# Final Biological Opinion For Rozol Use on Black-tailed Prairie Dogs Registered Under Section 3 of the Federal Insecticide, Fungicide and Rodenticide Act

Photo Credit: U.S. Fish and Wildlife Service

Prepared by:

U.S. Fish and Wildlife Service Ecological Services Region 6 and Region 2

April 9, 2012ii 

### TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................1

II. BACKGROUND ................................................................................................................1 Table 1. Federally listed species and cri tical habitats analyzed within this BO..................3

III. CONSULTATION HISTORY ..........................................................................................4

IV. DESCRIPTION OF THE ACTION .................................................................................7

A. CONSERVATION MEASURES..................................................................................8

B. ROZOL PRAIRIE DOG BAIT REGISTERED USE..................................................11

C. ACTION AREA...........................................................................................................12 Figure 1. The historic range of the BTPD by NatureServe as presented in the EPA’s BA...........................................................................14

V. GENERAL BACKGROUND AND EFFECTS OF THE ACTION RELEVANT

TO ALL SPECIES IN CONSULTATION ....................................................................15

A. INDANDIONE MODE OF AC TION AND TOXICITY............................................15

B. CHLOROPHACINONE ENVI RONMENTAL FATE...............................................16

C. ROZOL EXPOSURE AND EF FECTS ASSESSMENT.............................................17

1. Primary Exposure...................................................................................................17

2. Secondary Exposure...............................................................................................18

3. Surface Presence of Poisoned Black-tailed Prairie Dogs......................................20

4. Removal of Poisoned Black-tailed Prairie Dogs...................................................20

5. Field Study Observations of Sec ondary Exposure or Toxicity.............................23

D. REVIEW OF EPA’S ROZOL EFFECTS DETERMINATION.................................25

1. Underestimated Risk to Avian Species.................................................................25

2. Prairie Dog Chlorophacinone Residues................................................................27 Figure 2. BTPDs scavenged at a pr airie dog colony in 2005 after an application of Rozol................................................................................28

3. Risk Quotient Calculat ions and Uncertainty..........................................................29

E. WILDLIFE MORTALITY INCIDENTS....................................................................30

F. SUMMARY OF ROZOL EXPOSU RE AND EFFECTS RELEVANT

TO ALL LISTED SPECIES A DDRESSED IN THIS BO..........................................32

VI. GENERAL CONSERVATION RECOMMENDATIONS ..........................................33

VII. SPECIES ANALYSES ....................................................................................................35

A. OVERVIEW................................................................................................................35 Table 2. Summary of species de terminations and page number for each species’ analysis within this BO.....................................................36

B. SPECIES FOR WHICH NO ADVERS E EFFECTS ARE ANTICIPATED

WITHOUT CONSERVA TION MEASURES............................................................37

1. AMERICAN BURYING BEETLE.......................................................................37

2. BLACK-CAPPED VIREO....................................................................................38

3. CANADA LYNX..................................................................................................40

4. ESKIMO CURLEW..............................................................................................41

5. GOLDEN-CHEEKED WARBLER.......................................................................42

6. GULF COAST JAGUARUNDI............................................................................43

7. OCELOT................................................................................................................43

8. PIPING PLOVER..................................................................................................44

9. WHOOPING CRANE...........................................................................................46iii C. SPECIES FOR WHICH CONSERVATION MEASURES

PRECLUDE ADVERSE EFFECTS............................................................................49

1. CHIRICAHUA LEOPARD FROG.......................................................................49

2. GRIZZLY BEAR...................................................................................................50

3. JAGUAR................................................................................................................52

4. MEXICAN SPOTTED OWL................................................................................52

5. NEW MEXICO RIDGE-NOSED RATTLESNAKE............................................53

6. PREBLE’S MEADOW JUMPING MOUSE........................................................54

D. SPECIES FOR WHICH ADVERSE EFFECTS ARE ANTICIPATED

WITH OR WITHOUT CONS ERVATION MEASURES..........................................58

1. BLACK-FOOTED FERRET.................................................................................58 a. Status of the Species/Critical Habitat..............................................................58 (1) Ferret Reintroductions...............................................................................59

Table 3. Black-footed ferret re introductions in North America locations, year initiated, and prairie dog species.........................59 (2) Life History................................................................................................59 (a) Environmental Baseline.......................................................................60 (b) Effects of the Action............................................................................61 (c) Cumulative Effects...............................................................................62 (d) Conclusion Regarding Jeopardy..........................................................64

2. GRAY WOLF........................................................................................................66 a. Status of the Species/Critical Habitat..............................................................66 (1) Species description.....................................................................................67 (2) Life history.................................................................................................67 (a) Range and habitat.................................................................................68 (b) Prey items.............................................................................................68 (c) Social nature and territory size............................................................68 (d) Dispersal..............................................................................................69 (3) Population dynamics..................................................................................70 (4) Status, trends, and distribution...................................................................72 (5) Analysis of the species likely to be affected..............................................73 (a) Environmental Baseline.......................................................................74 (1) Status of the species within the action area....................................74 (2) Factors affecting the sp ecies in the action area..............................74 (b) Effects of the Action...........................................................................74 (1) Factors to be considered...............................................................74 (2) Analyses for the effects of the action...........................................75 (3) Species’ response to the action.....................................................76

a. Cumulative Effects...................................................................76 b. Conclusion Regarding Jeopardy...............................................77iv 3. NORTHERN APLOMADO FALCON.................................................................77 a. Status of the Sp ecies/Critical Habitat.................................................................77

b. Environmental Baseline.....................................................................................81 (1) Status of the species in the action area........................................................81 (2) Factors affecting species environment within the action area.....................82 (a) Land use............................................................................................... 82 (b) Livestock grazing................................................................................. 82 (c) Road construction, maintenance, and use ...........................................82 (d) Communications towers and power lines ............................................83 (e) Organochlorine and organophosphate pesticide contamination ........83

c. Effects of the Action..........................................................................................83

d. Cumulative Effects............................................................................................85 e. Conclusion Regarding Jeopardy........................................................................85

INCIDENTAL TAKE STATEMENT .......................................................................................87

I. INTRODUCTION.............................................................................................................87

II. AMOUNT OR EXTENT OF TAKE ANTICIPATED......................................................88

A. Black-footed ferret.......................................................................................................88

B. Gray wolf.....................................................................................................................8 9

C. Northern aplomado falcon...........................................................................................89

III. EFFECT OF TAKE...........................................................................................................90

A. Black-footed ferret.......................................................................................................90

B. Gray wolf.....................................................................................................................9 0

C. Northern aplomado falcon...........................................................................................90

IV. REASONABLE AND PR UDENT MEASURES..............................................................91

V. TERMS AND CONDITIONS...........................................................................................92 Reporting requirement.......................................................................................................94 Disposition of dead or injure d federally listed species.....................................................95

VI. CONSERVATION RECOMMENDATIONS...................................................................96

VIII. REINITIATION NOTICE.................................................................................................97

IX. REFERENCES CITED......................................................................................................98

APPENDIX: September 10, 2010, Label for Rozol Prairie Dog Bait........................................122v ACRONYMS AND ABBREVIATIONS

AOK Audubon of Kansas BA Biological Assessment BO Biological Opinion BTPD Black-tailed prairie dog

CPW Colorado Division of Parks and Wildlife CFR Code of Federal Regulations DDE dichlorodiphe nyldichloroethylene DDT dichlorodiphe nyltrichloroethane

DOW Defenders of Wildlife DPS Distinct Population Segment

EEC Estimated Environmental Concentration EPA U.S. Environmental Protection Agency ESA Endangered Species Act FIFRA Federal Insecticide, Fungicide and Rodenticide Act GPS Global Positioning System IPM Integrated Pest Management

ITS Incidental Take Statement

LC Lethal Concentration

LD Lethal Dose

LOC Level of Concern MBTA Migratory Bird Treaty Act

MRID Master Record Identification NDA Nebraska Department of Agriculture NEP Nonessential Expe rimental Population PCE Primary Constituent Element PMJM Preble’s meadow jumping mouse

RPA Reasonable and Prudent Alternative

RPM Reasonable and Prudent Measure RQ Risk Quotient

Service/FWS U.S. Fish and Wildlife Service SLN Special Local Needs TRV Toxicity Reference Value

USC U.S. Code USCOE U.S. Corps of Engineers

USDC U.S. District Court of Columbia USDOI U.S. Department of the Interior USGS U.S. Geological Services WAFWA Western Association of Fish and Wildlife Agencies

WWF World Wildlife Fund WYNDD Wyoming Natural Diversity Database1 

## BIOLOGICAL OPINION

I. INTRODUCTION

Section 7(a)(2) of the Endangered Sp ecies Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.) requires that:

“ Each Federal agency shall, in consulta tion with and with th e assistance of the Secretary, insure that any action authorized, funded, or carried out . . . is not likely to jeopardize the continued ex istence of any endangered species or threatened species or result in the destru ction or adverse mod ification of habitat of such species. . . . In fulfilling th e requirement of this paragraph each agency shall use the best scientific and commercial data available. ” 16 U.S.C. § 1536(a)(2)

To meet this standard, when a Federal agency determines that its proposed action may affect a listed species or critical habitat, it enters in to consultation with the U.S. Fish and Wildlife Service (Service/FWS). If the eff ects are determined to be insigni ficant, discountable , or entirely beneficial, the lead Federal agency should make a determination that the pr oject is not likely to adversely affect listed species or their critical habitats and request concurrence from the Service

on its determination. If the effect s are not insignificant, discountable , or entirely be neficial or are likely to be adverse, the lead Federal agency should initiate formal consultation with the Service. The Service then formulates its Biologi cal Opinion (BO) on the proposed action.

Section 7(b)(3)(A) “. . . the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth th e Secretary’s opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat .” 16 U.S.C. §1536(b)(3)(A)

The BO reflects the Service’s analysis as to wh ether the effects of the proposed Federal action, when viewed against the status of the species a ffected, the species’ environmental baseline, and cumulative effects, is likely to jeopardize the con tinued existence of those species. Likewise, the BO reflects the Service’s formal analysis as to whether the effects of the proposed Federal action, when viewed against the status of designa ted critical habitat, th e environmental baseline of designated critical habitat, a nd cumulative effects, is likely to destroy or adversely modify designated critical habitat.



### II. BACKGROUND

Rozol ® Prairie Dog Bait (Rozol) is a product register ed under the Federal In secticide, Fungicide and Rodenticide Act (FIFRA) of 1947, as amended (7 U.S.C. §136 et seq.). Under the FIFRA, use of a pesticide may be restricted by how it is registered and by its use label. A pesticide use label provides pesticide applicators with directio ns that consist of legal requirements that may specify when, how, and where a pesticide is applie d. Pesticides that are federally registered by2 the EPA as restricted-use are limited to use by pesticide applicators that are certified, often by passing a written exam, in accordance with national standards. Section 24(c) of FIFRA allows States to register an additional use of a federally registered pes ticide product, or a new end use product to meet spec ial local needs.

Rozol is an anticoagulant (hin ders the clotting of blood) co ntaining the active ingredient chlorophacinone. Rozol was registered in May 2009 (EPA Registration No. 7173-286) under

Section 3 of FIFRA for use on bl ack-tailed prairie dogs (BTPDs) ( Cynomys ludovicianus ) in 10 States: Colorado, Kansas, Montana, Nebr aska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming. The EPA re gulates pesticide use vi a administration of the FIFRA, and registration of pestic ides by the EPA is subject to co mpliance with Section 7 of the ESA. In a letter dated September 30, 2010, the EP A requested initiation of ESA Section 7(a)(2) formal consultation under 50 CFR Part 402.46, Opti onal Formal Consultation Procedures for the

FIFRA. To intiate formal consultation, the EPA posted the following information online:

Nation-wide Effects Determination for Ch lorophacinone Relative to the Use of Rozol Prairie Dog Bait (EPA Reg. No. 7173-286)

 Transmittal Letter (PDF) from Arthur-Jean B. Williams, Associate Director, Environmental Fate and Effects Division to Gary Frazer, Assistant Director for Endangered Species, U.S. Fish and Wildlife Service (9/30/10) (2 pp, 51K)  Effects Memorandum (PDF) from Jean Holmes, Acting Branch Chief, Environmental Fate and Effects Division (et.al) to Arthur-Jean B. Williams, Associate Director, Envi ronmental Fate and Effects Division (9/29/10) (4 pp, 69K)  Chlorophacinone Analysis (PDF) Nation-wide Effects Determination for Chlorophacinone Relative to the Use of Rozol Prairie Dog Bait (EPA Registration No. 7173-286) (9/29/10) (122 pp, 1507K)  Attachment I: Status and Life History for the Threatened and Endangered Species for which a May Affect Determination was made (PDF) (134 pp, 908K)  Appendix A: Maps Showing the Overlap of the Initial Area of Concern and the Species Habitat and Occurrence Sections (PDF) (23 pp, 10703K)  Appendix B: Risk Quotient (RQ) Method and Le vels of Concern (LOCs) (PDF) (2 pp, 22K)  Appendix C: Estimation of Upper-bound Aquatic Exposure (PDF) (2 pp, 19K)  Appendix D: Literature Submitted During the Comment Period for "Receipt of Petition Requesting EPA to Suspend the Registration of Rozol Prairie Dog Bait and Cancel Certain Application Sites" (EPQ-HQ-OPP-2009-0684-0001) (PDF) (1 pg, 11K)  Appendix E: Summary of Ecotoxicity Data (PDF) (7 pp, 83K)  Appendix F: Bibliography of ECOTOX Open Literature (PDF) (26 pp, 227K)  Appendix G: Accepted ECOTOX Data Table (sorted by effect) and Bibliography (PDF) (5 pp, 89K)  Appendix H: The HED Chapter of the Reregistration Eligibility Decision Document (RED) for Rodenticide Cluster (PDF) (38 pp, 147K)  Appendix I: Summary of Chlorophacinone Incidents (PDF) (2 pp, 45K)  Appendix J: Calculation of Avian RQs using LD 50 data (PDF) (1 pg, 10K)

The “Chlorophacinone Analysis” above is th e EPA’s Biological Assessment (BA) for the proposed action and is titled “ Risks of Chlorophacinone Use on Black Tailed Prairie Dogs to Federally Endangered and Threatened Species” (EPA 2010b). The BA includes adverse effects determinations to 21 federally list ed species and 7 critical habitats , and does not address critical habitat for the California condor ( Gymnogyps californianus ) (in California) and gray wolf ( Canis lupus ) (in Michigan and Minnesota) as those critical habitats were determined by the EPA to not overlap with the BTPD range. The BA also exclud ed critical habitat for the Chiricahua leopard frog ( Lithobates [Rana] chiricahuensis ) which had not yet been proposed at the time the EPA initiated consultation with the Service; however, designated critical habitat for the Chiricahua leopard frog is addressed herei n. As noted in a September 9, 2011, letter to the EPA, the Service reviewed the ranges of th e California condor, the Sonora tiger salamander ( Ambystoma tigrinum

stebbinsi ), the Salt Creek tiger beetle ( Cicindela nevadica lincolniana ), and the Salt Creek tiger3 beetle critical habitat and found no overlap with the current range of the proposed use of Rozol on BTPDs. Therefore, these spec ies/critical habitat are not anal yzed further because we do not believe those species or critical habitats are a ffected. The table below lists the 18 species and 7 (of 8) designated critical habita ts that are analyzed in this consultation in accordance with

Section 7 of the ESA.

Table 1. Federally listed species and critica l habitats analyzed within this BO.

COMMON NAME SCIENTIFIC NAME FEDERAL
STATUS Critical Habitat
Desi g nated/Anal y zed?

1. American Burying
Beetle Nicrophorus

americanus Endangered Not designated

2. Blac k -ca pp ed Vireo Vireo atrica p illa Endan g ere d Not desi g nate d

3. Black-footed ferret Mustela nigripes Endangered,
Nonessential Experimental (Portions of AZ, CO, MT, SD, UT, and WY ) Not designated

4. Canada Lynx Lynx canadensis Threatened,
Candidate ( NM ) Designated/Analyzed

5. Chiricahua Leopard
Fro g Lithobates [Rana]
chiricahuensis Threatened Designated/Analyzed

6. Eskimo Curlew Numenius borealis Endan g ere d Not desi g nate d

7. Golden-cheeked
Warble r Dendroica chrysoparia Endangered Not designated

8. Gray Wolf Canis lupus Endangered,
Nonessential Experimental ( WY, AZ, NM ) Designated/Not Analyzed*

9. Grizzl y Bea r Ursus arctos horribilis Threatene d Not desi g nate d

10. Gulf Coast Jaguarundi Herpailurus (=Felis) yagouaroundi
cacomitli Endangered Not designated

11. Ja g ua r Panthera onca Endan g ere d Not desi g nate d

12. Mexican Spotted Owl Strix occidentalis
lucida Threatened Designated/Analyzed

13. New Mexican ridgenosed rattlesnake Crotalus willardi
obscurus Threatened Designated/Analyzed

14. Northern Aplomado
falcon Falco femoralis septentrionalis Endangered,
Nonessential Experimental ( NM ) Not designated

15. Ocelot Le p ardus p ardalis Endan g ere d Not desi g nate d

16. Pi p in g p love r Charadrius melodus Threatene d Desi g nated/Anal y ze d

17. Preble’s meadow j um p in g mouse Z apus hudsonius

p reblei Threatened Designated/Analyzed

18. Whoo p in g crane Grus americana Endan g ere d Desi g nated/Anal y ze d
*Designated critical habitat for the gray wolf exists in Michigan and Minnesota; however, the EPA determined that it does not overlap with the range of the BTPD and will not be affected by the proposed action.4 

### III. CONSULTATION HISTORY

Prior to initiation of Section 7 consultation on the registration of Rozol in 10 States by the EPA, there was an extensive history rega rding the use of Rozol for BTPD ( Cynomys ludovicianus ) control. The background information provided be low includes activities/actions that occurred leading up to the current consultation and issuance of this BO. The list of consultation history

items below is not intended to be all inclusiv e, but represents the Se rvice’s perspective of milestones in the 20-year consulta tion history in the use of chlo rophacinone, the ac tive ingredient in Rozol, as a rodent-control chemical. Ma ny events involved several agencies, groups, and

individuals and are relevant to understanding the issues associated with Rozol use on BTPDs.

DATE ACTIVITY

February 26, 1991 EPA requests formal consultation w ith the Service on chlorophacinone for use as a rodent control agent in specific geographic areas and specific rodent species in the U.S. (EPA 1991). This chemical was part of a larger suite of chemicals for which the EPA initiated formal consultation

with the Service.

March, 1993 Service issues a BO that de termined the proposed use of chlorophacinone for specific rodent control activities would jeopardize

the continued existence of 21 liste d species (FWS 1993). BO included Reasonable & Prudent Alternatives (R PAs) to avoid jeopardy along with Reasonable & Prudent Measures (RP Ms) to avoid and minimize impacts to listed species from the proposed uses of chlorophacinone. Chlorophacinone or Rozol use on BTPDs was not a described use at that time and therefore not analyzed in the 1993 BO.

October 20, 1993 EPA Region VII Office issues a lett er to Kansas authorizing use of Rozol Pocket Gopher Bait for contro l of prairie dogs (EPA 1993).

1990s Rozol Pocket Gopher Bait made with chlorophacinone is used on prairie dogs and begins to generate intere st as a prairie dog rodenticide (Lee et al. 2005).

2000s Six States develop Special Local Ne eds (SLN) labels to use Rozol on BTPDs (EPA 2010a). Service provi des multiple letters to State Agricultural Departments discourag ing use of Rozol on BTPDs because of secondary poisoning and impact s to non-target animals including listed species (FWS 2006a, 2006b, 2006c, 2006d).

May 5, 2006 Service provides a letter to the EPA on a pending proposal for a SLN label that would allow Rozol use in Nebraska on BTPDs (FWS 2006e). Service informs the EPA of expected secondary poisoning to non-target animals, including then-listed bald eagles, and requests that the EPA

initiate Section 7 consultation under the ESA.

October 1, 2006 Nebraska SLN label allows Rozol use on BTPDs to begin October 1 (Liphatech 2006). November 8, 2006 Rozol is applied to a BTPD town near McCook, Nebraska (FWS 2007a).

December 6, 2006 A bald eagle, then-listed as threatened under the ES A, is recovered near McCook, Nebraska, and determined to have died from chlorophacinone poisoning associated with a Rozol application on a BTPD colony (FWS5 DATE ACTIVITY 2007a).

January 19, 2007 EPA, the Service, and other interest ed parties meet in Topeka, Kansas,

to discuss issues related to Rozo l use on BTPDs, including how to prevent impacts to black-f ooted ferrets (EPA 2007).

December 12, 2007 EPA, the National Marine Fisheries Se rvice, and the Service agree that the Federal action for the FIFRA regist ration activities will be defined as

the “authorization for use or uses de scribed in labeling of a pesticide product containing a particular pesticide ingredient.”

May 19, 2008 EPA and the Service have a multi-region conference call to discuss secondary poisoning of non-target animals from Rozol use on BTPDs (EPA 2008).

May 13, 2009 EPA registers Rozol under Section 3 of FIFRA for use on BTPDs in 10 States with an application date of October 1 C March 15 (EPA 2009a).

June 5, 2009 World Wildlife Fund (WWF) provides a letter to the EPA that includes a request that ESA Section 7 consul tation be completed for the FIFRA registration for Rozol use on BTPDs ( WWF 2009). EPA treats this letter as a petition to consider suspensi on of Rozol as a BTPD rodenticide (EPA 2009b).

July 10, 2009 Defenders of Wildlife (DOW) and Audubon of Kansas (AOK) file a petition in the District of Columbia for judicial review of the EPA’s May 13, 2009, decision to register Rozol for BTPDs, noting the lack of ESA Section 7 consultation (DOW and AOK 2009a).

July 15, 2009 DOW submits a Notice of Intent to sue the EPA for use of Rozol on

BTPDs without ESA Section 7 cons ultation and other issues (DOW 2009).

July 30, 2009 Western Association of Fish and Wildlife Agencies (WAFWA) provides a letter to the Department of th e Interior (DOI) Secretary Salazar regarding Rozol use on BTPDs reques ting that DOI press the EPA to rescind use of Rozol until consultation is finished and secondary poisoning of non-target species is addressed (WAFWA 2009).

September 8, 2009 Service provides a letter to the EP A on the FIFRA Section 3 registration for Rozol use on BTPDs and requests th at ESA Section 7 consultation be completed prior to use of Rozol on BTPDs and that Rozol use for that purpose be withdrawn until completi on of the Section 7 consultation (FWS 2009a).

September, 2009 Black-footed ferret reintroduction site information is provided to the EPA in response to the EPA’s request for areas where Rozol use might

conflict with black-footed ferrets.

September 23, 2009 DOW and AOK file a complaint in the U.S. District Court of Columbia (USDC) alleging among other things that the EPA failed to conduct ESA

Section 7 consultation for the use of Rozol on BTPDs (DOW and AOK 2009b).

September 30, 2010 EPA submits a letter to the Service requesting formal ESA Section 7 consultation on Rozol use on BTPDs (EPA 2010b). November 16, 2010 EPA rejects suspension of Rozo l as a BTPD rodenticide in response to6 DATE ACTIVITY the WWF’s letter of June 5, 2009, whic h had been considered a petition by the EPA (EPA 2010c).

June 14, 2011 USDC issues a ruling on the DOW and AOK litigation against the EPA (USDC 2011). The Court ruled agains t the groups on some points but

found that ESA Section 7 consultati on must be completed. A date was set to hear arguments whether to susp end use of Rozol until Section 7 is completed.

July 13, 2011 Service provides a signed declaration to the court indicating that a draft BO will be provided to the EPA by December 10, 2011 (FWS 2011a).

August 8, 2011 In response to the litigation outcome, the EPA issues a cancellation order

and modifies the Rozol label to indicate that Rozol is not a labeled use in MT, ND, NM, or SD (EPA 2011a). Upon completion of the BO, the EPA anticipates a label modification to add those States back onto the

label.

August 26, 2011 A bald eagle picked up in Nebraska in the spring of 2011 is confirmed to have died of chlorophacinone poisoning (FWS 2011b).

September, 2011 EPA and the Service discuss conser vation measures that could be developed and instituted to avoid an d minimize adverse effects to listed species, agreeing to include the regist rant and applicant, Liphatech, Inc., (Liphatech) in those discussions.

September 28, 2011 A conference call is held between Li phatech, the EPA, and the Service that included discussion on genera l aspects of formal Section 7 consultation and the development of conservation measures that would avoid and minimize impacts to listed species from Rozol use on BTPDs. All parties were receptive to develo pment of conservation measures that could be integrated into the proposed action.

October, 2011 Due to interest in the conservati on measures, the Service inquires of Liphatech and the EPA whether the draft BO deadline of December 10, 2011, can be extended to a llow the conservation measures to be finalized and incorporated into the proposed action. This change in the proposed action is expected to significantly modify the anticipated impacts to listed species, and the parties agree that additional time can be afforded.

October, 2011 Service begins providing maps of listed species areas where Rozol use should be prohibited to avoid adverse affects or where the use dates of

October 1 - March 15 would be rest ricted to avoid listed species

interaction with BTPD colonies that have had Rozol applications. EPA provides this information to Liphatech.

October 17, 2011 EPA sends a response to the Servi ce’s September 9, 2011, letter that had requested additional information from the 1993 chlorophacinone BO (EPA 2011b). EPA letter indicates th at no additional information is available; RPAs, RPMs, and suggested animal studies from the 1993 BO were either not implemented or in formation is not available on the implementation.

November 8, 2011 EPA and the Service discuss, via c onference call, possible conservation

measures and confirm the informati on to be provided to Liphatech.7 DATE ACTIVITY

November 22, 2011 Service provides a signed declaration to the court indicating that the Service will provide a draft BO to the EPA by January 16, 2012, per the understanding with the EPA that add itional time for drafting the BO is warranted for development of the conservation measures (FWS 2011d).

December 13, 2011 EPA provides a letter to the Service and Liphatech that formalizes the agreed upon conservation measures to avoid and minimize impacts to listed species (EPA 2011c). This lett er modifies the proposed action and the subsequent analysis in the BO is changed to reflect the new

information. January 16, 2012 Service provides a draft BO to the EPA. January 18, 2012 EPA posts the draft BO on their website for public comment.

March 9, 2012 EPA provides comments to th e Service on the draf t BO (EPA 2012a).

April 6, 2012 Additional Conservation Measures are agreed upon that will incorporate improved post application survey la nguage and contact information on the Rozol label, development of a website and training materials intended to reduce nontarget exposure, and conduct training sessions for applicators in the proper use of Ro zol and the importance of preventing exposure to nontarget animals (EPA 2012b).

April 9, 2012 Final BO for Rozol use on BTPDs re gistered under Section 3 of the FIFRA provided to EPA.



### IV. DESCRIPTION OF THE ACTION

The proposed action by the EPA is the administrati on of the FIFRA Section 3 registration of the single product label for Rozol (Registration N o. 7173-286). Rozol is manufactured by Liphatech as loose-grain bait used to poison BTPDs in the 10 western States of Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakot a, Oklahoma, South Dakota, Texas, and Wyoming. Its use in the States of Montana, New Mexico, North Dakota, and South Dakota was cancelled in August 2011, pending completion of the ESA Section 7 consultation; however, the EPA and Liphatech propose to resume applicat ion in those States upon completion of this

Section 7 consultation.

All 10 States listed on the September 10, 2010, Ro zol label (see Appendix) are considered herein. The EPA’s goal for reassessing registered pesticide active ingredients is every 15 years. Given the EPA’s timeframe for pesticide registra tion reviews, the Service’s evaluation of the proposed action is also for 15 years.

The EPA adopted conservation measures dur ing the formal consultation process and incorporated them as part of the proposed action (EPA 2011c, 2012b); those measures are listed

below. The action area and items relevant to use of the product, as directed by its label, were

described in the EPA formal consultation init iation package (EPA 2010b) and incorporated herein. Additionally, information regarding direct and indirect effects of the proposed action and potential exposure routes to federally listed specie s, as well as a review of the EPA’s BA, is provided in this BO. This information provides the context in which the subsequent individual species analyses were conducted.8 A. CONSERVATION MEASURES

Conservation measures are commitments by the EPA to avoid or minimize adverse impacts of the proposed action and, for the purposes of this consultation, are considered part of the proposed action that are then analyzed in the effects analysis in this BO. The Service identified these

conservation measures and coordinated with the EPA and Liphatech regard ing the acceptability

of the measures as well as the best means to implement them. The measures 1-8 below were formally adopted by the EPA via letter dated December 13, 2011, and will be included online as part of the EPA’s Endangered Species Protection Bulletins (see: Bulletins Live! at http://www.epa.gov/espp/bulletins.htm). Measures identified on the EPA’s Bulletins Live! are considered an extension of the Ro zol label thereby legally requiring applicators to adhere to them (EPA 2011c). Maps of each of the areas where Ro zol use will not be allowed or restricted, along with any associated relevant inform ation will be included in the EPA’s Bulletins Live! database, and label requirements will make clear that Rozol us e in these areas is restricted or prohibited. On April 6, 2012, additional conservation measures were agreed upon and in corporated into the project proposal and described below (EPA 201 2b). Noncompliance with these bulletins would

be a violation of FIFRA.

1. Black-footed Ferret Conservation Measure

 Prohibit application of Rozo l within current black-footed ferret reintroduction sites (13 sites) and future reintroduc tion areas to reduce the level of impact to the black-footed

ferret. The locations will be made available via the EPA’s Bulletins Live! database.

2. Chiricahua Leopard Frog Conservation Measure

 Prohibit application of Rozol within the fi ve southwestern New Mexico counties of Catron, Grant, Hidalgo, Sierra, and Socorro to avoid impacts to the Chiricahua leopard frog and its critical habitat.

3. Grizzly Bear Conservation Measure

 Delay application of Rozol in the State of Montana by 2 months until December 1, and shorten the application period in the spring by 2 weeks to end by March 1, in areas where the range of the grizzly bear overlaps with the range of the BTPD to reduce the risk of impacts to the grizzly bear.

 The areas in Montana where the timing delay applies includes all, or portions of, the following counties: Carbon C ounty; Stillwater County sout h of I-90; Sweetgrass County south of I-90; Park County south of I-90; Ga llatin County south of I-90; Madison County; Powell County; Lewis and Clark County; Cascade County; Teton County; Pondera County; Glacier County; and Toole County.

4. Jaguar Conservation Measure

 Prohibit application of Rozol within the southwestern New Mexico County of Hidalgo to reduce the risk of impacts to the jaguar.

5. New Mexico Ridge-nosed Rattlesnake Conservation Measure9  Prohibit application of Rozol within the sout hwestern New Mexico county of Hidalgo to avoid impacts to the New Mexico ridge-nosed rattlesnake and its designated critical

habitat.

6. Mexican Gray Wolf Conservation Measure

 Prohibit application of Rozol within the f our southwestern New Mexico counties of Catron, Grant, Hidalgo, and Sierra to reduce the risk of impact s to the Mexican gray wolf within the Blue Range Wolf Recovery Area.

7. Mexican Spotted Owl Conservation Measure

 Prohibit application of Rozol within the fi ve southwestern New Mexico Counties of Catron, Grant, Hidalgo, Sierra, and Socorro to reduce the risk of impacts to the Mexican spotted owl and its designated critical habitat.

8. Preble’s Meadow Jumping Mouse Conservation Measure

 Delay application of Rozol in the fall by 1 month, until November 1, in areas where the range of the Preble’s meadow jumping m ouse (PMJM) overlaps with the range of the

BTPD to reduce the risk of impacts to the PMJM.

 Areas where the timing delay applies exist within Wyoming and Colorado. Within Wyoming, all or portions of the following f our counties are to have the above timing restriction: Converse, Platte, Albany and Laramie. Within Colorado, the timing restriction applies within the following se ven counties: Larimer, Boulder, Weld, Jefferson, Douglas, Elbert, and El Paso.

As previously noted, on April 6, 2012, additiona l conservation measures were added and the suggested label language below will be included, with the exception of the following statement:

“ Detailed guidance on how to conduct a line-t ransect search is available online at ( EPA

website )” , which EPA will add once content is de veloped in coordination with FWS and Liphatech (EPA 2012).

“Carcass searches must be performe d using a line-transect method that completely covers the baited area. De tailed guidance on how to conduct a linetransect search is availabl e online at (EPA website). Transect center lines must be no more than 200 feet (about 60 meters) apart, and should be considerably less if searches are conducted in more de nsely vegetated sites. Transect lines may be traveled on foot or by vehicle at a ra te not to exceed 4 mph. All dead or dying non-target animals must be reported to th e National Pesticide Information Center 1-800-858-7378 as soon as possible. An y apparently injured or sick Federally listed species must also be immediat ely reported by call ing 303 –236 - 7540 (if located in Kansas, Nebraska, the Dakotas, Montana, Colorado, or Wyoming) or 505 –248-7889 (if located in Texas, New Mexi co or Oklahoma). The Black-footed

Ferret Coordinator must also be contac ted if ferrets are found during Rozol Prairie Dog Bait applicati ons or carcass searches at 970-897-2730 x 224.”10 The EPA believes that improved Rozol Prairie Dog Bait label language in combination with

education and outreach activities are appropriate. Therefore, EPA, with agreement from Liphatech, includes the follo wing Conservation Measures:

1. Liphatech will add language to the Rozol Pr airie Dog Bait label as agreed to on the March 30, 2012 conference call. The Rozol Prairi e Dog Bait label will al so explicitly state that pesticide applicators are responsible for ensuring that carcass searches are performed in accordance with the label requirements.

2. EPA, in coordination with FWS and Liphatec h, will develop website content intended to achieve the following:

a. Provide information on the importance of lim iting the availability of dead and dying target and non-target wildlife in order to protect the listed species of concern;

b. Describe the improved carcass search methods described in this C onservation Measure;

and

c. Include the website link as part of the Rozol Prairie Dog Bait label once it is developed.

3. EPA will work with the State Lead Agencies to incorporate training sessions on secondary poisoning at their annual pesticide applicator recertification programs. The training will educate applicators on the meaning of secondary toxicity, the hazards of Rozol Prairie Dog Bait, the basis for the carcass search requirement s and other associated label restrictions and the importance of minimizing risk to non-target species. EPA st aff may participate directly in these training sessions, through webinars, by helping to arrange for other knowledgeable persons to give presentations, or through a combination of each.

4. As a condition of registration Liphatech will maintain a stewardship program using the

framework as described below:

LIPHATECH ROZOL PRAIRIE DOG BAIT PRODUCT STEWARDSHIP PROGRAM

PURPOSE The Liphatech Rozol Prairie Dog Bait Product Stewardship Program is a commitment by Liphatech to provide educati on and outreach materials and training to Rozol Prairie Dog Bait users (e.g., certified applicators and landowners) on carcass search and survey methods described on the Rozol Prairie Dog Bait label. The purpose of this program is to

result in minimized take to the affected lis ted species of concern via reduction in the incidence of secondary poisoning. REQUIREMENTS

a. On its Rozol Prairie Dog Bait product website, Liphatech will include a link to EPA’s Rozol Prairie Dog Bait bulletins, which provide geographically-based prohibitions on Rozol Prairie Dog Bait use intended to protect listed species of concern.

b. Liphatech will provide yearly training sessions to pesticide applicators in each of the 10 States where Rozol Prairie Dog Bait will be registered. To the extent possible, Liphatech will provide these training sessions prior to the 2012 Rozol Prairie Dog Bait use season. The training sessions will include information on proper dosing for Rozol Prairie Dog Bait, presentation of th e carcass search and line transect survey methods listed on the Rozol Prairie Dog Bait label, and education on the meaning of11 secondary toxicity and the importance of minimizing secondary exposure to non-target species.

c. Once EPA, FWS, and Liphatech have developed website content, Liphatech will

include a link to EPA’s website on its Rozo l Prairie Dog Bait product website. In addition, Liphatech will develop and distri bute a brochure with information from the

website to be distributed as part of its training sessions a nd other outreach initiatives.

