85294 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2019–0018; 

FXES1113090FEDR–223–FF09E22000] 

RIN 1018–BE09 

Endangered and Threatened Wildlife 

and Plants; Reclassification of the 

Red-Cockaded Woodpecker From 

Endangered to Threatened With a 

Section 4(d) Rule 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service or USFWS), 

are reclassifying the red-cockaded 

woodpecker (Dryobates (= Picoides) 

borealis) from endangered to threatened 

(i.e., downlisting it) under the 

Endangered Species Act of 1973, as 

amended (Act). This action is based on 

our evaluation of the best available 

scientific and commercial information, 

which indicates that the species’ status 

has improved such that it is not 

currently in danger of extinction 

throughout all or a significant portion of 

its range, but that it is still likely to 

become so in the foreseeable future. We 

also finalize protective regulations 

under the authority of section 4(d) of the 

Act that are necessary and advisable to 

provide for the conservation of the redcockaded woodpecker. In addition, we 

correct the List of Endangered and 

Threatened Wildlife to reflect that 

Picoides is not the current scientifically 

accepted generic name for this species. 

DATES: This rule is effective November 

25, 2024. 

ADDRESSES: This final rule is available 

on the internet at https://

www.regulations.gov. Comments and 

materials we received are available for 

public inspection at https://

www.regulations.gov at Docket No. 

FWS–R4–ES–2019–0018. 

Availability of supporting materials: 

Supporting materials we used in 

preparing this rule, such as the 5-year 

review, the recovery plan, and the 

species status assessment report, are 

available on the Service’s website at 

https://fws.gov/species/red-cockadedwoodpecker-dryobates-borealis, at 

https://www.regulations.gov at Docket 

No. FWS–R4–ES–2019–0018, or both. 

FOR FURTHER INFORMATION CONTACT: 

Nicole Rankin, Manager Division of 

Conservation and Classification, U.S. 

Fish and Wildlife Service, Southeast 

Regional Office, 1875 Century 

Boulevard, Atlanta, GA 30345; 

telephone 404–679–7089. Individuals in 

the United States who are deaf, 

deafblind, hard of hearing, or have a 

speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, a species warrants 

reclassification from endangered to 

threatened if it no longer meets the 

definition of an endangered species (in 

danger of extinction throughout all or a 

significant portion of its range). The redcockaded woodpecker is listed as 

endangered, and we are reclassifying 

(downlisting) it as threatened. We have 

determined the red-cockaded 

woodpecker does not meet the Act’s 

definition of an endangered species, but 

it does meet the definition of a 

threatened species (likely to become an 

endangered species throughout all or a 

significant portion of its range within 

the foreseeable future). Reclassifying a 

species as a threatened species can be 

completed only by issuing a rule 

through the Administrative Procedure 

Act rulemaking process (5 U.S.C. 551 et 

seq.). Finally, we are changing the 

scientific name of the red-cockaded 

woodpecker on the List of Endangered 

and Threatened Wildlife from Picoides 

borealis to Dryobates borealis, and such 

revisions to the Code of Federal 

Regulations can be accomplished only 

by issuing a rule. 

What this document does. This final 

rule reclassifies the red-cockaded 

woodpecker from endangered to 

threatened (i.e., ‘‘downlists’’ the 

species) on the List of Endangered and 

Threatened Wildlife and issues 

protective regulations under the 

authority of section 4(d) of the Act that 

are necessary and advisable to provide 

for the conservation of this species. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered species or a threatened 

species because of any of five factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. We may reclassify a species if 

the best available commercial and 

scientific data indicate the species no 

longer meets the applicable definition in 

the Act. Based on the status review, the 

current threats analysis, and evaluation 

of conservation measures discussed in 

this final rule, we conclude that the redcockaded woodpecker no longer meets 

the Act’s definition of an endangered 

species and should be reclassified to a 

threatened species. The species is no 

longer in danger of extinction 

throughout all or a significant portion of 

its range but is likely to become so 

within the foreseeable future. 

We have determined that redcockaded woodpecker is a threatened 

species due to the following threats: 

• Lack of suitable roosting, nesting, 

and foraging habitat due to legacy 

effects from historical logging, 

incompatible forest management, and 

conversion of forests to urban and 

agricultural uses (Factor A). 

• Fragmentation of habitat, with 

resulting effects on genetic variation, 

dispersal, and connectivity to support 

demographic populations (Factor A). 

• Stochastic events such as 

hurricanes, ice storms, and wildfires, 

exacerbated by the environmental 

effects of climate change (Factor E). 

• Small populations (Factor E). 

Acronyms and Initialisms Used in This 

Document 

We provide the following list for the 

convenience of the reader: 

ANHC—Arkansas Natural Heritage 

Commission 

BMPs—best management practices 

CCPs—comprehensive conservation plans 

DoD—Department of Defense 

EPA—Environmental Protection Agency 

ESMCs—endangered species management 

components 

FFWCC—Florida Fish and Wildlife 

Conservation Commission 

HCP—habitat conservation plan 

INRMPs—integrated natural resources 

management plans 

LDWF—Louisiana Department of Wildlife 

and Fisheries 

LRMPs—land and resource management 

plans 

NCWRC—North Carolina Wildlife Resources 

Commission 

NEPA—National Environmental Policy Act 

NRCS—Natural Resources Conservation 

Service 

NWR—National Wildlife Refuge 

PBG—potential breeding group 

RFA—Regulatory Flexibility Act 

SSA—species status assessment 

TPWD—Texas Parks and Wildlife 

Department 

USACE—U.S. Army Corps of Engineers 

USFS—U.S. Forest Service 

WMA—wildlife management area 


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Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Rules and Regulations 85295 

Previous Federal Actions 

Please refer to the proposed 

reclassification rule (85 FR 63474) for 

the red-cockaded woodpecker published 

on October 8, 2020, and the subsequent 

revised proposed 4(d) rule (87 FR 6118) 

published on February 3, 2022, for 

detailed descriptions of previous 

Federal actions concerning this species. 

