164 deer (Table 1). However, 10 deer were removed from 
the area for the 2014 translocation to Ridgefield NWR, so the most 
current estimate is approximately 154 deer. Habitat in the Westport 
area consists mainly of cottonwood/willow swamp and scrub-shrub tidal 
wetlands. In 1995, Wallace Island, Oregon, was purchased by the Service 
for CWTD habitat. Though the habitat is now protected for the recovery 
of CWTD, the 227-ha (562-ac) island alone is considered too small to 
support a viable population (U.S. Fish and Wildlife Service 2010, p. 
4:39). Because it is located adjacent to Westport, Oregon, Wallace 
Island is considered part of the Westport/Wallace Island CWTD 
subpopulation. Acquisitions by JBHR also include a 70-ha (173-ac) area 
of Westport called the Westport Unit.
    Ridgefield NWR is located in Clark County, Washington, 
approximately 108 km (67 mi) southeast of JBHR, and is comprised of 
2,111 ha (5,218 ac) of marshes, grasslands, and woodlands with about 
1,537 ha (3,800 ac) of upland terrestrial habitat. As part of the 2013 
emergency translocation, the Service moved 37 deer from the JBHR 
Mainland Unit to Ridgefield NWR in Clark County, Washington (U.S. Fish 
and Wildlife Service 2013c, p. 8). Eleven of the deer suffered either 
capture-related mortality or post-release mortality within 2 months, 
mainly due to predation (U.S. Fish and Wildlife Service, unpublished 
data). In 2014, another 21 deer were translocated to Ridgefield NWR 
from Puget Island and Westport, and the current estimated population 
based on FLIR surveys is 48 deer (Table 1).
    Cottonwood Island lies approximately 1.6 km (1 mi) upriver from 
Dibblee Point on the Washington side of the Columbia River. The 384-ha 
(948-ac) island was considered in the Revised Recovery Plan as a 
potential relocation site; it was thought that the island could support 
up to 50 deer. The island is a recreational site for camping and 
fishing with the surrounding waters used for waterfowl hunting. 
Cottonwood Island has multiple landowners, primarily a coalition of 
ports administered by the Port of Portland, but there are no people 
living on the island and no commercial interests (U.S. Fish and 
Wildlife Service 2013b, p. 15). In the fall of 2010, 15 deer were moved 
to Cottonwood Island from the Westport population in Oregon (Cowlitz 
Indian Tribe 2010, p. 1). Seven confirmed mortalities resulted from 
vehicle collisions as CWTD dispersed off the island (Cowlitz Indian 
Tribe 2010, p. 3). Telemetry monitoring by Washington Department of 
Fish and Wildlife (WDFW) personnel in the spring of 2011 detected three 
radio-collared CWTD on Cottonwood Island and two on the Oregon mainland 
near Rainier, Oregon. A second translocation of 12 deer to Cottonwood 
Island (from Puget Island) occurred in conjunction

[[Page 60858]]

with the 2013 emergency translocation effort (U.S. Fish and Wildlife 
Service 2013a, p. 24). All but four of these new CWTD subsequently died 
or moved off the island, with five deer dying from vehicle strikes 
(U.S. Fish and Wildlife Service, unpublished data). Habitat quality may 
be a factor in the movement of CWTD off the island, so habitat 
restoration of about 6 ha (15 ac) was conducted in 2013. Staff at JBHR 
and the Cowlitz Indian Tribe are conducting periodic monitoring of CWTD 
translocated to Cottonwood Island.
    While the overall population trend for the Columbia River DPS 
appears to decline over time along a similar trajectory as the JBHR 
Mainland Unit subpopulation until 2006, closer examination reveals that 
the overall trend is strongly influenced by the decline of the 
unsustainable highs that the JBHR Mainland Unit experienced in the late 
1980s. The other subpopulations did not undergo a similar decline, and 
when the JBHR Mainland Unit is left out of the analysis, the overall 
Columbia River DPS population demonstrates a more positive trend.
    Page 37 of the Revised Recovery Plan states, ``. . . protection and 
enhancement (of off-refuge CWTD habitat) can be secured through local 
land use planning, zoning, easement, leases, agreements, and/or 
memorandums of understanding'' (U.S. Fish and Wildlife Service 1983, p. 
37). In the 30 years following the development of the Revised Recovery 
Plan, the Service interpreted this to mean that the only acceptable 
methods of securing habitat in order to meet recovery criteria were the 
ones listed in the above citation. This led the Service to focus most 
CWTD recovery efforts on increasing and maintaining the subpopulations 
within the boundaries of the JBHR rather than working in areas that did 
not meet the narrow interpretation of ``secure'' habitat. These efforts 
resulted in some successful recovery projects such as growing and 
stabilizing the subpopulation on Tenasillahe Island, which is part of 
JBHR and currently one of the largest subpopulations in the Columbia 
River DPS. However, it also led the Service to put significant 
resources and time toward efforts that have shown less consistent 
success, such as establishing viable and stable herds on the Upper 
Estuary islands. At present, a total of 314 deer have been translocated 
in an effort to move CWTD to ``secure'' habitats. As discussed earlier 
in this section, some translocations yielded success (Ridgefield) and 
some failed to increase subpopulation numbers (Cottonwood Island and 
the Upper Estuary Islands).
    Two subpopulations, Puget Island and Westport/Wallace Island, have 
maintained relatively large and stable numbers over the last 3 decades 
even though these areas are not under conservation ownership or 
agreement. The number of CWTD in these two areas clearly demonstrates a 
measure of security in the habitat regardless of the ownership of the 
land. If we look at population trends and stability, these two 
locations have provided more biological security to CWTD than the flood 
prone JBHR Mainland Unit, which is protected for the conservation of 
CWTD.
    The 30-year population trends from Puget Island and Westport/
Wallace Island make it clear that CWTD can maintain secure and stable 
populations on suitable habitat that is not formally set aside by 
acquisition, conservation easement, or agreement for the protection of 
the species. Within this context, we have re-evaluated the current 
status of CWTD under a broadened framework for what constitutes 
``secure'' habitat. This now includes locations that, regardless of 
ownership status, have supported viable subpopulations of CWTD for 20 
or more years, and have no anticipated change to land management in the 
foreseeable future that would make the habitat less suitable to CWTD.
    While Puget Island and Westport/Wallace Island had previously not 
been considered ``secure'' habitat, they have been supporting two of 
the largest and most stable subpopulations in the Columbia River DPS 
since listing. Although CWTD numbers at these 2 locations have 
fluctuated, the Westport/Wallace Island subpopulation had 150 deer in 
1984 and 164 deer in 2010, and the Puget Island population had 170 deer 
in 1984 and 227 deer in 2014 (Table 1). The Revised Recovery Plan 
identified Puget Island and the Westport area as suitable sources for 
CWTD translocations due in large part to their population stability. 
Subsequently, these two locations have been the donor source for 
numerous translocations over the last 30 years, including the removal 
of 23 deer from Puget Island and 10 deer from Westport as part of the 
2013-2014 translocation effort. Removal of CWTD from these two 
locations on multiple occasions for the purpose of translocation has 
not resulted in any decrease in donor population numbers.
    Since the late 1980s, the total acreage of tree plantations on 
Puget Island decreased by roughly half (Stonex 2012, pers. comm.). 
However, a proportional decrease in the numbers of CWTD did not occur. 
Furthermore, though Puget Island has experienced changes in land use 
and increases in development over time, such as the break-up of large 
agricultural farms into smaller hobby farms, the changes have not 
inhibited the ability of CWTD to maintain a very stable population on 
the island. The Wahkiakum Comprehensive Plan (2006) anticipates that 
future development on Puget Island will continue to be tree farms, 
agricultural farms, and rural residential (both low density with 1- to 
2-ha (2.5- to 5-ac) lots and medium density with 0.4- to 1-ha (1- to 
2.5-ac) lots), with a goal of preserving the rural character of the 
area (Wahkiakum County 2006, p. 392). Puget Island's population has 
grown at a nominal rate of 1 to 1.5 percent over the past 15 years; 
that past rate along with building permit growth over the last 5 years 
leads Wahkiakum County to project a population growth rate on the 
island of 1.5 percent through the 20-year ``plan horizon'' that extends 
through the year 2025 (Wahkiakum County 2006, p. 379). Because CWTD 
have demonstrated the ability to adapt to the type of development on 
the island, continued development of this type is not expected to 
impact CWTD on the island in the foreseeable future (Meyers 2013, pers. 
comm.). Therefore, the Service considers Puget Island secure habitat.
    Apart from Wallace Island and the Westport Unit, most of the area 
where the Westport/Wallace Island subpopulation is located is under 
private ownership and a large portion of that land is owned and managed 
by one individual family. The family has managed the land for duck 
hunting for many years, implementing intensive predator control and 
maintaining levees as part of their land management activities. The 
Service suspects that CWTD reproduction in the Westport/Wallace Island 
subpopulation has benefited from this intensive predator control 
(Meyers 2013, pers. comm.). If the property owners alter the management 
regime or the property should change hands, the Westport/Wallace Island 
subpopulation could be negatively affected, particularly if the owners 
decide to remove the current levees, thereby inundating some of the 
CWTD habitat (Meyers 2013, pers. comm.). Because the stability of CWTD 
in this area appears to be so closely tied to one private landowner and 
their land management choices, there is less certainty as to the long-
term security of this subpopulation and its associated habitat. As a 
result, although a small portion of the habitat for this subpopulation 
is protected for CWTD,

[[Page 60859]]

the Service does not currently recognize Westport/Wallace Island as 
secure habitat. However, given that the area has supported a healthy 
subpopulation of CWTD for several decades, the Service should consider 
securing this property through purchase or conservation agreement to 
ensure a stable management regime, thereby increasing recovery 
prospects for the Columbia River DPS.
    With respect to the species' recovery criteria (U.S. Fish and 
Wildlife Service 1983, pp. 31-33), we currently have 4 viable 
subpopulations of CWTD: (1) Tenasillahe Island at 154 deer, (2) Puget 
Island at approximately 227 deer, (3) Westport/Wallace Island at 154 
deer, and (4) the JBHR Mainland Unit at 88 deer (Table 1). Furthermore, 
because two of these viable subpopulations, Tenasillahe Island and 
Puget Island, are now considered secure, the Columbia River DPS has met 
the recovery criteria for downlisting to threatened status under the 
Act. The Westport/Wallace Island subpopulation has shown consistent 
stability over the last 30 years, on par with Puget Island and 
Tenasillahe Island, but its long-term security is less certain. The 
JBHR Mainland Unit has already rebounded in numbers to over 50 animals 
(2014 population estimate was 88 deer), and the set-back dike is in 
place to restore the stability of the habitat. In order for the Service 
to determine that the population has regained its secure status, 
several years of monitoring will be necessary to accurately assess the 
long-term response of the JBHR Mainland Unit population to both the 
removal of half its numbers in 2013, and the reduction in habitat from 
the construction of the setback dike.