B. ROZOL PRAIRIE DOG BAIT REGISTERED USE

The chlorophacinone concentration in Rozol is 0.005 percent or 50 milligrams per kilogram (mg/kg). According to Rozol label instructi ons (Appendix), the product is to be applied by certified applicators to BTPD colonies in rangelands and noncrop areas by inserting 1⁄4 cup (53 grams, nearly 2 ounces) by hand at least 6 inches into active prairie dog burrows only between October 1 and March 15 of the following year, when the prairie dogs most readily consume grain bait. Any bait spil led above ground or placed less than 6 inches into the burrow is to be retrieved and disposed of by the appl icator. Prairie dogs that consume the bait are anticipated to begin dying within 4-5 days. The la bel indicates that the applicator must return to the site within 4 days after bait application and at 1- to 2-day intervals thereafter for at least 2 weeks (longer if carcasse s continue to be found) to collect and properly dispose of any bait or dead or dying prairie dogs found at the surface. These return visits to collect bait and prairie dogs are to occur late in the day, near sundown, to reduce the potential of nocturnal animals finding dead and dying animals. Carcasses may be buried onsite, at leas t 18 inches below the surface, or placed in inactive burrows, and burial must include covering and packing the soil atop

the carcass. If onsite burial is not possible, other means of dispos al to preclude scavenger access to carcasses is required. A s econd application may be made if prairie dog activity persists

several weeks or months after the initial bait application.



### C. ACTION AREA

The action area is defined (50 CFR § 402.02) as all ar eas to be affected directly or indirectly by the Federal action and not merely the immedi ate area involved in the action. The EPA has

identified the action area as follows:

“ For this assessment, BTPD range within the states of Colorado, Kansas, Montana,
Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas and Wyoming and counties adjacent to this range is considered to be the action area. The action area considered for direct effects includes the BTPD range within the 10 states listed above as well as counties adjacent to this range. The action area considered for indirect effects includes only the BTPD range with the 10 states listed above and does not include counties adjacent to this range. This distinction was made because indirect effects are not exp ected to extend beyond the use area. However, direct effects may extend beyond the use area due to exposure to individuals or via prey items with chlorophacinone residues that could be found outside of their described range.

It is important to note that the historic range-wide action areas do not imply that direct and/or indirect effects and/or critic al habitat modification are expected or are12 likely to occur over the full extent of the action area, but rather to identify all areas that may potentially be affected by the action. The Agency uses more rigorous analysis including consideration of available land cover data, toxicity data, and exposure information to determine areas where listed species and their designated critical habitats may be affected or mod ified via endpoints associated with reduced survival, growth, or reproduction. ”

In the BA, the EPA provided a map of the histor ic BTPD range from NatureServe (Figure 2.2 on page 55 of the BA, reproduced below in Figure 1) as an indicator of the action area and described as the “footprint” or “initial area of concern” which covers all habitats within the historic BTPD range. Range maps available on the Service’s website ( http://www.fws.gov/endangered ) for federally listed species and/or their critical habitats were overlaid by the EPA on that historic BTPD map to determine any overlap which was used in the EPA’s BA to inform “May Affect” determinations for federally threatened or endangered species and their critical habitats. As the EPA recognize d in the BA, the historic range map of the BTPD does not necessarily include th e entire “Effects Determination Area” and additional data were used as appropriate to determine effects to species and critical habitats. The current range of the

BTPD has contracted from its hist oric range so, in some areas, th e species’ current overlap with federally listed species has been reduced (FWS 2009b). The consultation addresses Rozol use within the 10 States identified on the Septem ber 10, 2010, Rozol label (Appendix). Additionally,

some of the conservation measures listed a bove further amend the EPA’s action area by precluding Rozol use in some areas. For the pur poses of this consultation, and in accordance with the definition of “action area” provided abov e, the Service agrees with the EPA’s broad

action area. The EPA’s demarcation of areas wher e direct effects versus indirect effects may occur is not adopted herein, as we surmise that indirect effects could occur in counties adjacent to the BTPD’s range. However, we agree with the EPA’s clarification th at, while the action area includes those areas adjacent to the BTPD’s ra nge where potential affects may occur, those affects are not necessarily likely or expected to occur and additional information was used to determine affects to listed species.13 Figure 1. The historic range of the BTPD by NatureServe as presented in the EPA’s BA (EPA 2010b).14 

### V. GENERAL BACKGROUND AND EFFECTS OF THE ACTION

RELEVANT TO ALL SPEC IES IN CONSULTATION

The BTPDs are considered a keystone species th at have a unique and substantial influence on plant and animal communities and are critical to the integrity of grassland ecosystems (Kotliar et al. 2006). The habitat they create is associated with more than 150 species of amphibians, birds, mammals, plants, and reptiles as well as species federally liste d for protection under the ESA (Kotliar et al. 2006). In western South Dakot a, 40 percent of all wildlife (represented by 134 vertebrate species) is a ssociated with BTPD colonies (Sharps and Uresk 1990). The presence of mountain plovers ( Charadrius montanus ) and burrowing owls ( Athene cunicularia ), two species of conservation conc ern (FWS 2008a), is also considerably higher on BTPD colonies than grassland habitats without prairie dogs in eastern Colora do (Tipton et al. 2008). When prairie dog towns are poisoned, many other specie s are likely to be poisoned as well or be negatively affected by loss of prairi e dog habitat or the species associ ated with that habitat. Loss of seasonal habitat for bird sp ecies may be of special concern. The number of bird species present in the summer was signi ficantly higher on pr airie dog towns than paired sites without prairie dog towns (Smith and Lomolino 2004). Burrowing owls, killdeer ( Charadrius vociferous ), horned larks ( Eremophila alpestris ), and western meadowlarks ( Sturnella neglecta ) are positively and significantly associated with prairie dog to wns during summer, while horned larks and ferruginous hawks ( Buteo regalis ) are significantly associat ed with prairie dog towns during fall (Smith and Lomolino 2004). Species’ declines from the reduction of prairie dog habitat can result in cascading effects through the grassland ecosystem that extend beyond the poisoned prairie dog towns.

A. INDANDIONE MODE OF ACTION AND TOXICITY

Chlorophacinone, the active ingredient in Rozol, is an anticoagulant ch emical and, along with diphacinone, belongs to the indandione cla ss of compounds. Chlorophacinone and diphacinone are the only indandione active ingred ient rodenticides currently re gistered for use in the United States. Diphacinone was registered to poison BTPDs under FIFRA Section 24(c) for SLN, but it is currently registered for use only on rodent s other than prairie dogs . Rozol is the only anticoagulant registered for use on BTPDs that is registered under Section 3 of FIFRA. Indandiones depress liver synthesi s of vitamin K-dependent blood-cl otting factors and increase permeability of capillaries throughout the body, resu lting in systemic internal hemorrhaging (Reigart and Roberts 1999). Unlike the c oumarin class of anticoagulant compounds (e.g., warfarin, brodifacoum, difenac oum), indandiones can cause ne urologic and cardiopulmonary injury leading to death before hemorrhage occurs (Reigart and Roberts 1999, Hazardous Substances Data Bank 2003). Indandiones al so uncouple oxidative phosphorylation (energy generation) which may result in fatigue and re stlessness (Van Den Berg and Nauta 1975, Bryson 1996). Clinical effects typically do not occur un til several days after ingestion due to the persistence of blood-clotting factors. In humans, clinical effects include anemia (red blood cell deficiency), fatigue, dyspnea (br eathlessness), nosebleeds, blee ding gums, hematuria (blood in the urine), melena (darkened feces associated with gastrointestinal bleeding), and extensive ecchymosis (large bruises) (Reigart and Roberts 1999).15 Indandiones are first generation anti coagulant rodenticides that are most toxic when animals are exposed to daily doses for multiple days (Vyas and Rattner 2012). For example, the median Lethal Dose (LD 50 ) from a single exposure of ch lorophacinone to Norway rats ( Rattus norvegicus ) is 20.5 micrograms per gram (μg/g) , whereas a 5-day daily dose LD 50 is 20 times lower at 0.95 μg/g (Jackson and Ashton 1992). A risk assessment by the EPA (Erickson and Urban 2004) reports a laborat ory rat chlorophacinone LD 50 of 6.2 μg/g as well as a 0.19 μg/g 5-day LD 50 for the same species (Table 9, page 34) indicating a 6-fold difference that is also probably attributed to differences in e xposure frequency and durati on. Likewise, a dietary toxicity test that provided a m easured diphacinone-treated diet for daily consumption by eastern screech-owls ( Megascops asio ) found that repeated low-dosag e exposure over 7 days increased diphacinone toxicity by more than an order of magn itude compared to an acu te oral toxicity test (Rattner et al. 2011a; Vyas, pers. comm. 2011a; Vyas and Rattner 2012). Thus, the single dose

LD 50 test, which was developed to evaluate rodenticides causing acu te responses such as zinc phosphide, is not an appropriate te st for evaluating toxicity fo r first generation anticoagulants such as chlorophacinone that have their greatest toxici ty from repeated daily exposures. We

believe that acute standardized toxicity test results for chlorophacinone greatly underestimates risk to non-target species because indandiones ar e much more lethal when multiple doses are consumed over multiple days as opposed to a single feeding.

The BTPDs exposed to chlorophacinone exhibit much variability in th eir susceptibility to mortality and the amount of time it takes for them to die (Yoder 2008). Death can occur when exposed to a chlorophacinone dose (oral gavage ) as low as 0.5 milligrams per kilogram body weight (Yoder 2008). Mortality from LD 50 tests indicate that BTPD deaths tend to occur 9-20 days after exposure (Yoder 2008). The BTPDs exposed to chlorophacinone may not exhibit any symptoms prior to de ath, but most are symptomatic fo r at least 24 hours before death (Yoder 2008). The BTPD symptoms from chlor ophacinone exposure (e.g., lo ss of attentiveness, lethargy, swollen or closed eyes) generally take da ys after ingestion to manifest, and this likely

reduces bait avoidance in the inte rim (Yoder 2008). There is no a pparent taste aversion to Rozol as BTPDs readily consume Rozol bait (Witmer 2011).

B. CHLOROPHACINONE EN VIRONMENTAL FATE

The number of days for chlorophacinone to degr ade by 50 percent (half-life) has been reported by laboratory studies that evalua te degradation by soil, water, and light. The half-life of chlorophacinone incorporated in soil can range from 4 to 128 days depending on laboratory testing conditions. In soil under dark aerobic co nditions at 25°C, chlorophacinone is degraded steadily with an estimated half-life of 128 days (European Commission 2009); whereas, under artificial light on sandy clay lo am soil, chlorophacinone’s half- life is 4 days (EPA 1998a). Although previously reported to be very susceptibl e to direct photolysis in water (e.g., half-life of 37 minutes at pH 7), the assessments used ac etone (a strong photosensi tizer) as a solvent to introduce chlorophacinone into th e test system and are now considered by the EPA as invalid (Jones, pers. comm., 2011). Chlo rophacinone is stable in water at a pH of 5, 7, or 9; thus, breakdown by exposure to water is not expected to be an important degradation process (Hazardous Substances Data Bank 2003).16 Few studies have evaluated the field persistence of chlorophaci none rodenticide baits; however, they indicate that chlorophaci none concentrations in Rozol would not degrade prior to consumption even under wet conditions (Merson a nd Byers 1985; Jones, pers. comm., 2011). A field study that evaluated wet w eather resistance of rodenticides, including Rozol Vole Bait, found no difference in efficacy between wet and dr y chlorophacinone pellets (Merson and Byers 1985). A supplemental terrestrial field di ssipation study report ed no dissipation of chlorophacinone in Rozol samples for up to 10 days and actually found concentrations increased over this time period, perhaps as a result of insect consumption of the internal part of the grain or changes to bait water content (Jones, pers. comm., 2011). The ability to evaluate dissipation of chlorophacinone on grain samples was hampered by consumption of the grain samples, and the study concluded that the primary route of dissipation of chlor ophacinone is through consumption of the treated grain (Jon es, pers. comm., 2011).

Based on the information above, we agree with the EPA’s assumption in the BA (EPA 2010b) that the mobility from bait into soil or water is considered a negligible exposure pathway to non-target organisms. We assume chlorophacinone remains undegraded in bait after applications and share the EPA’s assumption th at the only relevant dissipati on of Rozol occurs through its consumption.

C. ROZOL EXPOSURE AND EFFECTS ASSESSMENT

1. Primary Exposure

Ingestion of Rozol (primary exposure) by non-targ et species can be expe cted for species that feed on grain. Twenty-nine adult domestic pigeons ( Columba livia ) were poisoned in Spain with a 0.005 percent chlorophacinone wheat grain bait after a broadcast app lication targeted at common voles ( Microtus arvalis ) (Sarabia et al. 2008). A common lesion associated with chlorophacinone toxicosis in these pigeons involved massive hemorrhage and hematoma formation in the subcutis of the neck; howev er, equally noteworthy was that chlorophacinone was found in the liver at 5.66 to 34.97 μg/g wet we ight (ww) basis in four birds without any lesions suggestive of anticoa gulant toxicosis (Sarabia et al. 2008). Although the label requirement to place bait “six inches in the burro w” is designed to limit exposure to granivorous birds, it does not preclude exposure to avian or other non-target species that may use BTPD holes. Rozol was visible in many BTPD burrows th at contained angled entrances (as opposed to vertical entrances), and horned la rks appeared to be preferentially drawn to these burrows where they could easily feed on Rozol (Vyas 2010a). The presence of green-stained droppings, indicative of exposure to Rozol bait which cont ains a green dye thereby making product appear green, was observed and suspect ed to be from pheasants ( Phasianus colchicus ), horned larks, and western meadowlarks. Green droppings from these birds suggest they were consuming bait; an assumption subsequently confirmed by dete ction of chlorophacinone residues in these droppings (Vyas, pers. comm., 2011b).

In addition to feeding on bait within the burrow, non-target species ma y also feed on bait found on the surface. Bait spilled by a pplicators or not entirely placed in burrows can be difficult and time consuming to collect. Further, bait that is placed in burrows can be brought back to the surface of a colony over time by the action of pr airie dogs and other animals using the burrow17 system (Vyas 2010a). We currently lack informa tion concerning applicator willingness to cease operations and collect misplaced bait or return to the colony days to weeks later to collect and dispose of bait found on the surface. Absent that information, it appears that bait retrieval from the surface of a prairie dog colony, days to w eeks post application, could be an unrealistic expectation of the label. Thus, even if applicators attempted to follow label instructions regarding retrieval and disposal of bait at the time of application, the size of bait and landscapes where it is used brings up the practicality of a dhering to that label require ment. We are aware of one field study that found bait on the surface (Vyas 2010a) and have no information from anywhere else that indicates ap plicators are collecting and dis posing of bait found above ground.

The Rozol application rate of approximately 1⁄4 cup of bait (53 grams) down each active prairie dog burrow may be excessive and likely results in increased risk to non-target species. According to Liphatech, 53 grams of Rozol bait provides about two LD 50 doses per BTPD, based on a single dose oral gavage LD 50 of 1.8 μg/g (Yoder 2008). Howeve r, as previously explained, a 5-day LD 50 would likely be around 20 times lower than a single dose LD 50 and is more representative of exposure in the field whereby animals may consume bait over multiple days. Thus, 53 grams of bait may provide 10 lethal dos es. Furthermore, there are on average 3.9 active burrow entrances for each BTPD (Biggins et al. 2006). If inactive bu rrows are mistakenly baited, then even further bait availability to both ta rget and non-target animals would occur. To illustrate the point, when Forgacs (2010) trea ted 1,358 burrows on a 15.7 acre prairie dog plot where they had a visual count of 30 prairie dogs, they applie d 71,974 grams of Rozol (at least 13,580 lethal doses) on a plot with an estimated population of 348 BTPDs us ing a scientifically accepted methodology to estimate prairie dog numbers from active burrows (Biggins et al. 2006). While that level of dosi ng likely ensures high le thality to prairie dogs, it likely also contributes to prairie dogs consuming multiple lethal doses as well as providing left-over bait to remain available for non-target species to cons ume after the prairie dogs have been killed.

Results from other studies indicate that applic ation rates of less than 53 grams of product per active burrow can be effective at killing BTPDs. Sullins (1990) reported a 96-percent reduction in the visible count of BTPDs after provi ding 0.01 percent chlor ophacinone product in

2 applications of 9 grams per ac tive burrow for a total of 18 grams ( equivalent to 36 grams of

Rozol) applied within 48 hours.

2. Secondary Exposure

Species that ingest animals that consume Rozol (secondary exposure) are also at risk of being negatively affected, especially pr edators and scavengers that may gorge on poisoned prairie dogs and selectively feed on internal tissues (see “Prairie Dog Chlorophacinone Residues” section below). Five of six domestic ferrets were kill ed after each ferret was fed four poisoned BTPDs over 8 days; the authors of the study concluded that chlorophacinone may not be an acceptable prairie dog toxicant based on high secondary toxi city (Fisher and Timm 1987). As described further in the “Field Study Observations of Secondary Toxicity” section below, field

observations indicate that the av ailability of BTPDs to second ary consumers is facilitated by prairie dogs spending time above ground after inge sting Rozol (FWS 2007a, Golden and Gober 2010, Vyas 2010a). When subjected to poisonin g, BTPDs can return to the surface of the colony, becoming increasingly debilitated until death. Prairie dogs in this de bilitated state can be18 more susceptible to predation due to changes in behavior that render them more conspicuous and less wary and evasive in the pr esence of a predator (Hunt et al. 1992, Relyea and Hoverman 2006). Avian predator hunting success increases dr amatically when injured or abnormal prey are available (Rudebeck 1950), and s cavengers, including some raptor s, are attracted to easily obtained food sources, including poisoned prey (Chesser 1979, Vyas 1999, Vyas et al.2003). Some avian predators such as ferruginous hawk s are attracted to Ro zol-treated prairie dog colonies, likely due to the increased presence of moribund and dead prairie dogs and perhaps other non-target species (Vyas 2010a). Thus, even though Rozol-treated prairie dog colonies may make up only a small percentage of a pred ator’s overall foraging range, preferential selection of prey from these areas may lead to a disproportionate opportu nity for exposure.

Risk to non-target species also includes effects from chronic (long-term) secondary exposure. Rozol exposed prairie dogs may be debilitate d on the surface for at least a month following application (Vyas 2010a, Lee and Hygnstrom 2007). Thus, predators may continue to feed from the same poisoned prairie dog town for weeks or may encounter other poisoned prairie dog towns that were sequentially poisoned and are wi thin their home range or migration path. As described earlier, lethality of Rozol increases gr eatly with repeated exposure. We assume that many of the effects described in the above “Inda ndione Mode of Action and Toxicity” section including sub-lethal neurologic effects, cardiopulmonary effects, energy loss, and hemorrhaging could occur in federally listed species from chronic Rozol exposure and ultimately result in decreased growth, survival or re productive effects. Further, we agree with the EPA’s assessment in the BA that “toxicity resulting from ch ronic exposure exceeding five days cannot be determined based on current data” and that “gro wth and reproductive eff ects cannot be precluded

due to the absence of chronic data.”

The BA and previous risk assessments by the EPA (Erickson and Urban 2004) indicate that mammals are at a greater risk from secondary chlo rophacinone toxicity than birds; however, if sub-lethal effects are considered, then birds exposed in the field ma y be at equal or greater risk than mammals as the effects of anticoagulant rodenticide toxicosis can differ between mammal and avian species. For example, pulmonary he morrhage is far more common in mammals than birds, but birds can have excessive external bleeding from minor supe rficial wounds, a condition not reported in mammals (Stone et al. 1999). Also, the first observed signs of secondary chlorophacinone toxicity in rapt ors include fatigue such as wing-drooping (Radvanyi et al. 1988). For species such as raptors that re ly upon speed and stamina to attain prey, chlorophacinone-induced fatigue can result in decr eased survival by impairing their ability to capture prey. Because of differences in pathologies, birds may be even more susceptible to chronic effects than mammals. Furthermore, some avian species may be just as susceptible as mammals or more susceptible when sub-lethal e ffects are considered in conjunction with other factors that influence exposure and cumulative ef fects to birds such as: a) body condition from migration; b) increased susceptibility to cont act injury; c) environmental conditions such as weather extremes; and d) high ener gy demands in the winter.19 3. Surface Presence of Poisoned Black-tailed Prairie Dogs

The greatest pathway for effects to listed spec ies from the proposed action comes from moribund

or dead animals found on the surf ace of a prairie dog colony as a result of Rozol poisoning. The

Service is aware of three studies that inform the issue of dead and dying prairie dogs on the colony surface following Rozol application, and tw o of the three studies repeatedly found dead and dying prairie dogs above ground on the surfa ce of the prairie dog colony during multiple return visits (Lee and Hygnstrom 2007, Vyas 2010a). The other study (Forgacs 2010) did not find prairie dogs on the surface but qualified th at result noting that weather conditions deteriorated after the application to the point that precipitation prevented researchers from even being able to return to some poi soned sites to search for prairie dogs. That study also noted that the inclement weather, which began after the Rozol application, may have contributed to decreased above-ground prairie dog activity (Forgacs 2010).

Instances of dead and dying prairie dogs above -ground following application have also been reported to the Service’s Law Enforcement Divi sion (FWS 2007a, Golden and Gober 2010). An excerpt below from an interview with a Rozol applicator after a bald eagle ( Haliaeetus leucocephalus ) poisoning incident in Nebraska illustra tes both the regularity that prairie dogs

return to the surface and the stat e of awareness of Rozol poisoned prairie dogs (FWS 2007a).

REDACTED also explained that he knew poisone d prairie dogs often returned to the surface before dying, as evidenced by the bloody stools he often saw when he returned to inspect the sites. REDACTED further relayed an incident when the poison Rozol had been applied to the prai rie dog town, as per label instructions and the lady owning the property watche d as poisoned prairie dogs stumbled around the surface for two weeks after the application . REDACTED added when he does see prairie dogs on the surface af ter they have been poison, they seem to be in a stupor, and not wary at all. REDACTED said he could often walk right up to these poisoned prairie dogs and they would not run away.

At the time this statement was provided to Law Enforcement Agents in 2007, the Rozol SLN label did not require collection of impaired or moribund prairie dogs but rath er just retrieval of carcasses found on the surface. Even though the current label requires collection and disposal of live prairie dogs, we have encountered applicat ors who indicate that this is not readily accomplished (see following section below). Given the instances of Service Law Enforcement agents finding moribund and dead prairie dogs on the surface after a Rozo l application (Golden and Gober 2010) and applicators reporting prai rie dogs on the colony surface following Rozol applications (FWS 2007a), we believe Rozol- poisoned prairie dogs and other animals will regularly return to the surface of a colony and be available for secondary exposure to federally listed species, including the northern aplomado falcon and gray wolf.

4. Removal of Poisoned Black-tailed Prairie Dogs

Although the Rozol label requ ires return visits to the colony to search for and remove dead and dying prairie dogs following application, the limited information on applicator behavior indicates that few, if any, moribund or dead prairie dogs ar e collected and disposed of in a manner that20 substantially reduces secondary e xposure (FWS 2010a, Tosh et al. 2011). This outcome may be due to the difficulty of finding prairie dogs on th e surface as illustrated by Vyas (2010b) (click here for video) or because resources and commitme nts needed to make multiple return visits to a colony are not available (FWS 2010a).

During a meeting in 2010 attended by the EPA and hosted by the North Dakota Department of Agriculture and Standing Rock Sioux Indian Reservation, ranche rs and professional pesticide applicators indicated that they do not have the ti me, resources or inclination to conduct multiple return visits to a Rozol treated prairie dog colony to collect dead and dying prairie dogs, and that current label requirements for two return visits to treated prairie dog town s were unrealistic and impractical (FWS 2010a). These remarks were in response to an EPA inquiry to the attendees what they would think about in creasing the required returns vi sits to a poisoned prairie dog colony from two times as required by the label in effect at that time (A ugust 2010) to potentially many more visits. The EPA prefaced their inquiry to the ranchers in attendance that additional return visits might be added to the label to address comments that the EPA received from environmental groups about dead and dying prairie dogs on the surface of a colony. One of the meeting participants indicated that, if the EPA n eeded to increase the number of return visits on the label to pacify environmental groups, it may not matter since that speaker did not believe there was rigorous adherence for two return visits to collect prairie dogs; thus, requiring even more return visits would likely m eet a similar fate. The Montana Department of Agriculture also questioned the practicality of the Rozol label, esp ecially the retrieval of live prairie dogs, and expressed their belief that most a pplicators will have difficulty with strict adherence to the label (de Young 2009). Of particular note from that North Dakota meeting was that none of the attendees had ever picked up and disposed of liv e prairie dogs or their carcasses after a Rozol application. At the time of the meeting, Rozo l had only been approved for use on prairie dogs

for one season in North Dakota and South Dakota. Some attendees have since indicated that applicators did go back out to search per the label and did not find BTPDs on the surface, surmising that above-ground BTPDs had been scavenged or died underground.

A recent on-farm survey on anticoagulant use in Northern Ireland found that applicators seldom followed best practice guidelines designed to ma ximize efficacy and reduce risk of non-target species exposure (Tosh et al. 2011 ). They found that applicators almost never searched for and removed poisoned carcasses and many baited for pr olonged periods or permanently. We are not aware of any similar anticoagulant use behavior studies conducted in the United States that would inform Rozol applicator use behavior. Ho wever, we suspect that challenges with label restrictions, especially retrieval of live prairie dogs and carcasses, is an issue given the amount of effort needed to accomplish this task and the few resources available to ensure compliance. We

conclude that while most labels are difficult to enforce, the comparatively complex nature of the Rozol label renders it particularly vulnerable to noncompliance, and reports from users indicate that failure to pick up prairi e dogs is a “widespread and commonly recognized practice,” a designation outlined in FIFRA as a means fo r determining registration eligibility.

Pamphlets produced by Liphatech in dicate that little effort is ne eded to meet the Rozol label requirement for carcass searches and disposal of prairie dogs carcasses (Bruesch 2009, Liphatech 2009). These pamphlets, made available during the time when the Rozo l label required two return visits for carcass searches, indicated that Rozol was less labor intensive than a competing21 rodenticide labeled for use on prairie dogs that did not require carcass searches or in-burrow application. Bruesh (2009) makes the recomme ndation to “allow a little extra time for carcass search and recovery” when usi ng anticoagulant roden ticides to control prairie dogs. Both pamphlets imply that the requirement to conduc t two carcass searches a nd properly dispose of bait and carcasses found above ground is less labor intensive than a single pre-baiting trip and the potential need to reapply a competing rode nticide (Bruesch 2009, Liphatech 2009). Quick searches that lack systematic protocols are e xpected to find fewer poisoned carcasses than those that include walking transect s of specified width (e.g., L ee and Hygnstrom 2007, Vyas 2010a, Witmer et al. 1995). Furthermore, Vyas ( 2010a) observed dying BTPDs on his last search 29 days after an application. T hus, applicators that cea se carcasses searches after 2 weeks if no animals are found, as specified on the label, would miss later mort alities as indicated by Yoder (2008). We believe that, although Rozol-exposed prairie dogs may be found dead or debilitated on the surface of a colony for at least a month fo llowing application, search es as described on the label are inadequate to consiste ntly locate poisoned prairie dogs above ground and thus unlikely

to prevent non-ta rget exposure.

Though we note that follow-up search protocol s may not always be followed, the Service

believes that current Rozol label directions to reduce secondary exposure by collecting and disposing of dead and dying prairie dogs at 1- to 2-day intervals late in the day are inadequate to protect non-target specie s. While the label specifies a se arch frequency, it does not specify protocols how to conduct the searches. A random search pattern, which would be the likely categorization for the current Rozol label search es, is poor in detecti ng target and non-target animals (Witmer et al.1995). Searcher efficacy in locating dead animals is significantly increased if transect patterns ar e employed to search for animals (W itmer et al. 1995). That same study showed that searcher effec tiveness when using protocols for walking transects or circular subplots ranged from 24.5 – 36.2 percent compared to just 2.6 percent when using a random search pattern protocol (Witmer et al. 1995). Syst ematic searches, such as transect-line searches spaced at appropriate intervals, increase det ection of poisoned prairie dogs and non-targets (Lee and Hyngstrom 2007, Vyas 2010a).

Many prairie dogs are likely scav enged prior to the opportunity for removal by applicators. Carcass retrieval studies, aimed at evaluating pesticide mortality events, have found that as high as 92 percent of carcasse s are scavenged within 24 hours and that carcass removal by scavengers is more rapid in areas of higher carcass density than in lower density kills because clumped food sources can attract scavengers (V yas 1999). Thus, even if the la bel is followed and applicators remove carcasses at 1- to 2-day intervals late in the day, it is unlikely to outpace removal by scavengers. Further, poisoned an imals are alive for an extended period of time (days to weeks) and nontarget animals in particular, may move away from the applicat ion area before they die.

We could locate no information to indicate that th e current label requirements in practice prevent secondary exposure, mainly because we can loca te no information that prairie dogs are being collected per the label re strictions. Furthermore, there is no indication that, if carcasses were retrieved from the surface, they would be remove d from the site since the label allows prairie dogs found on the surface to be placed in prairi e dog burrows or otherwis e buried on site. Such carcasses could be targeted by coyotes, foxes, badgers, bears, black-footed ferrets, and other

carnivores that can di g up prey or carrion.22 Based on the information in this section, we conc lude that few, if any, poisoned prairie dogs are removed from a colony as a result of return vi sits by applicators. Thus, poisoned BTPDs are likely to remain at the colony where they were poisoned and be available for consumption by federally listed species and othe r non-target species that federa lly listed species prey upon.

5. Field Study Observations of S econdary Exposure or Toxicity

As indicated previously, chlo rophacinone and diphacinone toxici ty share a similar mode of action; thus, we consider information on s econdary exposure to non-target species from diphacinone as relevant in evaluating Rozol exposure. Four studies have evaluated chlorophacinone or diphacinone exposure to non-tar get species following a pplications to poison BTPDs (Bruening 2007, Lee and Hygnstrom 2007, Forgacs 2010, Vyas 2010a). These studies are discussed briefly below.

Field studies sponsored by Lipha tech (Lee and Hygnstrom 2007, Fo rgacs 2010) reported little to no evidence of secondary exposure and did not obse rve any scavenging by avian predators. Lee and Hygnstrom (2007) performed a study designed to assess the efficacy of chlorophacinone in killing BTPDs that included s earches for carcasses only on and im mediately around baited plots. They found 10 carcasses above ground (9 BTPDs and a cottontail rabbit) at a ratio of 1 carcass found per 14 acres searched. Forgacs (2010) quan tified the number of dead and dying prairie dogs above ground following a field application and included sear ches on three test plots consisting of approximately 24 acres for 21 days after application. They did not find any dead prairie dogs or non-target carca sses; however, the study was perf ormed in early February and included precipitation and storm events that the researchers believe limited the prairie dog activity above ground and the ability of the researcher s to return to the site s to search for prairie dogs (Forgacs 2010). According to a field study sponsored by Sc imetrics, the registrant for Kaput Prairie Dog Bait (diphacinone active ingred ient), sick and lethar gic prairie dogs were observed above ground following a field application, and researchers also observed a bald eagle flying off the treatment plot with a prai rie dog in its talons (Bruening 2007).

A study sponsored by the Service and performe d by the U.S. Geological Survey (Vyas 2010a) documented avian and mammalian non-target exposur e and effects following a field application of Rozol. Signs of exposure reported in this study included mortality, morbidity, discolored droppings, scavenging, possible bloo d stained soil, and a general change in the number of BTPDs and other wildlife (Vyas 2010a). Carc ass searches were c onducted over an area of approximately 43 acres for 14 days over a 29-day post-application period a nd recovered 2 intact 13-lined ground squirrels ( Spermophilus tridecemlineatus ), 9 intact BTPDs, 7 scavenged BTPDs, and 1 intact western meadowlark (Vyas 2010a). The meadowlark had abundant hemorrhaging in the pectoral muscle, one focal he morrhage in the brain, and chlor ophacinone was detected in the liver and lower gastrointestin al contents (Vyas, pers. co mm., 2010). Meadowlarks are a recognized food source for the federally endang ered northern aplomado falcon (FWS 2002b). Raptors were also seen visiting the poisone d prairie dog colony and foraging on BTPDs (Vyas 2010a).23 A Rozol application in South Dakota on a pr airie dog colony in 2005 found approximately 400-500 dead and dying prairie dogs on the surface when a 160- acre densely populated prairie dog town was treated with Rozol (Golden and Gober 2010). The South Dakota incident was investigated by the EPA and confirmed to be relate d to an application of Rozol. At that time,

Rozol was not authorized for use in South Da kota and a subsequent investigation by the EPA ensued, but the outcome is not available at this time.

In December 2006, a deceased adult female ba ld eagle was recovered by Service Law

Enforcement and submitted to the National Fish and Wildlife Forensics Laboratory in Ashland, Oregon (FWS 2007a). The necropsy revealed that poisoning with chlorophacinone and physical trauma had occurred. The laboratory report co ncluded that “the observed small hemorrhagic skin laceration on the dorsal elbow region of the right wing was caused by trauma from an undetermined source. This trauma may have in itiated the extensive he morrhaging caused by the presence of the anticoagulant r odenticide in the eagle.” Chlo rophacinone was detected in the bald eagle’s liver at 0.30 μg/g ww, a concentration similar to that de tected in the liver of another bald eagle (0.40 μg/g ww, as described below) and considered indicative of chlorophacinone poisoning (FWS 2011b). The Service Special Ag ent working on the Nebraska bald eagle mortality case interviewed a licen sed applicator regardi ng the incident. The applicator remarked that even when label directions for Rozol applic ations are followed, BTPDs are often seen above ground in a moribund state of stupor that leaves them vulnerable to capture or predation (FWS 2007a).

In January 2009, a sub-adult female ferruginous hawk and an adult male great-horned owl ( Bubo virginianus ) were collected by Service Law Enforcement and submitted to the National Fish and Wildlife Forensics Laboratory in Ashland, Oreg on (FWS 2009c). Both raptors had a liver chlorophacinone concentration of 0.25 μg/g ww and were found in an area in Kansas where Rozol was being used to contro l prairie dogs. The ferruginous ha wk had prairie dog hair in its stomach contents, and the owl’s stomach contents had hairs from rodents and/or insectivores (Rodentia; Soricomorpha).