Peer Review 

A species status assessment (SSA) 

team prepared an SSA report for the 

red-cockaded woodpecker. The SSA 

team was composed of Service 

biologists, which consulted with other 

species experts during the process. The 

SSA report represents a compilation of 

the best scientific and commercial data 

available concerning the status of the 

species, including the impacts of past, 

present, and future factors (both 

negative and beneficial) affecting the 

species. 

In accordance with our joint policy on 

peer review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review of listing actions under the Act, 

we solicited independent scientific 

review of the information contained in 

the red-cockaded woodpecker SSA 

report. As discussed in the proposed 

rule, we sent the SSA report to six 

independent peer reviewers and 

received three responses. The peer 

reviews can be found at https://

www.regulations.gov and https://

fws.gov/species/red-cockadedwoodpecker-dryobates-borealis. In 

preparing the proposed rule, we 

incorporated the results of these 

reviews, as appropriate, into the SSA 

report, which was the foundation for the 

proposed rule and this final rule. A 

summary of the peer review comments 

and our responses can be found in the 

Summary of Comments and 

Recommendations below. 

Summary of Changes From the 

Proposed Rule 

In preparing this final rule, we 

reviewed and fully considered 

comments from the public on the 

proposed rule. In addition to minor 

editorial changes, we updated 

information in this final rule and the 

SSA report (USFWS 2022, entire) based 

on comments and additional 

information provided, as follows. 

We incorporated information 

examining the effects of climate on 

breeding phenology and productivity in 

19 populations across the range of the 

woodpecker (DeMay and Walters 2019). 

While we have added this information 

to our discussion of climate change in 

this rule, we find that this information 

does not change our conclusion about 

the species’ current risk of extinction. 

We revised our discussion in the 

Status Throughout a Significant Portion 

of Its Range section to clarify the 

statutory difference between an 

endangered species and a threatened 

species in relation to the Service’s 

significant portion of a species’ range 

analysis. We added a discussion 

addressing catastrophic risks from 

natural events and how they are being 

effectively managed (e.g., through 

prompt post-storm response) and that 

small populations are not currently in 

danger of extinction due to ongoing 

active management (e.g., translocation, 

habitat management, artificial cavity 

installation) such that the species is not 

currently in danger of extinction in any 

portion of its range. 

In the SSA report, we added 

information regarding partial brood loss 

in relation to habitat quality in eastern 

Texas (McCormick et al. 2004, entire, 

USFWS 2022, p. 25) and clarified 

‘‘encroachment partnership’’ (USFWS 

2022, p. 76). Additionally, we corrected 

an error in the SSA report stating that 

red-cockaded woodpeckers currently 

inhabit 12 ecoregions (USFWS 2022, p. 

92) by revising it to 13 ecoregions, and 

adding the Mississippi River Alluvial 

Plain to the list of ecoregions. 

Edits were made to tables 3, 5–9, 19– 

20, 24, 30, and 34 in the SSA report 

(USFWS 2022, pp. 108–109, 112–116, 

141–142, 147, 153, and 158). The 

changes addressed the slight 

underreporting of population sizes and 

rate of growth for Babcock Webb 

Wildlife Management Area (WMA), 

Corbett WMA, McCurtain County 

Wilderness Area, and Lewis Ocean Bay 

Heritage Preserve properties. The 

current population size for Yawkey 

Wildlife Center was also updated from 

14 to 15 individuals. Additionally, 

figure 24 was updated to address an 

error in how the high-resiliency 

populations were represented and to 

update the population changes for the 

properties outlined above (USFWS 

2022, p. 110). Finally, figure 26 was 

updated to include a tropical storm and 

hurricane centerline track map for 

2012–2022 (USFWS 2022, p. 121). 

Collectively, these minor updates to the 

SSA report do not change our overall 

understanding of the species’ viability. 

Finally, we made the following 

changes to the discussion and/or 

regulatory text of the 4(d) rule: 

• We made editorial corrections to 

the wording of certain exceptions in the 

discussion and regulatory text of the 

4(d) rule to increase clarity and to better 

align the language with existing 

regulations and law; these editorial 

corrections do not alter the original 

meaning of these prohibitions and 

exceptions. 

• Under the Exceptions discussion, 

we removed several paragraphs that 

described the Safe Harbor program, now 

known as the Conservation Benefit 

program, in greater detail. We made this 

change to reduce confusion by readers 

and redundancy in the text. One of the 

deleted paragraphs included a 

typographical error; the paragraph 

stated that there are currently 295 active 

clusters on lands that are enrolled in 

Safe Harbor Agreements (SHAs). 

Currently, across the species’ range 

there are 273 red-cockaded woodpecker 

active clusters in SHAs, which may be 

converted into Conservation Benefit 

Agreements (CBAs) at some point, if 

needed. This issue is described in 

further detail in our response to 

Comment 85. 