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 vertebrate 
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 due 
to one or more of the five factors described in section 4(a)(1) of the 
Act: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We must consider these same five factors in 
reclassifying (i.e., downlisting) a species. We may downlist a species 
if the best available scientific and commercial data indicate that the 
species no longer meets the definition of endangered, but instead meets 
the definition of threatened due to: (1) The species' status has 
improved to the point that it is not in danger of extinction throughout 
all or a significant portion of its range, but the species is not 
recovered (as is the case with the CWTD); or (2) the original 
scientific data used at the time the species was classified were in 
error.
    Determining whether a species has improved to the point that it can 
be downlisted requires consideration of whether the species is 
endangered or threatened because of the same five categories of threats 
specified in section 4(a)(1) of the Act. For species that are already 
listed as endangered or threatened, 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 ``endangered'' for purposes of the Act if it is in 
danger of extinction throughout all or a ``significant portion of its 
range'' and is ``threatened'' if it is likely to become endangered 
within the foreseeable future throughout all or a ``significant portion 
of its range.'' The word ``range'' in the significant portion of its 
range (SPR) phrase refers to the general geographical area in which the 
species occurs at the time a status determination is made. We published 
a final policy interpreting the phrase ``Significant Portion of its 
Range'' (SPR) (79 FR 37578). The final policy states that (1) if a 
species is found to be endangered or threatened throughout a 
significant portion of its range, the entire species is listed as an 
endangered species or a threatened species, respectively, and the Act's 
protections apply to all individuals of the species wherever found; (2) 
a portion of the range of a species is ``significant'' if the species 
is not currently endangered or threatened throughout all of its range, 
but the portion's contribution to the viability of the species is so 
important that, without the members in that portion, the species would 
be in danger of extinction, or likely to become so in the foreseeable 
future, throughout all of its range; (3) the range of a species is 
considered to be the general geographical area within which that 
species can be found at the time Service or the National Marine 
Fisheries Service makes any particular status determination; and (4) if 
a vertebrate species is endangered or threatened throughout an SPR, and 
the population in that significant portion is a valid DPS, we will list 
the DPS rather than the entire taxonomic species or subspecies. For the 
purposes of this analysis, we will evaluate whether the currently 
listed species, the Columbia River DPS of CWTD, continues to meet the 
definition of endangered or threatened.
    In considering what factors might constitute threats, we must look 
beyond the exposure of the species to a particular factor to evaluate 
whether the species may respond to the factor in a way that causes 
actual impacts to the species. If there is exposure to a factor and the 
species responds negatively, the factor may be a threat, and during the 
five-factor analysis, we attempt to determine how significant a threat 
it is. The threat is significant if it drives or contributes to the 
risk of extinction of the species, such that the species warrants 
listing as endangered or threatened as those terms are defined by the 
Act. However, the identification of factors that could impact a species 
negatively may not be sufficient to compel a finding that the species 
warrants listing. The information must include evidence sufficient to 
suggest that the potential threat is likely to materialize and that it 
has the capacity (i.e., it should be of sufficient magnitude and 
extent) to affect the species' status such that it meets the definition 
of endangered or threatened under the Act.
    In the following analysis, we evaluate the status of the Columbia 
River DPS of CWTD throughout all its range as indicated by the five-
factor analysis of threats currently affecting, or that are likely to 
affect, the species within the foreseeable future.

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

    CWTD evolved as a prairie edge/woodland-associated species with 
historically viable populations that were not confined to river valleys 
(Bailey 1936, pp. 92-93). CWTD were then extirpated in all but two 
areas of their historical range: the Columbia River DPS area and the 
Douglas County DPS area. The remnant Columbia River DPS population was 
forced by anthropogenic factors (residential and commercial 
development, roads, agriculture, etc., causing fragmentation of natural 
habitats) into the lowland areas it now

[[Page 60860]]

inhabits. Urban, suburban, and agricultural areas now limit population 
expansion, and existing occupied areas support densities of CWTD 
indicative of low-quality habitats, particularly lower lying and wetter 
habitat than where the species would typically be found.
    Loss of habitat is suspected as a key factor in historical CWTD 
declines; 12,140 ha (30,000 ac) of habitat along the lower Columbia 
River were converted for residential and large-scale agricultural use 
from 1870 to 1970 (Northwest Power and Conservation Council 2004, p. 
B4:13). Over time, CWTD were forced into habitat that was fragmented, 
wetter, and more lowland than what would be ideal for the species. The 
recovery of the Douglas County DPS reflects the availability of more 
favorable habitat (a mix of conifer and hardwood-dominated vegetation 
communities, including oak woodlands and savannah) and compatible land 
use practices, such as intensive sheep grazing (Franklin and Dyrness 
1988, p. 110).
    Though limited access to high-quality upland habitat in the 
Columbia River DPS remains the most prominent hindrance to CWTD 
dispersal and recovery today, the majority of habitat loss and 
fragmentation has already occurred. The most dramatic land use changes 
occurred during the era of hydroelectric and floodplain development in 
the Columbia River basin, beginning with the construction of Willamette 
Falls Dam in 1888 and continuing through the 1970s (Northwest Power and 
Conservation Council 2013, p. 1). Compared to the magnitude of change 
that occurred to CWTD habitat through activities associated with these 
types of development (e.g., dredging, filling, diking, and 
channelization) (Northwest Power and Conservation Council 2004, p. III, 
13-15), significant future changes to currently available habitat for 
the Columbia River DPS are not anticipated.
    Recovery efforts for CWTD have, in large part, focused on formally 
protecting land for the recovery of the species through acquisitions 
and agreements such as JBHR, Crims Island, Cottonwood Island, and 
Wallace Island, as well as restoration activities to increase the 
quality of existing available habitat. To date, the Service has worked 
to conserve 3,604 ha (8,918 ac) of habitat for the protection of CWTD 
(U.S. Fish and Wildlife Service 2013, p. 20). Habitat restoration and 
enhancement activities on JBHR have improved the quality of habitat 
since the publication of the Revised Recovery Plan in 1983, and 
Ridgefield NWR now has an active habitat enhancement program in place 
to support the translocated CWTD. These efforts have added to the 
available suitable habitat for the Columbia River DPS and helped to 
offset some of the impacts from previous habitat loss.
    Though much of the occupied habitat in the Columbia River DPS is 
fragmented, wetter than the species prefers, and more vulnerable to 
flooding, many variables influence CWTD survival. A mosaic of 
ownerships and protection levels does not necessarily hinder the 
existence of CWTD when land-use is compatible with the habitat needs of 
the deer. For example, on Puget Island, which is not formally set aside 
for the protection of CWTD, the fawn:doe (F:D) ratios are higher than 
on the protected JBHR Mainland Unit, and the area has supported a 
stable CWTD population without active management in the midst of 
continued small-scale development for several decades. Additionally, 
the Westport/Wallace Island subpopulation has long maintained stable 
numbers, even though most of the area is not managed for the protection 
of CWTD. The level of predation, level of disturbance, and condition of 
habitat all influence how CWTD can survive in noncontiguous habitats.
    Flooding is a threat to CWTD habitat when browsing and fawning 
grounds become inundated for prolonged periods. In the past, 
significant flooding events have caused large-scale CWTD mortality and 
emigration from the JBHR Mainland Unit (U.S. Fish and Wildlife Service 
2007, p. 1). The JBHR Mainland Unit experienced three major storm-
related floods in 1996, 2006, and 2009. These flooding events were 
associated with a sudden drop in population numbers, followed by 
population recovery in the next few years. During some historical 
flooding events, CWTD abandoned and have not returned to low-lying 
areas that became inundated, particularly areas that continued to 
sustain frequent flooding such as Karlson Island.
    A large proportion of all occupied CWTD habitat is land that was 
reclaimed from tidal inundation in the early 20th century by 
construction of dikes and levees for agricultural use (U.S. Fish and 
Wildlife Service 2010, p. 1:17). In recent years, there has been 
interest in restoring the natural tidal regime to some of this land, 
mainly for fish habitat enhancement. This restoration could reduce 
habitat for CWTD in certain areas where the majority of the 
subpopulation relies upon the reclaimed land. Since 2009, three new 
tide gates were installed on the JBHR Mainland Unit to improve fish 
passage and facilitate drainage in the event of large-scale flooding. 
When the setback levee on the refuge was completed in fall 2014, the 
original dike under Steamboat Slough Road was breached and the 
estuarine buffer created now provides additional protection from 
flooding to the JBHR Mainland Unit. However, it has also resulted in 
the loss or degradation of about 28 ha (70 ac) of CWTD habitat, which 
amounts to approximately 3.5 percent of the total acreage of the JBHR 
Mainland Unit.
    The persistence of invasive species, especially reed canary grass, 
has reduced forage quality over much of CWTD's range, but it remains 
unclear as to how much this change in forage quality is affecting the 
overall status of CWTD. While CWTD will eat the grass, it is only 
palatable during early spring growth, or about 2 months in spring, and 
it is not a preferred forage species (U.S. Fish and Wildlife Service 
2010, p. 3:12). Cattle grazing and mowing are used on JBHR lands to 
control the growth of reed canary grass along with tilling and planting 
of pasture grasses and forbs. This management entails a large effort 
that will likely be required in perpetuity unless other control options 
are discovered. Reed canary grass is often mechanically suppressed in 
agricultural and suburban landscapes, but remote areas, such as the 
upriver islands, experience little control. Reed canary grass thrives 
in wet soil and excludes the establishment of other grass or forb 
vegetation that is likely more palatable to CWTD. Increased groundwater 
due to sea level rise or subsidence of diked lands may exacerbate this 
problem by extending the area impacted by reed canary grass. However, 
where groundwater levels rise high enough and are persistent, reed 
canary grass will be drowned out and may be eradicated, though this 
rise in water level may also negatively affect CWTD. The total area 
occupied by reed canary grass in the future may therefore decrease, 
remain the same, or increase, depending on topography, land management, 
or both.
    Competition with elk (Cervus canadensis) for forage on the JBHR 
Mainland Unit has historically posed a threat to CWTD (U.S. Fish and 
Wildlife Service 2004, p. 5). To address these concerns, JBHR staff 
trapped and removed 321 elk during the period from 1984 to 2001. 
Subsequently, JBHR staff conducted two antlerless elk hunts, resulting 
in a harvest of eight cow elk (U.S. Fish and Wildlife Service 2004, p. 
13). The combination of these efforts and elk emigration reduced the 
elk population to fewer than 20 individuals.