In March 2011, another bald eagle carcass was opportunistically recove red in Nebraska and analyzed by the National Fish and Wildlife Fore nsics Laboratory. The bald eagle’s cause of death was diagnosed as ingestion of chlo rophacinone due to a liver chlorophacinone concentration of 0.4 μg/g ww and hemorrhage of the subcutaneous tissues, body cavities and lungs (FWS). According to the examiner, “no gut contents were available for examination, but toxicity was likely incurred th rough ingestion of one or more poisoned rodents.” Prairie dog colonies were in the general vicinity of where the bald eagle was recovered, and the law enforcement case is still under investigation.

Based on the reports described above (L ee and Hygnstrom 2007; FWS 2007a, 2009c; Bruning 2007; Vyas 2010a), we conclude th at chlorophacinone exposure to federally listed species and non-target animals following field a pplications of Rozol has occurred in the past and is likely to occur in the future if Rozol is used to poi son BTPDs under the current label directions.24 D. REVIEW OF THE EPA’S ROZO L EFFECTS DETERMINATION

We believe that risk calculations in the EPA’s BA likely underesti mate risk to non-target species (described in detail below). Therefore, the anal ysis in this section informed the development of

this BO and serve as feedback to the EPA fo r consideration in deve loping future effects determinations for listed species.

a. Underestimated Risk to Avian Species

A Risk Quotient (RQ) is equal to the Estimated Environmental Concentration (EEC), a term used to estimate exposure, divided by the relevant t oxicological endpoint or Toxicity Reference Value (TRV). The BA provides a RQ of 0.104 for avian species, a value that ba rely exceeds the EPA’s Level of Concern (LOC) of 0.1 (EPA 2010b). The TRV used to calculate this RQ is based on dietary median Lethal Concentration (LC 50 ) for northern bobwhite ( Colinus virginianus ) quail. Although the EPA’s selection of a sub-acute dietary LC 50 test value for the TRV is preferred to a single dose LD 50 value, this TRV is still li kely to underestimate risk to avian species. As dietary

LC 50 results can be highly dependent on a species’ willingness to ea t the bait and their ability to cope with reduced nutriment, th eir applicability in quantitativ e risk assessment has been questioned (Hill 1993, Mineau et al. 1994, Hoffman 2003). In addition, data suggest that the northern bobwhite quail, which eats primarily insects and vegetation, is not likely to be representative of other more sensitive avian species, especi ally those that prey upon and scavenge prairie dogs or other non-target small animals. Though toxicity data are lacking for chlorophacinone effects to a wide breadth of sp ecies, recent investigations have found that sensitivity of raptors to the cl osely related indandi one rodenticide diphacinone is much greater than predicted from test species used in pestic ide registrations. Acute diphacinone toxicity tests indicate that American kestrels ( Falco sparverius ) are over 20 times more sensitive than northern bobwhite quail and over 30 times more sensitive than mallard ( Anas platyrhynchos ) ducks, 2 test species required by the EPA for pesticide registration (Rattner et al. 2010a and 2011b). Golden eagles ( Aquila chrysaetos ) appear to be even more sensitive to diphacinone than kestrels (Savarie et al. 1979, Rattner et al. 2011b). Given the similarity of chlorophacinone to diphacinone, we conclude that at least raptor s (e.g., the northern aplomado falcon) , and possibly other groups of species, will likely exhibit greater sensitivity th an can be estimated from existing mallard or northern bobwhite quail studies.

Furthermore, the LC 50 -based TRV does not account for potential sub-lethal effects of chlorophacinone that can decrease listed species’ survival and/ or reproduction. Accounting for

sub-lethal effects from chlor ophacinone exposure such as fati gue, clotting abnormalities, and hemorrhaging is important when evaluating risk to federally listed species. This is especially true when evaluating cumulative effects that include sub-lethal effects from exposure to chlorophacinone as well as other environmenta l stressors such as adverse weather, food shortages, and predation (Vyas et al. 2006). The BA identifies extern al bleeding, internal hemorrhaging, and increased blood coagulation time as sub-lethal effects to avian species from secondary exposure to chlorophacinone-poisoned food; however, other sub-lethal effects (e.g., fatigue) can occur even prior to gross observa tion of internal and external bleeding. As mentioned previously, chlorophacinone uncoupl es oxidative phosphorylation, and studies have reported that the first observed signs of secondary chlorophacinone toxicity in raptors include25 fatigue such as wing-drooping (R advanyi et al. 1988). Fatigue induced from chlorophacinone exposure is expected to substant ially reduce a listed sp ecies’ ability to capture prey and thus negatively affect its reproducti on and survival in the wild.

Sub-lethal effects have been documented in rapt ors exposed to anticoagul ants and those effects can occur despite low tissue residue concentr ations. For example, American kestrels administered diphacinone had liver residues just above the detection limits of 0.263 and 0.280 μg/g ww diphacinone, but histological eviden ce revealed hemorrhages in lung and liver tissues (Rattner et al. 2011b). Golden eagle s fed muscle from diphacinone-treated sheep exhibited extreme weakness, ataxia (lack of musc le control), and hemorrhages (Savarie et al. 1979). These studies indicate that raptors are susceptible to indandione’s multiple modes of action. Although some avian species have su rvived laboratory studi es after being fed anticoagulant poisoned rodents unt il time of euthanasia (Savarie et al. 1979, Mendenhall and Pank 1980, Radvanyi et al. 1988), sub- lethal effects described in these studies (e.g., fatigue; wing-drooping; and lung, heart, and liver hematomas) are expected to result in decreased survival or reproduction under fiel d conditions. A comprehensive assessment of potential effects of chlorophacinone exposure to sensitive populati ons of migratory birds has not been completed,

and reliance on labeled use restrictions does not protect vulnerable spec ies (Golden and Gober 2010). Thus, in addition to the avian reproduction study that the EPA has required Liphatech to complete, we have recommended that the EPA ex ercise their authority under the FIFRA to require additional field assessments that include tracking avian predators and scavengers (e.g., ferruginous hawks, eagles) that ar e expected to be the most sus ceptible to Rozol use in prairiedog towns (Schwarz and Gober 2011). Until such studies are completed to provide data on sublethal effects and subsequent re production and survival, it is diffi cult to evaluate the secondary toxicity risk of Rozol exposure to federally listed species such as the northern aplomado falcon.

An acute exposure to listed spec ies from a one-time feeding of chlorophacinone bait or poisoned prey may still result in death or harmful sub-lethal effects because even minor increases in fatigue in predators can undermine their ability to acquire prey. However, as the EPA indicated in the BA, there is high potential for chr onic effects to occur in birds because LD 50 and LC 50 data indicate that acute environmental exposures can result in doses that do not result in immediate direct lethality but instead create potential for long-term exposures and chronic toxicity. The potential for chronic exposure to birds is furt her increased by the potentia l for exposure to other anticoagulant rodenticides (e.g., diphacinone) and by repeated expos ures to chlorophacinone and diphacinone from multiple applications and at multiple locations as the species forage over large home ranges and migrates. One of the othe r diphacinone products to control BTPDs is Kaput®-D, which was previously available for use from October 1 to March 15 under a FIFRA Section 24c registration in Co lorado, Kansas, Nebraska, Texas, and Wyoming and has a pending request for registration for use throughout the BTPD’s range (Golden and Gober 2010). Previous studies indicate that anticoagulant rodenticides have a wi de geographic use and detection of one or more of these compounds in the livers of predatory birds is common (Stone et al. 2003, Albert et al. 2010). Therefore, it is a reasonable a ssumption that raptors such as the northern aplomado falcon may already be carrying an anticoagulant burden and are thus more susceptible to adverse effects from additional exposure.26 b. Prairie Dog Chlorophacinone Residues

In its BA, the EPA uses a maximum carcass w hole-body residue value of 2.24 μg/g ww for the

Environmental Effects Concentration in evalua ting secondary risk to species that consume poisoned BTPDs; however, this value may undere stimate exposure. The prairie dog with a carcass concentration of 2.24 μg/g ww had a liv er concentration of 6.66 μg/g ww and was collected an unknown number of days after bait application. It is also unknown whether this prairie dog had recently consumed bait or stopped ea ting bait days before it died. Currently, data exists for BTPD carcasses that were picked up 10 to 25 days after a field application (Lee and Hygnstrom 2007, Primus 2007), but it is unclear if th ey still had bait in their system or if they became too sick and stopped eating bait days before they died. Lab data also exists for BTPDs that consumed a single dose (53 grams bait) and were euthanized pe riodically after being maintained on a clean diet (Witmer 2011). Pr airie dogs in the Witmer (2011) study that had most recently consumed bait had the highe st liver and carcass concentrations of chlorophacinone. However, for field applicatio ns, there may be 10 or more lethal doses distributed per individual prairi e dog (based on 3.9 active burrows per prairie dog as explained previously) and a longer lag time between e xposure and death. Thus, prairie dogs likely continue to eat Rozol after they have consumed a lethal dose. These prairie dogs likely have higher chlorophacinone residues, esp ecially in the liver, than thos e that die several days after they stop eating bait (Pitt et al. 2005, Witmer 2011).

The use of whole-body chloropha cinone residues, as opposed to chlorophacinone residues in liver, may underestimate secondary exposure risk to non-target wildlife, particularly scavenging and predating birds. The EPA’s BA does not a ccount for concentrations of chlorophacinone in internal organs, such as liver, which may be selectively consumed by certain predators or scavengers and livers generally much greater co ncentrations than whole-body samples. Eight BTPD carcasses collected after a field applic ation of chlorophacinone bait had a mean concentration of chlorophacinone in liver of 5.86 ± 1.88 μg/g ww (maximum of 6.66 μg/g) compared to a whole body mean concentration of 1.48 ± 0.46 μg/g ww (maximum of 2.24 μg/g) (Primus 2007). Use of a liver concentration in stead of a carcass concentration may be more appropriate based on feeding behavi or of some animals that selectively eat parts of prairie dogs. For instance, some predators may only forage on the most readily accessible body cavity organs, including the liver (Figure 2). When multiple carcasses or moribund prairie dogs are readily available, internal organs may also be pref erentially selected over other less accessible or digestible prairie dog body parts. A realistic worst-case scenario would include a maximum liver concentration for the EEC, as opposed to the ma ximum whole body residue used in the BA. The highest liver known chlorophacinone concentration in a BTPD is 8.4 μg/g ww in a BTPD that consumed 52.8 grams of Rozol and was euthani zed 2 days later (Witmer 2011). We recognize that data for chlorophacinone con centrations in livers from prai rie dogs is extremely limited; thus, liver concentrations of 8.4 μg/g ww from a euthanized prairie dog and 6.6 μg/g ww from a dead field collected prairie dog are unlikely to be the greatest concentrations encountered if more than a few dozen prairie dog livers are examined.27 Figure 2. BTPDs (A and B) scavenged at a prairie dog colony in 2005 after an application of Rozol. Note selective feeding by sc avengers that target internal body organs. 

# A

B28 c. Risk Quotient Calculations and Uncertainty

A review of the BA by Liphatech (2010) critiq ued it for not correctly accounting for a “high degree of uncertainty in the resulting Risk Q uotient calculations.” We agree with this assessment, but for different reasons. Liphatech requested uncertainty be considered given the use of what they termed as “extreme” data for non-target species and prairie dog carcass residues. We disagree that extreme data was us ed and, for reasons specified above, believe that TRVs selected for non-target species and residue values in prairie dogs used by the EPA are both too low to represent a realistic worst case scen ario. Contrary to Lipha tech’s concern for RQs being too high due to unaccounted uncertainty, several lines of evid ence regarding Rozol exposure and effects suggest that the calculated RQs should be gr eater to account for uncertainty and missing data. For example, as calculated in the BA, the RQ derived from the BTPD whole-body concentration of 2.24 μg/g ww does not exceed the LOC for secondary toxicity to avian species (EPA 2010b page 80, Table 5.1). Not only are greater exposure estimates warranted that increase the EEC, based on consum ption of chlorophacinone concentrations in liver, but also the TRV is overestimated based on the use of acute toxicity tests rather than chronic or sub-acute tests and differences in spec ies’ sensitively as explained above. Both an

increased EEC and decreased TRV would result in a greater RQ. Further, the EPA’s RQ calculations in the BA do not specifically address uncertainty from the influence of environmental stressors that can make non-targ et animals more susceptible to poisoned food (e.g., adverse weather conditions, food s hortages, migration, and predation).

Uncertainty factors are recommended for use in risk assessments to protect federally listed species as scientifically appropriate or where available data are incomplete or otherwise warrant its application (EPA 1995 and 2011d). For Rozol, al l three reasons to include uncertainty factors are valid. According to the EPA technical guid ance, reasonable uncertainty factors may range from 1-100 for interspecies uncer tainty, 1-10 for intraspecies va riability, and 1-10 for sub-acute to chronic toxicity (EPA 1995). In the case of chlorophacinone, in formation from closely related pesticides indicate that interspecies sensitivity co uld be as much as 20 or 30 times greater than toxicity values measured in test species (Rattner et al. 2010a, 2011b) . Reported mortality incidents involving raptors describe d herein support the likelihood that these taxa can be killed from exposure to chlorophacinone through Rozol use. If the BA applied uncertainty factors for interspecies sensitivity alone, then RQs base d on chlorophacinone con centrations in BTPDs

would exceed the LOC and be more in accordance with our concerns for secondary exposure to

birds and mammals that consume Rozol-poisoned prairie dogs.

In addition, RQs were not calculate d for chronic or sub-lethal eff ects to federally listed birds, presumably due to the lack of registrant-submitte d reproduction studies. In the absence of data, a

lack of effects cannot be assume d, but available lines of evidence must be examined to determine if effects can be reasonably ruled out. In the ca se of Rozol, chronic e xposure to anticoagulant rodenticides is likely for predat ory and scavenging species which can cause death or sub-lethal effects that may hasten death when combined w ith other stressors (Stone et al. 1999). These effects are likely to occur at concentrations below those which would produce lethality in a laboratory setting and therefore must be considered as distinct endpoints. Where data are lacking to produce quantitative RQs with much certain ty or assign numeric uncertainty factors, a preferred option is to express risk in qualitative terms. Professi onal judgment or other qualitative29 evaluation techniques are appropriate for ranking ri sks into categories such as low, medium, and high when exposure and effects da ta are limited or are not easily expressed in quantitative terms (EPA 1998b). For the New Mexican ridge-nosed ra ttlesnake, for example, the EPA determined that adverse effects were likely even though both RQs were below the LOC because chronic effects could occur. Thus, the Service agrees with the EPA’s conclusion that chronic effects

cannot be ruled out based on the available data. The EPA’s decision to ultimately base adverse effects determinations not solely on RQs but on the uncertainty surroundi ng chronic effects that could result in growth, survival, and reproductive impairments that are detrimental to species recovery we believe was appropriate.

E. WILDLIFE MORTALITY INCIDENTS

Due to the sensitivity of testing Rozol on liste d species, we have no direct information on the effects of Rozol to the species under consultation. Therefore, we look to studies of effects of Rozol on other non-target species to inform our analysis. We char acterize these studies in this

section.

Based on sub-lethal effects to non-target species as reported from laboratory studies as well as reported mortalities and concerns based on opport unistic field recoveries (Erickson and Urban 2004, FWS 2007a, EPA 2010b, Ruder et al. 2011), there is a need for field studi es that evaluate anticoagulant exposure and effect s to the many species that consume anticoagulant poisoned prairie dogs and other primary consumers. Alt hough a lack of incident reporting is likely a factor in addressing risk uncer tainty (Erickson and Urban 2004), wildlife mortality incidents involving chlorophacinone reported to the EPA incl ude bald eagles, a red- tailed hawk, turkeys, coyotes, San Joaquin kit foxes, grey squirre ls, and a bobcat (Erickson and Urban 2004, FWS 2007a). It is noteworthy th at the bobcat had a liver c oncentration of 0.4 μg/g ww chlorophacinone (a concentration similar to othe r non-target species that are believed to have died from chlorophacinone e xposure (FWS 2007a, 2011b)) and appare ntly died from tertiary exposure to chlorophacinone as it was found dead 1 day after seen feeding on a dead owl that

contained a rodent carcass in its cr op (Erickson and Urban 2004, EPA 2010b).

Ruder et al. (2011) reported three mortality even ts in Kansas involving several species, including wild turkeys ( Meleagris gallopavo ), a raccoon ( Procyon lotor ), and an American badger ( Taxidea taxus ). In all three cases, ch lorophacinone was detected in the liver of the non-target species. The first incident in 2002 included the death of 1 wild turkeys found 2.5 weeks after a Rozol application; concentrations of chlor ophacinone in their livers were 0.69 and 0.40 μg/g (Ruder et al., 2011). The second incident in 2009 included 45 d ead turkeys from exposure to zinc phosphide as well as a raccoon with liver concentrations of chlorophacinone, brodifacoum, bromadiolone, and diphacinone of 1.4 μg/g, 0.5 μg /g, 0.37 μg/g, and trace, respectively. The authors suspected that the raccoon exposure to brodifacoum, bromadiolone, and diphacinone was

from the use of over-the-counter rodenticides against commensal rodents (Ruder et al., 2011). The badger was found within an area in western Kansas where Rozol had been used and had a high chlorophacinone concentration of 4.4 μg/g ww in its liver (R uder et al., 2011). The authors concluded that their oppor tunistic findings of non-target specie s mortalities likely underestimate actual non-target species losses. This conclusion seems justif ied as a 4-year survey of30 anticoagulant poisonings of wild life in France based on a wildlif e disease surveillance network yielded 59 confirmed diagnoses for bromadiol one and 41 for chlorophacinone, indicating that chlorophacinone is frequently detected in non-target specie s (Berny et al. 1997).

In addition to the opportunistic wildlife morta lity incidents noted above, there are likely many more individuals and non-target species poisoned from chlor ophacinone that have not been found. As mentioned previously, carcass-detection studies have found that even when searches are performed in areas known to contain carcasse s, a significant percen tage will never be found due to scavenging, size or colora tion that renders the carcass inc onspicuous, or field conditions such as remote, inaccessible areas, that im pede searches (Vyas 1999). In the case of anticoagulants, the delayed toxicity can temporally or geographically distance the carcass from the application area (Colvin et al . 1988). In addition, exposure to chlorophacinone may result in

sub-lethal effects that occur at concentrations below a diagnostic threshold for lethality, masking their role in mortality incident s where acute lethal hemorrhage is not the proximal cause of death and may be attributed to causes such as trauma or disease (Stone et al. 1999).

Opportunistic recoveries indicate that raptors may be at hi gh risk to secondary toxicity from chlorophacinone use to poison BTPDs. As de scribed in the “Rozol Exposure Assessment” above, Service Law Enforcement recovered two ba ld eagles in Nebraska and a great horned owl and ferruginous hawk in Kansas which died following chlorophacinone exposure (FWS 2007a, 2009c, 2011b). More dead raptors were found in that same area of Kansas after Rozol was used to control prairie dogs in 2009, including two more ferruginous hawks and a bald eagle that were

found shot and thus not tested for chlorophacinone (FWS 2009c). Also in that same area of Kansas, Audubon of Kansas reported that, in add ition to the raptors prov ided to Service Law Enforcement in 2009, they had found an additional 17 dead hawks, mostly ferruginous hawks that were not picked up in the fiel d. It is not firmly established whether the raptor mortalities are attributed to chlorophacinone or Rozol as no definitive testing for chlorophacinone in body tissues was conducted on the rapt ors; however, the opportunistic fi nding of the raptors coincided with Rozol applications nearby.

Migratory raptors are especially susceptible to secondary poisoning from anticoagulant use due to their propensity to feed in prairie dog colonies (Golden and Gober 2010). Raptors are believed to be especially susceptible to second ary poisoning from Rozol given the likelihood that they can spot dead or dying BTPDs that are mo re difficult to see from a ground level perspective (Vyas 2010b) and raptors have been observed to be attracted to Rozol poisoned BTPD colonies (Vyas 2010a). The golden eagle, ferruginous ha wk, and burrowing owl are among nine species with documented dependence on prairie dog colo nies (Kotliar et al. 1999, Seery and Matiatos 2000). All three of these raptor species have been identified as “Species of Conservation Concern,” defined as species th at are likely to become candi dates for listing under the ESA

without additional conservation action (FWS 2008a). Further, bald and golden eagles are protected under the Bald and Gold en Eagle Protection Act. In particular, ferruginous hawks and golden eagle populations a ppear to be experiencing declines throughout most of their range, and the availability of poisoned prey, which occurs when anticoagulants are used for prairie dog control, are expected to exacerbate population de clines. Golden eagle populations may not be

able to withstand additional loss of individua ls (FWS 2009d, Golden and Gober 2010). Bald eagles have a kleptoparasitic association with ferruginous ha wks (whereby eagles pursue31 ferruginous hawks and steal their pr ey) which are an efficient predat or of prairie dogs (Jorde and Lingle 1988). Thus, both species may be particular ly vulnerable to anticoagulants use to kill BTPDs (Golden and Gober 2010). This suspecte d vulnerability is further supported by the opportunistic recovery of two bald eagles kill ed from chlorophacinone exposure previously described and the abundance of dead ferruginous hawks reported by Audubon of Kansas from an area where Rozol was being used to poison prairie dogs. Migrator y bird deaths attributed to chlorophacinone poisoning are not permitted or author ized under the Migratory Bird Treaty Act.

The Service is gaining a better understanding of th e Rozol label requirements regarding multiple

return visits to retrieve dead and dying prairie dogs and exposed bait. Based on the information provided by the EPA and for reas ons explained above, we believ e the label requirements do not prevent exposure to migratory birds or may be impractical or not implementable. Rozol use on BTPDs is expected to result in take of migratory birds, including federally listed species such as the northern aplomado falcon.

As noted earlier, Rozol use on BTPDs was determin ed to have killed a bald eagle in 2006, when that species was protected under th e ESA, which prohibits unauthori zed taking of federally listed endangered or threatened species. In accordance with the bald eagle post-delisting monitoring plan (FWS 2010b), the bald eagle monitoring team continues to track new and potentially significant sources of bald eagle mortality. Si nce Rozol was authorized for BTPD control in 2006, there have been two bald eagle deaths attributed to chlorophacinone poisoning in

Nebraska. We consider Rozol use on BTPDs as a new and potentially significant source of mortality to bald eagles from secondary poisoning that can occur when a bald eagle eats dead or dying prairie dogs that have been poisoned with Rozol.

F. SUMMARY OF ROZOL EXPOSURE AND E FFECTS RELEVANT TO ALL LISTED

SPECIES ADDRESSED IN THIS BIOLOGICAL OPINION

 Toxic effects from chlorophacinone exposure incl ude fatigue and increased permeability of capillaries resulting in systemic internal he morrhaging prior to death. There is no evidence of taste aversion to Rozol; thus, non-target species may continue consumption until they receive a lethal dose, or they may suffer from sub-lethal effects. S ub-lethal effects could

result in death when combined with other st ressors (e.g., temperature, predation, trauma, food scarcity, migration), or growth and reproductive impairments c ould be detrimental to species’

recovery.

 Chlorophacinone is most toxic when animals are exposed to multiple doses for multiple days. Thus, current required acute standardized toxicity tests for ch lorophacinone greatly

underestimate risk to no n-target animals.

 According to the EPA, mobility from Rozol bait in to soil or water is considered a negligible exposure pathway to non-target organisms, and that chlorophacinone is expected to remain undegraded in bait. Actual consumption of ba it and consumption of poisoned animals is the primary environmental dissipation pathway for Rozol. We agree with the EPA on those points.32  Based on the label application rate, excessive lethal doses per BTPD are likely applied and result in increased risk to non-target species. In addition to having excess bait available for direct consumption by non-target species, ov er-application and Rozol’s prolonged toxic mode of action may result in a high risk of secondary exposure to non-target species, especially those species attracted to poisoned BTPD colonies. A 6-month application season for Rozol can result in a long duration and in creased opportunity for repeated exposure to chlorophacinone and/or diphacinon e rodenticides as the species migrates or moves within their territory.

 Despite current label restrictions and require ments, previous studi es and observations

indicate that Rozol is availabl e to non-target spec ies by both primary and secondary exposure routes and may even result in tertiary poisoni ng. A label search pr otocol that does not specify how to conduct carcass searches will lik ely result in random search methods that are

far less efficient than standard line-transect search methods. Furthe r, label requirements aimed at reducing exposure to non-ta rget species that are based on return site visits for weeks after the application to pick up dead and dying prairie dogs and bait may be impractical. Burying prairie dogs on the colony may not be e ffective at preventing exposure to non-target species that can dig up carcasses or feed on poisoned prey between carcass searches.

 RQs derived in the EPA’s BA underestimate non-ta rget species risk to Rozol because they are: a) based on study pr otocols that consider limited (1- to 5-day) exposures in the lab; b) do not account for information indicating th at raptors may be 20-30 times more sensitive than standard avian test species such as quail and ducks; c) do not attempt to quantify known sub-lethal effects; and d) do not consider higher concentratio ns of chlorophacinone in the liver, especially for species that may selectiv ely consume internal organs instead of wholebody tissues.

 Although wildlife mortality inci dents are underreported and surv eillance efforts are lacking, opportunistic recoveries of non-target species exposed to chlorophacinone include: bald eagles, hawks, owls, turkeys, meadow lar k, pigeons, coyotes, kit foxes, raccoon, badger, squirrels, and a bobcat.

 Opportunistic recoveries have shown that Rozol use on BTPDs has killed non-target species protected under the ESA, Migratory Bird Tr eaty Act, and the Bald and Golden Eagle Protection Act. Many of these species (e.g., ba ld eagles, golden eagle s, ferruginous hawks, American kestrels, owls) appear to be especi ally susceptible to Rozol toxicity and are expected to continue to die from Rozol exposure given curr ent label use restrictions.



### VI. GENERAL CONSERVATION RECOMMENDATIONS

Section 7(a)(1) of the ESA directs Federal agenci es to utilize their authorities to further the purposes of the ESA by carrying out conservatio n programs for the benefit of endangered and threatened species. Conservation recommendati ons are discretionary agency activities to minimize or avoid adverse effects of a proposed ac tion on listed species or critical habitat, to help implement recovery plans, or to develop information. Based on the above discussion of Rozol’s mode of action, its environmental fate and effects and known exposure routes and risks to nontargets animals we believe it is importa nt identify conservation recommendations that33 address those concerns. Accord ingly, we provide the following conservation recommendations for EPA’s consideration that are within your aut horities and will further the purposes of the ESA and benefit the listed specie s in this consultation.

A. If the EPA chooses to continue registration of Rozol and other anticoagulants for use on prairie dogs, it should first develop alternative tes ting protocols to evaluate their toxicity to non-target species. The curren tly required standardized toxi city tests for chlorophacinone greatly underestimates risk to non-target spec ies because indandiones are much more lethal when multiple doses are consumed over multiple days as opposed to a one-time feeding. We

recommend future assessments fo r first generation indandione r odenticides are modified to include multiple-day exposures tests that m easure individual daily dosage and responses. This would complement the current required avia n oral test and dietar y lethality tests. Additionally, protocols should be designed to evaluate sub-lethal effects by including observational periods, sensitive blood clotting as says (Rattner et al., 2010b), gross pathology and microscopic examination of tissues (histopathology).

B. If the EPA chooses to continue registration of Rozol or other anticoagulants for use on prairie dogs, it should first study how to prevent sec ondary poisoning of predators and scavengers that may feed upon dead and dying prairie dogs. The results of such studies should be used to modify the label.

C. If the EPA chooses to continue registration of Rozol or other anticoagulants for use on prairie dogs, it should first study detrimental effects to raptors and other wild life that consume dead and dying prairie dogs. Thus, in addition to the avian reproduction study that the EPA has required Liphatech to complete, we recommend that the EPA exercise their authority under FIFRA to require additional field assessments that include tracki ng avian predators and scavengers that are expected to be most su sceptible (e.g., ferruginous hawks, eagles, canines) to Rozol poisoning from applications at prairi e dog towns. Such information would benefit our evaluation of the endangered northern aplo mado falcon, gray wolves, and other predators and scavengers if those species were to become federally listed under the ESA.

D. If the EPA chooses to continue registration of Rozol or other anticoagulants for use on prairie dogs, it should not rely on quail and mallards as the test species for development of anticoagulant risk assessments. These species do not reflect the risks to raptors which can be 20 to 30 times more sensitive than these species. Further, raptors are the likely avian species that will exposure risk from Rozol applica tions to BTPDs. We recommend that risk assessments for anticoagulants include measures to assess harmful effects to the likely affected bird guild. Raptors and scavengers ar e those likely end-point species, and the Rozol

risk assessment should reflect that.

E. If the EPA chooses to continue registration of Rozol or other anticoagulants, the EPA should

conduct tests to determine the minimum amoun t of product that should be applied to accomplish the intended task.34 F. Given our concerns with seconda ry toxicity, we encourage th e EPA and Liphatech, Inc. to support Integrated Pest Manageme nt (IPM) education and outreach to applicators. An IPM approach could prevent unnecessary applications when good alternat ives to pesticides exist. Guidance on how to perform IPM should be accessible on the EPA’s Bulletins Live! online

site.



### VII. SPECIES ANALYSES

A. OVERVIEW

On September 9, 2011, we agreed with the EPA’s analysis that Rozol use on BTPD towns is likely to adversely affect listed species and critic al habitats (FWS 2011c). As explained in the “Description of the Action” sect ion above, additional coordination during the formal consultation process resulted in the EPA’s a doption of conservation measures to avoid or reduce adverse effects to some listed species and their critical habitats. However, conservation measures were not necessary for all species. Among those sp ecies/habitats for which conservation measures were not developed, the Service conducted addi tional review after submitting our September 9, 2011, letter to the EPA and found that adverse eff ects are not likely for the American burying beetle, black-capped vireo, Canada lynx, Eskimo curlew, golden-cheeked warbler, gulf-coast jaguarondi, ocelot, piping plove r, and whooping crane (Table 1). This conclusion is generally due to lack of overlap in range of the species or critical habitat with th e range of the BTPD or lack of common use by the species of habitats oc cupied by the BTPD. For those species, the risk of Rozol exposure and effects is considered high ly unlikely and therefore adverse effects are not expected to occur.

The adopted conservation measures in the EPA’ s December 13, 2011, letter have been agreed to by Liphatech, Inc. and will be incorporat ed into County Bulletins via the EPA’s Bulletins Live! as part of the Rozol label before October 1, 2012 (EPA 2011c). Those measures are reiterated in the “Description of the Action” s ection above and have removed or reduced the risk of adverse impacts to several listed species. The analyses herein for the black-footed ferret, Chiricahua leopard frog, grizzly bear, jaguar, (Mexican) gray wolf, Mexican spotted owl, New Mexico ridge-nosed rattlesnake, and PMJM are base d on these conservation measures.

We provide more in-depth analysis for the black -footed ferret, gray wolf, and northern aplomado

falcon because conservation measures were unable to entirely preclude adverse effects to these species, although the conservati on measures did reduce impact s and, in the case of the black-footed ferret, did so significantly. The anal yses for black-footed ferret, gray wolf, and northern aplomado falcon includes species and habitat informa tion, environmental baseline, effects of the action, cumulative effects, conclu sions regarding jeopardy or destruction/adverse modification, and associated Incidental Take Statements (ITSs) with RPMs and implementing

terms and conditions.

Thus, the species/habitats analyzed for this cons ultation are categorized as falling into one of three groups: 1) species for whic h further review by the Service, after consultation was initiated, revealed that adverse effects are not anticip ated; 2) species for which the EPA adopted conservation measures after initiating formal consultation, removing or reducing the risk of35 adverse effects; and 3) species for which advers e effects are anticipated as a result of the proposed action, with or without co nservation measures. The species and critical habitats that fall into each of these categories are listed below (Table 1).

Table 2. Summary of species determinations and page number for each species’ analysis

within this BO.

Species and/or

Critical Habitat Species for which No

Adverse Effects are anticipated, without

Conservation

Measures Species for which

Conservation

Measures Preclude

Adverse Effects Species for which

Adverse Effects are anticipated, with or

without Conservation

Measures
American Burying

Beetle (Nicrophorus

americanus ) 

# ■

Black-capped Vireo

( Vireo atricapilla ) 

# ■

Black-footed Ferret ( Mustela nigripes ) 

# ■

Canada Lynx ( Lynx

Canadensis ) 

# ■

Chiricahua Leopard

Frog ( Lithobates [Rana] chiricahuensis ) 

# ■

Eskimo Curlew ( Numenius borealis ) 

# ■

Golden-cheeked Warbler ( Dendroica chrysoparia ) 

# ■

Gray Wolf ( Canis lupus ) 

# ■

Grizzly Bear ( Ursus

arctos horribilis ) 

# ■

Gulf Coast Jaguarundi ( Herpailurus (=Felis) yagouaroundi

cacomitli ) 

# ■

Jaguar ( Panthera onca ) 

# ■

Mexican Spotted Owl

( Strix occidentalis

lucida ) 

# ■

New Mexico Ridgenosed Rattlensake ( Crotalus willardi

obscurus ) 

# ■36 Species and/or

Critical Habitat Species for which No

Adverse Effects are anticipated, without

Conservation

Measures Species for which

Conservation

Measures Preclude

Adverse Effects Species for which

Adverse Effects are anticipated, with or

without Conservation

Measures
Northern Aplomado Falcon ( Falco

femoralis septentrionalis ) 

# ■

Ocelot ( Lepardus pardalis ) 

# ■

Piping Plover ( Charadrius melodus ) 

# ■

PMJM ( Zapus hudsonius preblei ) 

# ■

Whooping Crane ( Grus

americana ) 

# ■

The details regarding the anticipat ed effects of the proposed action on each of the species in this consultation are provided in the analyses below.

B. SPECIES FOR WHICH NO ADVERSE EF FECTS ARE ANTICIPATED WITHOUT

CONSERVATION MEASURES

Conservation measures were not developed for all species in this consultation. We have determined that, upon additional biological review , adverse effects as a result of Rozol use on BTPDs are not anticipated for nine species that di d not have associated c onservation measure(s). They are: 1) American burying beetle, 2) black-capped vireo, 3) Canada lynx, 4) Eskimo curlew, 5) golden-cheeked warbler, 6) Gulf Coas t jaguarundi, 7) ocelot, 8) piping plover, and 9) whooping crane.

a. AMERICAN BURYING BEETLE

The EPA concludes in their BA that the use of chlorophacinone to control BTPDs is likely to adversely affect the American burying beet le based on direct reproductive effects.

The reproductive effects are due to lower carcass size in chlorophacinone treated carcasses and effects to larvae. An acut e toxicity test for the earthworm (MRID 47383002) and an open literature study (Fisher et al. 2007) indicate that there is

no risk to invertebrates at ex posure levels relevant to th is use. Furthermore, the second phase of the burying beetle study (MRID 47383001) that showed reproductive effects to bu rying beetles based on lower carcass weights showed

that there were no direct acute e ffects to adult burying beetles fed chlorophacinone treated ground beef. In fact, those exposed to the chlorophacinone faired bette r than the control group.37 Chlorophacinone use is expected to affe ct reproduction of the American burying beetle through effects to em erged beetles. Number of em erged beetles is negatively affected by use of chlorophacinone pois oned carcasses in burying beetles (MRID 47383001). This type of effect is co nsidered to be a direct effect.