Summary of Comments and 

Recommendations 

In the proposed rule published on 

October 8, 2020 (85 FR 63474), we 

requested that all interested parties 

submit written comments on the 

proposal by December 7, 2020. We also 

contacted appropriate Federal and State 

agencies, scientific experts and 

organizations, and other interested 

parties and invited them to comment on 

the proposed rule. Newspaper notices 

inviting general public comment were 

published in USA Today. We received 

a request for a public hearing. We held 

a public hearing on December 1, 2020, 

that was announced in the Federal 

Register on November 16, 2020 (85 FR 

73012). We published a revised 

proposed 4(d) rule on February 3, 2022 

(87 FR 6118), and requested that all 

interested parties submit written 

comments on the proposal by March 7, 

2022. All substantive information 

received during the comment periods 

has either been incorporated directly 

into this final determination or is 

addressed below. 

Peer Reviewer Comments 

As discussed in Peer Review above, 

we received comments from three peer 

reviewers on the draft SSA report. We 

reviewed all comments we received 

from the peer reviewers for substantive 

issues and new information regarding 

the contents of the SSA report. For 

example, peer reviewers provided 

additional nuanced information on 

species biology, including but not 

limited to, forest composition of specific 

National Forests, recommendations for 

cavities, and background on 


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kleptoparasitism; we updated the SSA 

report accordingly with this 

information. The peer reviewers also 

provided new references, or corrected 

existing references we cited in our SSA 

report, which we revised or in which we 

included relevant references, as 

appropriate. We also received a few 

comments from peer reviewers on 

recovery or listing policy that were 

outside the intended scope of the peer 

review of the SSA. The peer reviewers 

generally concurred with our methods 

and conclusions and provided support 

for thorough and descriptive narratives 

of assessed issues, additional 

information, clarifications, and 

suggestions to improve the final SSA 

report and rule. Peer reviewer 

comments are addressed in the 

following summary and were 

incorporated into the version 1.4 of the 

SSA report and this final rule as 

appropriate. 

Comment 1: One peer reviewer 

expressed concern that timber 

harvesting was being promoted in the 

SSA report as a necessary strategy for 

maintaining quality red-cockaded 

woodpecker habitat when fire is the 

essential management application. 

Our Response: In the SSA report, 

timber harvesting is mentioned as a 

potential management tool when 

hazardous large and small fuels have 

accumulated in red-cockaded 

woodpecker habitat, resulting in a 

significant impediment to a continuing 

program of prescribed fire. Timber 

harvesting is one option to reduce 

hazardous conditions through salvage of 

down or severely damaged timber and 

mulching of other debris and smalldiameter excessive hardwoods. Both 

management options are included in the 

SSA report as timber harvesting is often 

used as a tool for restoration 

management for red-cockaded 

woodpecker habitat while fire is more 

frequently used for maintenance of 

habitat. 

Comment 2: One peer reviewer 

expressed concern that the benefits of 

flying squirrel removal had been 

understated given the potential impacts 

of cavity kleptoparasitism (a cavity 

created and used by a red-cockaded 

woodpecker that is usurped by another 

species) by flying squirrels (Laves and 

Loeb, 1999; Mitchell et al., 1999). They 

also referenced that snakes may have a 

positive indirect effect on red-cockaded 

woodpeckers by consuming cavity 

kleptoparasites, in addition to their 

direct negative impacts on the species 

(Kappes and Sieving, 2011). 

Our Response: Occasional loss of 

nests or cavities to kleptoparasitism is 

unlikely to have population-level 

impacts in red-cockaded woodpecker 

populations that are healthy and of 

medium to large size. However, 

critically small populations or isolated 

groups may not be able to tolerate high 

rates of kleptoparasitism. While we 

agree that there can be value to 

removing kleptoparasites in small 

populations (Laves and Loeb, 1999), 

there have yet to be studies indicating 

population-level effect of flying 

squirrels on red-cockaded woodpeckers 

(Mitchell et al. 1999) to suggest that 

flying squirrel removal should be 

implemented for larger populations. 

Federal and State Agency Comments 

We also received comments from 

Federal and State agencies on the 

proposed reclassification and 4(d) rule 

during the comment period. We 

summarize and respond to these below. 

When appropriate, we combined similar 

comments received from public 

commenters into these comment 

summaries. 

Delisting 

Comment 3: In response to the 

original proposed downlisting rule, 

three State agencies (the Texas Parks 

and Wildlife Department (TPWD), 

Arkansas Natural Heritage Commission, 

and the North Carolina Wildlife 

Resources Commission (NCWRC)) and 

several public commenters expressed 

their belief that delisting the species 

would be premature because the active 

management that the species requires 

may not continue if the species were to 

lose all Federal protection. 

Our Response: We do not find that the 

species currently warrants delisting. On 

the contrary, we find that the redcockaded woodpecker is likely to 

become in danger of extinction within 

the foreseeable future; in other words, 

we find that the species meets the 

definition of a threatened species. As a 

conservation-reliant species, securing 

management commitments for the 

foreseeable future would ensure that 

red-cockaded woodpecker populations 

grow or are maintained. However, given 

that the red-cockaded woodpecker will 

still face a variety of stressors in the 

future (e.g., hurricanes, small 

population sizes) and due to the lack of 

certainty that effective management will 

continue in the foreseeable future, we 

find that this species meets the 

definition of a threatened species. We 

address the States’ concerns about the 

decline in active management if the 

species’ status changes in Comment 4, 

below. 

Downlisting 

Comment 4: The Louisiana 

Department of Wildlife and Fisheries 

(LDWF), NCWRC, and public 

commenters expressed concerns that a 

shift in status would divert critical 

funds away from the recovery and 

management efforts of the red-cockaded 

woodpecker. 

Our Response: We acknowledge that 

the red-cockaded woodpecker is a 

conservation-reliant species and 

responds well to active management. 