[[Page 60861]]

The JBHR considers their elk reduction goal to have been met. Future 
increases in the population above 20 individuals may be controlled with 
a limited public hunt (U.S. Fish and Wildlife Service 2010, p. B-20). 
In a related effort, JBHR personnel have constructed roughly 4 miles 
(6.4 km) of fencing to deter elk immigration onto the JBHR (U.S. Fish 
and Wildlife Service 2004, p. 10).

Climate Change

    Our analyses under the Act include 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 (Intergovernmental Panel on Climate Change 2013, p. 1450). 
The term ``climate change'' thus refers to a change in the mean or 
variability of one or more measures of climate (e.g., temperature or 
precipitation) that persists for an extended period, typically decades 
or longer, whether the change is due to natural variability, human 
activity, or both (Intergovernmental Panel on Climate Change 2013, p. 
1450). 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) (Intergovernmental 
Panel on Climate Change 2007, 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.
    Environmental changes related to climate change could potentially 
affect CWTD occupying low-lying habitat that is not adequately 
protected by well-maintained dikes. Furthermore, even in areas that 
have adequate dikes built, the integrity of those dikes could be at 
risk of failure from climate change. Climatic models have predicted 
significant sea-level rise over the next century (Mote et al. 2014, p. 
492). Rising sea levels could degrade or inundate current habitat, 
forcing some subpopulations of CWTD to move out of existing habitat 
along the Columbia River into marginal or more developed habitat. A 
rise in groundwater levels could alter vegetation regimes, lowering 
forage quality of CWTD habitat and allowing invasive plants to expand 
their range into new areas of CWTD habitat. The increase in ground 
water levels due to sea-level rise could also allow the threat of hoof 
rot to persist or increase.
    Maintaining the integrity of existing flood barriers that protect 
CWTD habitat will be important to the recovery of the Columbia River 
DPS until greater numbers of CWTD can occupy upland habitat through 
recruitment, additional translocations, and natural range expansion. 
The JBHR Mainland Unit has experienced three major storm-related floods 
since 1996. While this could be a cluster of storms in the natural 
frequency of occurrence, it could also indicate increased storm 
intensity and frequency due to climate change effects. These flooding 
events have been associated with a sudden drop in the CWTD population 
(Table 1), which then slowly recovers. An increased rate of occurrence 
of these events, however, could permanently reduce the size of this 
subpopulation. The potential for increased numbers of flood events 
could also lead to increases in the occurrence of hoof rot and other 
deer maladies.
    The National Wildlife Federation has employed a model to predict 
changes in sea level in Puget Sound, Washington, and along areas of the 
Oregon and Washington coastline. The study predicted an average rise of 
0.28 m (0.92 ft) by 2050, and 0.69 m (2.26 ft) by 2100, in the Columbia 
River region (Glick et al. 2007, p. 73). A local rise in sea level 
would translate into the loss of some undeveloped dry land and tidal 
and inland fresh marsh habitats. By 2100, projections show that these 
low-lying habitats could lose from 17 to 37 percent of their current 
area due to an influx of saltwater. In addition, since the JBHR 
Mainland Unit and Tenasillahe Island were diked in the early 1900s, the 
land within the dikes has subsided and dropped to a level near or below 
groundwater levels. This in turn has degraded CWTD habitat quality in 
some areas. Although salt-water intrusion does not extend this far 
inland, the area experiences 2- to 2.5-m (7- to 8-ft) tidal shifts due 
to a backup of the Columbia River. Sea-level rise may further increase 
groundwater levels on both of these units, as levees do not provide an 
impermeable barrier to groundwater exchange.
    Due to the reasons listed above, we find the effects of climate 
change to be a potential threat to some subpopulations of CWTD in the 
future, particularly the JBHR Mainland Unit and Tenasillahe Island 
subpopulations, but not the entire Columbia River DPS. Because of the 
low-lying nature of some currently occupied CWTD habitat in the 
Columbia River DPS, the long-term stability of the subpopulations in 
those areas may rely on the availability of and access to high-quality 
upland habitat protected from the effects of projected sea-level rise. 
The Columbia River DPS would benefit from the identification of 
additional suitable high-quality upland habitat and the development of 
partnerships with State wildlife agencies to facilitate the 
translocation of CWTD to these areas, as well as securing land with 
existing stable subpopulations, such as the Westport area.
Summary of Factor A
    Habitat loss still remains a threat today, though a greater 
understanding of CWTD adaptation and persistence clearly indicates that 
the severity of the threat is less than previously thought. Stable 
populations of the species do persist in habitat that was previously 
dismissed as inadequate for long-term survival such as the 
subpopulations on Puget Island, Washington, and in Westport, Oregon 
(Westport/Wallace Island subpopulation). Historical habitat loss was 
largely a result of development and while this activity is still a 
limiting factor, we now understand that the type of development 
influences how CWTD respond. Areas such as Puget Island have been and 
are expected to continue experiencing the breakup of large agricultural 
farms into smaller hobby farms with a continued focus on low- to 
medium-density rural residential development. This type of change has 
not inhibited the ability of CWTD to maintain a stable population on 
Puget Island. Therefore, this type of development is not expected to 
impact CWTD on Puget Island in the foreseeable future. In contrast, 
areas like Willow Grove will likely see a continued change from an 
agricultural to a suburban landscape; this type of development may have 
a negative impact on CWTD depending on the density of development.
    The Service`s recovery efforts involving habitat acquisition and 
restoration have led to a corresponding increase in the amount and 
quality of habitat specifically protected for the benefit of CWTD. 
Habitat enhancement efforts have been focused primarily on the JBHR 
Mainland Unit, followed by Tenasillahe Island and Crims Island where 
attention has been focused on increasing the quality of browse, forage, 
and cover. There is also a new habitat enhancement program at 
Ridgefield NWR that is focused on increasing the amount of browse and 
forage available to CWTD. Finally, CWTD now have access to the upland 
areas at Ridgefield NWR, and it is expected that they will

[[Page 60862]]

respond positively to the higher quality habitat.
    The rise in sea level predicted by climate change models could 
threaten any low-lying habitat of the Columbia River DPS not adequately 
protected by dikes, and also threaten the integrity of dikes providing 
flood control to certain subpopulations of CWTD. Therefore, the effects 
of climate change could potentially impact certain subpopulations of 
CWTD in the future, but climate change does not constitute a threat to 
the entire DPS now or in the foreseeable future. Overall, although the 
threat of habitat loss and modification still remains, it is lower than 
thought at the time the Recovery Plan was developed; this is due to 
habitat acquisition and enhancement efforts, as well as an overall 
better understanding of the influence of different types of development 
on CWTD populations.

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

    Overutilization for commercial, scientific, or educational purposes 
is not a threat to CWTD. While historical overharvest of CWTD 
contributed to population decline, all legal harvest of CWTD in the 
Columbia River DPS ceased when CWTD was federally listed as endangered. 
Just after the establishment of the JBHR, poaching was not uncommon. 
Public understanding and views of CWTD have gradually changed however, 
and poaching is no longer considered a threat. Regulations and 
enforcement are in place to protect CWTD from overutilization, and a 
downlisting (and associated 4(d) rule) would not change this. There 
have only been a few cases of intentional shooting of CWTD through 
poaching in the 48 years since CWTD were first listed (Bergh 2014, 
pers. comm.). Though poaching cannot be completely ameliorated, this 
current level of poaching is not considered a threat. If subpopulations 
should decline, poaching could have a greater impact on CWTD numbers 
and would need to be monitored. Though overutilization was a factor 
that led to the listing of CWTD as federally endangered in 1967, it 
does not constitute a threat now or in the foreseeable future.