The portion of the action area of concern for the American burying beetle for this consultation

includes Nebraska and South Dakota where the range of this species overlaps the us e of Rozol as BTPD bait. The current range known from Sout h Dakota includes portions of Bennett, Gregory, Tripp, and Todd Counties. However, a comprehens ive status survey has never been completed in South Dakota, so American burying beetles may o ccur in other counties w ith suitable habitat. In Nebraska, two disjunct populations of American burying beetles occur over much of the State. Habitats between the two populations are dissim ilar with the northern Nebraska/South Dakota population occurring in the Sandhills, while the southwest Nebraska population occurs in the Loess Hills. These two populations alone cont ain as much as half of the known Midwest American burying beetle population and are a str ong-hold for this species. The other Midwest populations (Arkansas, Kansas, Missouri, and Oklahoma) are outside of the BTPD range.

The American burying beetle is an annual specie s, active in the summer months, inactive during the winter months, nocturnal, and typically onl y reproduce once in their lifetime. They bury

themselves in the soil for the duration of the wi nter. The young of the year overwinter as adults and comprise the breeding population the followi ng summer (Raithel 1991). Both adults and larvae are dependent on carrion for food and repr oduction. Reproductive activity commences in late May and is completed in mid-August in Nebr aska and South Dakota. Per the Rozol label, chlorophacinone used on BTPD colonies is limite d to October 1 through March 15. Therefore, it should not affect the American burying beetle as the species will be underground and inactive during the use window for Rozol.

In summary, we do not anticipate adverse effects to the American burying beetle from the use of chlorophacinone to control BTPDs. This conclusion is based primarily on th e fact that American burying beetles are not active during the peri od in which the label allows the use of chlorophacinone. In addition, prairie dog carrion is not a preferred food source of American burying beetles. No critical habitat for the American burying beetle has been designated; therefore, none will be affected.

b. BLACK-CAPPED VIREO

The black-capped vireo is a small (12 centimeters (cm) or 4.5 inches (in.)) insect-eating songbird

that was once common as far north as Kansas but is now limited largely to western and central Texas, north-central Mexico, and the Wichita Mountains of Oklahoma (Gryzbowski 1995). Black-capped vireos were federally listed as en dangered in 1987. Black-capped vireos arrive in Texas from late March to mid-Ap ril (late April in dry years). They arrive in Oklahoma from mid-April to early May (mid-May in dry year s). The black-capped vi reo usually migrates southward from Oklahoma by late August-Septem ber and from Texas by mid-September (FWS 1991) to winter in Mexico. The black-cappe d vireo occurs in mixed deciduous/evergreen shrubland. Black-capped vireos require broadleaf shrub vegetati on in the form of low deciduous cover (e.g., juniper and oak sp.) which is a key elem ent in their habitat. Nests are preferentially38 located in dense deciduous vegetation. Nests ar e placed in the fork of a variety of deciduous species with blackjack oak being preferred in Oklahoma and shin oak, Texas oak, and sumac commonly used in Texas (FWS 1991).

Black-capped vireos are insecti vores during the breeding season, gl eaning insects off the foliage of oaks and other deciduous trees (Grabe r 1961, Grzybowski 1995). The common prey items found in stomach contents include spiders and ins ects of the orders Lepidoptera (butterflies and moths), Coleoptera (beetles), and Hemiptera with suborder Homoptera (cicadas, aphids, planthoppers, leafhoppers, shield bugs, and othe rs) (Graber 1961). During winter, black-capped vireos switch to an omnivorous diet, and nearly 50 percent of stomach contents sampled from western Mexico included seeds (Graber 1961).

To determine the risk that Rozol may pose to black-capped vireos, we conducted a thorough review of their life history to de termine to what extent the range, habitat preferences, and diet of this species overlaps with areas where BTPD co lonies occur and the likelihood that black-capped

vireos would come into direct or indirect e xposure with Rozol bait or dead/dying (poisoned) prairie dogs, resulting in adverse effects. Label restrictions th at were designed to limit impacts to non-target species were also considered, but some were not heavily we ighted due to factors previously discussed.

A habitat separation exists between the black-ca pped vireos and BTPDs. Black-capped vireos are a lowland dependent species, preferring mi xed evergreen/deciduous shrubland. The BTPDs are native to short-grass prairie habitats typical of the southernmost regi ons of the Great Plains

that extend into north Texas. The BTPDs tend to avoid areas of heavy brus h and tall grass due to the reduced visibility that these habitats impose. Therefore, hab itats used by black-capped vireos do not overlap with the open prairi e habitat required by BTPDs.

While black-capped vireos become omnivorous duri ng winter by adding seeds in their diet, they are otherwise exclusively insec tivorous. Black-capped vireos do not prey on rodents or small mammals such as BTPDs, so risk of Rozol poiso ning directly from diet is reduced. The risk posed to black-capped vireos from seconda ry poisoning through cons umption of insects containing residues of Rozol (i.e., consumption of in sects that have come into contact with Rozol grain bait or poisoned BTPDs) is possible but highly unlikely when all factors herein are

considered.

The timing of the black-capped vi reos’ migration and arrival at the nesting grounds is also a factor. The Rozol label restricts applications to the period between October 1 and March 15 which somewhat limits potential exposures to n on-target wildlife. Bl ack-capped vireos leave Texas to migrate south for the winter by mid-Se ptember, returning in late March the following year, and would therefore be wintering in wester n Mexico during the majo rity of the October 1 to March 15 timeframe when Rozol applications are allowed.

Although the range for the black-cap ped vireo historically was larg er than today, current overlap of the range of the black-cappe d vireo with BTPDs is geographi cally limited. Likewise, BTPDs historically occurred over most of the western half of Texas but have been extirpated from portions of their former range (Davis and Schm idly 1994). The range for the black-capped vireo today only marginally overlaps with the range for BTPDs, and different habitat requirements preclude the co-existence of these two species in the same location.39 We conclude that adverse effects to black-ca pped vireos from the proposed action are unlikely due to: 1) limited geographic overlap between th e current ranges of the black-capped vireo and BTPD; 2) black-capped vireos migrate to Me xico during the time frame in which Rozol application would be permitted; and 3) in the high ly unlikely event that black-capped vireos used habitat where Rozol was applied, their dietary re quirements would minimize the probability of primary or secondary exposure. No critical habitat for the black-capped vireo has been designated; therefore none will be affected.

c. CANADA LYNX

The BA describes that direct e ffects to Canada lynx are expected to occur based on the potential for them to consume prey items that have c onsumed the chlorophacinone bait. It further describes that growth and reproduc tive effects cannot be precluded due to the absence of chronic data; however, growth and reproductive effects are not expected because mortality typically occurs as a result of acute exposure. The BA also stated that the range of Canada lynx overlaps with BTPD habitat. Therefore, it was determined in the BA th at the use of chlorophacinone to control BTPDs is likely to adve rsely affect Canada lynx.

Within the action area, Canada lynx may occu r in Montana, Wyoming, and Colorado. Upon further analysis, we have determined that the range of Canada lynx has minimal overlap with BTPD habitat. No overlap of Canada lynx ha bitat with known BTPD colonies occurs in Montana, and no overlap of Canada lynx habitat with known BTPD colonies or potential range occurs in Wyoming. A very minimal amount of ove rlap of Canada lynx habitat with the BTPD’s overall range in Colorado occurs; however, no overlap with mapped BTPD colonies occurs in

Colorado.

Canada lynx are dependent on presence of snow shoe hares and the hare ’s preferred habitat

conditions which include dense understories of young trees, shrubs or overhanging boughs that protrude above the snow and mature multistoried stands with conifer boughs touching the snow

surface. Snowshoe hares are not found in BTPD habitat. Canada lynx have been observed (via snow tracking) to avoid open habitats (i.e., prairie dog towns) (Koehler 1990, Staples 1995) during daily movements within the home range . Canada Lynx prefer to move through continuous forest using the highest terrain avai lable such as ridges and saddles (Koehler 1990, Staples 1995). While some Canada lynx may move through open habitats at times during transient or dispersal movements, the like lihood of a Canada lynx moving through a BTPD colony is small, and the likelihood that they would move through a black tailed prairie dog colony that is also being treated with Rozol is so unlikely that it is discountable. Therefore, we do not anticipate adverse effects to Canada lynx fr om the use of Rozol to treat BTPD colonies.

The BA indicates that adverse e ffects to Canada lynx critical habitat are exp ected to occur because critical habitat overlaps with the use area or action area (BTPD hab itat). Critical habitat for Canada lynx is not designated in Colorado, and critical habitat in Wyoming and Montana does not overlap with BTPD known occurrences a nd potential range. Therefore, we conclude

that the use of Rozol in BTPD co lonies would not adversely affect designated critical habitat for Canada lynx.40 d. ESKIMO CURLEW

The EPA determined that the use of Rozol to control BTPDs is likely to adversely affect the

Eskimo curlew. This determination was based on likely exposure to Rozol as indicated by the overlapping ranges for the two species and expected direct and indirect effects to the Eskimo curlew associated with exposure. The EPA concluded in the BA that direct effects to Eskimo curlew could occur due to potential for this species to consume terre strial invertebrate prey items that have consumed Rozol. Additionally, imp acts to terrestrial invertebrates from Rozol exposure were expected to indir ectly affect Eskimo curlews by depleting their prey base. The EPA also concluded that potential Rozol exposur e to Eskimo curlews would be limited to the spring migration and reproductive effects could not be precluded based on an absence of chronic exposure and effects data for any species.

The Eskimo curlew was identified as being threatened by extinction under the Endangered Species Preservation Act of 1966 (FWS 1967) a nd, after the ESA was enacted in 1970, was listed as endangered (FWS 1970). The species on ce numbered in the hundr eds of thousands, but declined rapidly in the 1870s to 1890s and is now most likely extinct. No nests have been located in 140 years, and th e last specimen was obtained in the 1960s (Environment Canada 2007). Environment Canada and the Service have both concluded that rec overy of the Eskimo Curlew is currently not consider ed feasible as there is very little information on locations of habitat necessary for survival or recovery and th ere are very few, if any, individuals left in existence (Environment Canada 2007, FWS 2011e).

Recent quantitative methods used to evaluate th e probability of the Eskimo curlew’s existence

have estimated extinction dates of 1967 a nd 1965, respectively, with the upper bounds of 95 percent confidence interval s in 1977 and 1970 (Elphick et al. 2010, FWS 2011e). These

estimates are based on the last uncontroversial reco rd of observance, a specimen that was shot in Barbados in 1963 (FWS 2011e). From 1963 to th e spring of 2009, 39 poten tial sightings have occurred in 22 different years (Committee on th e Status of Endangered Wildlife in Canada 2009); however, the reliability of these sightings is variable, and none have been confirmed by physical evidence (FWS 2011e). If controversial records of observance ar e included, then the analysis estimates an extinct ion date of 2008 with the upper bound of 95 percent confidence interval reaching 2013 (FWS 2011e).

Eskimo curlews were not well studied before thei r decline; thus, their association with prairie dog towns is largely unknown. The related long-billed curlew ( Numenius americanus ) is

associated with BTPD colonies in western South Dakota, but that species also uses short- and mixed-grass prairies absent of prairie dogs (Sharps and Uresk 1990) . In Kansas, where the last Eskimo curlew sighting was in 1902, habitat pref erence purportedly included prairie dog towns where they fed on invertebrates (Kansas Depa rtment of Wildlife and Parks 2000). Although there is some indication that prairie dog towns may provide foraging habitat for Eskimo curlews, more relevant habitat factors that have likely co ntributed to their declin e include the wide-scale conversion of grassland to ag riculture, fire suppression, a nd the extinction of the Rocky Mountain grasshopper ( Melanoplus spretus ) as an important food source (FWS 2011e).41 In conclusion, Eskimo curlews are likely already ex tinct or at best extremely rare; thus, direct

and indirect effects from Rozol exposure are so highly unlikely to occur as to be considered discountable. Therefore, the Serv ice does not anticipate adverse e ffects to Eskimo curlew from

use of Rozol on BTPDs. No cr itical habitat for the Eskimo curlew has been designated;

therefore none will be affected.

e. GOLDEN-CHEEKED WARBLER

The golden-cheeked warbler is the only breeding bird endemic to the State of Texas. The golden-cheeked warbler is a sma ll (12 cm or 4.5 in.) migratory songbird whose nesting range is currently confined to habitat in 33 counties in central Texas. Golden-cheeked warblers were federally listed as endangered in 1990. The bi rds are dependent on Ashe juniper (blueberry juniper or cedar) for fine bark strips used in nest construction. Although nests may be placed in various species of trees, such as Ashe junipe r, Texas oak, live oak, and cedar elm, all nests contain strips of Ashe juniper ba rk woven together with spider webs. Golden-cheeked warblers feed almost entirely on caterpil lars, spiders, beetles, and othe r insects found in foliage. The species winters in southern Mexico and Central America. In the period from July to August, golden-cheeked warblers migrate southward fr om Texas through the pine-oak woodlands of eastern Mexico and begin returning to Texas in la te February. The earliest arrival date on the breeding grounds in Texas is March 2; howev er, most arrive mid-March (Pulich 1976).

The EPA determined that the golden-cheeked warbler may be adversely affected by Rozol use because the species’ range overlaps with th at of the BTPD, and they assumed that golden-cheeked warblers could in gest toxic levels of Rozol via consumption of invertebrates exposed to chlorophacinone. For our assess ment of the risk that Rozol may pose to golden-cheeked warblers, we reviewed their life history to determine to what extent the range, habitat preferences, and diet of this species overlaps with areas where BTPD colonies occur and the likelihood that golden-cheeked warblers woul d come into direct or indirect exposure with Rozol bait or poisoned prairie dogs that could result in adverse eff ects. Label restrictions that were designed to limit impacts to non-targ et species were also considered, but some requirements were not heavily weig hted due to limitations with th e label restricti ons previously

discussed.

Golden-cheeked warblers use juniper and oak dom inated woodlands and pr efer canyon or hill country. The BTPDs in Texas are native to s hort-grass prairie habitats typical of the southernmost regions of the Great Plains that ex tend into north Texas and tend to avoid areas of heavy brush and tall grass due to the reduced visibility that thes e habitats impose. Therefore, habitats used by golden-cheeked warblers do not overlap with the open pr airie habitat used by

BTPDs.

Golden-cheeked warblers are exclusively insect ivorous. Golden-cheeked warblers do not prey on rodents or small mammals such as BTPDs, so risk of Rozol poisoning dire ctly from diet is not expected. The risk posed to golden-cheeked warblers from secondary poisoning through consumption of insects containing residues of Rozo l (i.e., consumption of insects that have come into contact with Rozol grain bait or poisoned BT PDs) is possible but considered unlikely when life histories of both species are considered.42 The warbler’s migration timing is a factor to cons ider. The Rozol label restricts applications to the period between October 1 and March 15 which somewhat limits potential exposures to non-target wildlife. Golden-cheeked warblers leav e Texas in August, returning in late February the following year and, therefore, would be wint ering in Mexico and Central America during the majority of the October 1 to March 15 timefra me when Rozol applications are allowed.

Although the range for the golden-cheeked warbler was historically larger th an today, its current overlap with BTPDs is limited geographically. Historically, BTPDs occurred over most of the western half of Texas, but they have been extirpat ed from portions of their former range (Natural Science Research Laboratory 2012). Although the range for the golden-cheeked warbler marginally overlaps with the range for BTPDs, different habitat requirements preclude the co-existence of this avian species with the BTPD.

We conclude that adverse eff ects to golden cheeked warblers from the proposed action are unlikely due to: 1) limited geographic overlap be tween the current ranges of the golden-cheeked warbler and BTPD; 2) in the highly unlikely event that golden-cheeked warblers would use habitat where Rozol was applied, their dietary re quirements would minimize the probability of primary or secondary exposure; and 3) golden-ch eeked warblers winter in Mexico during the time frame in which Rozol application would be permitted. No critical habitat for the golden-cheeked warbler has been designa ted; therefore none will be affected.

f. GULF COAST JAGUARUNDI

The EPA determined that the use of Rozol is like ly to adversely affect the Gulf Coast jaguarundi based on potential direct effects from prey that may consume chlorophacinone bait, including BTPDs and non-target animals. However, the BA indicated that there would be no indirect effects from prey-base loss expected because this species’ habitat is distinct from BTPD habitat. No map was provided in the BA where the Gulf Coast jaguarundi overlaps with the BTPD, but the Service agrees with the EPA that there is no overlap in range between the two species.

The Gulf Coast jaguarundi is reported from Mexico, southern Arizona, and southern Texas. It is not found within the BTPD range. As such, a ny effects from the action to the Gulf Coast jaguarundi are considered to be highly unlikely to occur. Therefore, the Service does not anticipate adverse effects to the Gulf Coast jaguarundi from use of Rozol on BTPDs. No critical habitat for the Gulf Coast jaguarondi has been designated; therefore none will be affected.

g. OCELOT

The EPA determined that the ocelot may be adve rsely affected by Rozol use based on potential direct effects from prey that may consum e chlorophacinone bait, including BTPDs and non-target animals. However, the BA indicated that there would be no indirect effects from prey-base loss expected because this species’ hab itat is distinct from the BTPD habitat.

The ocelot is found in Mexico, southern Arizon a, and southern Texas. There is no overlap between the BTPD and the ocelot; therefore, we conclude that th e proposed action is not likely to adversely affect the ocelot. No critical habitat for the ocelot has been designated; therefore none

will be affected.43 h. PIPING PLOVER

The action area encompasses the entire United St ates breeding range of the Northern Great Plains population of the piping plov er. Piping plovers have nested near prairie dog towns (within 0.10 mile) (USCOE 2011, Kempema et al. 2009, M ontana Natural Heritage Program 2011). However, our analysis suggests th at there is little, if any, overl ap between prairie dog towns and piping plover critical habitat or known nesting areas. Additionally, piping plovers’ predilection to nest and forage in sandy or gravelly areas near water with little vegetation make it unlikely that they would extensively use prairie dog towns. In areas where prairie dog towns are in close proximity to nesting habitat, it is possible that piping plovers coul d ingest invertebrates that had fed on Rozol or that dying prairie dogs may expi re along the shoreline, exposing piping plovers to Rozol through maggots. However, because pipi ng plovers are not expect ed to forage in the prairie dog towns directly and the Rozol use seas on ends before piping plovers are likely to encounter prairie dog colonies (see below), the risk of exposure to piping plovers is unlikely.

Piping plover critical habitat has been designated along Lake Oahe in South Dakota. The primary constituent elements on reservoirs are defined as “sparsely vegetated shoreline beaches; peninsulas; islands composed of sand, gravel, or shale; and their interf ace with the water bodies” (FWS 2002a). Piping plover breeding habitat is by nature ephemeral and cyclical with unvegetated habitat emerging following wet period s, only to become vegetated over time and

unsuitable until the next flood inundates the habitat again, clearing it of vegetation. Since prairie dogs use vegetated areas which are not suitable for piping plovers even after the prairie dogs have clipped the grasses in the area, prairie dog towns would not have the primary constituent element of “sparsely vegetated shoreline beaches .” Therefore, since Rozol application would occur only in prairie dog towns which do not have the primary constituent elements that define piping plover critical habitat, we do not anticipate impacts.

The Rozol label allows treatment only between October 1 and March 15 of the following year. During this time period, piping plovers would be on the winter ing grounds which do not overlap with the BTPD range. Contaminated prairie dog carcasses have been documented on the surface up to 29 days post treatment, so some piping plovers arriving on the br eeding grounds in April and May could overlap temporally when contaminat ed carcasses are available. There is some potential for disturbance by app licators collecting carcasses in Ap ril when piping plovers have started to arrive, but this dist urbance is expected to be mini mal since the activity will be concentrated in the prairie dog towns, whic h piping plovers do not use for nesting.

A number of documented prairie dog towns occur near the designated crit ical habitat along the Missouri River and reservoir system in North Dakota and South Dakota. However, no piping plover nests have been documented to occur within the prairie dog towns (USCOE 2011), nor have piping plovers been observed to forage within prairie dog towns (Someson 2012, personal communication). Piping plovers have not been documented to eat grains, so they would be unlikely to feed directly on Rozol. Secondary po isoning is a potential risk if piping plovers were to prey on maggots or other insects that had fed on the bait directly or on contaminated prairie dogs. In the Great Lakes, maggots were postulate d to be the source of Type E botulism that infected and killed some piping plovers (FWS 2009e). In the two re ported cases where piping plovers have been observed foraging on carcasses, the carcasses have been along the shoreline;44 plovers were not documented to leave their tr aditional foraging areas to forage on carcasses (Keane 2002, FWS 2009e). We do not anticipate Rozol use along the Miss ouri River shoreline, so exposure of piping plovers to co ntaminated maggots is not expected.

Piping plovers have been documented to nest up to one-half mile from the water along the reservoirs (Pavelka 2008, persona l communication), but th is was in low water years and the nests

were below the elevation at which the reservoirs are considered full in a normal year. Most nests are initiated relatively close to the water (Anteau et al. 2011). The aver age number of piping plovers nesting on the Missouri River rese rvoirs annually from 1994-2010 has been 496 (USCOE 2011), but only a very small subset (less than a few dozen) of these were near prairie dog towns and none were in prairie dog towns.

The risk of secondary poisoning is unlikely due to the chain of ev ents that would have to occur for piping plovers to be exposed. Since piping plovers do not eat grain or carcasses directly, poisoning would have to occur via a secondary route. For terrestri al insects to be available for piping plover forage, contaminated insects would have to leave the prairie dog town and move to unvegetated habitat (most likely al ong the water’s edge) where piping plovers do most of their foraging, and be ingested by piping plovers. It is unlikely that piping plovers would be exposed

to sufficient Rozol concentrations in this manner.

In summary, impacts to piping plover s are not anticipated because:

 The Rozol label only allows application to occur between October 1 and March 15 of the following year, when piping plovers ar e absent from the breeding grounds.

 The potential Rozol exposure routes are circui tous with both possible transmissions being via insects; neither of which is expected to occur.

o Route 1 – the invertebrates have eaten the bai t directly and then move to piping plover foraging areas. While this route is possible, the ti me lag between the last application of Rozol and the arrival of piping plovers reduces the likelihood of impact. Further, prairie dog colonies are generally well removed from piping plover nesting areas, and

contaminated invertebrates would have to move from the prairie dog town to piping plover habitat to be exposed to ingestion by piping plovers.

o Route 2 - the invertebrates (most likely maggots) may become contaminated through feeding on a contaminated carcass. This route would requir e a contaminated carcass from a Rozol application (that had occurred w eeks to months earlier) to be located in piping plover foraging habitat on the shorelin e, which would be out of the prairie dog town, and remain in place long enough to become infested with maggots. The maggots would have to be carrying a high enough concen tration of Rozol to affect piping plovers and/or the piping plovers would have to c onsume them in sufficient quantity to be impacted.

 Most of the activity associated with pois oning would occur outside of piping plover use areas, so disturbance associated w ith poisoning activities is unlikely.45  By definition, prairie dog habitat does not have the primary constituent elements that define piping plover critical habitat. Thus, we do not anticipate that Rozol application would adversely affect designate d critical habitat.

Based on the above information, the Service conc ludes that adverse effe cts to piping plovers from the use of Rozol to poison BTPDs are not likely, and the action is not likely to adversely affect designated critical habitat.

i. WHOOPING CRANE

In the BA, the EPA concludes that the use of Ro zol to control the BTPD is likely to adversely affect the whooping crane for the following reasons:

Direct effects to the who oping crane are expected to occur based on the potential for this species to consume the chlo rophacinone bait (RQ of 0.89 which exceeds the LOC of 0.1) or other prey items that may have consumed the chlorophacinone bait (RQ of 0.104 for exposure to non-ta rget animals which exceeds the LOC of 0.1). Growth and reproductive effects c annot be precluded due to the absence of

chronic data.

Indirect effects from the loss of the prey base are expected because effects to individuals within populations have been demonstrated in mammals, birds, and

terrestrial invertebrates. No indirect effects from habitat loss are expected because this species does not use BTPD burrows.

Habitat modification for the whooping cr ane is expected because the critical habitat for the whooping crane overlaps with the use area (BTPD habitat).

The BA map indicates some ove rlap between the whooping crane and BTPD in Montana, North Dakota, South Dakota, Wyoming, Colorado, Nebr aska, Kansas, and Oklahoma. The map does not depict any counties in Texas; the Service has sent a map of Texas counties to the EPA indicating potential whoopi ng crane presence.

Three populations of whooping cranes exist in the wild: 1) the Aransas Wood Buffalo Population, 2) the Florida Population, and 3) the Eastern Migratory P opulation. The Aransas Wood Buffalo Population nests in the Wood Buffalo National Park in the Northwest Territories of Canada and in Alberta, Canada. This popul ation migrates through eastern Montana, North Dakota, South Dakota, Nebraska, Kansas, Okla homa, and Texas between breeding grounds in Canada and wintering grounds of Aransas National Wildlife Refuge on the Gulf Coast of Texas. This migration route overlaps with the range of BTPDs. The Florida Population is non-migratory and is located on the Kissimmee Prairie, south of Orlando in Osceola and Polk counties and does not overlap with the range of BTPDs. The Eastern Mi gratory Population was

reintroduced to the Necedah National Wildlife Ref uge in Wisconsin with captive birds trained to migrate to Chassahowitzka National Wildlife Ref uge on the Gulf Coast of Florida and does not overlap with the range of BTPDs. The Aransas Wood Buffalo Population is the only self-sustaining wild population. The Florida Po pulation and Eastern Mi gratory Population are introduced and are designated nonessen tial experimental by the Service.46 As noted in the BA, the whooping crane is a territ orial nester and returns to the same area each year. Whooping cranes summer in marshes and pr airie potholes and winter in coastal marshes and prairies. Eggs are laid from April to mi d-May. Incubation lasts for a month. At Wood Buffalo National Park, whooping cranes migrate s outhward in the fall from mid-September to

mid-November to winter at the Aransas Nationa l Wildlife Refuge. However, those dates may vary. Ten Aransas Wood Buffalo Populati on whooping cranes were fitted with Global Positioning System (GPS) platform transmitters and were tracked by the Service and The Crane Trust as they migrated from Wood Buffalo Nationa l Park to Aransas National Wildlife Refuge. In 2010, whooping cranes left Wood Buffalo Nationa l Park as early as August 20 and continued until October 31. They arrived at Aransas Na tional Wildlife Refuge between October 28 and November 26. Whooping cranes spent most of their time in Saskatchewan followed by North Dakota, South Dakota, Nebraska, Kansas, Okla homa, and Texas. The whooping cranes made stopovers on 39 private properties and 15 public land sites and vari ed between rivers (including reservoirs on the Missouri River), lakes, wetlan ds, and uplands. Upland r oost sites consisted of corn fields, fields planted in winter wheat, and a harvested rice field. In spring, the migration begins between March 25 and April 15, and so me may not leave Aransas National Wildlife Refuge until May.

Diet during the summer consists of larval and nymphal insects, frogs, r odents, berries, small birds, and minnows. On the wintering grounds at Aransas National W ildlife Refuge, whooping cranes feed primarily on blue cr abs, razor clams, and wolfberries. During migration, they forage on agricultural waste grains like ba rley, wheat, and corn, along with frogs, fish, insects, tubers, and crayfish.

Whooping cranes are likely to be migrating between October 1 and December 1 from Wood

Buffalo National Park to Aransas National Wildlife Refuge which is the first half of the Rozol application season. During thei r spring migration from Aransa s National Wildlife Refuge to

Wood Buffalo National Park in late March, it is possible that Ro zol will have been applied to areas within days prior to th eir departure and contaminated prairie dog carcasses have been documented on the surface up to 29 days post-tr eatment. While whooping cranes are not known to use BTPD colonies during their migration be tween wintering and bree ding areas, it is possible to foresee some possible Rozol exposure r outes since whooping cranes are known to eat agricultural grains, frogs, fish, in sects, tubers, rodents, and cr ayfish during their migration. Further, since Rozol is grain-based, it could be consumed in amounts th at would exceed the RQ for consumption of 0.89 for endangered species. According to the EPA, the whooping cranes would have to eat 23 poisoned mice or more th an 1 poisoned BTPD every day for 5 days to

reach the LOC. The BA also states that it ma y be possible for the whooping cranes to consume that many mice in a day but un likely that it would eat more than one BTPD every day.

Although whooping cranes use a wide range of e nvironments, they primarily depend on highly productive wetlands, marshes, mudflats, wet prai ries, rivers, streams, and crop fields for migratory stopover habitat. They feed primarily in a variety of cropla nds and roost in marshy wetlands or riverine habitats. Heavily vege tated wetlands are not generally used. During migration, whooping cranes are often recorded in rive rine habitats such as in the Platte River, North and Middle Loup Rivers, and Niobrara River in Nebraska ; the Missouri River in North Dakota and South Dakota; and the Red River in Texas. They roost on submerged sandbars in wide, unobstructed channels that are is olated from huma n disturbance.47 The BTPDs establish colonies near intermittent streams, water impoundments, homestead sites and windmills. However, BTPD colonies are typi cally in upland locations where the Service has not documented extensive whooping crane use. Th e greatly reduced vegetative cover in the vicinity of prairie dog colonies may further de tract from the possibility of whooping cranes foraging in those areas. Service knowledge of whooping cranes does not suggest that, while foraging, they would venture into prairie dog burro ws where Rozol-treated bait is placed. Where both whooping cranes and the BTPD occur, habi tat isolation between the whooping cranes and BTPD reduces the chance that the whooping cranes would encount er treated grain.

However, the Service is currently monitoring whooping cranes within the migratory corridor with the use of telemetry data from the cu rrent whooping crane tracking study. A relatively small number of whooping cranes are marked with transmitters, but this study may inform whether whooping cranes occur in or near prairi e dog colonies. We anticipate that a diagnostic necropsy of any dead whooping cranes will occur a nd should detect chlorophacinone if that is a

factor in their death. If the tracking study or necropsies reveal significant new information or

indicate adverse effects are occu rring to whooping cranes, we will re quest that the EPA reinitiate consultation (as per the new informa tion clause in the Reinitiation No tice at the end of the BO). In summary: a) whooping cranes have not b een documented to forage or roost in BTPD colonies, b) the occurrence of the species in the pr oximity of BTPD colonies is not likely to be frequent, c) during migration, whoo ping cranes are not expected to venture into BTPD colonies, creating a degree of habitat isolat ion between the two species, and d) mechanisms are in place to further assess whether whooping cranes use BTPD colonies.

There is some potential for whooping crane distur bance by applicators colle cting carcasses, but this disturbance is expected to be minimal sin ce the activity will be conc entrated in the prairie dog towns which whooping cranes are not known to us e. The Service is also unaware of any incidents involving Rozol and whooping cranes despite Rozol’s ongoing use as a BTPD rodenticide in the migratory corridor si nce the early 1990s (Lee et al. 2005).

Whooping crane critical habitat occurs in five sites in four States. They are:

 Cheyenne Bottoms State Waterfowl Management Area and Quivira National Wildlife Refuge in Kansas;

 The Platte River between Lexi ngton and Denman, Nebraska;

 Salt Plains National Wildlife Refuge in Oklahoma; and

 Aransas National Wildlife Ref uge and vicinity in Texas.

Each of the five factors normally associated with critical elements pertain to the whooping crane (i.e., space for individual and population growth a nd for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing of offspri ng; and generally, habitats that are protected from disturbances or are representative of the geographical distribution of the listed species).

With exception of the Platte River in Nebraska , all designated critical habitats are Service National Wildlife Refuges or WaterfowlManagement Areas that are unlikely to have Rozol use on their properties; doing so woul d result in a future Section 7 c onsultation. The BTPD colonies48 are not known to occur in the desi gnated critical habitat areas. Burrows are not specified critical elements of whooping crane critical habitat. The EPA’s conceptual impact model on page 60 of the BA lists “altered plant community compositi on” as a second indirect effect on habitat resulting from BTPD control. Reduction or eradication of BTPD co lonies could lead to increases in vegetation height a nd density at sites treated with Rozol. However, some thicker vegetation is unlikely to cause adve rse effects to the critical hab itat for species because there are minimal BTPD colonies in whooping crane designated critical habitat.

We conclude that adverse effects to the whoopi ng crane from the proposed action are unlikely. Additionally, we believe that ad verse effects to whooping crane critical habitat are unlikely.

C. SPECIES FOR WHICH CONSERVATION MEASURES PRECLUDE ADVERSE

EFFECTS

The following species analyses are based on the EPA’s adoption of conservation measures that are anticipated to result in the avoidance of adverse effects to federally listed species/critical habitats, primarily by identifying areas where th e product is prohibited an d/or applying timing restrictions for the application of Rozol. As a result of the conservation measures incorporated into the proposed action by the EP A and the applicant, we conclude that adverse effects are not likely for: 1) the Chiricahua leopard frog, 2) gr izzly bear, 3) jaguar, 4) New Mexico ridge-nosed rattlesnake, 5) Mexican spotted owl, and 6) PMJM. Conservation measures were also developed for the black-footed ferret and the gray wolf (M exican subspecies); see “Species for which Adverse Effects are Anticipated” section of this BO for those species analyses.

1. CHIRICAHUA LEOPARD FROG

The area of concern for the Chiricahua leopard frog relative to this consultation includes New Mexico, the only State where the range of this speci es overlaps the use of Rozol as BTPD bait. In New Mexico, the species occurs in Catron, Hidalgo, Grant, Sierra, and Socorro Counties, which is about 16 to 19 percent of its historical lo calities (FWS 2007b). Fourteen units of critical habitat have been designated in New Mexico for the Chiricahua leopard frog (FWS 2012a). Chiricahua critical habitat and the BTPD range a ppear to overlap in New Mexico, at least at a landscape-scale level.

The EPA determined that the proposed action may directly affect the Chiricahua leopard frog because the range of the species overlaps with BTPD habitat. Although Catron, Hidalgo, Grant, Sierra, and Socorro Counties do no t have large colonies of BTPD s (1,541 acres or 2 percent of Statewide acres), small scattered colonies may o ccur adjacent to Chiricahua leopard frog habitat, thus creating the possibility that Rozol could be used within or near Chiricahua leopard frog habitats (Johnson et al. 2003). The EPA determin ed that the Chiricahua leopard frog could be affected by Rozol applications through consumpti on of poisoned invertebrate s that have ingested Rozol or loss of invertebrate prey base. Most likely, we believe such effects would be limited to individual Chiricahua leopard frogs and would not result in la rge scale die-offs or population losses. In addition, Chiricahua leopard frogs onl y eat live prey and would not consume a dead organism; they do not scavenge. A large portion of the Chiricahua leopard frog range in New

Mexico is located on U.S. Forest Service lands, and agency appr oval would be required before Rozol could be deployed.49 The EPA has agreed to adopt conservation measures as part of their proposed action to minimize potential exposure of Chiricahua leopard frogs to Rozol by precluding its application in Catron, Hidalgo, Grant, Sierra, and Socorro Counties. B ecause designated critical habitat captures a large portion of the ra nge of Chiricahua leopard frog in New Mexico, the proposed conservation measure of prohibiting Rozol use in Catron, Hida lgo, Grant, Sierra, and Socorro Counties would greatly reduce the potential fo r exposure to Rozol and significantly reduce the potential for adverse effects to the Chiricahua leopard frog an d its proposed critical habitat. Additionally, Rozol would not be applied within critical habita t; thus, no Rozol impacts to critical habitat are anticipated.