For State agencies, a change from 

endangered to threatened does not 

change the eligibility of funding under 

section 6 of the Act. 

Comment 5: LDWF and multiple 

public commenters expressed concern 

that downlisting the species will 

undermine goals outlined in 

management plans if agencies decide to 

alter or reduce voluntary protections. 

Public commenters also worried that 

downlisting could introduce additional 

stressors on the species, due to 

increased pressure from development, 

logging, and/or oil, mineral, and gas 

exploration on public lands. 

Our Response: While we do not have 

commitments that all current 

management will continue, there is no 

information indicating that a 

downlisting would alter current 

management plans. It is important to 

note that downlisting the species from 

an endangered to a threatened status 

does not eliminate or alter the same 

need to achieve its recovery, and 

agencies are already managing redcockaded woodpeckers in an effort to 

reach this goal. As mentioned, the 

management protections have always 

been voluntary, and the agencies could 

have altered or reduced them at any 

time, yet they have chosen not to due 

to their commitment to achieving 

recovery. 

Regarding the risk of downlisting 

introducing additional stressors to the 

species on public lands, section 7(a)(2) 

obligations are the same regardless of 

whether a species is listed as an 

endangered species or a threatened 

species, i.e., every Federal agency must 

ensure that their actions are not likely 

to result in jeopardizing the continued 

existence of the species. 

Comment 6: The NCWRC claimed that 

the proposed rule states that 65 percent 

of populations have to reach moderate 

to high resiliency to justify downlisting 

of the red-cockaded woodpecker; 

however, the Service also stated in the 

proposed rule that only 13 percent of all 

existing clusters have moderate to very 

high resiliency. Therefore, the NCWRC 


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believes red-cockaded woodpeckers do 

not meet this standard for downlisting. 

Our Response: We recognize that we 

made an error when we stated that 13 

percent of all current red-cockaded 

woodpecker clusters are within 

moderate, high, or very highly resilient 

populations (85 FR 63474, October 8, 

2020); this statement was incorrect, and 

we have rectified the error in this final 

rule. In fact, 13 percent of the 124 

demographic populations analyzed in 

the SSA have moderate to very high 

resilience; this amounts to 16 

populations. However, 65 percent of all 

known clusters (5,062 out of 7,794) 

occur in these 16 populations. Thus, 65 

percent (not 13 percent) of all known 

red-cockaded woodpecker clusters are 

within moderate, high, or very highly 

resilient populations. 

The proposed rule (85 FR 63474, 

October 8, 2020) does not specify that 

65 percent of the populations must 

reach moderate to high resiliency to 

justify downlisting of the red-cockaded 

woodpecker. The proposed rule 

referenced 65 percent in the following 

context: Of the 98 populations for which 

trend data are available, only 13 percent 

are declining; in addition, over 65 

percent of red-cockaded woodpecker 

clusters are currently in moderate to 

very high resiliency populations. 

Regardless, the species currently has 

sufficient levels of resiliency, 

redundancy, and representation, in large 

part due to effective habitat 

management, such that the species is no 

longer in danger of extinction (see 

Determination of Red-Cockaded 

Woodpecker Status below). 

Comment 7: The LDWF and one 

public commenter requested 

clarification on how the guidelines and 

provisions of the 2003 Red-cockaded 

Woodpecker Recovery Plan (hereafter 

the ‘‘2003 recovery plan’’) are applicable 

under the rule, noting that the revised 

4(d) rule describes recovery plans as 

being strategies to guide conservation 

and not regulatory documents, but also 

states that the provisions of the 2003 

recovery plan may still be applicable 

under the 4(d) rule. 

Our Response: The 4(d) rule does not 

state that the provisions of the recovery 

plan will still be applicable. Recovery 

plans are not regulatory documents, but 

rather they provide a strategy to guide 

the conservation and recovery of the 

identified species. The 2003 recovery 

plan outlined the actions that, to the 

best of current understanding at the 

time, would aid in the recovery of the 

red-cockaded woodpecker. The 2003 

recovery plan will still guide continued 

management for the species, and 

provisions of the 4(d) rule are crafted to 

encourage this type of management. 

Comment 8: LDWF requested a list of 

management plans for all red-cockaded 

woodpecker recovery units, including 

the dates of recent revisions and a 

timeline for next revision. They 

requested that the information be 

incorporated into the downlisting 

documents (we believe LDWF is 

referring to our SSA report and final 

rule) to provide insight into timing and 

frequency of the refinement of redcockaded woodpecker population goals 

given that the proposed 4(d) rule relies 

on voluntary management plans for 

Federal agencies. 

Our Response: While management 

plans are outside of the scope of the 4(d) 

rule, we encourage the LDWF to request 

management plan information from 

properties they are interested in. As 

noted in the Background of this rule, 

below, Federal agencies’ section 7 

consultation obligations are not and 

cannot be removed by rules under 

section 4(d) of the Act. Federal agencies 

will still consult under section 7 of the 

Act if their actions may affect redcockaded woodpeckers. As such, the 

management plans will still be subject 

to the consultation requirements of 

section 7 of the Act. 

Policy and Process 

Comment 9: The Arkansas Natural 

Heritage Commission (ANHC) and a 

public commenter questioned whether 

the peer review process was adequate. 

ANHC recommended that the SSA 

report be submitted to peer review 

journals, and the public commenter 

asked why we had sought peer review 

from six individuals but received review 

from only three. 