C. Disease or Predation

Disease
    The Revised Recovery Plan lists necrobacillosis (hoof rot) as a 
primary causal factor in CWTD mortality on the JBHR (U.S. Fish and 
Wildlife Service 1983, p. 13). Fusobacterium necrophorum is identified 
as the etiological agent in most cases of hoof rot, although 
concomitant bacteria such as Arcanobacterium pyogenes may also be at 
play (Langworth 1977, p. 383). Damp soil or inundated pastures increase 
the risk of hoof rot among CWTD with foot injuries (Langworth 1977, p. 
383). Among 155 carcasses recovered from 1974 to 1977, hoof rot was 
evident in 31 percent (n=49) of the cases, although hoof rot only 
attributed directly to 3 percent (n=4) of CWTD mortalities (Gavin et 
al. 1984, pp. 30-31). Currently, CWTD on the JBHR Mainland Unit have 
occasionally displayed visible evidence of hoof rot, and recent cases 
have been observed on Puget Island, but its prevalence is not known to 
be a limiting factor in population growth (U.S. Fish and Wildlife 
Service 2010, p. 4:53). Of the 49 CWTD captured from the JBHR Mainland 
Unit and Puget Island in 2013, none displayed evidence of hoof rot at 
the time of capture (U.S. Fish and Wildlife Service, unpublished data).
    Deer hair loss syndrome (DHLS) was documented in black-tailed deer 
in northwest Oregon from 2000 to 2004 (Biederbeck 2004, p. 4). DHLS 
results when a deer with an immune system weakened by internal 
parasites is plagued with ectoparasites such as deer lice (Damalinia 
(Cervicola) spp.). The weakened deer suffer increased inflammation and 
irritation, which result in deer biting, scratching, and licking 
affected areas and, ultimately, removing hair in those regions. This 
condition is found most commonly among deer occupying low-elevation 
agricultural areas (below 183 m (600 ft) elevation). While the study 
found a higher instance in black-tailed deer, cases in CWTD have also 
been observed. Most cases (72 percent) of DHLS detected at the Saddle 
Mountain Game Management Unit in northwest Oregon were associated with 
black-tailed deer. Twenty-six percent of black-tailed deer surveyed in 
the Saddle Mountain Game Management Unit showed symptoms of DHLS, while 
only 7 percent of CWTD were symptomatic (Biederbeck 2004, p. 4). 
Additionally, cases were identified in CWTD in 2002 and 2003, but none 
of the CWTD surveyed in 2004 showed evidence of the disease (Biederbeck 
2004, p. 4). CWTD captured during translocations in recent years have 
occasionally exhibited evidence of hair loss. Mild hair loss has been 
observed in a few fawns and yearlings (U.S. Fish and Wildlife Service 
2010, p. 4:53).
    DHLS is not thought to be highly contagious, nor is it considered 
to be a primary threat to CWTD survival, although it has been 
associated with deer mortality (Biederbeck 2002, p. 11; 2004, p. 7). 
Reports of DHLS among black-tailed deer in Washington have indicated 
significant mortality associated with the condition. In 2006, a high 
number of Yakima area mule deer (Odocoileus hemionus) mortalities were 
reported with symptoms of DHLS (Washington Department of Fish and 
Wildlife 2010, p. 1), although their mortality may be more related to a 
significant outbreak of lice in the population at the time. With 
respect to CWTD, however, there has been no documented mortality 
associated with the disease on the JBHR Mainland Unit (U.S. Fish and 
Wildlife Service 2010, p. 4:53) and DHLS is not a current or 
foreseeable threat.
    Parasite loads were tested in 16 CWTD on the JBHR Mainland Unit and 
Tenasillahe Island in February of 1998 (Creekmore and Glaser 1999, p. 
3). All CWTD tested via fecal samples showed evidence of the stomach 
worm Haemonchus contortus. Lung worm (Parelaphostrongylus spp.) and 
trematode eggs, possibly from liver flukes (Fascioloides spp.), were 
also detected. These results are generally not a concern among healthy 
populations, and even though the Columbia River DPS of CWTD has less 
than optimal forage and habitat quality available in some 
subpopulations, their relatively high parasite load has never been 
linked to mortality in the DPS. Parasites are not a current or future 
threat to CWTD, as the parasite load appears to be offset by a level of 
fecundity that supports stable or increasing populations.
Predation
    Coyote predation on CWTD has been a problem for the Columbia River 
DPS, but careful attention to predator control has demonstrated that 
predation can be managed. Since 1983, studies have been conducted to 
determine the primary factors affecting fawn survival throughout the 
range of the Columbia River DPS of CWTD (U.S. Fish and Wildlife 
Service, unpublished data), and coyote predation is thought to be the 
most significant impact on fawn recruitment. On the JBHR Mainland Unit, 
Clark et al. (2010, p. 1) fitted 131 fawns with radio collars and 
tracked them for the first 150 days of age from 1978 to 1982, and then 
again from 1996 to 2000 (16 deer were dropped from the analyses due to 
collar issues). The authors found only a 23 percent survival rate. 
Coyote predation was determined to be the primary cause of fawn 
mortality, accounting for 69 percent (n=61) of all documented 
mortalities. In comparison, disease and starvation accounted for 16 
percent of known fawn mortalities. The cause(s) of the

[[Page 60863]]

remaining 15 percent of mortalities was unknown.
    Between 1997 and 2008, 46 coyotes were removed from the JBHR 
Mainland Unit by the U.S. Department of Agriculture (USDA) Animal and 
Plant Health Inspection Service (U.S. Fish and Wildlife Service 2010, 
p. 4:62). In some cases, removal has been correlated with an increase 
in fawn survival. In 1996, the estimated JBHR Mainland Unit Fawn:Doe 
(F:D) ratio was 15:100. The following year, after 9 coyotes were 
removed, the F:D ratio increased to 61:100 (U.S. Fish and Wildlife 
Service 2010, p. 4:54). On Tenasillahe Island, the average F:D ratio 
between 2001 and 2003 was 6:100. No coyotes were removed during that 
time. Over the next 5 years (2004 to 2008), 31 coyotes were removed, 
and the F:D ratio improved and averaged 37:100. Clark et al. (2010, p. 
14) suggested shifting the timing of coyote removal from winter/early 
spring to the critical fawning period of June to September. This 
suggestion has been included in the comprehensive conservation plan for 
the JBHR and has been implemented since 2008. Since shifting the timing 
of predator control, a F:D ratio of 37:100 has been maintained on the 
JBHR Mainland Unit. Due to the evident success of predator control 
efforts at JBHR, Ridgefield NWR began implementing a coyote control 
program in May 2013, to support the newly translocated CWTD.
    It is common for private landowners in the region to practice 
predator control on their property, and we have no information that 
leads us to anticipate a change in the level of predator control on 
these lands in the foreseeable future (Meyers 2013, pers. comm.). 
Additionally, coyote control has been in practice on refuge lands for 
some time and will continue to be implemented on both JBHR and 
Ridgefield NWR to support the translocated populations. While coyote 
control efforts in the Columbia River DPS have met with some success, 
there may be other factors, such as habitat enhancement, also 
influencing increased ratios in certain CWTD subpopulations. Doe 
survival in the DPS has been shown to rely more heavily on the 
availability of nutritious forage than predation pressures, even though 
fawn predation within subpopulations is most likely influenced by 
coyote population cycles (Phillips 2009, p. 20). Furthermore, deer and 
elk populations can be depressed by the interplay between various 
factors such as habitat quality and predation pressures (Oregon 
Department of Fish and Wildlife 2013, p. 8).
    As CWTD move towards full recovery and increase in numbers as well 
as occupation of higher quality habitat such as Ridgefield NWR, 
predation will be offset by increased fecundity. Also, the rate of 
predator control currently in place is not anticipated to change in the 
foreseeable future. An intermediate focus on coyote control for the 
translocated populations on refuge lands (and monitoring of predation 
by other species such as bobcat), used in conjunction with long-term 
improvement of habitat conditions, is anticipated to yield fecundity 
increases that will lead to self-sustaining population levels. While 
predator control is in practice in some subpopulations, predation at 
the DPS scale is not a threat.
Summary of Factor C
    Diseases naturally occur in wild ungulate populations. Diseases 
such as hoof rot, DHLS, and parasite loads can often work through a 
population without necessarily reducing the overall population 
abundance. Even though the relatively high parasite load in the 
Columbia River DPS of CWTD is compounded by the additional stressor of 
suboptimal forage and habitat quality for some subpopulations, the load 
itself has never been linked to mortality in the DPS. Disease in the 
Columbia River DPS of CWTD is not a threat now or in the foreseeable 
future.
    Predation in the Columbia River DPS of CWTD is not a threat now or 
in the foreseeable future. Depredation of fawns by coyotes is common in 
the Columbia River DPS; however many factors work in conjunction with 
each other to determine overall level of fawn recruitment. Coyote 
control is in practice on some private lands in the region as well as 
both JBHR and Ridgefield NWR, and the level of control is not 
anticipated to change in the foreseeable future. As CWTD increase in 
numbers through continued recovery efforts, population increases will 
offset the impact of predation.

D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory 
mechanisms are inadequate to address the threats to the CWTD discussed 
under other factors. Section 4(b)(1)(A) of the Act requires the Service 
to take into account ``those efforts, if any, being made by any State 
or foreign nation, or any political subdivision of a State or foreign 
nation, to protect such species. . . .'' In relation to Factor D under 
the Act, we interpret this language to require the Service to consider 
relevant Federal, State, and Tribal laws, regulations, and other such 
mechanisms that may minimize any of the threats we describe in threat 
analyses under the other four factors, or otherwise enhance 
conservation of the species. We give strongest weight to statutes and 
their implementing regulations and to management direction that stems 
from those laws and regulations. An example would be State governmental 
actions enforced under a State statute or constitution, or Federal 
action under statute.
    The following section includes a discussion of State, local, or 
Federal laws, regulations, or treaties that apply to CWTD. It includes 
legislation for Federal land management agencies and State and Federal 
regulatory authorities affecting land use or other relevant management. 
Before CWTD was federally listed as endangered in 1967, the species had 
no regulatory protections. Existing laws were considered inadequate to 
protect the subspecies. The CWTD was not officially recognized by 
Oregon or Washington as needing any special protection or given any 
special consideration under other environmental laws when project 
impacts were reviewed.
    The CWTD is now designated as ``State Endangered'' by the WDFW. 
Although there is no State Endangered Species Act in Washington, the 
Washington Fish and Wildlife Commission has the authority to list 
species (Revised Code of Washington (RCW) 77.12.020), and they listed 
CWTD as endangered in 1980. State listed species are protected from 
direct take, but their habitat is not protected (RCW 77.15.120). Under 
the Washington State Forest Practices Act, the Washington State Forest 
Practices Board has the authority to designate critical wildlife 
habitat for State-listed species affected by forest practices 
(Washington Administrative Code (WAC) 222-16-050, WAC 222-16-080), 
though there is no critical habitat designated for CWTD.
    The WDFW's hunting regulations remind hunters that CWTD are listed 
as endangered by the State of Washington (Washington Department of Fish 
and Wildlife 2015, pp. 18, 20). This designation means it is illegal to 
hunt, possess, or control CWTD in Washington. There has been one 
documented case of an accidental shooting of CWTD by a black-tailed 
deer hunter due to misidentification, and a few cases of intentional 
shooting of CWTD through poaching in the 48 years since CWTD were first 
listed (Bergh 2014, pers. comm.). The State endangered designation 
adequately protects individual CWTD from direct