Accordingly, implementation of the proposed acti on and its associated conservation measures is not expected to result in adverse effects to the Chiricahua leopar d frog or adverse effects to its designated critical habitat.

2. GRIZZLY BEAR

In the BA, the EPA describes direct effects to gr izzly bears that are expe cted to occur based on the potential for the species to consume chloroph acinone bait (primary exposure) or other prey items that may have consumed chlorophacinone bait (secondary exposure). The EPA assumed chlorophacinone exposure to grizzly bears would occur because the grizzly bear range overlaps BTPD habitat and the Rozol appl ication season overlaps periods during which grizzly bears are active and not hibernating. The EPA defines the Rozol application period on the label as occurring between October 1 and March 15. Th e BA further describes that “growth and reproductive effects cannot be precluded due to the absence of chronic data; however, growth and reproductive effects are not e xpected because mortality typically occurs as a result of acute exposure.” The EPA assumes acute exposure appa rently based on the assumption that “a grizzly bear is most likely to encounter a Rozol applicat ion area shortly before or after hibernation at which time the bear is engorging itself.” Th e EPA calculated RQs that greatly exceeded a 0.1 LOC for grizzly bears (Table 5.3, page 83) , especially for primary consumption (RQ = 75.42). The BA also describes th e potential indirect effects du e to the loss of prey base. Therefore, the EPA concluded in th eir BA that use of Rozol is lik ely to adversely affect grizzly

bears.

Since the preparation of the BA, the EPA has ag reed to impose a timing restriction so use of Rozol would only be used during the grizzly bear denning period (use would only occur between December 1 and March 1) within those counties in Montana where grizzly bears may occur and may overlap with BTPDs (see list below). This measure would greatly reduce the potential for overlap of grizzly bears and Ro zol-treated BTPD colonies duri ng the period where grizzly bears could be exposed to Rozol through primary or secondary exposure (the non-denning period). Further, there are very few BTPD colonies that exist in the mountain/prairie transition zone where the occasional grizzly bear may encounter BTPD colonies. Based on a map produced by the Montana Natural Heritage Tracker webs ite, less than 10 known or documented BTPD colonies occur where grizzly bears currently may occur (Montana Natural Heritage Program 2011).50 Counties in Montana with Rozol treatment timing restrictions:

 Carbon  Lewis and Clark

 Stillwater, South of I-90  Cascade

 Sweetgrass, South of I-90  Teton

 Park, South of I-90  Pondera

 Gallatin, South of I-90  Glacier

 Madison  Toole

 Powell

With the timing restriction, the likelihood of grizzly bear exposure to chlorophacinone from Rozol use to control BTPDs is low enough to be considered discountable. With few BTPD colonies in areas where grizzly bears are likely to occur, the likelihood of grizzly bears using BTPD habitats as part of their home range is low. The restricted use season for Rozol (December 1 to March 1) would further reduce the likelihood that a grizzly bear will encounter poisoned prairie dogs or unconsumed bait. By D ecember 1, no grizzly bears are expected to be in BTPD habitat as they will have moved to higher elevation mountain slopes to den. On average, grizzly bears emerge from dens in th e beginning of April. However, grizzly bears would not be expected to use grassland/prairie habitat, including BTPD, until 2 to 4 weeks after emerging from their dens if they use those areas at all. Therefore, gr izzly bears would not be expected to overlap with BTPD colonies for approximately 6 to 8 weeks after March 1 (around 50 days or more post any final application).

With the timing restriction conser vation measure, we conclude th at adverse effects to grizzly bears from primary exposure to Rozol are highly unlikely to occur. Prevalence of chlorophacinone bait visible in or around burro ws declined by approximately 87 percent by day 7 (Lee and Hygnstrom 2007). Thus, after ap proximately 50 days post-application when grizzly bears may first encounter a Rozol-poisoned BTPD town, essentially all of the bait is likely to have been consumed by BTPDs or non- target species. The EPA calculated that a grizzly bear needs only to consume 4 grams of bait per day for 5 days to exceed a 0.1 LOC (page 99 of the BA), indicating that grizzly bear s may not need to eat much Rozol bait to be susceptible to adverse effects. However, after 50 days following applicati on, it is likely that an

insufficient amount of bait would re main for grizzly bears to consume. Therefore, based on the timing restriction and the minimal overlap of grizzly bear habitat and BTPD colonies, we

conclude that the likelihood of a grizzly bear encountering an d consuming a sufficient quantity

of Rozol bait to result in harmful effect s is so low that it is discountable.

The likelihood of detrimental eff ects to grizzly bears from secondary exposure to Rozol is also

so low that it is discountable. The die-off of BTPDs and non-target animals following a Rozol application would likely reach its conclusion befo re a grizzly bear woul d encounter a poisoned colony. Fifty or more days following application, few, if any, Rozol-poisoned carcasses or prey debilitated by exposure to Rozol would be ava ilable for consumption by grizzly bears. While moribund BTPDs were detected by 29 days after Ro zol application (Vyas 2010a), the prairie dog availability is not expected to be high 50 da ys following application. Most prairie dogs are expected to die within days to weeks of app lication, and predators and scavengers would likely remove most prairie dogs by the time grizzly bears may encounter Rozol-poisoned colonies.51 Therefore, by the time grizzly bears may use ha bitat within these areas, the Services concludes there will be insufficient quantities of available prey items or bait to cause adverse effects.

It is also the Service’s conclusion that indirect e ffects to grizzly bears due to the loss of prey base from use of Rozol are insignifican t. Few BTPD colonies occur in areas where grizzly bears also occur, and prairie dogs are not a signifi cant dietary item for grizzly bears.

In summary, few BTPD colonies occur in areas accessed by grizzly bears and, with the restricted timing of Rozol use in grizzly bear areas (bet ween December 1 and March 1), the Service does not anticipate adverse effects to grizzly bears as a result of Rozol use on BTPDs in those areas. No critical habitat for the grizzly bear has b een designated; therefore none will be affected.

3. JAGUAR

The EPA determined that the registration and use of Rozol may affect and is likely to adversely affect the jaguar based on potential direct eff ects from prey that may consume chlorophacinone bait, including BTPDs and non-targ et animals. In addition, the EPA’s BA indicates that there could be indirect effects from prey-base loss.

The jaguar is reported from Mexic o, Arizona, and New Mexico. It is rarely found (one report in the last 20 years) within the action area in the Peloncillo Mo untains of Hidalgo County, New Mexico, near the Arizona border. Jaguars are ge neralist predators typi cally foraging on diurnal mammals (Seymour 1989). The jaguar is a wide-ranging species th at might occasionally encounter prairie dogs; however, there are few BTPDs in Hidalgo County (Johnson et al. 2003). The proposed conservation measure of prohibi ting Rozol application in Hidalgo County substantially reduces the risk of Rozol exposure to the jaguar. Based on the low BTPD abundance, unlikely interaction of the jaguar and BTPD, and prohibi tion of Rozol application in the area occupied by the jaguar, the Service does not anticipate adve rse effects to the jaguar. No critical habitat for the jaguar has been de signated; therefore none will be affected.

4. MEXICAN SPOTTED OWL

The EPA determined that the proposed action ma y directly affect th e Mexican spotted owl because the range of the species overlaps with BTPD habitat at a large landscape scale. The EPA determined that the Mexican spotted owl co uld be affected by application of Rozol through consumption of poisoned prey or loss of prey base, and adverse effects to Mexican spotted owl critical habitat may occur.

Within the action area for this project, the Mexican spotted owl occurs within Colorado, New Mexico, and western Texas. In Texas, th e Mexican spotted owl is only known from the Guadalupe Mountains National Pa rk (FWS 1995). The action ar ea was analyzed for possible effects to the Mexican spotted ow l that include the BTPD range w ithin the three States listed. Effects may extend beyond the use area due to exposure to individua ls or via prey items with chlorophacinone residues if found ou tside of their described range. The final Mexican spotted owl critical habitat rule (FWS 2004) designated approximately 3.5 million ha (8.6 million acres) of critical habitat in Arizona, Colorado, New Mexico, and Utah, mostly on Federal lands (FWS52 2004). Within this larger area, critical habita t is limited to areas that contain the primary constituent elements (FWS 2004). The primary cons tituent elements include forest structure for nesting and prey maintenance but not the pr ey base itself (FWS 2004). In summary:

 Known habitat use by the Mexica n spotted owl does not corres pond with BTPD habitat; thus, the Mexican spot owl is considered extremely unlikely to occur within BTPD habitats where Rozol will be applied. The potential for Me xican spotted owls to experience secondary exposure to chlorophacinone is considered so unlikely as to be discountable.

 The proposed action will not resu lt in any effects to the PCEs of designated critical habitat for the Mexican spotted owl. PCEs for the Mexican spotted owl in clude mixed-conifer, pine-oak, and riparian forest t ypes that provide for one or more of the owl’s habitat needs for nesting, roosting, foraging, a nd dispersing. These PCEs do not correspond with BTPD habitat and are unlikely to occur within the areas ROZOL is applied. Therefore, the potential for Mexican spotted owl PCEs to be adversely affected by chlorophacino ne is considered so unlikely as to be discountable.

 The prohibition of Rozol application in Catron, Grant, Sierra, and Socorro Counties protect important Mexican spotted owl ecological manageme nt units and designated critical habitat.

Based on the above, the Service anticipates that a dverse effects to Mexican spotted owls or their critical habitat are highl y unlikely to occur.

5. NEW MEXICO RIDGE- NOSED RATTLESNAKE

The BA indicates that New Mexico ridge-nosed rattlesnakes are unlikely to be killed by bait ingestion because the RQ is le ss than the LOC, but direct ef fects based on reproduction cannot be precluded. Additionally, indirect effects from prey-base loss are expected because effects to potential prey species have been demonstrated. No indirect effects from habitat loss are expected because this species does not use BTPD burrows. In addition, the BA indicates that adverse effects to designated crit ical habitat are expected because of overlap with BTPD habitat.

The New Mexico ridge-nosed rattlesnake is repo rted from Mexico, Arizona, and New Mexico. Within the action area, the New Mexico ridge-n osed rattlesnake is only found in Hidalgo County, New Mexico. New Mexico ridge-nosed rattlesnakes ar e found in steep, rocky canyons with intermittent streams and on talus slopes in the Animas Mountains. The BTPD habitat does not overlap with the New Mexico ridge-nosed rattlesnake, although occasional prairie dogs might be found in adjacent habitats where the ac tion might indirectly aff ect the species. The EPA adopted the conservation measure of exclud ing Hidalgo County from the area where Rozol may be applied, substantially reducing the potenti al impacts of the action to the New Mexico ridge-nosed rattlesnake. Because of the low BTPD abundance in Hidalgo County (Johnson et al. 2003), the low probability of interaction between the New Mexico ridge-nosed rattlesnake and BTPD, based on differing habitat use of each spec ies, and Rozol use prohibition in the area occupied by the Mexico ridge-nosed rattlesnake, effects from the action are unlikely to occur. The Service does not anticipate adverse effects to the New Mexico ridge-nosed rattlesnake.53 Designated critical habitat for the New Mexico ridge-nosed rattlesnake occurs only in Hidalgo County within the action area. There are no known BTPDs in designated critical habitat. The conservation measure of excluding Rozol applicati on in Hidalgo County precludes effects of the action on designated critical ha bitat. Thus, adverse effect s to New Mexico ridge-nosed rattlesnake designated critical habitat are not anticipated.

6. PREBLE’S MEADOW JUMPING MOUSE

In the BA (page 104), the EPA concludes that the use of Rozol to control the BTPD is likely to adversely affect the PMJM ( Zapus hudsonius preblei ) for the following reasons:

The range of this species overlaps with Black-tailed prairie dog habitat. Rozol Prairie Dog bait application season for the control for Black-tailed prairie dogs overlaps periods during which the Preble ’s meadow jumping mouse is active and not hibernating. However, Preble’s meadow jumping mice will be hibernating during most of this time. Chlorophaci none can be applied between October 1 and March 15 or spring green-up, whichever o ccurs later. Preble’s meadow jumping mice typically enter hibernation between late August and October and come out of hibernation in May. Based on the li fe history information it seems reasonable that the Preble’s meadow jumping mouse could be exposed to the chlorophacinone bait. A Preble’s meadow jumping mouse would have to eat less than one grain of Rozol Prairie Dog bait pe r day for five days to reach the LOC. It is possible that a Preble’s meadow jumping mouse could consume this amount of bait. The Preble’s meadow jumping m ouse is most likely to encounter a Rozol application area shortly before or after hibernation at which time the mouse is engorging itself. This only increases the likelihood that the bait would be

consumed

.

The PMJM is found in Wyoming and Colorado, in both the North Platte River and South Platte River basins, from the eastern flank of the Laramie Mountains and the Laramie Plains in southeastern Wyoming south along the eastern fla nk of the Front Range in Colorado and into the

headwaters of the Arkansas River Basin near Colorado Springs, Colorado. The EPA map for this consultation, indicating the overlap of th e initial area of concern with the PMJM range, erroneously shows that range to be throughout all of Wyoming (the EPA made note of this error and committed to correcting it for future analyses).

The action area defined by the EPA in the BA broadly overlaps the range of the PMJM. However, the known distribution of the PMJM an d the known distribution of the BTPD within Wyoming and Colorado overlap significantly less than depicted in the BA. This inaccuracy

results from the inclusion of areas in the ma pped PMJM range where potential habitat may exist

but where the PMJM is not known to occur and from the EPA’s defined action area in Wyoming and Colorado extending well beyond th e actual range of the BTPD.

In Wyoming, the PMJM is known to occur only in Albany, southern Converse, Laramie, and Platte counties. The PMJM is not thought to oc cur in Wyoming’s Goshen and Niobrara Counties to the east or eastern Laramie County (Keinath 2001). Occurrence of the PMJM and BTPD in54 Wyoming overlaps primarily in portions of sout hern Converse County and western Platte County (Wyoming Natural Diversity Database [WYNDD ] 2011). Known distribution of the PMJM in Colorado includes Boulder, Douglas, El Paso, El bert, Jefferson, Larimer, and Weld Counties. The easternmost captures extend to wester n Weld County, western Elbert County, and north-central El Paso County. No recent capture s of the PMJM have been documented within its potential range in Adams, Arap ahoe, Broomfield, Denver, or Mo rgan Counties, and it is likely

that the PMJM does not occur in these areas. Occurrence of the PMJM and BTPD in Colorado overlaps primarily in west-central Weld C ounty, eastern Boulder C ounty, parts of Jefferson County, western Elbert County, eas tern Douglas County, and norther n El Paso County (Colorado Division of Parks and Wildlife (CPW) 2011).

Less than 30 percent of the PMJM distribution is es timated to fall within the range of the BTPD. Within the BTPD range, the species’ colonies oc cupy only a small percentage of the area, just over 1 percent in Wyoming (Grenier et al. 2007, WYNDD 2011) and about 3 percent in Colorado (Odell et al. 2008, CPW 2011). While th ese same percentages may not apply directly to areas of PMJM occurrence, it is reasonable to believe that presence of the PMJM in close proximity to BTPD colonies is infre quent throughout occupied PMJM range.

In the BA (page 32), the EPA states:

For the animal species ingestion is the only significant route of exposure and the only exposure route assessed in this docum ent and for that, the species’ diet must be that of a granivore or it must be attracted to grain baits to have primary exposure to chlorophacinone; it must be a carnivore or scavenger to have secondary exposure to chlorophacinone. It wa s also determined that insects may be exposed to the grain bait and may re tain residues that are high enough to cause direct mortality to invertivores

.
Preble’s meadow jumping mice are omnivores and consume such foods as seeds, fruits, fungi, and insects. Studies specific to the PMJM diet are limited, but fecal analyses suggest that PMJM diet shifts seasonally; it consists primarily of insects and fungus after emerging from hibernation, shifts to fungus, moss, and pollen during mid-summe r (July to August), with insects again added in September (Shenk and Sivert 1999). The PM JM would probably consume both treated grain bait and exposed insects if they were encountered.

Where both PMJM and the BTPD occur, habitat isolation between the PMJM and BTPD reduces

the chance that the PMJM would encounter treated grain or exposed insects. Typical habitat for the PMJM is comprised of well-developed plains riparian vegetation with adjacent, relatively undisturbed grassland communities and a nearby wate r source. Well-developed plains riparian vegetation typically includes a dense combination of grasses, forbs, and shrubs; a taller shrub and tree canopy may be present (Bakeman 1997). Areas of highest use by the PMJM tend to be along creeks, and in areas with a high percent cover of shrubs (espec ially wetland shrubs) and grasses (Trainor et al . 2007). In contrast, BTPD colonies are typically in uplands, where their activities greatly reduce vegeta tive cover in the vicinity of their burrows. The PMJM infrequently enters areas of low, sparse vege tation characteristic of prairie dog colonies. Individual prairie dog burrows in proximity to de nse riparian vegetation are most likely to be encountered by the PMJM.55 The PMJM is a true hibernator, usually entering underground hibernacula (hibernation nests) in September or October and emerging the following May after a potential hibernation period of 7 or 8 months. The only direct overlap between the PMJM active season and the Rozol treatment period, as reflected in label instruct ions (October 1 C March 15) is October, when some PMJM remain actively foraging above gro und. During the consultati on process, Liphatech and the EPA agreed to timing restrictions on Rozol applications, limiting its use within the known range of PMJM occurrence in Wyoming and Colorado to the period November 1 C March 15. Timing restrictions will be included in C ounty Bulletins via the EPA’s Bulletins Live!

for those counties included.

By November 1, all PMJM individuals have lik ely entered hibernation, and the conservation measure agreed to above would eliminate the likelihood of the species encountering Rozol-treated bait in the fall. Emergence of th e mouse from hibernation in spring has not been documented prior to the first week in May. A ssuming that the earliest date could be May 1, emergence would follow the last Rozol applicati on by a minimum of 46 days. The majority of individuals are likely to emerge later in May, providing even more temporal separation between the final Rozol application and the PMJM active s eason. Further, data on the diet of the PMJM indicates that insects and fungus may be pref erred rather than seeds when emerging from hibernation (Shenk and Sivert 1999).

In accordance with label instructions, Rozol-treated bait is placed at leas t 6 inches down BTPD burrows. Our knowledge of the PMJM does not sugge st that, while foraging, they would venture into prairie dog burrows where Rozol-treated bait is placed. Spillage, improper baiting, or BTPD digging activity could result in some bait exposed on the ground surface. By the time PMJM emerge from hibernation, bait consumption by va rious granivores, including insects, would reduce remaining bait availability.

The scenario of the PMJM emerging from hiberna tion in locations adjacent to BTPD colonies, foraging in those colonies, and encountering and consuming Rozol-treated bait or exposed insects is considered highly unlikely to occur and therefore discountable.

Potential reduction of invertebrates in Rozol- treated areas and its pos sible effect on PMJM food

resources was noted in the EPA’s “Effects Determin ation” within the BA as a possible secondary impact to the PMJM. As stated above, the specie s feeds on a variety of items, including insects. However, it is unlikely to regularly forage in BTPD colonies, and invert ebrate prey from such habitat is not known to be a significant food s ource for the PMJM. The potential for the PMJM to be adversely impacted by reduction of the in vertebrate populations within BTPD colonies appears insignificant.

In summary, occurrence of the PMJM in the proxim ity of BTPD colonies is likely infrequent within PMJM range. Where it occurs, the PMJM would rarely venture into BTPD colonies, creating a degree of habitat isolation betw een the two species. The PMJM hibernates November-April, throughout the period of Rozol application as modified by the agreed upon conservation measures (November-March 15), creati ng a temporal isolation between availability

of Rozol-treated bait or affect ed insects and the PMJM active s eason. Therefore, the Service does not anticipate adverse effects as a result of the proposed action.56 Regarding potential impacts to PMJM critical habitat, in the BA (p age 22), the EPA states:

Habitat modification for the Preble’s me adow jumping mouse is expected because

the critical habita t for the Preble’s meadow jumpi ng mouse overlaps with the use area (BTPD habitat)

.

An estimated 10,200 acres of PMJM critical habita t in Colorado overlaps with the BTPD range, which is approximately 35 percent of all PMJM designated critical habi tat. For the PMJM, primary constituent elements (PCEs) of critical habitat are:

 Riparian corridors: formed and maintain ed by normal, dynamic, geomorphological, and hydrological processes that creat e and maintain river and stre am channels, floodplains, and floodplain benches and that promote pattern s of vegetation favorable to the PMJM; containing dense, riparian ve getation consisting of grasses, forbs, or shrubs, or any combination thereof, in areas along rivers and streams that normally provide open water through the PMJM active season; and including specific movement corridors that provide connectivity between and within populations. This may include river and stream reaches with minimal vegetative cover or that are armo red for erosion control; travel ways beneath bridges, through culverts, along canals and ditches; and other areas that have experienced

substantial human altera tion or disturbance.

 Additional adjacent floodplain and upland habitat with limited human disturbance (including hayed fields, grazed pasture, other agricultural la nds that are not plowed or disked regularly,

areas that have been restored after past aggregate extracti on, areas supporti ng recreational trails, and urban–wildland interfaces).

While the use of Rozol to control the BTPD a nd subsequent loss of prairie dog colonies is unlikely to adversely impact the PCEs of PMJM critical habitat above, it could have indirect

effects to PMJM critical habita t due to the loss of BTPD bu rrows and cessation of BTPD

activities that would othe rwise modify vegetation. In the BA (pages 84-85), the EPA states that loss of burrows is not expected to ha ve an adverse impact to the PMJM.

The Service agrees. Burrows of other animals are not specified PCEs of P MJM critical habitat. Since the PMJM digs its own burrows and is no t known to be dependent on burrows of other animals, it is unlikely that the PMJM critical ha bitat would be adversely affected by the loss of prairie dog burrows following Rozol application. In the BA (page 60), the EPA’s conceptual impact model lists “altered plan t community composition” as a s econd indirect effect on habitat resulting from BTPD control. Reduction or eradication of BTPDs would likely lead to vegetation of greater height and density at site s of their former BTPD colonies. Where BTPD

colonies are abandoned within desi gnated critical habitat or adjacent to other riparian corridors occupied by the PMJM, the altered plant community could be of greater habitat value to the PMJM than low, sparse vegetation typical ly found within an active BTPD colony.57 The Service initially concurred with the EPA’s dete rmination that the use of Rozol to control the BTPD may adversely affect the PMJM. However, with the conservation measures agreed to by the EPA and Liphatech as well as further analys is, adverse effects to the PMJM are considered so unlikely as to be discountable. The Service does not anticipate adverse effects to the PMJM

or its critical habitat.



### D. SPECIES FOR WHICH ADVERSE EF FECTS ARE ANTICIPATED WITH

OR WITHOUT CONSERVATION MEASURES

For those species for which conservation measur es did not preclude adverse effects, the full analysis of a biological opinion is necessary. Three species are anticipated to experience adverse effects, with or without the c onservation measures adopted by the EPA: 1) black-footed ferret, 2) gray wolf and 3) northern aplomado falcon.

1. BLACK-FOOTED FERRET

a. Status of the Species/Critical Habitat

The black-footed ferret was listed as enda ngered in 1967 and agai n in 1970 under early endangered species legislation and was “grandfathered” into the current ESA in 1973 (FWS 2008b). Critical habitat has not b een designated for this species. The species’ historical range includes 12 States (Arizona, Co lorado, Kansas, Montana, Nebras ka, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Utah, and Wyom ing) and the Canadian provinces of Alberta and Saskatchewan (Anderson et al. 1986).

The black-footed ferret was considered extinct or nearly extinct when a small population was located in Mellette County, South Dakota, in 196 4 (Henderson et al. 1969). The last wild

black-footed ferret observed at th e Mellette County site was in 1974 (Clark 1989). Attempts at captive breeding of a few captured animals fr om the Mellette Count y population failed, and when the last captive animal died at Patuxent Wildlife Research Center in Laurel, Maryland, in 1979, the black-footed ferret was agai n presumed extinct (FWS 1988).

In 1981, a second population was discovered in Meeteetse, Wyoming (Clark et al. 1986, Lockhart et al. 2006). Following di sease outbreaks at Meeteetse, a ll surviving wild black-footed ferrets (totaling 18 individuals) were removed from the wild be tween 1985 and 1987 to initiate a captive breeding program (FWS 1988) . Seven of the black-footed ferrets captured at Meeteetse successfully reared young, leadi ng to a lineage of continuing captive reproduction that provides

black-footed ferrets to reintrodu ction sites today (Hutchins et al. 1996, Garelle et al. 2006). Reintroductions began in 1991 (Table 2) a nd all extant populations, both captive and reintroduced, descend from these seven “founde r” animals (Garelle et al. 2006).

No wild populations of black-footed ferrets ha ve been found since the capture of the last Meeteetse black-footed ferret, despite extensive a nd intensive range-wide searches. It is unlikely that any undiscovered wild populations remain (Lockhart et al. 2006). No known extant wild populations of black-footed ferrets exist, except those at reintroduction sites.58 (1) Ferret Reintroductions

Section 10(j) of the ESA allows reintroduced populations to be designated Nonessential Experimental Populations (NEPs) to ease concer ns about listed species reintroductions and facilitate species recovery efforts. To date, 11 black-footed ferret reintroductions have occurred through use of Section 10(j) designated NEP ar eas in the United States (FWS 2008b). There

have also been six black-footed ferret rein troductions in the Unite d States that used Section 10(a)(1)(A) recovery permits. Additionally, there have been black-footed ferret reintroductions in Chihuahua, Mexico, and in Sa skatchewan, Canada, in compliance with those countries’ statutes, for a total of 19 reintroduc tion attempts (FWS 2008b, Fargey 2010). See

Table 3 for the location and date of initiation of each of the black-foot ed ferret reintroduction

sites.

Table 3. Black-footed ferret reint roductions in North America locations, year initiated, and prairie dog species.

SITE (YEAR INITIATED) PRAIRIE DOG SPECIES
Shirley Basin, Wyoming (1991) White-tailed

UL Bend National Wildlif e Refuge, Montana (1994) Black-tailed
Badlands National Park, South Dakota (1994) Black-tailed Aubrey Valley, Arizona (1996) Gunnison’s
Conata Basin, South Dakota (1996) Black-tailed Ft. Belknap Indian Reservation, Montana (1997) Black-tailed Coyote Basin, Utah (1999) White-tailed Cheyenne River Indian Reser vation, South Dakota (2000) Black-tailed Bureau Land Management 40-complex, Montana (2001) Black-tailed
Wolf Creek, Colorado (2001) White-tailed
Janos, Mexico (2001) Black-tailed
Rosebud Indian Reservation, South Dakota (2004) Black-tailed
Lower Brule Indian Reservation, South Dakota (2006) Black-tailed
Wind Cave National Park, South Dakota (2007) Black-tailed Espee Ranch, Arizona (2007) Gunnison’s Smoky Valley, Kansas (2007) Black-tailed Northern Cheyenne Indian Reservation, Montana (2008) Black-tailed Vermejo Park Ranch, New Mexico (2008) Black-tailed
Grassland National Park, Canada (2009) Black-tailed

(2) Life History

The black-footed ferret is a medium-sized must elid typically weighi ng 1.4 to 2.5 pounds (lbs) (645 to 1,125 grams) and measuring 19 to 24 inch es (479 to 600 millimeters) in total length. Upper body parts are yellowish buff, occasionally wh itish; feet and tail tip are black; and a black “mask” occurs across the eyes. It is the only fe rret species native to the Americas (there are no recognized subspecies). Other ferret species in the genus in clude the Siberian polecat ( Mustela

eversmanni ) and the European ferret ( Mustela putorius ) (Hillman and Clark 1980, Anderson59 et al. 1986). The black-footed ferret was first formally described in 1851 by J.J. Audubon and J. Bachman (Clark et al. 1986). The black-footed ferret is endemic to North America. Ferrets entered North America from Siberia approximately 1 to 2 million years ago, spread across Beringia, and advanced southwar d through ice-free corridors to the Great Plains approximately 800,000 years ago (Wisely 2006). Contrary to earl y characterizations that addressed natural history, the species was probably common historically, although its secretive habits (nocturnal and often underground) made it difficult to obser ve (Forrest et al. 1985, Anderson et al. 1986, Clark 1989).

Black-footed ferrets prey pr imarily on prairie dogs ( Cynomys spp.) and use their burrows for shelter and denning (Henderson et al. 1969, Hillman and Linder 1973, Forrest et al. 1985). Since black-footed ferrets depend almost exclusively on prairie dogs for food and shelter, and the species’ range overlaps that of certain prairi e dog species (Anderson et al. 1986) with no documentation of black-footed ferrets breeding outside of prairie dog colonies, the Service

believes that black-footed ferrets were historic ally endemic to the range of three prairie dog species. There are records of black-footed ferrets from the ranges of the BTPD ( Cynomys

ludovicianus ), white-tailed prairie dog ( Cynomys leucurus ), and Gunnison’s prairie dog ( Cynomys gunnisoni ) (Anderson et al. 1986) which colle ctively occupied approximately 100 million ac (40 million ha) of intermontane and pr airie grasslands (Biggins et al. 1997, Clark et al. 1986, Ernst et al. 2006). Er nst (2008, pers. comm.) estimates th at in the United States, this occupied habitat existed within an estimated 562 million ac (228 million ha) of potential habitat. Ernst (2008, pers. comm.) used a geographic in formation system data base to predict the distribution of prairie dog hab itat across the United States an d concluded that, historically, 85 percent of all black-footed ferrets probably occurred in BT PD habitat, 8 percent in Gunnison’s prairie dog habitat and 7 percent in white-tailed prairi e dog habitat. We conclude

that most black-footed ferrets like ly occurred in BTPD habitat.

The black-footed ferret breeds at 1 year of age, from mid-March through early April, and gestation is about 42-45 days. Litter sizes average about 3.5 (W ilson and Ruff 1999). Juveniles disperse in late summer/early fa ll. The black-footed ferret leads a solitary existence except for the period when mother and young are together (Forre st et al. 1985). It is a “searcher” predator that is generally nocturnal, a ppearing above ground at irregula r intervals and for irregular durations (Clark et al. 1986).

The black-footed ferret’s close association with prairie dogs was an impo rtant factor in its decline. From the late 1800s to approximate ly 1960, both prairie dog habitat and numbers were dramatically reduced by the seque ntial and overlapping effects of habitat loss from conversion of native prairie to cropland, pois oning, and habitat modification due to disease (FWS 2008b). The

North American black-footed ferre t population declined pr ecipitously as a re sult (Biggins 2006), and the species was one of the original specie s listed under early versi ons of the ESA and was grandfathered in as an endangered species wi th passages of the ESA in 1973 (FWS 2008b). Black-footed ferret populations in the BTPD ra nge and other prairie dog species are known to exist today only in areas where black-footed ferret reintroductions ha ve occurred (FWS 2008b).60 a. Environmental Baseline

Since the 1960s, occupied BTPD acreage has increased from approximately 365,000 acres to approximately 2.4 million acres within the 10 st ates where Rozol is currently allowed or proposed to be used as a rodent icide (EPA 2010b, FWS 2009b). Ther e is an extensive history of prairie dog poisoning in these 10 states, and we be lieve that BTPDs are likely to be poisoned by various rodenticides into the future regardless if Rozol is available or not. Current BTPD populations do not indicate a downward trend even though Rozol has been used under SLN

labels for BTPD control since 2004 and as ea rly as 1991 under a pocket gopher formulation (Lee et al. 2005, FWS 2009b).

While current information suggests that the BTPD can withstand the impact of Rozol use, prairie dog poisoning is a high magnitude threat to the black-footed ferret (FWS 2008b). Therefore, the conservation measure that prevents Rozol use in black-footed ferret reintro duction areas is key to maintaining the current reintroduction sites a nd providing a mechanism to accommodate future

reintroduction sites.

Nineteen black-footed ferret rein troductions (Table 2) have b een undertaken in North America beginning in 1991, and most of these sites continue to have some black-footed ferrets remaining (FWS 2008b, Fargey 2010). Thirteen reintroductions are within the range of BTPDs, and 11 of

those sites are within the 10 states where Rozol is either labeled for use or proposed to be used as a prairie dog rodenticide (EPA 2010b). Despite these 19 black-footed ferret reintroductions to date, insufficient time has passed at approximately one third of the sites to indicate whether the existing reintroduction sites may ev entually meet criteria for Bl ack-footed Ferret Recovery Plan objectives (FWS 2008b).

A recent estimate of black-footed ferret popul ations at reintroduc tion sites indicates approximately 840 black-footed ferrets alive in the wild with approxi mately half of those located in the BTPD range (FWS 2008b). Since that time, plague has reduced black-footed ferret numbers at the Conata Basin in South Dakota (G riebel 2010) while existing black-footed ferret populations are believed to have expanded in Arizona and Wyoming (Corcoran 2012, Grenier 2008). The Service believes that approximately 800 black-footed ferrets alive in the fall of 2011 is a reasonable estimate of the species’ current population numbers in the wild.

To date, there have been a few instances where black-footed ferrets are known to have left a

reintroduction site and been loca ted on adjacent property. If a bl ack-footed ferret does disperse from a reintroduction site, there are provision s in the reintroducti on site permit or the reintroduction plans to relocate th at individual at the request of the adjacent property owner if the owner grants access and permission to do so. Th is accommodation, while available to adjacent landowners, has rarely been used or needed. The Service does not expect that to change with

Rozol use as a BTPD rodenticide.

Landowners adjacent to current black-footed ferr et reintroduction sites are not required to conduct surveys for the species prior to undertak ing normal ranching operations, such as the use of rodenticides to control prairie dogs. The Se rvice anticipates that future black-footed ferret reintroduction sites will similarly not require black-f ooted ferret surveys on adjacent properties.61 Black-footed ferret surveys can be time consuming and expensiv e to undertake; requiring them of adjacent landowners prior to normal ranc hing operations would undermine support for the

reintroduction effort.

The Black-footed Ferret Recovery Plan identifies recovery objectives fo r downlisting the species from endangered to threatened status. The obj ectives include increasing the captive population

of black-footed ferrets to 200 breeding adults and establishi ng at least 1,500 free ranging breeding adult black-foote d ferrets that are distributed betw een at least 10 populations with no fewer than 30 breeding adults in a populati on, and those populations shall have the widest possible distribution (FWS 1988). The first obj ective of increasing th e captive black-footed ferret population has been surpassed. The seco nd objective is approximately 25 percent met when fall black-footed ferret numbers of approxima tely 800 animals are estimated to result in 400 breeding adults by spring, and four reintroduc tions sites have successfully established free ranging populations and meet recovery objectives (FWS 2008b). This indi cates that additional

successful black-footed ferret reintr oduction sites are needed to meet the downlisting objective. Recovery objectives for complete delisting of the black-footed ferret have not been finalized but are anticipated to include at least 3,000 fr ee ranging breeding adult black-footed ferrets distributed between at least 30 populations. The downlisting objectives indi cate that there will need to be significant continued efforts to esta blish free ranging black-f ooted ferret populations through the use of reintroductions, and comple te delisting of the species will require considerably more reintroductions.

b. Effects of the Action

Rodenticides used to poison prairie dogs can have multiple effects to black-footed ferrets by secondarily poisoning individuals or by destroying the habitat wh ere the species lives or could live. A study in the 1980s evaluated the pot ential secondary poisoning of chlorophacinone, the active ingredient in Rozol, and found that 5 of 6 domestic ferrets were killed when each domestic ferret was fed 4 poisoned BTPDs over 8 days. The study concluded that chlorophacinone may not be an acceptable prairie dog toxicant based on high secondary toxicity to non-target animals (Fisher and Timm 1987). The Service believes th at black-footed ferrets would be similarly killed as the domestic ferrets were, if they consumed prairie dogs poisoned by Rozol. Accordingly, the EPA, Liphatech and the Servi ce developed conservation measures that would prevent Rozol use at current and future black-f ooted ferret reintroduction s ites. These measures were intended to address the secondary poisoning of black-footed ferrets and the loss of prey

base for black-footed ferrets at reintroduction sites (EPA 2011c). The issue of black-footed ferret dispersal away from a reintroduction site that might encounter a Rozol poisoned BTPD colony was more difficult to address.