Our Response: The peer review 

process for the SSA report complied 

with our July 1, 1994, peer review 

policy (59 FR 34270), the Office of 

Management and Budget’s December 16, 

2004, Final Information Quality Bulletin 

for Peer Review, and our August 22, 

2016, memorandum clarifying the peer 

review process. 

The 2016 memorandum clarifying the 

peer review process requires that the 

Service solicit review from three or 

more objective and independent peer 

reviewers. In the case of the redcockaded woodpecker SSA report, we 

sought review from six qualified peer 

reviewers. While our policies do not 

require us to receive three responses 

from peer reviewers (just to seek review 

from at least three peer reviewers), we 

received comments back from three 

reviewers, which we made available to 

the public when we published our 

proposed rule. A summary of the 

comments received, and how they were 

addressed, can be found in the Peer 

Reviewer Comments section above. We 

are not aware of why three peer 

reviewers chose not to respond. 

Recovery 

Comment 10: Several State agencies 

(ANHC, LDWF, and the NCWRC) and 

public commenters expressed concerns 

about inconsistencies between the 2003 

recovery plan and the SSA report; they 

believed that the 2003 recovery plan, 

rather than the SSA report, should be 

used as guidance for evaluating whether 

a change in species status is warranted. 

Our Response: Recovery plans 

provide roadmaps to species recovery 

but are not required to achieve recovery 

of a species or to evaluate it for delisting 

or downlisting. A determination of 

whether a valid, extant species should 

be delisted or downlisted is made solely 

on the question of whether it meets the 

Act’s definitions of an ‘‘endangered 

species’’ or a ‘‘threatened species.’’ The 

SSA framework is an analytical 

approach developed by the Service to 

deliver foundational science for 

informing decisions under the Act 

(Smith et al. 2018, entire). The SSA 

characterizes species’ viability (the 

ability of a species to sustain 

populations in the wild over time) based 

on the best scientific understanding of 

current and future abundance and 

distribution within the species’ 

ecological settings using the 

conservation biology principles of 

resiliency, redundancy, and 

representation (Shaffer and Stein 2000, 

pp. 308–311). The SSA report provides 

decisionmakers with a scientifically 

rigorous characterization of a species’ 

status and the likelihood that the 

species will sustain populations over 

time, along with key uncertainties in 

that characterization. 

The 2003 recovery plan provides 

management guidelines fundamental to 

the conservation and recovery of the 

red-cockaded woodpecker. The best 

available information in the SSA report 

does not invalidate the habitat 

management guidelines in the recovery 

plan. We continue to strongly encourage 

the application of these guidelines to 

the management of woodpecker 

populations on public and private 

lands. 

Comment 11: ANHC and several 

public commenters suggested that the 

Service should have updated the 2003 

recovery plan before considering a 

downlisting and noted specific guidance 

they believe should be updated. 

Our Response: The SSA report for 

red-cockaded woodpeckers represents a 

compilation of the best available 


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scientific and commercial information 

on the current and future viability of the 

species. We used this analysis to inform 

our determination of the species’ status. 

We did not need to consider the 

recommended management strategies 

outlined in the 2003 recovery plan to 

inform our decision regarding the 

species’ status under the Act. 

Updating recovery plans is a 

discretionary action; the Service may 

choose to update a species’ recovery 

plan at any point, but it is not required 

to incorporate new science into recovery 

plans when the science becomes 

available, as stated in Center for 

Biological Diversity v. Bernhardt, 509 F. 

Supp. 3d 1256 (D. Montana 2020). 

Comment 12: The LDWF and NCWRC 

expressed concern that some 

populations of red-cockaded 

woodpeckers have either only partially 

met or have not met recovery criteria for 

downlisting. Additionally, several 

commenters thought it was too soon to 

downlist the species and provided ideas 

for conditions that should be met, such 

as waiting for the population to become 

more stable, before downlisting would 

be appropriate. 

Our Response: While recovery plans 

provide management guidelines 

fundamental to the conservation and 

recovery of species, they are guidance 

and not regulatory documents. There are 

many paths to accomplishing recovery 

of a species, and recovery may be 

achieved without all recovery criteria 

being fully met. The overriding 

considerations in determining listing 

status are the five factors listed in 

section 4(a)(1) of the Act. 

Since the recovery plan was last 

revised in 2003, the number of redcockaded woodpecker active clusters 

has increased from 5,627 to over 7,800 

(USFWS 2022, entire). The population 

size objectives to meet applicable 

downlisting criteria have been met for 

15 of 20 designated populations. All of 

these designated populations show 

stable or increasing long-term 

population growth rates (l ≥ 1). 

Ecology and Populations 

Comment 13: TPWD shared that in 

Texas, there was a 70 percent decline in 

red-cockaded woodpeckers on State 

lands between 1991 and 2019 and a 17 

percent decline on private lands in the 

State during the same period. 

Additionally, Texas suggested that those 

populations that have increased in size 

occur on U.S. Forest Service (USFS) 

lands, which house 90.5 percent of the 

woodpeckers in the State; they 

suggested this indicates that, in Texas, 

the species is highly dependent on the 

continued application of effective 

management practices. 

The USFS also shared that their 

implementation of land and resource 

management plans (LRMPs) that were 

specifically designed to recover the redcockaded woodpecker has increased the 

number of active red-cockaded 

woodpecker territories on National 

Forests from 2,000 to almost 3,700 over 

the past two decades. 

Our Response: While we appreciate 

the trend information that TPWD and 

the USFS provided, without site-level 

detail, we were not able to compare this 

information to the SSA. However, we 

receive property reports from Federal, 

State, and Safe Harbor program lands 

with red-cockaded woodpeckers on an 

annual basis; these property reports 

informed the demographic information 

in our SSA, so we are confident that the 

SSA captures the trend information 

these commenters provided. Moreover, 

the general trends that TPWD and the 

USFS describe align with the findings of 

our SSA. 