[[Page 60864]]

harm, but offers no protection to CWTD habitat.
    The Washington State Legislature established the authority for 
Forest Practices Rules (FPR) in 1974. The Forest Practices Board 
established rules to implement the Forest Practices Act in 1976, and 
has amended the rules continuously over the last 30 years. The WDNR is 
responsible for implementing the FPR and is required to consult with 
the WDFW on matters relating to wildlife, including CWTD. The FPR do 
not specifically address CWTD, but they do address endangered and 
threatened species under their ``Class IV-Special'' rules (WAC 222-10-
040). If a landowner's forestry-related action would ``reasonably . . . 
be expected, directly or indirectly, to reduce appreciably the 
likelihood of the survival or recovery of a listed species in the wild 
by reducing the reproduction, numbers, or distribution of that 
species,'' the landowner would be required to comply with the State's 
Environmental Policy Act guidelines before they could perform the 
action in question. The guidelines can require the landowner to employ 
mitigation measures, or they may place conditions on the action such 
that any potentially significant adverse impacts would be reduced. 
Compliance with the FPR does not substitute for or ensure compliance 
with the Federal Endangered Species Act. A permit system for the 
scientific taking of State-listed endangered and threatened wildlife 
species is managed by the WDFW.
    Though CWTD (Columbia River DPS) are not listed as endangered or 
threatened by the State of Oregon, they are classified as a ``protected 
mammal'' by the State of Oregon because of their federally endangered 
designation, and this will not change if CWTD are federally downlisted 
to threatened (Oregon Department of Fish and Wildlife 2012, p. 1). The 
CWTD is designated as ``Sensitive-Vulnerable'' by the Oregon Department 
of Fish and Wildlife (ODFW). The ``Sensitive'' species classification 
was created under Oregon's Sensitive Species Rule (Oregon 
Administrative Rules (OAR) 635-100-040) to address the need for a 
proactive species conservation approach. The Sensitive Species List is 
a nonregulatory tool that helps focus wildlife management and research 
activities, with the goal of preventing species from declining to the 
point of qualifying as ``endangered'' or ``threatened'' under the 
Oregon Endangered Species Act (Oregon Revised Statutes (ORS) 496.171, 
496.172, 496.176, 496.182 and 496.192). Species designated as 
Sensitive-Vulnerable are those facing one or more threats to their 
populations, habitats, or both. Vulnerable species are not currently 
imperiled with extirpation from a specific geographic area or the 
State, but could become so with continued or increased threats to 
populations, habitats, or both. This designation encourages but does 
not require the implementation of any conservation actions for the 
species. The ODFW does not allow hunting of CWTD, except for controlled 
hunt of the federally delisted Douglas County DPS in areas near 
Roseburg, Oregon (Oregon Department of Fish and Wildlife 2015, p. 39). 
There have been no documented cases of accidental or intentional 
killing of CWTD in Oregon (Boechler 2014, pers. comm.).
    The State may authorize a permit for the scientific taking of a 
federally endangered or threatened species for ``activities associated 
with scientific resource management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation and 
transplantation.'' An incidental taking permit or statement issued by a 
Federal agency for a species listed under the Federal Endangered 
Species Act ``shall be recognized by the state as a waiver for any 
state protection measures or requirements otherwise applicable to the 
actions allowed under the federal permit'' (ORS 96.172(4)).
    The Oregon Forest Practices Act (ORS 527.610 to 527.992 and OAR 
Chapter 629, Divisions 600 to 665) lists protection measures specific 
to private and State-owned forested lands in Oregon. These measures 
include specific rules for overall maintenance of fish and wildlife, 
and specifically federally endangered and threatened species including 
the collection and analysis of the best available information and 
establishing inventories of these species (ORS 527.710 section 
3(a)(A)). Compliance with the forest practice rules does not substitute 
for or ensure compliance with the Endangered Species Act.
    The Oregon Department of Forestry recently updated their Northwest 
Oregon Forest Plan (Oregon Department of Forestry 2010). There is no 
mention of CWTD in their Forest Plan, but they do manage for elk and 
black-tailed deer. Landowners and operators are advised that Federal 
law prohibits a person from taking certain endangered or threatened 
species that are protected under the Endangered Species Act (Act) (OAR 
629-605-0105).
    Federal status under the Act continues to provide additional 
protections to CWTD not available under State laws. Other than the 
``take'' that would be allowed for the specific activities outlined in 
the accompanying proposed 4(d) rule, ``take'' of CWTD is prohibited on 
all lands without a permit or exemption from the Service. Furthermore, 
the National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 
668dd et seq.) provides additional protection to CWTD. Where CWTD occur 
on NWR lands (JBHR and Ridgefield NWR), this law protects CWTD and 
their habitats from large-scale loss or degradation due to the 
Service's mission ``to administer a national network of lands . . . for 
the conservation, management, and where appropriate, restoration of the 
fish, wildlife, and plant resources and their habitats.''
    The JBHR was established in Washington in 1971, specifically to 
protect and manage the endangered CWTD. The JBHR includes several 
subpopulations (Mainland Unit, Tenasillahe Island, and a portion of 
Westport/Wallace Island), supporting a total of approximately one third 
of the DPS population of CWTD. The JBHR's CCP includes goals for the 
following: (1) Protecting, maintaining, enhancing, and restoring 
habitats for CWTD; (2) contributing to the recovery of CWTD by 
maintaining minimum population sizes on JBHR properties; and (3) 
conducting survey and research activities, assessments, and studies to 
enhance species protection and recovery (U.S. Fish and Wildlife Service 
2010, pp. 2:48-76). The JBHR implements habitat improvement and 
enhancement actions on a regular basis as well as predator management. 
As of early 2013, Ridgefield NWR is home to a new subpopulation of 
CWTD. Habitat conditions on Ridgefield NWR are favorable for CWTD, and 
predator control is being implemented. Regular monitoring will occur to 
assess the viability of the subpopulation over time. Both JBHR and 
Ridgefield NWR must conduct section 7 consultations under the Act for 
any refuge activity that may result in adverse effects to CWTD.
Summary of Factor D
    Although additional regulatory mechanisms have been developed for 
the Columbia River DPS since its listing under the Act and these 
mechanisms are working as designed and help to minimize threats, they 
do not fully ameliorate the threats to the species and its habitat. At 
present without the protections of the Act, the existing regulatory 
mechanisms for the Columbia River DPS remain inadequate.

[[Page 60865]]

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Hybridization
    Hybridization with black-tailed deer was not considered a 
significant threat to the Columbia River DPS of CWTD at the time of the 
development of the Revised Recovery Plan (U.S. Fish and Wildlife 1983, 
p. 40). Later studies raised some concern over the presence of black-
tailed deer genes in the isolated Columbia River DPS population. Gavin 
and May (1988, p. 1) found evidence of hybridization in 6 of 33 samples 
of CWTD on the JBHR Mainland Unit and surrounding area. A subsequent 
study revealed evidence of hybridization on Tenasillahe Island, but not 
the JBHR Mainland Unit (Piaggio and Hopken 2009, p. 18). On Tenasillahe 
Island, 32 percent (8) of the 25 deer tested and identified as CWTD 
contained genes from black-tailed deer. Preliminary evidence shows no 
morphological differences in CWTD/black-tailed deer hybrids, suggesting 
molecular analysis may be the only analytic tool in tracking 
hybridization. These data suggest that these genes may have been due to 
a single hybridization event that is being carried through the 
Tenasillahe Island population.
    Translocation efforts have at times placed CWTD in areas that 
support black-tailed deer populations. While few black-tailed deer 
inhabit the JBHR Mainland Unit or Tenasillahe Island, the Upper Estuary 
Islands population may experience more interspecific interactions. 
Aerial FLIR survey results in 2006 detected 44 deer on the 4-island 
complex of Fisher/Hump and Lord/Walker. Based upon the proportion of 
CWTD to black-tailed deer sightings using trail cameras on these 
islands, Service biologists estimated that, at most, 14 of those 
detected were CWTD (U.S. Fish and Wildlife Service 2007, p. 1). A study 
conducted in 2010 by the JBHR and the National Wildlife Research Center 
using fecal samples collected on Crims, Lord, and Walker Islands showed 
no hybridization in any of the samples collected, suggesting a low 
tendency to hybridize even in island situations (Piaggio and Hopken 
2010, p. 14). The actual magnitude of hybridization has probably not 
changed since the listing of CWTD; however there is not enough data 
available to confirm this assumption. Hybridization might affect the 
genetic viability of the Columbia River DPS, and additional research 
regarding hybridization could give broader insight to the implications 
and occurrence of this phenomenon, and how it may influence subspecies 
designation. Although a more complete data set would provide more 
conclusive information regarding hybridization in CWTD, based upon the 
minor level of detections of black-tailed deer genetic material and the 
complete lack of any evidence of hybridization on several islands, we 
find that hybridization is not a threat to the Columbia River DPS.
Vehicle Collisions
    Because deer are highly mobile, collisions between CWTD and 
vehicles do occur, but the number of collisions in the Columbia River 
DPS has not prevented the DPS population from increasing over time and 
meeting some recovery criteria. The frequency of collisions is 
dependent on the proximity of a subpopulation to roads with high 
traffic levels, and collisions with CWTD have been most frequent among 
deer that have been translocated to areas that are relatively close to 
high trafficked roads. In 2010, 15 deer were translocated to Cottonwood 
Island, Washington, from Westport, Oregon. Seven of those translocated 
deer swam off the island and were killed by collisions with vehicles on 
U.S. Highway 30 in Oregon, and on Interstate 5 in Washington (Cowlitz 
Indian Tribe 2010, p. 3). By contrast, of the 58 deer that were 
translocated to Ridgefield NWR in 2013 and 2014, only 3 have been 
struck by vehicles, and all 3 were struck after wandering off refuge 
land. Because of its proximity to Highway 4 in Washington, JBHR sees 
occasional collisions between vehicles and CWTD on or near the refuge. 
Refuge personnel recorded four CWTD killed by vehicle collisions in 
2010, along Highway 4 and on the JBHR Mainland Unit. These were deer 
that were either observed by Service personnel or reported directly to 
the JBHR.
    The Washington Department of Transportation removes road kills 
without reporting species details to the JBHR, so the actual number of 
CWTD struck by cars in Washington is probably slightly higher than the 
number of cases of which JBHR staff is aware. Since the 2013 
translocation, ODFW has an agreement with the Oregon Department of 
Transportation (ODOT) that ODOT personnel assigned to stations along 
Highway 30 will report any CWTD mortalities. So far, they have been 
contacting the Oregon State Police and occasionally ODFW staff when 
they find a mortality with a collar or ear tags. It is uncertain if the 
ODOT staff report unmarked CWTD mortalities (VandeBergh 2013, pers. 
comm.).
    Although the number of deer collisions may increase over time as 
CWTD populations expand in both numbers and range, the rate of 
collisions in proportion to the Columbia River DPS population size is 
not currently a problem and is not expected to rise in the future. 
Therefore, vehicle collisions are unlikely to ever be a threat to the 
Columbia River DPS.
Summary of Factor E
    Low levels of hybridization have recently been detected between 
black-tailed deer and CWTD on JBHR (Piaggio and Hopken 2010, p. 15). 
Future genetics work could give a broader insight into the implications 
and occurrence of this phenomenon. Piaggio and Hopken revealed a low 
genetic diversity among CWTD, which compounds the threat of 
hybridization (2010, pp. 16-17). An increase in the incidence of 
hybridization beyond current levels could potentially affect the 
subspecies designation of CWTD. However, Piaggio and Hopken concluded 
that although hybridization can occur between CWTD and black-tailed 
deer, it is not a common or current event (2010, p. 16). The two 
species will preferentially breed within their own taxa, and their 
habitat preferences differ somewhat. Therefore, hybridization does not 
constitute a threat now or in the foreseeable future. The number of 
deer/vehicle collisions may increase over time as CWTD expand in 
numbers and range, but the overall rate of collisions is not expected 
to increase. Therefore, vehicle collisions do not constitute a threat 
now or in the foreseeable future.