The key challenge with development of the blac k-footed ferret conservation measures was to

ensure that Rozol use would not occur at locations where the speci es is being reestablished while at the same time ensure that adjacent landowne rs’ ability to manage prairie dogs on their properties would not be impacted. There was discussion about banning Rozol use in areas surrounding black-footed ferret reintr oduction sites (up to a county in size), but it was concluded that doing so would increase an imosity toward black-footed fe rret reintroduction efforts and undermine or prevent reintroductions altogether. Accordingly, to avoid creating that backlash,62 conservation measures were devel oped that would restrict Rozol use at reintroduction sites, but not impose restrictions on adjacent landowners’ us e of legal rodenticides . As indicated above,

the Service does not believe that black-footed ferret surveys on properties adjacent to or in the vicinity of a reintr oduction site are needed prio r to undertaking otherwise legal activities such as rodenticide use on prairie dogs, and the cost and inconvenience of black-footed ferret surveys on adjacent lands would generate opposition to, and possibly compromise, the black-footed ferret

reintroduction effort. If a black -footed ferret disperses from a reintroduction site, and if the

landowner wants the ferret relocat ed and grants permission to access the property, then the

relocation can be done unde r existing mechanisms.

The black-footed ferret conservation measures re ly upon identification of existing and future

black-footed ferret rein troduction sites on the Bulletins Live! database maintained by the EPA

and referenced on the Rozol label which become s part of the legal requirement for label compliance. Prior to Rozol use, applicators are required to consult this database to ensure that they are not applying Rozol at an existing black -footed ferret reintroducti on site. If additional reintroductions are started in the future, we will provide the information for those sites to the

EPA for inclusion in the EPA’s Bulletins Live! database to reflect th e new black-footed ferret reintroduction sites. The pr ocess to add areas to the Bulletins Live! database takes approximately 8 months to complete and that timeframe w ill be factored into the timing of adding new

reintroduction sites or modifica tions to that database.

The Service recognizes that if a black-footed ferret leaves a reintroduction site it could encounter prairie dog colonies where Rozol is being used and could consume poisoned prairie dogs and perish. That mortality must be balanced with the intent of the reintroduction, which is to establish a breeding black-footed ferret populatio n at the reintroduction site. The deaths of

black-footed ferrets that leave th e reintroduction site are not anticipated to materially affect the reintroduction site’s ability to m eet recovery objectives for th e species because the sites are reliant upon the amount of black-footed ferret ha bitat within their boundaries to meet those objectives. The Service selects reintroduction sites that have th e attributes (i.e., prairie dog acreage, densities, locations, part nerships, etc.) to help meet the black-footed ferret recovery objectives of establishing widely distribu ted breeding populations. The Service and our reintroduction partners have l ong understood that di spersing black-footed ferrets from a

reintroduction site could be lost from many factors and that use of legal rodenticides off the

reintroduction site is one of those factors ( FWS 1988, 1994b). Accordingly, we believe that the

conservation measure to restrict Rozol use at the reintroduction site , but not on adjacent properties is appropriate.

Another possible effect of Rozol use for BTPD control involves the e limination of possible

black-footed ferret reintroduction ha bitat because of Rozol use. In 2009, the Service estimated that there were approximately 2.4 million acres of BTPDs in the 10 States where Rozol is used or proposed for use as a BTPD rodenticide (F WS 2009b, EPA 2010b). Luce (2006) examined opportunities for immediate and near term potential reintroduction si tes and concluded that there are over 70 potential sites within the black-footed ferret range, most of which are in BTPD

colonies. The Service believes that rodenticide use (including Rozol), while widespread in the BTPD range, in and of itself is not the determinate factor whether a black-footed ferret reintroduction can occur. Instead, it is the willingness of partners (private, State, Tribal and63 Federal) to consider a reintroduc tion and then commit to manage a block of prai rie dog habitat

for black-footed ferret conservation. Most re cent BTPD surveys indicat e that there are many biologically suitable and potential reintroducti on sites available, but the key to achieving

black-footed ferret reintr oductions and thus recovery is fi nding interested landowners and partners (FWS 2009b, Lockhart et al 2006, Luce 2006). Further, our experience is that landowners who are strong proponents of poisoni ng prairie dogs are not interested in participating in black-footed fe rret reintroductions and, if Rozol was not available, they would likely use a different rodenticide. Therefore, th e Service believes that Rozol use on BTPDs, with the agreed upon conservation measure to restrict Rozol use on future black-footed ferret reintroduction sites, will not eliminate future opp ortunities for reintroductions. Use of Rozol will not preclude black-footed ferret recovery.

c. Cumulative Effects

Cumulative effects include the effects of future St ate, Tribal, local, or private actions that are reasonably certain to occur in the action area consid ered in this BO. Future Federal actions that are unrelated to the proposed act ion are not considered in this section because they require separate consultation pursuant to Section 7 of the ESA.

Future rodenticide use, along with some land conversion from grasslands or rangeland into croplands or other development, is likely to co ntinue in the range of the BTPD. With the black-footed ferret conservation measures in place, we do not believe that these actions will preclude conservation and recovery of the black-f ooted ferret because recent trends in BTPD occupied habitat are st able to increasing over large areas of the speci es’ range (FWS 2009b). While Rozol use is likely increasing, its use ma y be supplanting some of the previously used prairie dog rodenticides. Thus, even though Rozo l has been used for prairie dog control for nearly 2 decades in one state and for 5 to 10 years in others (Lee et al. 2005, EPA 2010b, 1993), it does not appear to be altering the stable to increasing prairi e dogs trends found by the Service (FWS 2009b). Because the use of Rozol in black- footed ferret reintroduction sites will not be allowed, the impacts to current and future black-footed ferret rein troduction sites are not expected to be seriously impacted.

Within the black-footed ferret’s range, which in cludes three species of prairie dogs, the Service believes that the availability of rodenticides will not prevent recovery of the black-footed ferret because recent analysis of the three prairie dog species indicates that those prairie dog species

continue to inhabit millions of acres of habitat (FWS 2010c , 2009b, 2008c). As noted earlier, without adequate regulatory mechanisms, poisoning can affect current and future black-footed

ferret reintroduction s ites (FWS 2008b). While the total prairie dog acreage among the three species is much greater than is believed necessary to recover the black-footed ferret, much of the existing prairie dog acreage is not of a size or in a location to contribut e to the black-footed ferret’s recovery. The Black-footed Ferret Recovery Plan estimated that an average of 124 acres of prairie dog colonies is needed per black-footed ferret or approximately 185,000 acres of black-footed ferret occupied prairi e dog habitat is needed to m eet downlisting objectives for the species (FWS 1988). This acreage amount can be di stributed between the th ree species of prairie dogs that encompass the black-footed ferrets’ ra nge (FWS 1988). While complete delisting64 objectives for the black-footed ferret have not been finalized, it is lik ely that 500,000 acres of managed prairie dogs distributed between the thr ee prairie dogs species would be sufficient to support delisting recovery objectives fo r the black-footed ferret (FWS 1988).

Another important factor affecting prairie dog populations and theref ore black-footed ferret recovery is sylvatic plaque and the ongoing out breaks which can result in widespread prairie dog die offs or, in some cases, more subtle deaths (Cully et al. 2010, Matche tt et al. 2010). This exotic disease can directly kill black-footed ferrets that consume in fected prairie dogs or

eliminate black-footed ferret ha bitat among the three prairie dog species (Gage and Kosoy 2006, Godbey et al. 2006). At this time, the Service does not have information that Rozol use on BTPDs, in combination with othe r rodenticides and sylvatic pla gue, will prevent black-footed ferret recovery, but, in order to make informed de cisions in the future, it will be important to have an understanding of the extent of Rozol use in each state.

d. Conclusion Regarding Jeopardy

After reviewing the current status of the black-footed ferret, the environmental baseline for the action area, the effects of the proposed action, and the cumulative effects, it is the Service’s biological opinion that the use of Rozol as a BT PD rodenticide, which includes the black-footed ferret conservation measures, is not likely to jeopardize the conti nued existence of the

black-footed ferret. No critical habitat for the bl ack-footed ferret has be en designated; therefore

none will be affected. At this time, the Service believes that Rozol use on BTPDs, as modified through the agreed upon conservation measures w ill not preclude the conservation and recovery

of the black-footed ferret even when combined w ith the use of other currently available legal

rodenticides and our understan ding of sylvatic plague.

In summary, this conclusion is based on the following:

 The modifications to the project descript ion via the black-footed ferret conservation

measures included in the EPA’s letter of December 13, 2011 (EPA 2011c) and additional agreed upon conservation measures in April 2012, which ensure that:

o Rozol use is prohibited in current and future black-footed ferret re introduction sites; thus, we anticipate that survival of the species in the wild will not be compromised by this product.

o Rozol use is prohibited in an area if an unknown wild black-footed ferret population is

discovered.

o Rozol restrictions on properties adjacent to reintroductions are minimized which lessens opposition to black-footed ferret reintroductions.

o Rozol production quantities and di stribution to locations within states will be provided to the Service which will allow an assessment whether the level of use could preclude recovery of the black -footed ferret.

 Sufficient prairie dog acreage exists among th e three species of prairie dogs to support current Black-footed Ferret Recovery Plan downlisting objectives and likely future delisting objectives when those become finaliz ed in the revised Recovery Plan.65 2. GRAY WOLF

a. Status of the Species/Critical Habitat

Gray wolves from three separate populations are relevant to this consultation: 1) the Northern Rocky Mountains Distinct Popul ation Segment (DPS) which enco mpasses the eastern one-third of Washington and Oregon, a small part of north- central Utah, and all of Montana, Idaho, and Wyoming; 2) the Western Great Lakes DPS wh ich has a core area occurring in Michigan, Wisconsin, and Minnesota and a peripheral zone including eastern North Dakota, eastern South Dakota, northern Iowa, and a small portion of north ern Illinois; and 3) th e Mexican gray wolf which has been considered a subspecies and re introduced into a NEP ( under Section 10j of the ESA) area that includes portions of central Ariz ona, central and southern New Mexico, and a minute portion of western Texa s, south of New Mexico.

In 1974-1976, the Service lis ted three subspecies of gray wo lf (Northern Rocky Mountain gray wolf ( Canis lupus irremotus ), eastern timber wolf ( Canis lupus lycaon ) (FWS 1974), and Mexican wolf ( Canis lupus baileyi )) (FWS 1976)) under the ESA, but in 1978 revised those regulations to list the entire gr ay wolf species as endangered, ex cept in Minnesota where it was listed as threatened, in the coterminous United States (FWS 1978) . At that time, the Service also designated critical habitat in Isle Royale, Mi chigan, and parts of northern Minnesota (FWS 1978). Since then, the Service has implemented nu merous actions relative to the gray wolf, including development of recovery plans, id entification of DPSs a nd NEPs, initiation of reintroductions and other recovery actions, and development of regulatory changes that have been subject to litigation in numerous Federal courts. For additional details and maps of these wolf recovery areas see: 1) Final Rule To Id entify the Northern Rocky Mountain Population of Gray Wolf as a Distinct P opulation Segment and To Revise the List of Endangered and Threatened Wildlife (FWS 2009f), 2) Endangered and Threatened Wildlife and Plants; Revising the Listing of the Gray Wolf ( Canis lupus ) in the Western Great La kes (FWS 2011f), 3) Final Rule; Establishment of a Nonessential Experiment al Population of the Mexican Gray Wolf in Arizona and New Mexico (FWS 1998), and 4) Lower 48-State and Mexico Gray wolf ( Canis lupus ) listing, as revised, 5-Year Revi ew: Summary and Evaluation (FWS 2012b).

Currently, gray wolves in the Northern Roc ky Mountain DPS (including Montana and Idaho, as well as portions of eastern Oregon, eastern Wa shington, and north-centr al Utah, but excluding Wyoming) are removed from the List of Enda ngered and Threatened Wildlife and no longer receive protections under the ESA (FWS 2011g). Ma nagement of wolf populations in Montana and Idaho has been transferred to State authority. The Service has proposed to delist wolves in Wyoming (FWS 2011h). Wyoming has a management plan contingent upon necessary additional changes to Wyoming State law; Wyom ing is anticipated to adopt the necessary statutory and regulatory changes within the ne xt several months (FWS 2011h). Until then, wolves in Wyoming are protected by the ESA and considered a NEP designated under Section 10(j) which has increase d the Service’s flexibility and discretion in managing the gray wolf reintroduced population.66 A final rule to remove wolves in the Western Great Lakes DPS from the list of Endangered and Threatened Wildlife was published in the Federa l Register on December 28, 2011 (FWS 2011f), effective January 27, 2012. Management of wo lf populations in Minnesota, Wisconsin and Michigan is now under the pur view of those States.

Mexican gray wolves currently retain their origin al NEP, Section 10(j) status, and are protected by the ESA within the parameters established for that reintroduction effort (FWS 1998). Mexican gray wolves have been released annuall y into this population, and this practice will likely continue until natural reproducti on sustains wild population growth.

While the open rangeland habitat of the BTPD does not coincide with the typical habitats (forested landscapes) used by gray wolf populations in the United States today, the ranges of the two species overlap when individu al gray wolves disperse from their core populations. Those dispersing individuals are most rele vant to this analysis. When wo lves disperse from their packs

and occur in other areas outsi de the boundaries of any DPS or Nonessential Experimental reintroduction area, their status unde r the ESA changes; they take on the listing status of the gray wolf in that area (wolves o ccurring in western North Dakot a and South Dakota, Nebraska, Colorado, and other areas are considered endanger ed). Those wolves will remain protected by the ESA regardless of recent delisting actions in the Northe rn Rocky Mountain and Western Great Lakes DPSs, unless the Serv ice makes additional regulatory ch anges in the future. Those

wolves within Nonessential E xperimental area boundaries (Wyo ming and Arizona/New Mexico) retain ESA protections but with the management parameters esta blished with the Section 10(j) rulemaking.

Critical habitat has been designate d for the gray wolf but not with in the action area. Due to a lack of overlap with the BTPD ra nge, the Service agrees with the EPA that no critical habitat will be impacted by the proposed action; therefore, gray wolf designated critical habitat is not

described herein.

(1) Species description

Gray wolves ( Canis lupus ) are the largest wild members of th e dog family (Canidae). Adult gray wolves range from 18–80 kilograms (40–175 pounds) depending upon sex and region (Mech 1974). Smaller sizes tend to be found in the southe rn portion of wolf range (the Mexican wolf is the smallest extant wolf in North America) a nd larger sizes in the northern portion. Females weigh slightly less than males. Wolves reach ad ult size by 1 year of age. Wolves’ fur color is frequently a grizzled gray, but it can vary from pure white to coal black. Mexican wolves are typically a patchy black, brown to cinnamon, and cream color, with primarily light underparts (Brown 1988). Solid black or white Mexican wo lves do not exist as seen in other North American gray wolves.67 (2) Life history

Elements considered relevant to this consultation are described below. Additional detailed information on the biology of this species is available in numerous documents within the literature cited of this document (e.g.,“Biology and Ecology of Gray Wo lves” section of the April 1, 2003, final rule to reclassify and remove the gray wolf from the list of endangered and threatened wildlife in portions of the conterminous United St ates (FWS 2003).

(a) Range and habitat Within North America, gray wolves formerly rang ed from coast to coast with the exception of the mid-Atlantic states, the Southeast (areas o ccupied by the red wolf), and perhaps parts of California. They have historica lly been found in almost all hab itat types, includ ing the prairie and rangelands of the central Un ited States where, coinciding with human settlement, most populations of wolves were extir pated by the early 1900s. In th e coterminous 48 states today, they are found in the mostly forested lands of Minnesota, Wisconsin, Michigan, Montana, Idaho, and Wyoming, with the addition of the Mexica n wolf reintroduction area in New Mexico, Arizona and a small part of western Texas. Th e Mexican wolf is endemi c to the southwestern United States and Mexico. Once thought to need wilderness areas to survive, wolves can successfully occupy a wide range of habitats, though they tend to more readily occupy heavily forested areas and landscapes with low road densities (Mladenoff et al. 1995). The BTPD habitat is generally not considered preferred ha bitat by the gray wolf today; it offers little protective cover, and though individuals may trav erse it quickly, they often do not survive

human encounters in such areas. In Minnesota and Wisconsin, wolves are proving themselves

more tolerant of human distur bance than previously thought a nd their range has expanded to

include areas that are a mix of forest and agriculture. Essentially, wolves can live almost anywhere if they have abundant wild prey and if excessive numb ers are not taken by humans.

(b) Prey items Wolves are predators of primarily medium and la rge mammals. They may not eat for a week or more but are capable of eating 20 pounds of meat in a single meal. Wild prey species in North America include animals such as white-tailed deer ( Odocoileus virginianus ), mule deer ( O. hemionus ), moose ( Alces alces ), elk ( Cervus canadensis ), and other large ungulates. Wolves will also prey on mid-sized mammals, such as snowshoe hare ( Lepus americanus ) and beaver ( Castor canadensis ), with small mammals, birds, and larg e invertebrates sometimes being taken (Mech 1974, Stebler 1944, Wisconsin Depart ment of Natural Resources 1999).

(c) Social nature and territory size Wolves are social animals, normally living in pack s of 2 to 12 wolves (but that number can vary considerably; pack sizes ranging into the 30s have been documented). The pack defends a territory that can be as large as 50 square miles or even ex tend up to 1,000 square miles in areas where prey is scarce. The pack consists of a breeding (top-ranking or alpha) pair, their pups from the current year, offspring from the previo us year, and occasionally an unrelated wolf. Unrelated wolves are typically indivi duals dispersing from other packs.68 (d) Dispersal As indicated by the territory size described above, wolves often c over large areas and may travel as far as 30 miles a day. Although they trot at approximately 5 miles per hour (mph), wolves can attain speeds as high as 40 mph. By 3 years of age, many wolves disperse from the pack that they were born into to find mates and to expand into new areas. The animals have extraordinary dispersing ability, traveling over 600 miles, some times over large areas of inhospitable terrain. A wolf in Sweden with a Global Postitioning Sy stem (GPS) collar travel led a straight line distance of >1,092 kilometers (682 miles) with an actual travel distance of over >10,000 kilometers (6,000 miles) in just under a year (Wabakken et al. 2007). A wolf that dispersed from Gardiner, Montana, to wester n Colorado, where she wa s illegally killed by 1080 Compound poison in March 2009, travelled a st raight line distance of 400 miles in 6 months, but daily GPS locations showed she act ually walked over 3,000 m iles (FWS et al. 2011).

Considerable information on wolf disp ersal was obtained during 1993-2008, when 1,681 radio-collared wolves (858 males and 823 fema les) in the Northern Rocky Mountain DPS were tracked (Jimenez et al. 2011). The large sample size distinguishes that study; however,

most of what was documented mirrored that already found by others (Fritts and Mech 1981, Boyd and Pletscher 1999, Mech 1987, Gese and M ech 1991, Boyd et al. 1995). Ten percent of the Northern Rocky Mountain wolf population dispersed annually; 297 known dispersals by 281 wolves were documented (some wolves disperse d and returned to thei r original pack up to three times). Many other dispersal events like ly occurred during the Northern Rocky Mountain dispersal study but were undetected because on ly about 30 percent of the Northern Rocky Mountain wolf population was radio- collared by 2008 and it is difficu lt to detect lone dispersing wolves. Most wolves tended to move southward, but 55 dispersals occu rred in an easterly direction. The dispersals could occur anytime du ring the year, but increases were noted in the fall with the peak occurring in January, and 58 percent ( n =153) of all dispersals occurred between October and February (i.e., during the ti meframe that Rozol may be applied) (Jimenez et al. 2011, unpublished data). Licht and Fritts ( 1994) studied 10 wolf mortality records in North

Dakota and South Dakota between 1981 and 1992 and found that nine occurred in winter.

Dispersal distance by indi vidual wolves in the Northern Ro cky Mountain wolves study (Jimenez et al. 2011, unpublished data) was not as great as th e species’ potential, described above; mean dispersal distance for males was 98.1 kilometers (61 miles) and was not significantly different ( P= 0.11) than female dispersal distance at 87.7 kilometers (54.5 miles). However, in 10 instances, the wolves moved more than 186 mile s which were considered to be unusually long distances (Jimenez et al. 2011, unpublished data ). About 20 confirmed Northern Rocky Mountain wolf dispersal events from 1992-2010 have been over 190 miles with 4 wolves travelling beyond the Northern Rocky Mountain DPS border (FWS et al. 2011). The eastern edge of the Northern Rocky Mountain DPS is a bout 400 miles from the western edge (eastern Minnesota) of the Western Great Lakes DPS co re area and is separated from it by hundreds of

miles of unsuitable habitat in those Great Pl ains States (FWS 2009g). This propensity to disperse and the distances that have been recorded are the factors that lead the Service to believe that gray wolves could encounter and be exposed to Rozol-poisoned prairie dogs.69 Dispersing wolves can have a lowe r survival rate than individuals that do not l eave their packs (Jimenez et al. 2011, unpublished da ta), and those that disperse often die in proportionately higher numbers from human causes than those th at do not disperse (B oyd and Pletscher 1999). Of 281 dispersing wolves in the Northern Ro cky Mountain study, 166 (59 percent) survived dispersal to pair with another di spersing wolf to form new packs or to join new packs (Jimenez et al. 2011, unpublished data). The unusually lo ng-distance dispersers typically do not find mates or survive long enough to form packs or to breed in the United States (FWS 2009f).

Human causes of mortality among dispersing wo lves include illegal shootings, trapping, poisonings (e.g., M-44s intended for coyotes), and vehicle collisio ns. Dispersing wolves have been noted by the Service in Colorado in recent years with a likely vehicl e collision mortality of

an individual in 2004 and an ille gal poisoning of another wolf in 2009 (via banned substance: Compound 1080). Of the 10 wolf mortalities do cumented in North Dakota and South Dakota from 1981-1992, 8 were mistakenly shot as coyotes, 1 was beaten to death after being chased by dogs, and another was shot by a hunt er after the wolf allegedly at tacked the man’s horse as he was riding it (Licht and Fritts 1994). A wolf killed by a car near Sturgis, South Dakota, in 2006

was determined to have been from the Nort hern Rocky Mountain DPS. A wolf from the

Western Great Lakes DPS was shot in Nebraska in 2003. A wolf (M innesota origin ) killed via a cyanide gun (M-44) intended for coyotes was doc umented in Harding County, South Dakota, in 2001. Other instances of mortality were noted in the Service’s May 5, 2011, Proposed Rule To Revise the List of Endangered and Threatened Wildlife for the Gray Wolf ( Canis lupus ) in the Eastern United States, Initiation of Status Reviews for the Gray Wolf and for the Eastern Wolf ( Canis lycaon ) (FWS 2011j):

 An adult male shot near Devil’s Lake, North Dakota, in 2002.

 Another adult male shot in Richland County in extreme southeastern North Dakota in 2003.

 A wolf was shot in Roberts County, South Dakota, in January 2009.

 Another wolf was found dead in a foothold trap that was set as part of an ongoing USDA Wildlife Service’s coyote cont rol operation in southeastern Eddy County, North Dakota.

Despite human-caused mortalities, populations ha ve continued to increase in both numbers and range in both the Northern Rocky Mountain a nd Western Great Lakes DPSs. However, the Mexican wolf population has struggled to overcom e this issue; 66 percent of all documented mortalities as of December 31, 2010, were human -caused, and these high mortality rates may reduce dispersing wolves below levels noted for other studied wolf populat ions (FWS 2011i).

(3) Population dynamics

Gray wolves are known to live up to 13 years in the wild and 15 years in captivity. Wolves typically breed as 2-year olds and may annua lly produce young until they are over 10 years old. Litter sizes range between 1-11 pups but genera lly include 4-6 pups (FWS 2003). Normally a pack has a single litter annually, but producing 2 or 3 litters in 1 year has been documented in Yellowstone National Park (FWS et al. 2002). The breeding season for wolves is from late January through March.70 Breeding members of wolf packs can be quickly replaced either from within or outside the pack. Pups can be reared by another pack member should their parents die (Packard 2003, Brainerd et al. 2008, Mech 2006). Consequently, wolf popul ations can rapidly recover from severe disruptions, such as very high levels of human-caused mortalit y or disease. After severe declines, wolf populations can more than double in just 2 years if mortality is reduced; increases of nearly 100 percent per year ha ve been documented in low-densit y suitable habitat (Fuller et al. 2003, Service et al. 2008, 2009f). Additionally, th eir extraordinary dispersal ability helps explain why wolves can recolonize even distant vacant suitable habitat relatively quickly and why their populations are resist ant to extirpat ion (Mech and Boitani 200 3, Adams et al. 2008).

Starting with an estimated 55 individuals that naturally colonized north western Montana in 1993, the Northern Rocky Mountain popu lation grew an average of 25 percent annually between 1993 and 2008, with the assistance of reintroduction effo rts in Wyoming and Idaho. At the end of 2009, the population estimate had grown to at least 1,706 wolves in 242 wolf packs and 115 breeding pairs (Bangs 2010). In 2010, that nu mber was slightly down to 1,651 (FWS et al. 2011).

The Western Great Lakes DPS today is esti mated to contain over 4,000 wolves, with the majority occurring in Minnesota. The Minnesota wolf population increased from an estimated 1,000 individuals in 1976 to 2,921 as of 2007-2008, and the estimated wolf range in the State has expanded by approximately 225 percent (FWS 2011j). Wolves were considered extirpated from Wisconsin in 1960 but began to recolonize in th e 1970s, and an increase in the late 1980s has continued into 2011; the current population estimate there is 782 wolves (FWS 2011k, 2011f). With the exception of Isle Royale, wolves were ex tirpated from Michigan prior to the gray wolf listing, but wolves began to return in the late 1980s (Beyer et al. 2009), and wolf packs have continued to spread throughout Mi chigan’s Upper Peninsula. Wolves are now found in nearly every county of Michigan’s U pper Peninsula (Huntzinger et al. 2005), and 87 individuals were estimated to occur in Michigan in 2010-2011 (FWS 2011f).

The Mexican wolf reintroduction be gan in 1998 with the release of 11 individuals in the Blue Range Wolf Recovery Area of New Mexico and Arizona. The population has increased with a minimum end-of-year count peak of 59 wolves in 2006, via natural repro duction, translocations,

and initial releases. At the e nd of 2010, the wild population totaled a minimum of 50 individuals (FWS 2012c).

With a minimum of 1,651 wolves in the Nort hern Rocky Mountain DPS in 2010 (FWS et al. 2011), an estimated 4,390 in the Western Great Lakes DPS (assuming the number of wolves in Minnesota has not changed substantially since 2007-2008, the date of the most recent estimate available for this analysis) (FWS 2011f) and a 2010 estimate of the Mexican wolf population at 50 (FWS 2012c), the total minimum estimate of wolves in these areas combined is approximately 6,091. Wolf population levels in th e range of the BTPD are limited to dispersing

wolves.71 (4) Status, trends, and distribution

The decline and near extirpation of wolves from the lower 48 st ates in the early part of the

20 th century was caused by a number of factors, including extreme control programs designed to eliminate the species. Factors in the eastern ti mber wolfs’ decline included intensive human settlement, direct conflict with domestic livestock, lack of unders tanding of the animal’s ecology and habits, and fears and superstitions regardi ng wolves and extreme control programs designed to eradicate it (Young and Goldman 1944, Mech 1970). These were a common thread among wolf populations in other areas of the United States as well. Land development (loss of habitat), impacts to prey base, poisoning, trapping, and hunti ng were also factors identified in the decline (FWS 1987). Mech (1995) indicates that primarily inadequate prey density and a high level of human persecution limit wolf distribution. In shor t, human-caused mortality is identified as the most significant issue to the long-term conservati on status of wolves. Managing this source of mortality (i.e., overutilization of wolves for commercial, recreationa l, scientific and educational purposes and human predation) remains the primar y challenge to maintaining a recovered wolf population into the foreseeable future (FWS 2009f).

In both the Northern Rocky Mountain and Wester n Great Lakes DPSs today, wolf numbers are trending upward but at slower ra tes than has been documented in the recent past. Available habitat appears to be reaching carrying capacity. The total population in the Northern Rocky Mountain DPS today is about fi ve times higher than the minimum population recovery goal and three times higher than the minimum breeding pair recovery goal (FWS 2009f); the population has exceeded numeric and distributional recovery goals for about a decade. The Northern Rocky Mountain wolf population occupies nearly 100 percen t of the recovery areas recommended in the 1987 recovery plan (FWS 1987) and nearly 100 percen t of the primary analysis areas (the areas where suitable habitat was pred icted to exist and the wolf popul ation would live) analyzed for

wolf reintroduction in centra l Idaho and the greater Yellow stone area (FWS 1994a). As mentioned above, wolves in the Northern Rocky Mountain DPS have been delisted in Montana, Idaho, Eastern Oregon, and Easter n Washington and are proposed to be delisted in Wyoming.

Relatively slow growth to stable populations in Minnesota, Wisc onsin, and Michigan in recent years is indicative that available habitat is bei ng filled in the Western Great Lakes DPS. Wolves in the Western Great Lakes DPS greatly exceed th e recovery criteria (FWS 1992) for 1) a secure wolf population in Minnesota, and 2) a second population outside Minnes ota and Isle Royale consisting of 100 wolves for 5 successive years. Based on the criteria set by the Eastern Wolf Recovery Team in 1992 and reaffirmed in 1997 and 1998 (FWS 2011j), the proposed DPS

contains sufficient wolf numbers and distribution to ensure their long-term survival within the DPS, and this population has been delisted (FWS 2011f).

As mentioned above, the Mexican gray wolf population in New Mexi co and Arizona has struggled to remain viable, and numbers rema in very low. The NEP is currently not self-sustaining. A captive br eeding program has been the so urce of Mexican wolves for

reintroduction efforts to date. Currently, dispersing Mexican wolv es are stringently managed.

Individuals known to be from the reintroduced population are not al lowed to establish territories outside the recovery area boundaries ; they are captured and may be re turned to the recovery area, put into the captive population, or otherwise managed according to existing provisions (FWS72 1998). Mexico has recently initiated reintroduc tions of the Mexican wolf; in 2011, officials released five captive-bred Mexican wolves into the San Luis Mountains in Sonora just south of the United States-Mexico border (Bryan 2011). As of February 2012, four of the five released animals were confirmed dead due to poison (A lbuquerque Journal 2012). Despite the initial setback, Mexico continues plan additional releases . If wolves from Mexico disperse into the United States, they will be considered e ndangered under the ESA, unless they establish

themselves within the boundaries of the United States Mexican wolf experimental area, where they would be subject to the existin g management provisi ons (FWS 1998).

The number of dispersing wolves from recovered wolf populations may currently be at its peak due to high wolf recovery numbers. As states take over wolf management, they will likely seek to achieve lower, but still viable, wolf populati on levels; thus, the number of dispersing wolves may decrease under state management plans. Howeve r, the Service believes there will still be some dispersing wolves from existing populations into areas where Rozol may be applied for prairie dog control. Areas within the BTPD ra nge where the wolf remains protected are the locations where exposure to Rozol may occur th at results in take of gray wolves.

(5) Analysis of the specie s likely to be affected

Any gray wolves protected by the ESA that disperse from known populations in existing (typically forested) occupied ha bitats into open rangelands wher e the BTPD exists (within the 10 States where Rozol may be applied) are the in dividuals of concern with the potential to be adversely affected by the proposed action. This may include reintroduced Mexican gray wolves

that enter the United States from Mexico. Wolv es in NEPs receive protections of the ESA per their specific rulemaking parameters. Wolves o ccurring outside of existing DPSs or NEPs take

on the ESA status of the ar ea that they are in.

As mentioned previously under th e “Conservation Measures” secti on, in order to provide some protections for the Mexican gray wolf, the EPA and Liphatech agreed to preclude Rozol use from Catron, Grant, Hidalgo, and Sierra Counties of New Mexico which are part of the Blue Range Wolf Recovery Area. Prairie dogs occur in these counties but ar e primarily Gunnison’s prairie dog ( Cynomys gunnisoni ); the BTPD is not common in these areas (Johnson et al. 2003), and prohibiting Rozol use on BTPDs will further reduce possible impacts to those reintroduction efforts. Dispersing wolves from the Mexican gray wolf reintroduced population are few, and individuals are typically translocat ed or killed. Thus, while Rozo l use may still occur within the greater NEP area boundary, key areas of the reintr oduction area will not have Rozol use. This conservation measure is anticipated to reduce the risk of adverse effects from Rozol use to the Mexican gray wolf.

Some level of wolf dispersal is expected from other rec overed wolf populations, and the potential for endangered wolves to encounter Rozol in the proposed 10-state area of application exits. Documented gray wolf mortalities in the action area since 1981 (20 records were located for this analysis over a span of 31 years in th e states of North Dakot a and South Dakota (17), Colorado (2) and Nebraska (1)) have averaged approximately 0.65 wolves per year. These are documented wolf mortalities, but it is unknown how many gray wolves may disperse into the action area and not be reported.73 (a) Environmental Baseline

(1) Status of the species within the action area

Gray wolves are not uniformly protected unde r the ESA throughout the range of the BTPD. Some wolf populations have been delisted, and wolves in Wyomi ng are proposed to be delisted. The exact number of dispersing wolves that may occur in the range of the BTPD where Rozol is proposed for use cannot be determined with ce rtainty. The Service does not know of wolf populations in the range of the BTPD except for the reintroduction efforts in southwestern New Mexico. The Service recognizes that dispersi ng wolves can occur thr oughout the BTPD range and could be exposed to Rozol use.

(2) Factors Affecting Species Envi ronment within the Action Area

Throughout the range of the wolf , generally three factors domin ate wolf population dynamics: food, people, and source populations (Fuller et al. 2003). Among t hose three factors and within the BTPD range, people likely have the greatest influence on dispersi ng wolves. Traveling

wolves must cross numerous stretches of roads an d may be struck by vehicles. In addition to such vehicle-caused mortality, road access to wolf habitat generally increases the risk of other human-related mortality of wolves, including shooting and trapping (Mech et al. 1988; Fuller 1989). When individual wolves appear in areas not known to harbor packs, they are often mistaken for coyotes and shot. Wolves become part icularly vulnerable to this type of mortality when they occur in open rangelands, far from the protective cover of forest ed areas they usually inhabit. Cases of livestock depredation by di spersing wolves have also been documented, and those wolves are often killed as well. Ongoi ng animal damage control activities by the United States Department of Agriculture and/or state agencies in the ac tion area that target coyotes may

instead kill wolves in accordance with establishe d wolf depredation plans. While these factors affecting dispersing wolves are not expected to influence the existing healthy wolf populations from which they came, in the dispersal areas, wo lves may not survive long due to human-caused mortality. Dispersing wolves are likely to encount er many forms of threats when they leave their core areas, and high wolf mortality rates in the BTPD range are likely irrespective if Rozol is being used. We currently have no documented Ro zol-related mortalities of gray wolves.