We also agree that the species remains 

highly dependent on active 

management. The currently stable or 

increasing growth rates, even in small 

populations, demonstrate the 

effectiveness of the current active 

management regime. New restoration 

techniques and changes in silvicultural 

practices have led to a substantial 

increase in the number and distribution 

of populations. Sixty-five percent of all 

red-cockaded woodpecker clusters are 

within moderate, high, or very high 

resiliency populations, and populations 

are spread across multiple ecoregions, 

providing for redundancy and 

representation. We fully expect this 

conservation management to continue 

into the foreseeable future, and we have 

structured our final 4(d) rule to facilitate 

the continuation of such management. 

Population Stressor 

Comment 14: The LDWF and 

members of the public raised concern 

about the risk of inbreeding depression 

in the majority of red-cockaded 

woodpecker populations (i.e., those 

with fewer than 100 clusters), due to 

their small size and isolation. They 

highlighted the importance of 

translocations given that red-cockaded 

woodpeckers do not typically disperse 

between populations, given they are 

geographically isolated from each other. 

As a result, commenters felt that it is 

premature to reduce protections for the 

species. 

Our Response: We agree that small 

populations having high degrees of 

isolation and habitat fragmentation are 

the most susceptible to risk from 

inbreeding depression and negative 

genetic impacts and acknowledge the 

importance of habitat management and 

translocations for maintaining healthy 

populations. However, the species no 

longer meets the definition of an 

endangered species and instead meets 

the definition of a threatened species. 

Because the species is still protected 

under the Act and because 

reclassification as a threatened species 

does not increase any existing 

permitting requirements that pertain to 

translocation, we expect current 

translocation efforts to continue 

unaffected. In fact, there are fewer 

permitting requirements for recovery 

efforts, such as translocation, for 

threatened species (e.g., 50 CFR 17.31(b) 

and 50 CFR 17.32) than those for 

endangered species (e.g., 50 CFR 

17.21(c)(5) and 50 CFR 17.22). 

Additionally, most properties on public 

lands harboring red-cockaded 

woodpeckers have implemented 

management programs to sustain or 

increase habitat availability and 

connectivity and to meet population 

size objectives in the 2003 recovery plan 

or other management plans. 

Accordingly, managers are reducing 

fragmentation by restoring and 

increasing habitat and through the 

strategic placement of recruitment 

clusters to reduce gaps within and 

between populations. 

Climate Change and Catastrophic Events 

Comment 15: Multiple State agencies 

(Florida Fish and Wildlife Conservation 

Commission (FFWCC), ANHC, LDWF, 

NCWRC) and public commenters 

discussed how hurricanes are already 

intensifying and becoming more 

frequent along the Atlantic coast due to 

climate change and that this situation 

will only worsen in the future, resulting 

in detrimental effects on the recovery of 

the species, especially given that the 

majority of populations occur in coastal 

plain ecoregions. FFWCC noted that, 

despite active management, populations 

have not been able to reach their goal on 

Picayune Strand State Forest because of 

the impacts of such natural disasters. 

Our Response: We agree that redcockaded woodpecker populations and 

their habitats are periodically subjected 

to significant disturbances (e.g., 

hurricanes) that increase mortality and 

destroy cavity trees, which can lead to 

temporary population declines. We 

acknowledge that every population in 

the coastal plain ecoregions has been 

affected by one or more hurricanes over 

the past two decades. As such, in the 

proposed rule and in this final rule, we 

identified hurricanes, and other 

naturally occurring disturbances that 


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destroy pines used for cavities and 

foraging, as one of the stressors affecting 

the species. However, populations can 

withstand and persist after hurricanes if 

biologists and land managers implement 

prompt, effective post-storm recovery 

actions, such as installing artificial 

cavities, reducing hazardous fuels, and 

restoring forests to suitable habitat. This 

emergency response and routine 

management are well-understood and 

are currently being implemented across 

the range of the woodpecker. 

Additionally, much of the red-cockaded 

woodpecker’s currently occupied 

habitat is now protected under various 

management plans. As such, despite the 

regular occurrence of hurricanes within 

red-cockaded woodpecker habitat, 87 

percent of populations evaluated in the 

SSA demonstrate stable to increasing 

growth rates, illustrating the 

effectiveness of currently ongoing active 

management in preventing species-level 

impacts from hurricanes (USFWS 2022, 

p. 112). 

We recognize the impacts natural 

disasters have had on the Picayune 

Strand State Forest. Annual property 

report data from 2019–2021 show that 

the active clusters in Picayune Strand 

State Forest have maintained 14 active 

clusters. This number is due in large 

part to the management actions 

conducted by the land managers. 

Further details about impacts of 

hurricanes on the species can be found 

in the Habitat Loss and Degradation 

section, below. 

Comment 16: The LDWF, NCWRC, 

and public commenters noted that it 

could take years to gather reliable 

population counts to fully understand 

impacts from a given natural disaster. 

They provided preliminary estimates of 

the impacts from Hurricanes Laura and 

Delta on Fort Polk, the Evangeline Unit 

of the Kisatchie National Forest, and the 

Alexander State Forest WMA, 

suggesting over 1,221 total cavity trees 

were lost. 