Overall Summary of Factors Affecting CWTD

    Based on the most recent comprehensive survey data from 2011 and 
2014, the Columbia River DPS has approximately 830 CWTD, with 4 viable 
subpopulations, 2 of which are considered secure (Tenasillahe Island 
and Puget Island). The current range of CWTD in the lower Columbia 
River area has been expanded approximately 80.5 km (50 mi) upriver from 
its easternmost range of Wallace Island in 1983, to Ridgefield, 
Washington, presently. The Ridgefield NWR population is expected to 
grow and represent an additional viable subpopulation, as defined in 
the recovery plan. Furthermore, the JBHR Mainland unit has returned to 
a level above 50 animals and will likely regain its secure status in 
the near future. The Columbia River DPS has consistently exceeded the 
minimum population criteria of 400 deer over the past 2 decades, and 
though the JBHR Mainland Unit subpopulation has experienced a decline 
from the unsustainable levels of the late 1980s, it has stabilized to

[[Page 60866]]

population levels at or near the carrying capacity of the habitat.
    Threats to the Columbia River DPS from habitat loss or degradation 
(Factor A) still remain and will likely continue into the foreseeable 
future in the form of habitat alteration, but are less severe than 
previously thought due to a greater understanding of the effects of 
land use and habitat management on CWTD. Overutilization (Factor B) is 
not a threat. Predation and disease (Factor C) in the Columbia River 
DPS of CWTD are not threats. Depredation of fawns by coyotes does occur 
in the Columbia River DPS; however many factors work in conjunction 
with each other to determine overall level of fawn recruitment. Without 
the protections of the Act, the existing regulatory mechanisms for the 
Columbia River DPS remain inadequate (Factor D). Vehicle collisions, 
disease, and hybridization (Factor E) are not threats.

Proposed Determination

    As required by the Act, we considered the five factors in assessing 
whether the Columbia River DPS of CWTD is endangered or threatened 
throughout all or a significant portion of its range. We carefully 
examined the best scientific and commercial information available 
regarding the past, present, and future threats faced by the DPS. We 
reviewed the information available in our files and other available 
published and unpublished information, and we consulted with recognized 
experts and State and Tribal agencies. During this process, we found 
the Columbia River DPS is still affected by habitat loss and 
degradation, and some subpopulations may potentially be affected in the 
future by habitat changes resulting from the effects of climate change, 
but we did not identify any factors that are likely to reach a 
magnitude that currently threatens the continued existence of the DPS.
    Our analysis indicates that the Columbia River DPS of CWTD is not 
in danger of extinction throughout all of its range and does not, 
therefore, meet the definition of an endangered species. The Act 
defines ``endangered species'' as any species which is ``in danger of 
extinction throughout all or a significant portion of its range,'' and 
``threatened species'' as any species which is ``likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' The term ``species'' includes ``any 
subspecies of fish or wildlife or plants, and any distinct population 
segment [DPS] of any species of vertebrate fish or wildlife which 
interbreeds when mature.'' Furthermore, as described in our 2014 policy 
(79 FR 37578, July 1, 2014), a portion of the range of a species is 
`significant' (SPR) if the species is not currently endangered or 
threatened throughout all of its range, but the portion's contribution 
to the viability of the species is so important that, without the 
members in that portion, the species would be in danger of extinction, 
or likely to become so in the foreseeable future, throughout all of its 
range. Because we find the CWTD is threatened (still in danger of 
extinction in the foreseeable future) based on its status throughout 
all its range due to the continued threat of habitat loss, that ends 
the SPR inquiry. Therefore, we propose to reclassify the Columbia River 
DPS of CWTD from an endangered species to a threatened species under 
the Act. Additionally, although the DPS has yet to fully meet the 
Recovery Plan criteria for delisting, it now meets the definition of a 
threatened species.

Effects of the Proposed Rule

    This proposal, if made final, would revise 50 CFR 17.11(h) to 
reclassify the Columbia River DPS of CWTD from endangered to 
threatened. Reclassification of CWTD from endangered to threatened 
would provide recognition of the substantial efforts made by Federal, 
State, and local government agencies; Tribes; and private landowners to 
recover the species. Adoption of this proposed rule would formally 
recognize that this species is no longer at risk of extinction and 
therefore does not meet the definition of endangered, but is still 
impacted by habitat loss and degradation of habitat to the extent that 
the species meets the definition of a threatened species (a species 
which is likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range) under the 
Act. However, this proposed reclassification would not significantly 
change the protection afforded this species under the Act. Other than 
the ``take'' that would be allowed for the specific activities outlined 
in the accompanying proposed 4(d) rule, the regulatory protections of 
the Act would remain in place. Anyone taking, attempting to take, or 
otherwise possessing a CWTD, or parts thereof, in violation of section 
9 of the Act would still be subject to a penalty under section 11 of 
the Act, except for the actions that would be covered under the 4(d) 
rule. Whenever a species is listed as threatened, the Act allows 
promulgation of a rule under section 4(d). These rules may prescribe 
conditions under which take of the threatened species would not be a 
violation of section 9 of the Act. A 4(d) rule is proposed for CWTD.

4(d) Rule

    The purposes of the Act are to provide a means whereby the 
ecosystems upon which endangered species and threatened species depend 
may be conserved, to provide a program for the conservation of 
endangered species and threatened species, and to take such steps as 
may be appropriate to achieve the purposes of the treaties and 
conventions set forth in the Act. When a species is listed as 
endangered, certain actions are prohibited under section 9 of the Act, 
as specified in 50 CFR 17.21. These include, among others, prohibitions 
on take within the United States, within the territorial seas of the 
United States, or upon the high seas; import; export; and shipment in 
interstate or foreign commerce in the course of a commercial activity.
    The Act does not specify particular prohibitions and exceptions to 
those prohibitions for threatened species. Instead, under section 4(d) 
of the Act, the Secretary is authorized to issue regulations deemed 
necessary and advisable to provide for the conservation of threatened 
species. The Secretary also has the discretion to prohibit by 
regulation with respect to any threatened species any act prohibited 
under section 9(a)(1) of the Act. Exercising this discretion, the 
Service has by regulation applied those prohibitions to threatened 
species unless a special rule is promulgated under section 4(d) of the 
Act (``4(d) rule'') (50 CFR 17.31(c)). Under 50 CFR 17.32, permits may 
be issued to allow persons to engage in otherwise prohibited acts for 
certain purposes unless a special rule provides otherwise.
    A 4(d) rule may include some or all of the prohibitions and 
authorizations set out at 50 CFR 17.31 and 17.32, but also may be more 
or less restrictive than those general provisions. For the Columbia 
River DPS of CWTD, the Service has determined that a 4(d) rule is 
appropriate. As a means to facilitate conservation of CWTD in the 
Columbia River DPS and expansion of their range by increasing 
flexibility in management activities for our State and Tribal partners 
and private landowners, we propose to issue a rule for this species 
under section 4(d) of the Act. This 4(d) rule would only apply if and 
when the Service finalizes the reclassification of the Columbia River 
DPS of CWTD as threatened.
    Under the proposed 4(d) rule, the following forms of take would not 
be prohibited:

[[Page 60867]]