(b) Effects of the Action

(1) Factors to be considered

According to the BA (page 107), chlorophacinone e xposure to the gray wolf is expected as the wolf range overlaps BTPD and gray wolf prey items may include animals poisoned by Rozol, including small mammals, birds an d large invertebrates. The EPA determined that adverse direct effects to the gray wolf are likely based on calculated RQs that incl uded 24.82 for exposure to non-target animals and 9.59 for exposure to BTPDs (Table 1.1, page 21, of the BA). In their Risk Quotient Methods and Levels of Concern submitted for this consultation, the EPA further estimates that the gray wolf w ould only need to consume less than 1 poisoned mouse or less than 1 poisoned BTPD every day for 5 days to exceed a 0.1 LOC for endangered species. On page 21 of the BA (Table 1.1), the EPA states that “g rowth and reproductive eff ects cannot be precluded due to the absence of chronic data; however, growth and reproductive effects are not expected74 because mortality typically occurs as a result of acute exposure.” Table 1.1 of the BA also describes potential indirect effect s due to the loss of pr ey base. The Service agrees that Rozol use on BTPDs could adversely affect dispersing wolves.

(2) Analyses for the effects of the action

The effects to dispersing gray wolves in the ac tion area are most likely to be indirect, i.e., secondary poisoning via consumption of Rozol-poi soned live animals or carcasses. It is suspected that wolves would consume dead or dying prairie dogs if they are encountered above ground and may also excavate and consume prairi e dogs that are buried or die underground. The frequency at which a dispersing wolf might encounter a Rozol-poisoned area is unknown and would depend on a variety of factors such as the pr evalence of Rozol use in the area, the type of habitat traveled by the wolf, the distance traverse d, and the availability of other prey items.

Although there are no previous reports of gray wolf exposure to chlor ophacinone rodenticides, other canines (including kit foxes and coyotes), in addition to an American badger, have been

found dead in association with Rozol applications (Ruder et al. 2011). Although these animals are smaller than a wolf, they are all opportunist ic predators and scave ngers like wolves. If multiple dead and dying prairie dogs and other no n-target small mammals were available for consumption, a wolf would likely take advantage of that situation. Effects of chlorophacinone exposure to the gray wolf when individuals do encounter a Rozol-pois oned prairie dog colony would likely be similar to those seen in domes tic dogs suffering from anticoagulant rodenticide

toxicosis which include shortne ss of breath, hemoptysis (i.e., the spitting up of blood from the lungs), pallor (i.e., reduced amount of oxyhaemoglobin in skin), a nd lethargy (Sheafor and Couto 1999, Murray and Tseng 2008). The EPA’s use of an adjusted LD 50 of 0.03 mg/kg to evaluate risk to gray wolves is much more cons ervative than using the chlorophacinone LD 50 range of 50-100 mg/kg for dogs (EPA 2010b).

The Service agrees with the EPA that a wolf that encounters a Rozol-poisoned BTPD colony could receive a lethal dose from consuming poiso ned prairie dogs. The extent of effects and severity of response by a gray wolf to consum ption of Rozol-poisoned animals would depend in part on the amount of Rozol ingest ed over time because most animals experience greater adverse effects from multiple doses of chlorophacinone. Repeat exposure could occur if a dispersing wolf remains near a Rozol-poisoned prairie dog colony and obtains multiple meals from it. Receiving a lethal dose may take more than on e poisoned prairie dog. Sub-lethal effects may occur if a wolf leaves a prairie dog town before c onsuming a lethal dose or if timing is such that it does not find enough Rozol-poisoned animals to consume. However, little information is available regarding sub-lethal effects, and Rozol is known to be an effec tive anticoagulant. It seems likely that death would be the likely result for a gray wolf that ingests Rozol, either directly through hemorrhaging or sub-lethal impairment of beha vior (e.g., breeding, feeding and sheltering), that eventually leads to its demise.

It is the Service’s opinion that indirect effects to the gray wolf due to the loss of prey base from use of Rozol are not cause for concern regarding effects to wolves because prairie dogs are not known to be a significant dietar y item for the gray wolf which normally does not inhabit BTPD areas. Dispersing individuals are antici pated to come upon BTPD colonies only opportunistically as they travel.75 (3) Species’ Response to the Action

Because the number of wolves di spersing into the action area is an ticipated to be very low (as indicated above, we are aware of 20 gray wolf mortalities over 31 years in the action area), population-level effects are not an ticipated. Most of the habita t within the action area is not important for wolf recovery, and we do not expe ct populations to become established in these

areas. Lethal control of wolves in North Dakot a and South Dakota has been determined to have no adverse effects on the long-term viability of wolf populations in the delisted Western Great

Lakes DPS because the existence of a wolf or a wolf population in the Dakotas would not make a meaningful contribution to the maintenance of the current viable , self-sustaining, and representative metapopulation of wolves in the Western Great Lakes DPS (FWS 2011j). The same may be said for wolves dispersing from th e Northern Rocky Mountain DPS. The potential impact to the Mexican gray wolf population within the area occupied by wolves is not expected to be great, given the EPA’s adopted conservation measure to prohibit Rozol use in counties

within the core reintroduction area, the ongoing intensive manageme nt (capture and return of dispersing wolves to reintroduction area) that inhibits dispersal of Mexican gray wolves, relative lack of preference by wolves for the open country typical of BTPD colonies, and risk posed to wolves that occur in such habitats where they are highly visible and vulnerable to more direct forms of human mortality (i.e., s hooting). However, within the 15-year timeframe for which this BO is applicable, it is possible for reintroduced Mexican gray wolves to enter the United States via Mexico’s reintroduction efforts, and Mexican gray wolves in New Mexico may expand their populations beyond the current 10(j) boundaries. If Rozol use is dete rmined to result in wolf mortality beyond the low levels an ticipated herein, such mortality could impede recovery of the Mexican gray wolf (FWS 1982). With the ex ception of the Mexican gray wolf population, individual gray wolves lost to Rozol poisoni ng are not anticipated to incur population level effects to the species. In the absence of huma n-induced mortalities and presence of adequate prey, gray wolves are a resilient species dem onstrating relatively fast recovery rates after population declines. However, due to the di minished status of the Mexican gray wolf population, take of any wolves in New Mexico due to Rozol is of increased concern and could affect the ability of wolves to expand their populations.

(a) Cumulative Effects

Cumulative effects include the eff ects of future state, tribal, local or private actions that are reasonably certain to occur in the action area consid ered in this BO. Future Federal actions that are unrelated to the proposed act ion are not considered in this section because they require separate consultation pursuant to Section 7 of the ESA.

The level of human activities in the action area today is anticipated to continue and perhaps increase as human populations cont inue to expand. Farming and ranching is prevalent in the range of the BTPD and will continue into the fo reseeable future. The Service anticipates high mortality rates for gray wolves that disperse in the BTPD range. Such wolves occurring outside of their current cores ranges are likely to be in tentionally or unintentionally killed via such mechanisms as vehicle collisions, poisoning, and shooting which will likely prevent recolonization of significant areas of the BTPD range. Cumulatively, wolf populations have

continued to rise in the face of these factors, except for the Me xican gray wolf population. For76 Mexican gray wolves, any additi onal mortality, when combined w ith the effects of the proposed action, is a cause for concern. However, we do not believe that it is to the level that would preclude recovery of the Mexican gray wolf, due to the low value of the open habitats preferred by BTPDs for the wolf.

(b) Conclusion Regarding Jeopardy

After reviewing the current status of the gray wolf, the environmental baseline for the action area, the effects of the proposed use of Rozol to control BTPDs in 10 western states, and the cumulative effects, it is the Serv ice’s biological opinion that the action, as proposed, is not likely to jeopardize the continued existence of the gray wolf. Critical habitat has been designated but

does not occur in or near the ac tion area; therefore, none will be affected. Our conclusion was based primarily on the following factors:

 Gray wolves dispersing into the action area ar e a very small portion of existing gray wolf populations, and such individuals are typica lly precluded from establishing packs and territories due partly to high mortality rates.

 Dispersing wolves in the BTPD range are not c onsidered critical to th e recovery of wolf populations in the United States and, cumulativ ely, gray wolf populations have continued to increase despite losses of dispersing individuals.

 The BTPD colonies are not typi cal habitat for the gray wolf, dispersing individuals are not anticipated to remain in such areas for long, a nd lack of cover for gray wolves within BTPD habitat often results in increased vulnerability to other mortality factors such as shooting.

 Gray wolf populations are considered recove red by the Service in the Northern Rocky Mountain and Western Great Lakes DPSs; delis ting has occurred, and future delisting in Wyoming is proposed.

 The conservation measure by the EPA to precl ude Catron, Grant, Hidalgo, and Sierra

Counties in New Mexico from Rozol use is protective of the Mexican gray wolf. Impediments to recovery may be possible in the future if Mexican wolf populations expand

into new areas and Rozol-related mortalities ar e determined to exceed currently anticipated levels for the Mexican gray wolf, but a low num ber of Mexican gray wolves are expected to be affected by the action at this time.

3. NORTHERN APLOMADO FALCON

a. Status of the Species/Critical Habitat

The northern aplomado falcon ( Falco femoralis septentrionalis ) is one of three subspecies of the aplomado falcon and is the only one of those record ed in the United States. This subspecies was listed by the Service as an endangered species on February 25, 1986 (FWS 1986). It once extended from Trans-Pecos Texas, southern New Mexico and southeastern Arizona, to Chiapas and the northern Yucatan along the Gulf of Mexi co and along the Pacific slope of Central America north of Nicaragua (FWS 1990). Nort hern aplomado falcons were fairly common in suitable habitat throughout these areas until the 1940s. However, they subsequently declined77 rapidly and became extirpated from the United States after 1952. The last documented nesting pair of wild northern aplomado falcons in the United States was in Luna County, New Mexico,

in 1952.

The decline of the northern aplomado falcon wa s caused by widespread shrub encroachment resulting from control of range fires and in tense overgrazing (FWS 1986, Burnham et al. 2002), and large-scale agricultural development in gr assland habitats used by the northern aplomado falcon (Heady 1994, Keddy-Hector 2000). Pesticide exposure was likely a significant cause of the subspecies’ extirpation from the United Stat es with the initiation of widespread use of organochlorine pesticides, such as DDT (dichlorodiphenyltrichloroethane) and DDE (dichlorodiphenyldichloroethylene), after Worl d War II which coincide d with the northern aplomado falcon’s disappearance (FWS 1986). No rthern aplomado falcons in Mexico in the 1950s were heavily contaminated with DDT re sidue, and these levels caused a 25 percent decrease in eggshell thickness (Kiff et al. 1980). Such high residue le vels can often result in reproductive failure from egg breakage (FWS 199 0). Use of organophosphate insecticides may also threaten northern aplomado falcons because insects and small, insectivorous birds are the species’ preferred prey items (Keddy-Hector 200 0). Collection of northern aplomado falcons and their eggs may have also been detrimental to the subspecies in some localities. However, populations of birds of prey are generally resilient to localized collection pressure (FWS 1990).

Little is known about the migratory behavior or seasonal movement s of northern aplomado falcons (Service 1990). Nesting ch ronology is somewhat variable w ith egg-laying recorded from January to September, although eggs are usually laid during the months of March to May. Northern aplomado falcons do not build their own ne sts, but use nest sites constructed by corvids such as Chihuahuan ravens ( Corvus cryptoleucus ) or by large raptors. Thus, northern aplomado falcons are dependent on nesting activities of other stick nest-b uilding birds and their habitat requirements. Nest sites are found in structures such as multi-stemmed yuccas ( Yucca torreyi

and Yucca elata ) and large mesquite trees ( Prosopis spp.) as well as other trees.

Northern aplomado falcons feed on a variety of pr ey, including birds, in sects, rodents, small snakes, and lizards. Ligon (1961) suggested that the food habits of northern aplomado falcons “consisted almost wholly of small reptiles, lizards, mice, other rodents, grasshoppers, and various other kinds of insects, ra rely small birds except in winter when other food is lacking.” Therefore, in winter, factors affecting habitat suitability for migratory bird species may also affect the suitability of the habitat for norther n aplomado falcons which in turn can affect the potential for survival of north ern aplomado falcons (FWS 2002b) . In eastern Mexico, small birds accounted for 97 percent of total prey biomass, but insects represented 65 percent of prey individuals (Hector 1985). In one study, 82 bird species were found in prey remains; of these, the most common were meadowlarks ( Sturnella spp.), common nighthawks ( Chordeiles minor ), northern mockingbirds ( Mimus polyglottos ), western kingbirds ( Tyrannus verticalis ), brownheaded cowbirds ( Molothrus ater ), Scott’s oriole ( Icterus parisorum ), mourning doves ( Zenaida

macroura ), cactus wrens ( Campylorhynchus brunneicapillus ), and pyrrhuloxia ( Cardinalis

sinuatus ), suggesting a preference for medium-si zed songbirds (FWS 2002b). Documented invertebrate prey includes grass hoppers, beetles, dragonflies, cicad as, crickets, butterflies, moths, wasps, and bees (FWS 1990). Differences in prey abundance and nest site availability can cause differences in home range size. Based on seve ral studies, the Service estimates the northern78 aplomado falcon home range size to be approximately 34 square km 2 (8,401 acres) (FWS 1990, 2002b). For management purposes, this area can be described by a ci rcle with a radius of 3.2 km (2 mi) around a particular habita t feature (e.g., a nest site).

Northern aplomado falcon habitat is variable throughout its range and includes palm and oak savannahs, various desert grassland associati ons, and open pine woodlands. Within these variations, the essential habitat elements appear to be open te rrain with scattered trees, relatively low ground cover, an abundance of insects and small to medium-sized birds, and a supply of nest sites (FWS 1990). In Mexico, reported habitat includes palm and oak savannas, open tropical deciduous woodlands, wooded fringes of extens ive marshes, various desert grassland associations, and upland pine parklands (FWS 1990). The historical range of the northern aplomado falcon in Texas, New Mexico and Arizona occurs within the Chihuahuan Desert which is comprised of three basic community types: desert scrub, desert gras slands, and woodlands. The species’ historical range also occurs in the coastal prairies of southern Texas.

Northern aplomado falcons are primarily associated with open grasslands that include scattered mesquite and/or yuccas, although small patches of scrub and woodlands may be used (FWS 2006f). Existing data suggest th at the ecological status of Chihuahuan Desert grasslands currently occupied by northern ap lomado falcons is high seral to potential natural community or climax with significant basal cover of grass specie s. Montoya et al. (1997) reported the occupied nesting habitat as having basal ground cover ra nging from 29 to 70 perc ent with a mean of 46 percent. Woody plant density ranged from 5 to 56 plants per acre with a mean of 31 plants per acre. Dominant woody plant species, comp rising 74 percent of this community, were Mormon tea ( Ephedra viridis ), soaptree yucca ( Yucca elata ), sacahuista ( Nolina microcarpa ), mesquite, senecio ( Senecio spp.), creosotebush ( Larrea tridentata ), and baccharis ( Baccharis spp.). Site-specific habitat assessments should be conducted to further define whether the site of a given project or activity occurs within suitable habitat for this species.

In recent times, the intense overgrazing that resu lted in shrub encroachment into grasslands has moderated, and improved range management t echniques have been developed, including decreased stocking rates, stoc k rotation, prescribed burning, a nd other brush control methods (Archer 1994, Heady 1994, Burnham et al. 2002). Furthermore, the use of DDT was banned in

the United States in 1972 and in Mexico in 2000. Present threats to the northern aplomado falcon including long-term drought and continue d replacement of grassland communities with shrubs in Chihuahuan Desert grasslands. Additio nally, large-scale conversion of grasslands to agriculture and the increased pres ence of the great-horned owl ( Bubo virginianus ), which preys upon the northern aplomado falcon, may be limiting r ecovery of this subspecies (Macías-Duarte et al. 2004, FWS 2006g). In contrast to these cu rrent threats, northern aplomado falcons appear to be relatively tolerant of human presence. Th ey have been observed to tolerate approach to within 100 m (328 ft) of their nests by research ers, have nested within 100 m (328 ft) of highways in eastern Mexico (Keddy-Hector 2000 ), and are frequently found nesting in association with well-managed livestock graz ing operations in Mexico and Texas (Burnham et al. 2002). Burnham et al. ( 2002) concluded that northern aplo mado falcons would be able to coexist with most current land-use practices in the United States on the broad scale. A recovery plan for the north ern aplomado falcon was finalized by the Service in 1990 (FWS 1990). The objective of the Aplomado Falcon Recove ry Plan is to ensure that the northern79 aplomado falcon is no longer threatened by habi tat loss, pesticide contamination, or human persecution. Implementation of the steps outline d in the Aplomado Falcon Recovery Plan could lead to downlisting the northern aplomado falc on from endangered to threatened by 2030.

To address reestablishment of northern aplomado falcons in the United States, reintroduction of nestling northern aplomado falcons was identifie d by the Aplomado Falcon Recovery Plan as a recommended methodology. To further aid reesta blishment, reintroducti on sites are carefully selected to optimize habitat suitability. Nort hern aplomado falcon reintroductions have been ongoing in southern Texas since 1985 on National Wildlife Refuges and private land under Safe Harbor Agreements. Consequent ly, by 2005, reintroductions had result ed in at least 44 pairs of northern aplomado falcons in southern Texas a nd adjacent Tamaulipas, Mexico, where no pairs had been recorded since 1942 (Jenny et al. 2004). The first nesting pair of northern aplomado falcons in south Texas subsequent to releas es did not occur until 1995; however, by 2005, the Texas pairs had successfully fledged more than 244 young (Juergens and Heinrich 2005). In 2008, The Peregrine Fund found that 31 out of 38 te rritories surveyed in southern Texas were occupied (The Peregrine Fund 2009). There are like ly more breeding pairs present in this area than what has been documented, considering areas of habitat that are inaccessible for surveys. Reintroduction of captive-bred no rthern aplomado falcons began in west Texas in 2002. The Peregrine Fund reported up to 10 breeding pair s were found in west Texas in 2009, including pairs that successfully re produced (Heinrich 2010).

Reintroduction of captive-bred northern aplomado fa lcons began in New Mexico with the release of 11 birds in 2006 on the privately-owned Armenda ris Ranch near Truth or Consequences. In 2007, a pair of northern aplomado falcons from this first year of reintr oductions produced two fledglings on the ranch. In 2007, a total of 41 bi rds were released in New Mexico on private, State, Bureau of Land Management, and Department of Defense lands. Re leases are planned to continue through 2015 with up to 150 northern aplomado falcons released in New Mexico each

year.

To date, 686 young falcons have been released in west Texas and 305 falcons in southern New Mexico in unfragmented native grasslands on private, State, and federally-managed areas. Northern aplomado falcons in New Mexico and Arizona are included in a NEP designation under Section 10(j) of the ESA (Servi ce 2006f). When NEPs are lo cated outside a National Wildlife Refuge or unit of National Parks, they are trea ted as proposed for listing and only two provisions of Section 7 apply: Section 7(a)(1) and Section 7(a)(4). Section 7(a)(4) requires Federal agencies to confer, rather than consult, with th e Service on actions that are likely to jeopardize the continued existence of a proposed species. The results of a conference are advisory in nature and do not restrict agencies fr om carrying out, funding, or aut horizing activities. Northern aplomado falcons have been reintroduced in Texas on private lands using Safe Harbor Agreements, and their regulatory status under the ESA is endangered. Therefore, Section 7(a)(2) consultation by Federal agencies app lies to aplomado falcons in Texas.80 Currently, there are approximately 36 aplomado falcon pairs in the United States, which

constitute less than two-thirds of the minimum number of 60 self-susta ining breeding pairs in suitable parts of the southweste rn United States recommended by the 1990 Recovery Plan for reclassification of the subspecies to threatened st atus. The great majority of these breeding pairs currently occur outside the action area of this project in south Texa s due to higher prey availability in the coastal region. Over the course of this 15-ye ar project, the Service expects more breeding pairs to establish in New Mexico and west Texas.

b. Environmental Baseline

Formal surveys and reliable sightings submitted to the Service show that a small number of northern aplomado falcons have be en sighted in the United States during every decade since the 1960s (FWS 2006f). In addition, a resident pair of northern aplomado falcons in Luna County, New Mexico, bred successfully in 2002, fledgi ng three young. These were the first known northern aplomado falcons produced in either New Mexico or Arizona since the subspecies' extirpation as a breeding species in the 1950s. Another pair was reported near th is site in 2002, but no nest was located and only one of the pair was present 2 days later (Meyer and Williams 2005). The 2002 nest represented the first succ essful reproduction by naturally occurring northern aplomado falcons in the United States in 50 years. Meyers and Williams (2005) reported at least eight indivi dual northern aplomado falcons in Luna County between 2000 and 2004. The species occurred historically in Hidalg o County, and there have been five reports of northern aplomado falcons in or near the Anim as Valley from the 1990s through the early 2000s (Meyer and Williams 2005).

(1) Status of the species within the action area

The action area for this consultati on includes the historic range of the BTPD in the United States and counties adjacent to that range. The north ern aplomado falcon is currently found in Texas

and New Mexico as well as Guatemala and Mexic o. Therefore, the portion of the action area of concern for the northern aplomado falcon include s only New Mexico and Texas where the range of this species coincides with the proposed use of Rozol to control BTPDs in the United States.

Northern aplomado falcons in New Mexico were designated a 10(j) NEP to encourage landowners to support the reintr oduction of northern aplomado falc ons in the state. Several landowners have supported reintroduction and manage the introduction areas to promote northern aplomado falcons. Under the 10(j) rule, northern aplomado falcons do not have

incidental take restrictions on private lands. In Texas, privat e landowners that have allowed releases of northern aplomado falcons on their property are part y to a Safe Harbor Agreement (FWS 1996 and 2000a) that covers the entire area w ithin 30 miles of each re lease site. Under the Safe Harbor Agreement program, participati ng landowners are permitted to take northern aplomado falcons incidental to future lawful land-use actions (such as prairie dog control), provided that the landowner maintains any establ ished baseline responsibilities (FWS 2000b). All northern aplomado falcon release sites and a ll recorded nests and northern aplomado falcon pairs within the action area in Texas occur on lands covered by the Safe Harbor Agreement (Montoya 2011, personal communication).81 (2) Factors affecting species envi ronment within the action area

The loss of or physical degradation of conditio ns in occupied habitat or in potential reintroduction sites would compro mise the reintroduction program and recovery of the northern aplomado falcon. While the NEP in New Mexico and Arizona is not necessary for the continued survival of the species, it provides the benef it of an additional popula tion in the event of a catastrophic loss of populations in Texas.

Sources of loss and degradation of nesting a nd roosting sites may incl ude land use and human

activities. The activities described below are common sources of stressors that affect the conservation of the northern aplomado falcon.

(a) Land use Land use activities affect the distribution, de nsity, and species composition of the native vegetation communities on the landscape. Land clea ring (including for facilities, roads, trails and utility corridors) eliminates the vegetation, li vestock grazing reduces the biomass of desired species and promotes others (that may have di ffering densities on the ground as well), ground or surface water depletion eliminates riparian a nd marsh vegetation communities, and erosion can eliminate plants along the paths of gullies.

(b) Livestock grazing

There has been considerable l iterature produced on the effect s of livestock grazing on natural vegetation communities in the dese rt Southwest. Desert shrubl ands, grasslands, and woodlands in arid areas face certain threats from any land use that affects th e surface and vegetation community.

Currently, the intense overgrazing that resulted in shrub encroachment in the Chihuahuan Desert grasslands in New Mexico and Arizona ha s moderated, and improved range management techniques have been developed and implemente d, including decreased st ocking rates and stock rotation. Techniques to increase the incidence of beneficial fire, to restore and increase vegetative productivity, to control erosion, and to suppress brush encr oachment have been widely implemented in this planning unit. Am ong these are managed fire (including prescribed burns), various types of erosion control structur es, and various types of brush control measures (Archer 1994, Heady 1994, Burnham et al. 2002). In addition, livestock management on Federal lands must now also consider other public res ources. Within this planning unit, many private landowners and public land managers maintain well-managed livestock grazing programs that are compatible with northern aplomado falc on nesting and roosting and maintenance of

reintroduction hab itat suitability.

(c) Road construction, maintenance, and use

Construction and maintenance of access roads has a significant effect on the landscape. Roads and trails provide for foot or vehicle access to th e landscape for a variety of purposes that often have other effects on soils, water featur es, vegetation communities, and wildlife.82 (d) Communications towers and power lines Although the effect of communication towers an d power lines on the northern aplomado falcon is not well documented, these structures can have an adverse effect on bi rd species in general, and raptors in particular, due to collision or electrocution. Although bird s can collide with any part of a communication tower, causing injury or death, they are most likely to collide with unmarked guy wires, which can be difficult to s ee. Northern aplomado falcons may also collide with power lines, especially if the power lines are unmarked. Power lines that are uninsulated may electrocute northern aplomado fa lcons if they try to use them to perch on or collide with them. Northern aplomado falcons may be particular ly vulnerable to collision with such objects as they tend to “engage in high-speed, low-leve l, reckless pursuits of swift avian prey” (KeddyHector 2000).

(e) Organochlorine and organophos phate pesticide contamination In the past, organochlorine com pounds (DDE/DDT) were heavily us ed in pesticide applications in the agricultural areas surrounding northern aplo mado falcon habitat in south Texas. It is unclear to what degree residual chemicals may stil l be present in the species’ prey base, although some evidence indicates that this may be a lingering threat (Mora et al. 1997, Keddy-Hector 2000). In addition, organophosphate insecticides may threaten the species through adverse effects on its primary prey base of insects a nd small insectivorous birds, particularly in agricultural areas of south Texas.

c. Effects of the Action

The RQ calculated by the EPA for the northern aplomado falcon, based on the LC 50 value of 56 mg active ingredient per kil ogram diet, was 0.104 for consumpti on of non-target animals. A LOC of 0.1 for the RQ is set for listed species (EPA 2010b). Because the RQ of 0.104 exceeds the LOC, the EPA determined that there is poten tial for risk of acute adverse effects to northern aplomado falcons from exposure to Rozol (EPA 2010b). The BA states that the northern aplomado falcon would have to consume 5 poisone d mice or less than 1 poisoned BTPD to reach the LOC and are more likely to consume mice than BTPDs. The BA also states that, because no avian reproduction studies have been conducted, risk cannot be precl uded at any level.

While there is no avian reproductive study to he lp estimate risk, external bleeding, fatigue, internal hemorrhaging, and increased blood coag ulation has been repo rted in studies of secondary exposure to birds (see section on “Inda ndione Mode of Action and Toxicity” above). Additionally, chlorophacinone is a first generati on rodenticide, and consecutive intake over multiple days tends to reduce the amount that resu lts in lethal dose. T hus, BTPDs and non-target species such as mice can accumulate a “super dose” prior to expiring or becoming intoxicated and predated upon by birds such as the northern ap lomado falcon. It could take less than 5 mice or 1 BTPD to intoxicate a northern aplomado falc on. However, due to its relatively small size, the northern aplomado falcon is not likely to take prey as large as a BTPD, and the northern aplomado falcon is not known to scavenge.

As described in the “General Background” secti on above, raptors such as the northern aplomado falcon may be especially sensitive to Rozol per our previous discussion in the “Rozol Exposure and Effects Assessment” section. Although toxicity data for chlorophacinone effects to raptors83 are lacking, toxicity tests with diphacinone indicate that some raptors are 20-30 times more sensitive than the two test sp ecies, northern bobwhite quail an d mallard duck, required by the EPA for pesticide registration (Rattner et al. 2010a, 2011a, 2011b) . Given the similarity of chlorophacinone to diphacinone, we believe that the northern aplomado falcon is more sensitive to Rozol than was estimated in the BA using bobwhite quail LC 50 data. Therefore, acute and sub-acute risks to the northern aplomado falcon are likely higher than assessed in the BA.

If individual northern aploma do falcons were to enter a BTPD colony, exposure to chlorophacinone via consumption of primary consum ers of Rozol bait may occur. The falcons are not known to consume carrion, but Rozol poisoning of this species is possible via consumption of live mammals and birds that have fed on Rozol bait. As mentioned previously, the evidence of Rozol exposure to horned larks and a meadowlark from a field application of Rozol (Vyas 2010a) indicate that predation of so ngbirds that have consumed Rozol bait is a likely route of exposure to northern aplomado falc ons. In addition to small birds, which the falcon may prey on preferentially in the winter when other food is lacking, the food habits of the northern aplomado falcon consist of small reptiles, lizards, mice, other rodents, grasshoppers and other insect species. In easte rn Mexico, small birds accounted for 97 percent of total prey biomass, but insects represented 65 percent of prey individuals (Hector 1985). In one study, 82 bird species were found in prey remains sugge sting a preference for medium-sized songbirds, although birds over 500 g have b een recorded (FWS 2002b).

Following treatment with Rozol, northern aploma do falcons may experience repeated doses of Rozol-exposed prey. During a Rozol treatment, dead and dying primary consumers (i.e., BTPDs, other small mammals, and birds) were vi sible in colonies 9 days after treatment and were still present when the study ended at da y 29 post-treatment (Vyas 2010a). Additionally, raptors may preferentially fed at prairie dog colo nies treated with Rozol compared to untreated colonies (Vyas 2010a). This effect has been observed in predators previously. Kestrels preferentially catch prey displa ying aberrant behavior following pesticide exposure compared to healthy prey (Hunt et al. 1992). The northern aplomado falc on may also be attracted to Rozol-treated prairie dog colonies if they provide a source of easy meals of either rodents or birds species.

Northern aplomado falcons experiencing seconda ry exposure to chlorophacinone are likely to experience mortality or sub-lethal effects whic h may result in behavioral changes affecting feeding, breeding, or sheltering activities of indi viduals. The effects of toxicity could be influenced by other stressors, such as previ ous exposure and retention of pesticides, including other anticoagulants.

Because raptors may be highly sensitive to Rozol, non-target exposure is also likely to reduce the availability of large raptor nests that northern aplomado falc ons require for nesting. As described above, northern aplomado falcons do not build their own nests but use nests constructed by corvids or large raptors. Thes e large predators can successfully predate or scavenge prairie dogs that have eaten Rozol-contam inated bait. When these predators are killed by exposure to Rozol, the number of stick nest s available to northern aplomado falcons for nesting is also reduced. This may cause north ern aplomado falcons to expend more time, energy,

and risk to locate suitable nest ing substrate, or they may find no suitable nests and forego breeding altogether.84 Actual exposure is expected to be minimal due to the low density of BTPD colonies within the northern aplomado falcon’s range. In addition, in areas where the northern aplomado falcon has been reintroduced in Texas, landowners have signed cooperative agreements with the Service and The Peregrine Fund to maintain northern aplo mado falcon habitat at or above baseline levels and are responsible to notify these organizations before performing land use practices that may adversely affect the northern aplomado falcon. Fo r these reasons, we expect the frequency of northern aplomado falcons encountering Rozol-tr eated BTPD colonies to be low, and few northern aplomado falcons would experience sub-le thal effects or mortality from consuming Rozol-exposed prey.

However, we also anticipate that detection of Rozol-poisoned northern aplomado falcons will be rare. The birds are highly mobile; debilitated, dying, or dead falcons, particularly when they move away from Rozol-poisoned prairie dog col onies, are likely to go unreported. Rozol has

been used for BTPD control in Texas since 2006 under a SLN label. While we are unaware of any incidents involving Rozol and the northern aplomado falcon, we recognize the vastness of the area involved and the difficulty in locating Ro zol-affected raptors such as northern aplomado

falcon.

d. Cumulative Effects

Cumulative effects include the effects of future St ate, tribal, local or pr ivate actions that are reasonably certain to occur in the action area consid ered in this BO. Future Federal actions that are unrelated to the proposed act ion are not considered in this section because they require separate consultation pursuant to Section 7 of the ESA.

Human activities may affect the northern aploma do falcon and result in direct and indirect mortality, habitat loss, or reduction of habita t suitability. Anthropogenic uses of northern aplomado falcon habitat include ungulate graz ing, recreation, fuels reduction treatments, resource extraction (e.g., timber, oil and gas), and development (e.g., roads and power lines). These activities can potentially reduce the quality of northern aplomado falcon nesting, roosting, and foraging habitat, and may cause di sturbance during the breeding season.

e. Conclusion Regarding Jeopardy

After reviewing the current status of the north ern aplomado falcon, the environmental baseline for the action area, the effects from the use of Rozol, and the cumulative effects, it is the Service’s biological opinion that the use of Rozol, as proposed, is not li kely to jeopardize the continued existence of the northern aplomado falcon. No critical habitat has been designated for this species; therefore, none will be affected.

The reasons for this determination are:

 The northern aplomado falcon may prey on non-ta rget organisms that feed on Rozol grain bait, but it is unlikely that this would occur regularly or predictably. Because the aplomado falcon does not feed upon dead animals, exposur e to individuals would only occur from

moribund animals on the surface. Moribund animals are expected to be a small proportion of Rozol-poisoned animals available on the surface.85  In areas where the northern aplomado falcon ha s been reestablished in Texas, landowners have signed cooperative agreements with the Service and The Peregrine Fund to maintain northern aplomado falcon habitat at or above baseline levels, and are responsible to notify these entities before performi ng land use practices that may adversely affect the northern aplomado falcon.

 As BTPD colonies are not known to be hi ghly important habitat for northern aplomado falcon foraging, it is not anticipated that Rozo l use as proposed in this action will preclude recovery of this species even when combined w ith other potential anthr opogenic threats. In addition, cooperative agreements with landowne rs in reintroduction areas allows for the monitoring and potential avoidance of take within reintroduction areas.

 Most breeding aplomado falcons are outside the action area of this project in south Texas. This greater proportion is expected to persist fo r the duration of this project due to higher prey availability in the coastal region. Therefore, the survival of the northern aplomado falcon is not anticipated to be jeopardized by Rozol use in New Mexico and west Texas.

 Reintroduction of captively bred no rthern aplomado falcons is expected to continue within the range of the species during some years of this project.86 

### INCIDENTAL 

## TAKE STATEMENT

I. INTRODUCTION

Section 9 of the ESA and Federa l regulation pursuant to Section 4(d) of the ESA prohibit the take of endangered and threatened species , respectively, without special exemption. Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct. Harm is further defined by the Serv ice to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined by the Service as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to signifi cantly disrupt normal behavior patterns which include, but are not limited to, br eeding, feeding or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carry ing out of an otherwise lawful activity. Under the terms of Section 7(b)(4 ) and Section 7(o)(2), taking th at is incidental to and not intended as part of the agency action is not c onsidered to be prohibi ted taking under the ESA, provided that such taking is in compliance with the terms and conditions of the ITS.