Our Response: As these commenters 

acknowledge, we do not yet have 

monitoring data to illuminate the 

impacts of the most recent hurricane 

seasons on red-cockaded woodpecker 

populations. While we do not yet have 

data on the species’ response to the 

most recent hurricane events, we know 

from responses to previous storms that 

populations can withstand and persist 

after hurricanes if biologists and land 

managers implement prompt, effective 

post-storm recovery actions, such as 

installing artificial cavities, reducing 

hazardous fuels, and restoring forests to 

suitable habitat. Such actions have been 

occurring after storm events for 

managed populations, such as the quick 

response after Hurricane Michael in 

October 2018. 

We recognize the impacts natural 

disasters have had on Fort Polk, the 

Evangeline Unit of Kisatchie National 

Forest, and the Alexander State Forest 

WMA. Annual property report data from 

2019–2021 shows that Fort Polk has 

maintained between 46 and 49 active 

clusters; the Evangeline Unit of 

Kisatchie National Forest has increased 

the active clusters from 135 to 141; and 

the Alexander State Forest WMA has 

maintained 13 active clusters. These 

results are due in large part to the 

management actions conducted by the 

land managers. Both this emergency 

response and routine management are 

well-understood and are currently being 

implemented across the range of the 

woodpecker. In addition, much of the 

red-cockaded woodpecker’s currently 

occupied habitat is now protected under 

various management plans. Please 

reference our response to Comment 15 

for more information on these findings. 

Comment 17: The FFWCC, NCWRC, 

and public commenters called for 

updating the methods in the SSA 

analysis to better account for the effects 

of climate change and hurricanes on the 

species’ future resiliency. One 

commenter provided a recent paper 

(DeMay and Walters 2019, entire) 

suggesting that our failure to consider 

this paper in our analysis demonstrates 

an inadequate consideration of climate 

change’s effects on long-term population 

health. 

Our Response: As we acknowledge in 

the SSA report, due to uncertainty and 

limitations in modeling, the projections 

from the future simulation models 

should not be viewed as definitively 

known future conditions (USFWS 2022, 

p. 136). Therefore, the projected 

resiliency in our three future scenarios 

may overestimate or underestimate 

potential future resiliency, as all models 

include assumptions about the future 

trends of threats, and the species’ 

response to them. As our ability to 

model the species’ response reliably and 

quantitatively to climate change 

improves, we may be able to provide 

greater clarity on the potential effects of 

hurricanes on red-cockaded woodpecker 

populations in the future. 

We are aware of preliminary 

investigations that show correlation 

between breeding phenology and 

productivity and changing climate 

variables like temperature and wetness 

(DeMay and Walters 2019, entire). 

Although our SSA did not incorporate 

the findings of DeMay and Walters 

(2019), since it was published after the 

SSA report neared completion, the SSA 

report noted that southwestern 

populations have lower productivity 

(USFWS 2022, p. 26) and considered 

earlier research which similarly 

suggested that climate change has the 

potential to influence productivity 

through anticipated changes in 

temperature and precipitation patterns 

(USFWS 2022, p. 92; Schiegg et al. 2002, 

entire). Thus, while we have added a 

summary of the paper by DeMay and 

Walters (2019) to our discussion of 

climate change in this rule, we find that 

it does not provide any new information 

to change our conclusion about the 

species’ current risk of extinction. 

Additional information on climate 

change can be found in the Habitat Loss 

and Degradation section below and in 

the SSA report (USFWS 2022, pp. 121– 

124). 

Comment 18: The ANHC suggested 

that figure 26 in the SSA report, which 

depicted tropical storm and hurricane 

tracks between 2003 and 2011, is 

outdated, especially given changes that 

have occurred over the most recent 5 

years. They also claimed that the 

timeframe depicted in this figure is too 

narrow to be relevant. 

Our Response: We recognize that 

figure 26 does not present a full picture 

of hurricanes and tropical storms that 

have occurred throughout the range of 

red-cockaded woodpeckers in the past 

few decades and have added an updated 

figure 26 to the SSA report (USFWS 

2022, p. 122). However, it is important 

to note that the intent of this figure is 

to illustrate the potential stressor that 

hurricanes pose to red-cockaded 

woodpeckers, and the vulnerability of 

many populations to storms. This figure 

is not intended to present an exact 

quantitative measure of the number and 

types of storms that have occurred 

within the species’ range; as we discuss 

in the SSA report, due to uncertainty 

and limitations in modeling, the 

projections from the future simulation 

models should not be viewed as 

definitive outcome for future conditions 

(USFWS 2022, p. 135). 

Habitat Stressor and Conservation 

Comment 19: LDWF, FFWCC, and 

public commenters provided feedback 

emphasizing the species’ reliance on 

extensive and continual habitat 

management; they reiterated that the 

species is not yet self-sustaining and 

needs this active management (e.g., 

thinning, prescribed fire, provision of 

artificial cavities, and translocation) to 

maintain stability. As a result, they 

requested that the species not be 

reclassified without the continued 

support for existing management 

strategies. Additionally, one commenter 


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requested guidance on how to better 

manage the species on public lands. 

Our Response: We recognize that the 

red-cockaded woodpecker is a 

conservation-reliant species and 

responds well to active management 

(USFWS 2022, p. 159). As such, the 

species is not being delisted and will 

continue to be afforded protections 

under the Act. Furthermore, we have 

structured our final 4(d) rule to facilitate 

the continuation of conservation 

management. 

While we do not have commitments 

that all current management will 

continue, there is no information 

indicating that a downlisting would 

alter current management plans. It is 

important to note that downlisting the 

species from an endangered to a 

threatened status does not eliminate or 

alter the need to achieve its recovery, 

and agencies are already managing redcockaded woodpeckers in an effort to 

reach this goal. As mentioned, the 

management protections have always 

been voluntary, and the agencies could 

have altered or reduced them at any 

time yet have chosen not to, due to their 

commitments to achieving recovery. 