     Take by landowners or their agents conducting intentional 
harassment not likely to cause mortality if they have obtained a permit 
from the applicable State conservation agency;
     Take of problem CWTD (as defined under Provisions of the 
4(d) Rule, below) by Federal or State wildlife management agency or 
private landowners acting in accordance with a permit obtained from a 
State conservation agency;
     Take by private landowners that is accidental and 
incidental to an otherwise permitted and lawful activity to control 
damage by black-tailed deer, and if reasonable due care was practiced 
to avoid such taking;
     Take by black-tailed deer hunters if the take was 
accidental and incidental to hunting done in full compliance with the 
State hunting rules, and if reasonable due care was practiced to avoid 
such taking;
     Take by designated Tribal employees and State and local 
law enforcement officers to deal with sick, injured, or orphaned CWTD;
     Take by State-licensed wildlife rehabilitation facilities 
when working with sick, injured, or orphaned CWTD; and
     Take under permits issued by the Service under 50 CFR 
17.32. Other than these exceptions, the provisions of 50 CFR 17.31(a) 
and (b) would apply.
    The proposed 4(d) rule targets these activities to facilitate 
conservation and management of CWTD where they currently occur through 
increased flexibility for State wildlife management agencies, and to 
encourage landowners to facilitate the expansion of CWTD's range by 
increasing the flexibility of management of the deer on their property 
(see Justification, below). Activities on Federal lands or with any 
Federal agency involvement will still need to be addressed through 
consultation under section 7 of the Act. Take of CWTD in defense of 
human life in accordance with 50 CFR 17.21(c)(2) or by the Service or 
designated employee of a State conservation agency responding to a 
demonstrable but nonimmediate threat to human safety in accordance with 
50 CFR 17.21(c)(3)(iv) (primarily in the event that a deer interferes 
with traffic on a highway) is not prohibited. Any deterence activity 
that does not create a likelihood of injury by significantly disrupting 
normal CWTD behavioral patterns such as breeding, feeding, or 
sheltering is not take and is therefore not prohibited under section 9. 
Noninjurious deterrence activities for CWTD damage control may include 
yelling at the deer, use of repellants, fencing and other physical 
barriers, properly deployed noise-making devices (including explosive 
devices such as propane cannons, cracker shells, whistlers, etc.), 
scarecrows, plant protection devices (bud caps, netting, tree tubes, 
etc.), and artificial lighting.
    If there is potential that an activity would interrupt normal CWTD 
behavior to the point where the animal would stop feeding or not find 
adequate cover, creating a likelihood of injury, then the activity 
would have the potential to cause take in the form of harassment. Under 
this proposed 4(d) rule, if the activity is not likely to be lethal to 
CWTD, it would be classified as intentional harassment not likely to 
cause mortality and would be allowed if the activity is carried out 
under and according to a legally obtained permit from the Oregon or 
Washington State conservation agency. Actions that may create a 
likelihood of injury, but are determined by State wildlife biologists 
not likely to cause mortality, may include the use of nonlethal 
projectiles (including paintballs, rubber bullets, pellets or ``bb's'' 
from spring- or air-propelled guns, etc.) or herding or harassing with 
dogs, and would only be allowed if the activity is carried out under 
and according to a legally obtained permit from the Oregon or 
Washington State conservation agency.
    This proposed 4(d) rule would also allow a maximum of 5 percent of 
the DPS to be lethally taken annually for the following activities 
combined: (1) Damage management of problem CWTD, (2) misidentification 
during black-tailed deer damage management, and (3) misidentification 
during black-tailed deer hunting. The identification of a problem CWTD 
will occur when the State conservation agency or Service determines in 
writing that: (1) A CWTD is causing more than de minimus negative 
economic impact to a commercial crop; (2) previous efforts to alleviate 
the damage through nonlethal methods have been ineffective; and (3) 
there is a reasonable certainty that additional property losses will 
occur in the near future if a lethal control action is not implemented.
    The current estimated population of the DPS is 850 deer; therefore 
5 percent would currently equate to 43 deer. We would set the annual 
allowable take at 5 percent of the most current annual population 
estimate of the DPS to provide sufficient flexibility to our State 
wildlife agency partners in the management of CWTD and to strengthen 
our partnership in the recovery of the DPS. Although the fecundity and 
overall recruitment rate is strong and will allow the DPS to persist 
and continue to recover even with take up to the maximum allowable 5 
percent, we do not expect that the number of deer taken per year will 
ever exceed 2 percent of the DPS per year for the reasons detailed in 
the following paragraph.
    In 2013 and 2014, the Service conducted an exceptional amount of 
direct management on CWTD populations through translocation events; 
during that time, out of the 47 CWTD that were translocated, only 3 
were injured or killed during capture or release. Because no damage 
management activities have been required for successfully translocated 
CWTD, no CWTD have been injured or killed as a result of damage 
management activities. Furthermore, the Service expects that most CWTD 
will respond to noninjurious or nonlethal means of dispersal and that 
take of problem CWTD will not often be necessary. We are, therefore, 
confident that the amount of CWTD taken under this proposed 4(d) rule 
during CWTD damage management actions would be relatively low. 
Additionally, the Service expects that the potential for accidental 
shooting by mistaking a CWTD for a black-tailed deer would be quite low 
because there has been only one documented case of an accidental 
shooting of CWTD by a black-tailed deer hunter due to misidentification 
(Bergh 2014, pers. comm.) and there are no documented accidental 
shootings of CWTD during black-tailed deer damage management. The 2015 
big game hunting regulations in both Oregon and Washington provide 
information on distinguishing between black-tailed deer and CWTD and 
make it clear that shooting CWTD is illegal under State law (Oregon 
Department of Fish and Wildlife 2015, p. 39; Washington Department of 
Fish and Wildlife 2015, pp. 18, 20). Even with this proposed 4(d) rule 
in place, a hunter who shot a CWTD due to misidentification would still 
be required under the Act to report the incident to the Service, 
required under State law to report the incident to State authorities, 
and would still be subject to potential prosecution under State law.
    Because the maximum amount of take allowed for these activities 
would be a percentage of the DPS population in any given year, the 
exact number of CWTD allowed to be taken would vary from year to year 
in response to each calendar year's most current estimated population. 
As mentioned above, we do not expect that the number of deer taken 
would ever exceed 2 percent of the DPS per year. If take does go beyond 
2 percent of the DPS population in a given year, the Service would 
convene a meeting with the Oregon Department of

[[Page 60868]]

Fish and Wildlife and the Washington Department of Fish and Wildlife to 
discuss CWTD management and strategies to minimize further take from 
these activities for the rest of the year. If take should exceed 5 
percent of the total DPS population in any given year, no further take 
would be allowed for these activities in the DPS as a whole, and, 
should any further take occur, it would be subject to potential 
prosecution under the Act.

Justification

    As the Columbia River DPS of CWTD grows in number and range, the 
deer are facing increased interaction and potential conflict with the 
human environment. If finalized, the reclassification of the Columbia 
River DPS of CWTD would allow employees of State conservation agencies 
operating a conservation program pursuant to the terms of a cooperative 
agreement with the Service in accordance with section 6(c) of the Act, 
and who are designated by their agencies for such purposes, and who are 
acting in the course of their official duties, to take CWTD to carry 
out conservation programs (see 50 CFR 17.31(b)). However, there are 
many activities carried out or managed by the States, Tribes, and 
private landowners that help reduce conflict with CWTD and thereby 
facilitate the movement of CWTD across the landscape, but would not be 
afforded take allowance under reclassification alone. These activities 
include CWTD damage management, black-tailed deer damage management, 
and black-tailed deer hunting. The proposed 4(d) rule would provide 
incentive to States, Tribes, and private landowners to support the 
movement of CWTD across the landscape by alleviating concerns about 
unauthorized take of CWTD.
    One of the limiting factors in the recovery of the Columbia River 
DPS has been the concern of landowners regarding CWTD on their property 
due to the potential property damage from the species. Landowners 
express concern over their inability to prevent or address the damage 
because of the threat of penalties under the Act. Furthermore, State 
wildlife agencies expend resources addressing landowner complaints 
regarding potential CWTD damage to their property, or concerns from 
black-tailed deer hunters who are hunting legally but might 
accidentally shoot a CWTD even after reasonable due care was practiced 
to avoid such taking. By providing more flexibility to the States, 
Tribes, and landowners regarding management of CWTD, we would enhance 
support for both the movement of CWTD within areas where they already 
occur, as well as the expansion of the subspecies' range into 
additional areas of Washington and Oregon through translocations.
    The proposed 4(d) rule would address intentional CWTD damage 
management by private landowners and State and Tribal agencies; black-
tailed deer damage management and hunting; and management of sick, 
injured, and orphaned CWTD by Tribal employees, State and local law 
enforcement officers, and State licensed wildlife rehabilitation 
facilities. Addressing these targeted activities that may normally 
result in take under section 9 of the Act would increase the incentive 
for landowners and land managers to allow CWTD on their property, and 
provide enhanced options for State wildlife agencies with respect to 
CWTD damage management and black-tailed deer management, thereby 
encouraging the States' participation in recovery actions for CWTD.
    We believe the actions and activities that would be allowed under 
the 4(d) rule, while they may have some minimal level of harm or 
disturbance to individual CWTD in the Columbia River DPS, would not be 
expected to adversely affect efforts to conserve and recover the DPS 
and, in fact, should facilitate these efforts. The take of CWTD from 
these activities would be strictly limited to a maximum of 5 percent of 
the most current annual DPS population estimate in order to have a 
negligible impact on the overall DPS population. Though there would be 
a chance for lethal take to occur, recruitment rates are high enough in 
the DPS to allow for continued population growth despite the take that 
would be allowed in this proposed rule. This proposed special rule 
would not be made final until we have reviewed and fully considered 
comments from the public and peer reviewers.