The measures described below ar e non-discretionary and must be undertaken by the EPA so that they become binding conditions of any grant or pe rmit issued to Liphatech, Inc., as appropriate, for the exemption in Section 7(o)(2) to apply. The EPA has a continuing duty to regulate the activity covered by this ITS. If the EPA 1) fails to assume and implement the terms and conditions, or 2) fails to require Liphatech, Inc. to adhere to the terms and conditions of the ITS through enforceable terms that are added to th e permit document, the protective coverage of Section 7(o)(2) may lapse. In order to monito r the impact of incidental take, the EPA must report the progress of the action and its impact on the species to the Service as specified in the ITS (50 CFR § 402.14(i)(3)). For the norther n aplomado falcon, this applies to Texas populations.

For northern aplomado falcons in New Mexico, th e prohibitions against ta king this species found

in Section 9 of the ESA have been modified by the nonessential experimental designation. The results of this conference are advisory in natu re and do not restrict ag encies from carrying out, funding, or authorizing activities. However, the Service advise s EPA to consider implementing the RPMs for northern aplomado falcons in New Mexico.

Under the Safe Harbor Agreement program, for northern aplomado falcons participating landowners are permitted to take aplomado falcons incidental to future lawful land-use actions (such as prairie dog control), provided that th e landowner maintains any established baseline responsibilities (Service 2000b). This ITS exempts take of black-footed ferrets , gray wolves, and northern aplomado falcons protected by the ESA that may be incurred by the proposed action, provided the September 10, 2010, Rozol label, with modifications specified herein, is followed.

Noncompliance with the Rozol label that results in take of gray wolves is not covered by this ITS; end users who do not comply with label requ irements are not afforded take coverage and are subject to prosecution unde r Section 9 of the ESA.87 

### II. AMOUNT OR EXTENT OF TAKE ANTICIPATED

A. Black-footed ferret

The Service has developed this ITS based on the premise that the EPA and Liphatech will implement the label measures that include black-footed ferret conservation measures as previously described. The conservation measures prohibit application of Rozol within current

black-footed ferret reintr oduction sites (12 sites in the 10 stat es) and future reintroduction areas to reduce the level of impact to the black-footed fe rret. This information is to be located in the

EPA’s Bulletin Live! database. Changes to this database take approximately 8 months to enact; therefore, the Service will provide information to the EPA accordingly.

Take of black-footed ferrets is expected in the form of mortalit y when individuals disperse from

a reintroduction area and encounter a BTPD colony that has been poisoned with Rozol within the previous 2 months, or if the black-footed ferret is residing on a colony when Rozol is applied.

While black-footed ferrets can l eave reintroduction sites, those de partures are unlikely to be documented, and the Service is unable to accurate ly predict the number of black-footed ferrets that may encounter Rozol-poisoned BTPD coloni es. Most black-footed ferrets that leave a reintroduction area are likely to die because of natural causes (p redation/starvation) or other activities (vehicle collisions) unrelated to Rozol. Further, due to black-footed ferrets’ nocturnal behavior and tendency to spend much of th eir time underground in prairie dog burrows, it is unlikely that many, if any, black-foot ed ferret mortalities due to Rozo l will be reported to further inform this issue. Therefore, while dispersi ng black-footed ferrets may die from consuming Rozol-poisoned prairie dogs, this number is not anticipated to be large and will rarely be

detected.

At previous black-footed ferret reintroduction sites, there are ve ry few reports of dispersing animals outside the reintroduction site, and the re ports received are typi cally associated with

mortalities such as vehicle col lisions or possible si ghtings that are followed up with concerted nighttime surveys (Hanebury and Biggins 2006) . Black-footed ferret reintroduction site managers are authorized to retrieve dispersing blac k-footed ferrets if that information is available

and if the landowner wants the black-footed ferre ts removed from their property. Requests to

relocate black-footed ferrets that have left a reintroduction area are very rare.

The Service anticipates that take of dispersing black-footed ferrets that leave a reintroduction area and encounter a Rozol poisoned BTPD colony will result in two or fewer black-footed ferret mortalities per year because the number of disper sing individuals is not believed to be high and most dispersing black-footed ferrets are expected to die of natural causes or other forms of

incidental take. Black-footed ferrets that are captured alive from an area proposed for Rozol use

and relocated to suitable habitat where Rozol will not be applied will not be counted against the lethal take of two black-footed ferrets per cale ndar year. The relocation of live black-footed ferrets from proposed Rozol use areas, while considered take, is authorized under each reintroduction sites’ existing management plan and through a Service issued permit to the recovery partners at that site. That permit authorizes activities incl uding black-footed ferret relocation, if needed, at each of the reintroduction sites through coordination with the Black-footed Ferret Recovery Coordinator. Theref ore, this Rozol ITS is not intended to cover88 relocation activities because such actions have b een already been author ized under the ESA, or will be authorized by another means in the futu re. Black-footed ferret mortalities from those relocation efforts are not anticipated.

The Service does not anticipate take in the form of harm through habitat loss because the conservation measures prohibit Rozol use in existing and future black-footed ferret

reintroduction sites. Current in formation does not indicate that Rozol use is limiting potential

black-footed ferret re introduction sites.

B. Gray wolf

The Service anticipates that dispersing wolves from source populations may occur in the BTPD range at an average rate of 0.65 wolves per year (essentially 1 or 2 every other year), based on documented mortalities outside of existing DPSs and the 10(j) area for the Mexican gray wolf.

This is considered a conservative number as a dditional dispersers have likely occurred and have gone undetected. Other forms of mo rtality can affect these wolves before any exposure to Rozol occurs. However, if wolves ingest poisoned pre y, evidence suggests that the wolves are likely to die. The exact number of wolves that may en counter a Rozol-poisoned prairie dog town with dead and dying prey is not determinable; however, we conclude that the number would be low. The Service anticipates that one ESA-protected gray wolf every 3 years coul d be taken as a result of this proposed action. Due to th e long-distance dispersal capabilities of gray wolves, this take could conceivably occur in Rozol-poisoned prai rie dog towns throughout the action area, but the risk is likely greatest in those states within proximity to the source populations of the recovered Northern Rocky Mountain and We stern Great Lakes DPSs (e.g., North Dakota, South Dakota, Nebraska, and Colorado). Due to the low numbe r of gray wolves in the Mexican gray wolf population, we anticipate take of gray wolves from the Mexican gray wolf to be lower. We anticipate that only one gray wolf from the Me xican gray wolf population will be taken over the course of the 15-year term of this biological opinion.

D. Northern aplomado falcon

Take of the northern aplomado falcon is expected in the form of mortality or sub-lethal effects such as changes in behavior when they consume prey from a BTPD colony that has been poisoned with Rozol. The Service is unlikely to know when that might occur nor be able to accurately predict the number of northern aplomado falcons that may encounter BTPD colonies or non-target prey that have been exposed to Rozol. It is unlikely that northern aplomado falcons will be found; therefore, it is unlikely that many, if any, northern aplomado falcon mortalities due to Rozol will be reported to further inform the EPA and the Service on this issue.

We anticipate that northern aplomado falcons in Texas that encounter Rozol-exposed BTPD colonies or non-target pr ey will result in one or fewer mort alities over 5 years. We further anticipate that one or fewer north ern aplomado falcons in Texas ove r 5 years will be harassed to

a level that results in take thr ough a reduction in available nest si tes caused by Rozol mortality to large raptors and ravens. However, since this take is unlikely to be easily detected, 2 falcon mortalities or injuries attributable to Rozol use w ill be considered to be representative of the total amount of take exempted for each 5 years of this 15-year project.89 

### III. EFFECT OF TAKE

A. Black-footed ferret

The Service has determined that tw o mortalities per year of disper sing black-footed ferrets due to Rozol use is not likely to jeopard ize the continued existence of the species or materially affect black-footed ferret recovery because individual s dispersing from reintroduction sites are not known to regularly return and cont ribute further to ferret recovery. It is acknowledged that if a Rozol-caused black-footed ferret mortality that is reported, there could be multiple black-footed ferret mortalities not found or reported. Because the expected mortalities are likely to be dispersing black-footed ferrets that are unlikely to contribute to the success of the reintroduction site, such losses are not anticipated to compromise the survival a nd recovery of the black-footed

ferret.

B. Gray wolf

The Service determines that the le vel of anticipated take is not likely to result in jeopardy to the species or destruction or adverse modification of cr itical habitat. Gray wolf critical habitat does not occur within the action area. Few gray wolves are anticipated to disperse into the action area from established populations. The BTPD habitat is generally not preferred habitat for this species. Take is expected to be relatively lo w and not anticipated to have any population-level effects to recovered source populations of gray wo lves that disperse into the action area. The low number of Mexican wolves ( one over 15-year timeframe) that may be taken is not currently a threat to its recovery. Rozol use on BTPD to wns, and any resulting take of gray wolves will likely not substantially change the mortality ra tes of long-distance dispersing wolves, as these individuals are already at high risk of encountering other known factors of wolf mortality during their travels. Rozol poisoning is likely a compensatory form of mortality (whereby any individuals lost to Rozol pois oning would have been likely to succumb to another form of mortality in the absence of Rozol) not resulting in an overall incr ease in total mortality of gray

wolves.

C. Northern aplomado falcon

The Service has determined that two northern aplo mado falcons, in the form of one mortality and one harassment per 5 years in the 15-year timef rame, due to Rozol use are not likely to jeopardize the continued existen ce of the northern aplomado falcon. This amount of take is not likely to result in population level effects to the sp ecies nor reduce its chances for recovery. This

is due to the fact that the core of the northern aplomado falcon population is expected to persist at current or greater levels in southern Texas, outside the action area of th is project. In addition, reintroduction of captiv ely bred northern aplomado falcons is expected to continue within the range of the species during so me years of this project.90 

### IV. REASONABLE AND PRUDENT MEASURES

The Service believes the following RPMs are necessa ry and appropriate to minimize the impacts of incidental take of black-footed ferrets, gray wolves, and/or northern aplomado falcons resulting from the proposed action. The RPMs belo w apply to all three species unless specified

otherwise within the RPM.

RPM 1:

 The EPA shall ensure that proper information regarding listed species and secondary poisoning risks is provid ed to Rozol users.

RPM 2:

 The EPA shall ensure that the best available in formation is applied to the Rozol label in the

future.

RPM 3:

 The EPA, in cooperation with Liphatech, Inc. sh all develop and maintain a system to track Rozol used for BTPD control and report to the Service the amounts distributed in each of the

10 States.

RPM 4:

 If an applicator or the EPA becomes aware th at a black-footed ferret is known to occupy a BTPD colony outside of a reintroduction area, Rozol cannot be used on that colony until the individual or individuals have been relocated. The EPA will ensure that if a previously

unknown wild black-footed ferret population is discovered, Rozol use will not be used on that population.

RPM 5:

 Within the range of the northern aplomado falc on, the EPA shall maintain its County Bulletin ( Bulletins Live! ) website so that a current listing of counties with habitat for northern aplomado falcons is available to the public for educational purposes. We are aware that an 8-month timeframe exists for incorporating any new information into Bulletins Live!

.

RPM 6:

 Within the range of the northern aplomado fa lcon, the EPA shall inform public users about the risks of Rozol to non-target orga nisms and how risks can be minimized.

The EPA has adopted Conservation Measures intended to reduce the adverse impacts of Rozol use on federally listed sp ecies via prohibition of Rozol us e in some areas and/or timing restrictions; new Rozol label language requiri ng systematic search protocols to improve above-ground detection and di sposal of above-ground target and non-target animals, reporting of federally listed species as well as reporting of any non-targets; and new education, training, and outreach efforts intended to improve applicator compliance with the

Rozol label. The above RPMs with their im plementing terms and conditions below include additional items not addressed by EPA’s Cons ervation Measures. So me aspects of the education, training and outreach Conservation Measure requires additional coordination with91 the Service to ensure content meets the intended purpose. Information regarding the most appropriate search protocol is currently lacking at this tim e, thus in the event improved methods are developed in the future, it is appr opriate for EPA to consider that information and adjust the Rozol label accordingly to lower the risk of take. Information regarding the amount of Rozol produced, used, and sold is not currently availabl e to the Service and constraints exist to obtaining it; thus gross pr oduction data will be evaluated over time as to whether it provides useful information relative to species’ recovery pros pects. Relocation of black-footed ferrets that have moved beyond re introduction site boundaries and protection of currently unknown wild ferret popula tion are appropriate steps to re duce take to that species.

Education and outreach are deemed valuable to reduce the risk of take to northern aplomado falcons, particularly with the current level of ongoing coordination with private landowners.



### V. TERMS AND CONDITIONS

Compliance with the following terms and conditions must be achieved in order to be exempt from the prohibitions of section 9 of the ESA. These terms and conditions implement the RPMs

described above. These terms and conditions are nondiscretionary.

To implement RPM 1:

 The EPA shall submit to the Service, for review and approval prior to their use, materials to

be used relative to the Conservation Measur e for the EPA’s additional training during annual pesticide applicator recertif ication programs and Liphatech’s Rozol Prairie Dog Bait Product Stewardship Program. At a minimum, the traini ng materials shall include (in addition to the information provided by EPA as a conservation m easure) a description of the listed species and their habitats; the genera l provisions of the Endangered Species Act; the necessity for adhering to the provisions of the Act; the penalties associated w ith violating the provisions of the Act; the specific measures that are being implemented to use Rozol in a manner compatible with the conservation of listed spec ies; and the boundaries in which Rozol can be lawfully applied.

 The EPA and Liphatech shall provide the Se rvice with the opport unity to attend and participate in any education, outreach, and trai ning sessions conducted as part of the EPA’s efforts relative to the annual pesticide appli cator recertification pr ogram and Liphatech’s Rozol Prairie Dog Bait Product Stewardship Program

.

To implement RPM 2:

 If information becomes available on more effective methods for search and removal protocols than the line-trans ect protocol specified on the label (as described in the Conservation Measures portion of the Description of the Propos ed Action section above), the EPA shall incorporate the best available information on the Rozol label to reduce the availability of Rozol-poisoned target and non-target animals on the surface after coordinating

with the Service.92 To implement RPM 3:

 Liphatech and the EPA will provide informati on to the FWS regarding the amount of Rozol produced for BTPD control and the gross distributi on per state for a period of 5 years. When Liphatech and the EPA provide such information to FWS, it will be marked, if appropriate,

as Confidential Business or Co mmercial Information. After 5 years, the EPA, Liphatech and

the Service will determine the need for continued reporting. The decision of whether to continue this reporting will be based upon the confidence that the available information provides the Service with an acceptable understa nding of Rozol sales for future projection over the course of the Biological Opinion for the registration of Rozol. The factors that may be considered shall include ( but shall not be limited to):

o Measures of the statistical confidence in the sales trend derived from the 5 years of reported data, and

o The nature of the trend function fitt ed to the available sales data.

For example, if the data suggest that the sales trend has reached some asymptote, the continuation of additional reporting may be unne cessary as the market has matured (other factors may be considered in this event). If the sales trend shows a logarithmic increase in sales, there may be a need to continue reporting to determine if this trend estimate is

accurate. If the trend line shows a stable linear growth, the registrant my elect to terminate or continue reporting with the unde rstanding that the trend line information up to that point would serve as the predictor of sales and trea ted acres for the remainder of the registration decision.

To implement RPM 4:

 In the event live/dead black-f ooted ferrets are found outside reintroduction sites, before, during, or after Rozol applica tion, the Black-footed Ferret Coordinator must be contacted immediately at (970) 897-2730, ex tension 224. Sufficient time mu st be allowed to capture and relocate black-footed ferrets before Rozol application. Additional contact information

for the Black-footed Ferret Coor dinator is provided below under “ Disposition of federally listed species. ”

 The EPA shall modify the EPA Bulletins Live! website to include the location of wild extant black-footed ferret populations if discovered in the future.

To implement RPM 5:

 By November 26, 2012, within th e range of the northern ap lomado falcon, the EPA shall include the following language in the EPA’s County Bulletins ( Bulletins Live! ) for counties

with falcon habitat to increase landown er awareness in these areas:

Prairie dog colonies in this county may be occupied by the federally endangered northern aplomado falcon. Rozol applica tion may be harmful to the northern aplomado falcon. Please contact the U .S. Fish and Wildlife Service in New
Mexico at 505-346-2525, and in Texa s at 817-277-1100 to find out where northern aplomado falcons occur in the county before application.93 To implement RPM 6:

 Prior to Rozol application in the range of the falcon, the EPA will include content on its Endangered Species Protection Program (ESPP) website about the risks of Rozol to non-target organisms, such as the aplomado falcon and its prey, and how risks can be minimized. This information will be developed in coordination with the Service, and will be in a format that can be printed as a hand-out for distribution to la ndowners with suitable habitat for the northern aplomado falcon.

 This information will also be electronically provided to states th at include the northern aplomado falcon range for their use and dissemi nation during certified applicator training.

Reporting requirement

When incidental take is anticip ated, provisions for monitoring activ ities of the action are required

to determine actual effects on fede rally listed species. Monitori ng and reporting is essential for the Service to assess the action effects, track in cidental take levels, a nd refine the BO, RPMs, and terms and conditions. Thus, the EPA shall provide a written annual report to the Service each year this biological opinion is in effect. The report shall be submitted to the Service by May 15 of each year. The report shall include:

 The number of, and species of, any non-target species reported to the National Pesticide Information Center, with associated relevant incident information;

 The number and locations of applicator traini ng sessions, including the number of attendees at each training.

 The number and circumstances surrounding any federa lly listed species killed or injured as a result of Rozol poisoning;

 A discussion of progress in implementing th e RPMs and terms and conditions contained in the BO, including:

o Any problems encountered in implementing them;

o Recommendations for modifying the stipulat ions to enhance the conservation of the covered species;

o Any new information, study results, or other relevant information that EPA receives regarding the proposed action and it's likely effects to listed species;

o A description of activities planned for the coming reporting year; and

o Any other pertinent information.

This document will assist the Service, the EPA, and the Liphatech evaluating future measures for

the conservation of the black-footed fe rret, gray wolf, and aplomado falcon.94 Disposition of dead or in jured federally listed species

Upon locating dead, injured, or sick federally listed species, the an imals shall be left in place, photographed if possible, and immediately report ed to one of the Service Law Enforcement numbers provided on the label (via EPA’s Conserva tion Measure to change the label), or a local Service Law Enforcement Agent, along with any in formation related to Rozol use in the area where the animals were found. The date, time, lo cation, and any other relevant details shall be conveyed. Specimens (collected by authorized i ndividuals) shall be kept cool or frozen to facilitate later examination for Rozol poisoning. Sick or injured animals shall be picked up and transported by authorized individuals to a permit ted local wildlife rehabilitation or veterinary facility for treatment. Care must be taken in ha ndling sick or injured anim als to ensure effective

treatment.

For federally listed species located in the Stat es of Montana, North Dakota, South Dakota, Wyoming, Nebraska, Colorado and Kansas, the local Service Ecological Services Office within

the state the animal is detected shall be notified as soon as possibl e and informed of the incident and local Rozol use, if known. Office contact information may be found on the internet at www.fws.gov.

The National Black-Footed Ferret C oordinator must also be notified at U.S. Fish and Wildlife Service, P.O. Box 190, Wellington, CO 80549. Phone: 970-897-2730 x 224, Fax: 970-897-2943

Mobile: 720-626-5260.

For gray wolves located in Oklahoma, New Mexi co, or Texas (potentially Mexican gray wolves from a reintroduced population) the Mexican Wolf Recovery Coordinator must be notified as soon as possible and informed of any Rozol use, if known. Contact: U.S. Fish and Wildlife Service, New Mexico Ecological Services Fi eld Office, 2105 Osuna Ro ad NE, Albuquerque, NM 87113, Office Phone: (505) 761- 4748, Office Fax: (505) 346-2542.

The Service’s Northern Aplomado Falcon Coordinato r must also be notified of sick, injured, or dead northern aplomado falcons within 24 hours by calling (505) 346-2525 at the New Mexico Ecological Services Field Office, 2105 Osuna Road NE, Albuquerque, NM 87113; Fax: (505)

346-2542.

The Service believes that no more than two black-f ooted ferrets per year; one wolf every 3 years with only one being from the Mexican wolf popul ation; and two northern aplomado falcons for each 5-year period within this 15-year project will be incidentally taken as a result of the proposed action. The Service expects that th e RPMs, with their implementing terms and conditions, are designed to minimize the impact of incidental take that might otherwise result from the proposed action. If, during the course of the action, this level of incidental take is exceeded, such incidental take represents new information requiring rein itiation of consultation and review of the RPM provided. The EPA must immediately provide an explanation of the causes of the taking and review with the Service the need for possible modification of the RPM.95 

### VI. CONSERVATION RECOMMENDATIONS

Section 7(a)(1) of the ESA directs Federal agencies to use their existing au thorities to further the purposes of the ESA by carrying out programs or ac tivities to conserve en dangered or threatened species. Conservation recommendations are disc retionary activities to minimize or avoid adverse effects of a proposed action on listed species or critica l habitat, to help implement recovery plans, or to develop biological in formation. The Service recommends the following conservation activities that are within the EPA’s authorities and can benefit northern aplomado falcon recovery. We believe implementation of thes e will assist EPA in demonstrating that it is meeting the requirements of 7(a)(1) of the ESA.

 A voluntary reporting form shall be developed and made availa ble at training or education

sessions and on the internet in association with Rozol information that identifies the time and date of return visits, which wildlife species were located, dispositi on of wildlife found (i.e., whether the prairie dogs were removed from the colony, if Rozol was found on the surface

and other information that can be used to assess the routes of exposure to nontarget wildlife). Completed forms shall be sent directly to the Service.

 The EPA should work in coordination with th e Service to evaluate methods to prevent secondary poisoning of federally listed species by performing a field study that allows for an evaluation of efficacy of the newly implemented line-transect animal search and removal protocol as well as other feas ible methods to prevent sec ondary poisoning. Although other research entities may be acceptable, the Servic e recommends the EPA contact a university to develop a graduate-level research study with the objective of determining appropriate search methodology/protocols to reduce the above-gro und availability of Rozol-poisoned BTPDs and non-target animals.

 The EPA should become a member of the Bl ack-footed Ferret Recovery Implementation Team due to its congressionally delegated res ponsibilities for regula ting rodenticides and recovering federally threatened and endangered species. Prairi e dog rodenticide registrations under FIFRA are significant actions that can adversely affect black-footed ferrets and other listed species. The EPA participation on the Black-footed Ferret Recovery Implementation Team would provide an avenue for the agency to understand the ramificat ions of rodenticide

use on black-footed ferret habitat al ong with an opportunity to work with recovery partners to ensure EPA actions avoid working at cross purposes with black-f ooted ferret recovery.

 The EPA should monitor the registered rodenticid es used on the three species of prairie dogs in the black-footed ferrets’ range and report the amounts of prairie dog rodenticides sold, used, and the expected prairie dog acreag e poisoned per st ate per year.

 The EPA should initiate or require studies to evaluate secondary toxicity of the EPA registered prairie dog rodenticid es to black-footed ferrets.

 The EPA should implement the above listed RP Ms and Terms and Conditions throughout the nonessential experimental range of the north ern aplomado falcon in New Mexico where Rozol may be used.96  The EPA should coordinate with the New Mexico Ecological Serv ices Field Office to assist in recovery efforts for the northern aplomado falcon by contributing to research, monitoring,

and/or falcon reintroductions.

 The EPA should initiate or require studies to evaluate secondary toxicity of the EPA registered prairie dog rodenticides to norther n aplomado falcons, other raptors, and ravens.

In order for the Service to be kept informed of actions minimizing or avoiding adverse effects or benefiting listed species or thei r habitats, the Service requests notification of the implementation of any conservation recommendations.



### VII. REINITIATION NOTICE

This concludes formal consultation on the action outlined in the EPA’s September 30, 2010, request for formal consultation regarding federa lly listed species and critical habitat impacts relative to the registration and a pplication of Rozol to control BTPDs in 10 western States. As provided in 50 CFR § 402.16, reinitia tion of formal consultation is required where discretionary Federal agency involvement or control over the acti on has been retained (or is authorized by law) and if: 1) the amount or extent of incidental ta ke is exceeded (or take occurs of species for which the Service currently does not anticipate a dverse effects from the proposed action); 2) new information reveals effects of the agency action that may impact listed species or critical habitat

in a manner or extent not considered in this BO (for example, this BO does not cover Rozol use on any other prairie dog species; th us, expansion of Rozol use to prairie dog species other than

the BTPD would necessitate reinitiation of form al consultation; changes to the September 10, 2010, Rozol label altering the application of the product may also represent new information not considered herein); 3) the agency action is subs equently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in this BO; 4) future information indicates that Rozol use by itself or in combination with other factors is precluding black-footed ferret recovery, then the EPA and the Service shall reinitiate consultation to determine appropriate measures to allow black-f ooted ferret recovery to proceed; or 5) a new species is listed or critical habi tat is designated that may be aff ected by the action. In instances

where the amount or extent of in cidental take is exceeded, any ac tivities causing such take must cease pending reinitiation.97 

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U.S. Fish and Wildlife Service. 2006a. January 13 letter to Greg Ibach, Nebraska Department of Agriculture. Request to not issue a section 24(c) Special Lo cal Needs registration for use of Rozol Pocket Gopher Bait for control of black-tailed prairie dogs. U.S. Fish and Wildlife Service, Ecological Services, Ne braska Field Office; Grand Island, NE.

U.S. Fish and Wildlife Service. 2006b. Janua ry 24 letter to Larry Gabriel, South Dakota Department of Agriculture. Request to not issue a section 24(c) Special Local Needs registration for use of Rozol Pocket Gopher Bait for control of black-tailed prairie dogs. U.S. Fish and Wildlife Service, Ecological Services, South Dakota Field Office; Pierre,

SD.115 U.S. Fish and Wildlife Service. 2006c. February 10 letter to Greg Ibach , Nebraska Department of Agriculture. Response and second request to not issue a secti on 24(c) Special Local Needs registration for use of Rozol Pocket G opher Bait for control of black-tailed prairie dogs. U.S. Fish and Wildlife Service, Ecologi cal Services, Nebraska Field Office; Grand Island, NE.

U.S. Fish and Wildlife Service. 2006d. Oc tober 10 letter to La ura Quakenbush, Colorado Department of Agriculture. Request to not issue a section 24(c) Special Local Needs registration for use of Rozol Pocket Gopher Bait for control of black-tailed prairie dogs. U.S. Fish and Wildlife Service, Ecological Services, Colorado Field Office; Grand Junction, CO.

U.S. Fish and Wildlife Service. 2006e. May 5 letter to Anne Lindsay, Office of Pesticide Programs, U.S. Environmental Protection Agen cy. Request to disapprove section 24(c) Special Local Needs registration for use of Rozol Pocket Gopher Bait for control of black-tailed prairie dogs. U.S. Fish and Wildlife Service, Mountain-Prairie Region; Denver, CO.

U.S. Fish and Wildlife Service. 2006f. E ndangered and threatened wildlife and plants; establishment of a nonessential experimental population of northern aplomado falcons in

New Mexico and Arizona. Fe deral Register 71(143):42298-42315.

U.S. Fish and Wildlife Service. 2006g. Biologi cal opinion for the implementation of the fire management plan at the San Bernardino a nd Leslie Canyon National Wildlife Refuges, January 23, 2006. U.S. Fish and Wildlife Se rvice Arizona Ecological Services Field Office; Phoenix, AZ. 46 pp.

U.S. Fish and Wildlife Service. 2004. Endange red and threatened wildlife and plants; final designation of critical habitat for the Mexican spotted ow l; final rule. August 31, 2004. Federal Register 69(168):53182-53297.

U.S. Fish and Wildlife Service. 2003. Endangere d and threatened wildlife and plants; final rule to reclassify and remove the gray wolf from the list of endangered and threatened wildlife in portions of the conterminous United States ; establishment of tw o special regulations for threatened gray wolves. Federal Register 68(62):15804-15875.

U.S. Fish and Wildlife Service. 2002a. E ndangered and threatened wildlife and plants; designation of critical habitat for the Northern Great Plains breeding population of the piping plover. Federal Register 67(176):57637-57717.

U.S. Fish and Wildlife Service. 2002b. Biol ogical opinion for the con tinuation of livestock grazing on the Coronado National Forest. Dated October 24, 2002. U.S. Fish and Wildlife Service, Arizona Ecological Serv ices Field Office; Phoenix, AZ. 228 pp.116 U.S. Fish and Wildlife Service. 2000a. Notice of availability to re view the peregrine fund request to amendment its incidental take pe rmit for aplomado falcons. Federal Register 65(54): 14999. <http://www.fws.gov/ policy/library/ 2000/00fr14999.html>

U.S. Fish and Wildlife Service. 2000b. Amended biological opinion: habitat conservation plan for the reintroduction of the aplomado falcon into south Texas. June 1, 2000. Clear Lake Ecological Services Offi ce; Clear Lake, TX.

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Arizona and New Mexico. Fe deral Register 63(7):1752-1772.

U.S. Fish and Wildlife Service. 1996. Availab ility of an environmental assessment and receipt of application for incidental take perm it for the peregrine fund’s aplomado falcon reintroduction program in Texas. Federal Register 61(139):37488-37489.

U.S. Fish and Wildlife Service. 1995. Rec overy plan for the Me xican spotted owl. Albuquerque, NM.

U.S. Fish and Wildlife Service. 1994a. The reintroduction of gray wolves to Yellowstone

National Park and central Idaho. Final Envir onmental Impact Statement. Denver, CO. 608 pp.

U.S. Fish and Wildlife Service. 1994b. E ndangered and threatened wildlife and plants; Establishment of a nonessential experimental population of black-footed ferrets in

southwestern South Dakota. Fe deral Register 59(159):42682-42694.

U.S. Fish and Wildlife Service. 1993. Secti on 7, Endangered Species Act biological opinion on the effects of 16 vertebrate control agen ts on threatened and endangered species. Washington, D.C. 198 pp.

U.S. Fish and Wildlife Service. 1992. Recovery plan for the easte rn timber wolf. Twin Cities, MN. 73 pp.

U.S. Fish and Wildlife Service. 1991. Black-capped vireo ( Vireo atricapillus ) recovery plan. Austin, TX. Pp. vi + 74.

U.S. Fish and Wildlife Service. 1990. Aplomado falcon recovery plan. U.S. Fish and Wildlife Service; Albuquerque, NM. Pp v + 58 pp.

U.S. Fish and Wildlife Service. 1988. Black-footed ferret recovery plan. U.S. Fish and Wildlife Service; Denver, CO. 154 pp.

U.S. Fish and Wildlife Service. 1987. Northern Rocky Mountain wolf recovery plan. U.S. Fish and Wildlife Service; Denver, CO. 119 pp.117 U.S. Fish and Wildlife Service. 1986. E ndangered and threatened wildlife and plants; determination of the northern aplomado falcon to be an endangered species. Federal Register 51(37):6686-6690.

U.S. Fish and Wildlife Service. 1982. Mexican wolf recovery plan. U.S. Fish and Wildlife Service, Albuquerque, NM. 103 pp.

U.S. Fish and Wildlife Service. 1978. E ndangered and threatened wildlife and plants; reclassification of the gray wolf in the Unite d States and Mexico, with determination of critical habitat in Michigan and Minn esota, Final Rule. Federal Register 43(47):9607-9615.

U.S. Fish and Wildlife Service. 1976. E ndangered and threatened wildlife and plants; determination that two species of butterflies are threatened species and two species of mammals are endangered species. Federal Register 41(83):17736-17741.

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U.S. Fish and Wildlife Service; Montana Fish, Wildlife and Parks; Nez Perce Tribe; National Park Service; Blackfeet Nation; Confederat ed Salish and Kootenai Tribes; Wind River Tribes; Washington Department of Wildlife; Oregon Department of Wildlife; Utah Department of Wildlife Resources; and USDA Wildlife Services. 2011. Rocky Mountain wolf recovery 2010 interagency annua l report. C.A. Sime and E.E. Bangs, editors. U.S. Fish and Wildlife Service, Ecological Services, 585 Shepard Way; Helena,

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with%20audio.wmv>

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### Personal Communications

Ernst, A. 2008. Email exchange between Andrea Ernst and Pete Gober, Field Supervisor, U.S. Fish and Wildlife Service, Ecological Serv ices, South Dakota Field Office. August 4, 2008. Habitat suitability and availability relative to black-footed ferrets.

Jones, D.R. 2011. Email exchange and telephone conversation between David R. Jones, Senior Scientist, Environmental Fate and Effects Di vision, Office of Pesticide Programs, U.S. EPA, Washington, D.C., and Matt Schwarz, E nvironmental Contaminants Biologist, U.S. Fish and Wildlife Service, Ecological Servi ces, South Dakota Field Office, Pierre, South Dakota. November 4, 2011. Discussed environm ental fate of chlorophacinone as Rozol.

Montoya, A. 2011. Email between Angel Mont oya, Partners Programbiologist, and Pat Zenone, Ecological Services Bi ologist, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, Albuque rque, New Mexico. November 30, 2011. Status of northern aplomado falcons outsi de of Safe Harbor area in Texas.

Pavelka, G. 2008. Email exchange between Greg ory A. Pavelka, Wildlife Biologist, U.S. Army Corps of Engineers, Yankton, South Dakot a , and Carol Aron, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Ecological Services, North Dakota Field Office, Bismarck, North Dakota. December 8, 2008. Inquiry regarding the distance that piping plovers will nest from water on Missouri River Reservoirs.120 Someson, R. 2012. Email between Russell A. So meson, Natural Resource Specialist, Lake Oahe Project, U.S. Army Corps of Engineer s, Pierre, South Dakota, and Carol Aron, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Ecological Services, North Dakota Field Office, Bismarck, North Dakota. Confirmation of 2011 verbal exchange regarding lack of piping plover use of black-tailed prairie dog colonies.

Vyas, N. 2011a. Email exchange and tele phone conversation between Nimish B. Vyas, Research Biologist, U.S. Geological Surv ey Patuxent Wildlife Research Center, Beltsville, Maryland, and Matt Schwarz, Fish and Wildlife Biologist (Environmental Contaminants), U.S. Fish and Wildlife Serv ice, Ecological Services, South Dakota Field Office, Pierre, South Dakota. June 13, 2011. Discussed shortfalls of the EPA’s required 5-day LC-50.

Vyas, N. 2011b. Email exchange and telephon e conversation between Nimish B. Vyas, Research Biologist, U.S. Geological Surv ey Patuxent Wildlife Research Center, Beltsville, Maryland, and Matt Schwarz, Fish and Wildlife Biologist (Environmental Contaminants), U.S. Fish and Wildlife Serv ice, Ecological Services, South Dakota Field Office, Pierre, South Dakota. Octobe r 3, 2011. Discussed unpublished data on chlorophacinone concentrati ons in samples collected for Vyas (2010) study.

Vyas, N. 2010. Email exchange and telephone c onversation between Nimish B. Vyas, Research Biologist, U.S. Geological Survey Patuxent Wildlife Research Center, Beltsville, Maryland, and Matt Schwarz, Fish and Wildlif e Biologist (Environmental Contaminants), U.S. Fish and Wildlife Service, Ecological Services, South Dakota Field Office, Pierre, South Dakota. September 30, 2010. Discusse d meadowlark histopathology results from Vyas (2010) study.121 

### APPENDIX A

September 10, 2010, Label for Rozol ® 

### Prairie Dog Bait122