Provisions of the 4(d) Rule

    The increased interaction of CWTD with the human environment 
increases the potential for property damage caused by CWTD, as well as 
the potential for conflict with legal black-tailed deer management 
activities. Therefore, this proposed 4(d) rule would increase the 
flexibility of CWTD management for the States, Tribes, and private 
landowners by allowing take of CWTD resulting from CWTD damage 
management, and black-tailed deer damage management and hunting. The 
maximum allowable annual take per calendar year for these activities 
combined would be 5 percent of the most current annual CWTD DPS 
population estimate.
    A State conservation agency would be able to issue permits to 
landowners or their agents to harass CWTD on lands they own, rent, or 
lease if the State conservation agency determines in writing that such 
action is not likely to cause mortality of CWTD. The techniques 
employed in this harassment must occur only as specifically directed or 
restricted by the State permit in order to avoid causing CWTD 
mortality. The State conservation agency would also be able to issue a 
permit to landowners or their agents to take problem CWTD on lands they 
own, rent, or lease. A CWTD would only be identified as a problem deer 
if the State conservation agency or Service determines in writing that: 
(1) The CWTD are causing more than de minimus negative economic impact 
to a commercial crop; (2) previous efforts to alleviate the damage 
through nonlethal methods have been ineffective; and (3) there is a 
reasonable certainty that additional property losses will occur in the 
near future if a lethal control action is not implemented. Take of 
problem CWTD would have to be implemented only as directed and allowed 
in the permit obtained from the State conservation agency. 
Additionally, any employee or agent of the Service or the State 
conservation agency, who is designated by their agency for such 
purposes and when acting in the course of their official duties, would 
be able to take problem CWTD.
    Take of CWTD in the course of carrying out black-tailed deer damage 
control would be a violation of this rule unless: The taking was 
accidental; reported within 72 hours; reasonable care was practiced to 
avoid such taking; and the person causing the take was in possession of 
a valid black-tailed deer damage control permit from a State 
conservation agency. Take of CWTD in the course of hunting black-tailed 
deer would be a violation of this rule unless: The take was accidental; 
reported within 72 hours; the take was in the course of hunting black-
tailed deer under a lawful State permit; and reasonable due care was 
exercised to avoid such taking.
    The increased interaction of CWTD with the human environment 
increases the likelihood of encounters with injured or sick CWTD. 
Therefore, take of CWTD would also be allowed by Tribal employees, 
State and local government law enforcement officers, and State-licensed 
wildlife rehabilitation facilities to provide aid to injured or sick 
CWTD. Tribal employees and local government law enforcement officers 
would be allowed take of CWTD for the following purposes: Aiding or 
euthanizing sick, injured, or orphaned CWTD; disposing

[[Page 60869]]

of a dead specimen; and salvaging a dead specimen that may be used for 
scientific study. State-licensed wildlife rehabilitation facilities 
would also be allowed to take CWTD for the purpose of aiding or 
euthanizing sick, injured, or orphaned CWTD.

Required Determinations

Clarity of This Proposed 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 ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act

    We have determined that 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.), 
need not be prepared 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 accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes.
    We have coordinated the proposed rule with the Cowlitz Indian Tribe 
who manages land where one subpopulation of CWTD population is located, 
Cottonwood Island. Biologists from the Cowlitz Indian Tribe are members 
of the CWTD Working Group and have worked with the Service, WDFW, and 
ODFW to incorporate conservation measures to benefit CWTD into their 
management plan for the island.

References Cited

    A complete list of all references cited in this proposed rule is 
available at http://www.regulations.gov at Docket No. FWS-R1-ES-2014-
0045, or upon request from the Oregon Fish and Wildlife Office (see 
ADDRESSES).

Authors

    The primary authors of this document are staff members of the 
Oregon Fish and Wildlife Office in Portland, Oregon (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 hereby propose to amend part 17, subchapter B of 
chapter I, title 50 of the Code of Federal Regulations, as set forth 
below:

PART 17--[AMENDED]

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

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

0
2. Amend Sec.  17.11(h) by revising the entry for ``Deer, Columbian 
white-tailed'' under MAMMALS in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                Vertebrate
-----------------------------------------------------                      population where                                     Critical       Special
                                                        Historic range       endangered or         Status        When listed     habitat        rules
           Common name              Scientific name                           threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
             Mammals
 
                                                                      * * * * * * *
Deer, Columbian white-tailed....  Odocoileus          U.S.A. (WA, OR)...  Columbia River      T                      1, 738            NA      17.40(r)
                                   virginianus                             (Clark, Cowlitz,
                                   leucurus.                               Pacific, Skamania
                                                                           and Wahkiakum
                                                                           Counties, WA, and
                                                                           Clatsop, Columbia
                                                                           and Multnomah
                                                                           Counties, OR).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.40 by adding a paragraph (r) to read as follows:


Sec.  17.40  Special rules--mammals.

* * * * *
    (r) Columbian white-tailed deer (Odocoileus virginianus leucurus) 
(CWTD), the Columbia River distinct population segment.
    (1) General requirements. Other than as expressly provided at 
paragraph (r)(3) of this section, the provisions of Sec.  17.31(a) 
apply to the CWTD.

[[Page 60870]]

    (2) Definitions. For the purposes of this entry:
    (i) CWTD means the Columbia River distinct population segment (DPS) 
of Columbian white-tailed deer.
    (ii) Intentional harassment means an intentional act which creates 
the likelihood of injury to wildlife by annoying it to such an extent 
as to significantly disrupt normal behavior patterns which include, but 
are not limited to, breeding, feeding, or sheltering. Intentional 
harassment may include prior purposeful actions to attract, track, wait 
for, or search out CWTD, or purposeful actions to deter CWTD.
    (iii) Problem CWTD means a CWTD that has been identified in writing 
by a State conservation agency or the Service as meeting the following 
criteria:
    (A) The CWTD is causing more than de minimus negative economic 
impact to a commercial crop;
    (B) Previous efforts to alleviate the damage through nonlethal 
methods have been ineffective; and
    (C) There is a reasonable certainty that additional property losses 
will occur in the near future if a lethal control action is not 
implemented.
    (iv) Commercial crop means commercially raised horticultural, 
agricultural, or forest products.
    (v) State conservation agency means the State agency in Oregon or 
Washington operating a conservation program for CWTD pursuant to the 
terms of a cooperative agreement with the Service in accordance with 
section 6(c) of the Endangered Species Act.
    (3) Allowable forms of take of CWTD. Take of CWTD resulting from 
the following legally conducted activities is allowed:
    (i) Intentional harassment not likely to cause mortality. A State 
conservation agency may issue permits to landowners or their agents to 
harass CWTD on lands they own, rent, or lease if the State conservation 
agency determines in writing that such action is not likely to cause 
mortality of CWTD. The techniques employed in this harassment must 
occur only as specifically directed or restricted by the State permit 
in order to avoid causing CWTD mortality.
    (ii) Take of problem CWTD. Take of problem CWTD is authorized under 
the following circumstances.
    (A) Any employee or agent of the Service or the State conservation 
agency, who is designated by their agency for such purposes, may, when 
acting in the course of their official duties, take problem CWTD. This 
take must occur in compliance with all other applicable Federal, State, 
and local laws and regulations.
    (B) The State conservation agency may issue a permit to landowners 
or their agents to take problem CWTD on lands they own, rent, or lease. 
Such take must be implemented only as directed and allowed in the 
permit obtained from the State conservation agency.
    (iii) Accidental take of CWTD when carrying out State-permitted 
black-tailed deer damage control. Take of CWTD in the course of 
carrying out black-tailed deer damage control will be a violation of 
this rule unless the taking was accidental; reasonable care was 
practiced to avoid such taking; and the person causing the take was in 
possession of a valid black-tailed deer damage control permit from a 
State conservation agency. When issuing black-tailed deer damage 
control permits, the State conservation agency will provide education 
regarding identification of target species. The exercise of reasonable 
care includes, but is not limited to, the review of the educational 
material provided by the State conservation agency and identification 
of the target before shooting.
    (iv) Accidental take of CWTD when carrying out State-permitted 
black-tailed deer hunting. Take of CWTD in the course of hunting black-
tailed deer will be a violation of this rule unless the take was 
accidental; the take was in the course of hunting black-tailed deer 
under a lawful State permit; and reasonable due care was exercised to 
avoid such taking. The State conservation agency will provide 
educational material to hunters regarding identification of target 
species when issuing hunting permits. The exercise of reasonable care 
includes, but is not limited to, the review of the educational 
materials provided by the State conservation agency and identification 
of the target before shooting.
    (4) Take limits. The amount of take of CWTD allowed for the 
activities in subparagraphs (r)(3)(ii), (r)(3)(iii), and (r)(3)(iv) of 
this section will not exceed 5 percent of the CWTD population during 
any calendar year as determined by the Service. By December 31 of each 
year, the Service will use the most current annual DPS population 
estimate to set the maximum allowable take for these activities for the 
following calendar year. If take exceeds 2 percent of the DPS 
population in a given calendar year, the Service will convene a meeting 
with the Oregon Department of Fish and Wildlife and the Washington 
Department of Fish and Wildlife to discuss CWTD management and 
strategies to minimize further take from these activities for the rest 
of the year. If take exceeds 5 percent of the CWTD population in any 
given calendar year, no further take under subparagraphs (r)(3)(ii), 
(r)(3)(iii), and (r)(3)(iv) will be allowed during that year and any 
further take that does occur may be subject to prosecution under the 
Endangered Species Act.
    (5) Reporting and disposal requirements. Any injury or mortality of 
CWTD associated with the actions authorized under paragraphs (r)(3) and 
(r)(7) of this section must be reported to the Service within 72 hours, 
and specimens may be disposed of only in accordance with directions 
from the Service. Reports should be made to the Service's Law 
Enforcement Office at (503) 231-6125, or the Service's Oregon Fish and 
Wildlife Office at (503) 231-6179. The Service may allow additional 
reasonable time for reporting if access to these offices is limited due 
to closure.
    (6) Additional taking authorizations for Tribal employees, State 
and local law enforcement officers, and State-licensed wildlife 
rehabilitation facilities.
    (i) Tribal employees and State and local government law enforcement 
officers. When acting in the course of their official duties, both 
Tribal employees designated by the Tribe for such purposes, and State 
and local government law enforcement officers working in the States of 
Oregon or Washington, may take CWTD for the following purposes:
    (A) Aiding or euthanizing sick, injured, or orphaned CWTD;
    (B) Disposing of a dead specimen; and
    (C) Salvaging a dead specimen that may be used for scientific 
study.
    (ii) Such take must be reported to the Service within 72 hours, and 
specimens may be disposed of only in accordance with directions from 
the Service.
    (7) Wildlife rehabilitation facilities licensed by the States of 
Oregon or Washington. When acting in the course of their official 
duties, a State-licensed wildlife rehabilitation facility may take CWTD 
for the purpose of aiding or euthanizing sick, injured, or orphaned 
CWTD. Such take must be reported to the Service within 72 hours as 
required by paragraph (r)(5) of this section, and specimens may be 
retained and disposed of only in accordance with directions from the 
Service.
    (8) Take authorized by permits. Any person with a valid permit 
issued by the Service under Sec.  17.32 may take CWTD, pursuant to the 
special terms and conditions of the permit.


[[Page 60871]]


    Dated: September 11, 2015.
James W. Kurth,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2015-25260 Filed 10-7-15; 8:45 am]
BILLING CODE 4333-15-P