A species’ reliance on conservation 

management does not, by definition, 

suggest that it must always be listed as 

endangered. With effective assurances 

of such management, or with sufficient 

viability, species that require active 

management may not be at risk of 

imminent extinction. We have listed 

multiple conservation-reliant species as 

threatened (e.g., Hawaiian goose, 

Peirson’s milk-vetch, humpback chub) 

and have even delisted conservationreliant species, when appropriate 

commitments to necessary management 

are in place (e.g., interior least tern, 

running buffalo clover, Kirtland’s 

warbler). 

Guidance on how to better manage the 

red-cockaded woodpecker on public 

lands can be found in the 2003 recovery 

plan, integrated natural resources 

management plans (INRMPs), forest 

management plans, National Wildlife 

Refuge plans, National Park plans, and 

State plans, among other sources. 

Comment 20: The LDWF suggested 

that the downlisting proposal did not 

adequately address the current 

condition of red-cockaded woodpecker 

habitat on the landscape by not properly 

acknowledging that much of the 

currently occupied and potential redcockaded woodpecker habitat remains 

degraded and is in need of additional 

restoration (e.g., timber stand 

improvement via thinning or prescribed 

burning) before populations could 

achieve maximum resiliency. 

Our Response: As we discuss in 

greater detail under Summary of 

Conservation Management below, with 

the potential exception of several 

ecologically unique populations in pond 

pine and related habitat on organic soils 

in northeast North Carolina, none of the 

current or estimated future populations 

are capable of naturally persisting 

without ongoing management. The 

proposed downlisting rule relies on the 

analysis provided in the SSA report, 

which describes the many influences on 

viability, including foraging habitat loss, 

land use/construction, conservation 

management, and habitat degradation. 

Most properties on public lands 

harboring red-cockaded woodpeckers 

have implemented management 

programs to sustain or increase 

populations consistent with population 

size objectives in the 2003 recovery plan 

or other plans. The species is reliant on 

active habitat management, as discussed 

in the SSA report (USFWS 2022, p. 

131). 

General Stressors 

Comment 21: The NCWRC expressed 

concern that we have not adequately 

considered the stressor of human 

population expansion and 

encroachment into red-cockaded 

woodpecker habitat. They informed us 

that the area of private lands between 

the Sandhills Game Lands and Fort 

Bragg (now Fort Liberty), known 

collectively as ‘‘the Gap,’’ is in need of 

continued active management or this 

area will not be able to serve to connect 

isolated populations on public lands. 

Our Response: The effects of human 

expansion and encroachment have been 

taken into consideration. The SSA 

report describes many influences on 

viability, including foraging habitat loss, 

land use/construction, conservation 

management, and habitat degradation 

(USFWS 2022, pp. 124–131). Current 

red-cockaded woodpecker populations 

are highly dependent on active 

conservation management with 

prescribed fire, beneficial and 

compatible silvicultural methods to 

regulate forest composition and 

structure, the provision of artificial 

cavities where natural cavities are 

insufficient, translocation to sustain and 

increase small vulnerable populations, 

and effective monitoring to identify 

limiting factors for management 

(USFWS 2022, pp. 121–131). We 

recognize that human impacts, 

including development, have the 

potential to negatively affect redcockaded woodpeckers through loss or 

degradation of habitat; however, 

through the continued protections 

under the Act, we are ensuring that any 

action with a Federal nexus will be 

required to make sure that the 

continued existence of the species will 

not be jeopardized. 

Comment 22: The FFWCC commented 

that we had not identified invasive 

exotic vegetation as a threat. They 

suggested that invasive plants are a 

major issue in Florida, especially in 

south Florida, and provided the 

following examples: Melaleuca 

(Melaleuca quinquenervia) 

monocultures appearing after fire, 

higher intensity wildfires that kill native 

pines, and decreased effectiveness of 

prescribed burns when Brazilian pepper 

(Schinus terebinthifolius) is present. 

They also recommended that we 

include invasive vegetation as a stressor 

in the final rule, given these negative 

effects and the fact that eradication is 

difficult. 

Our Response: We agree that the rule 

does not state specific examples of the 

invasive, nonnative, exotic vegetation 

types that exist within various open 

pine habitat types throughout the redcockaded woodpecker’s range. However, 

the SSA report specifically identifies 

invasive species as an example of 

disturbances that have the potential to 

impact red-cockaded woodpecker 

habitat and, therefore, red-cockaded 

woodpecker population resilience 

(USFWS 2022, p. 74). 

Throughout the SSA report, we 

acknowledge the importance of 

prescribed fire and its overall impact on 

the structure, function, and process of 

the open pine/grass systems (USFWS 

2022, pp. 37–39, 124–127). We do agree 

and report that most of the prescribed 

fire references are generally linked to 

the improvements in hardwood 

midstory control, fuel load reduction, 

and overall open pine habitat 

restoration. However, we also recognize 

in the ‘‘Current Condition’’ portion of 

this document (below) that there are 

impacts from disturbance that represent 

hazardous fire fuels like those reported 

by the FFWCC, and these structural 

habitat components are potential threats 

to red-cockaded woodpecker resiliency. 

Comment 23: The FFWCC suggested 

that we still do not know the effects of 

an ongoing hydrologic restoration 

project (Picayune Strand Restoration 

Project) on the Picayune Strand State 

Forest essential support population, and 

that this project’s increased water flows 

could reduce the intensity of future 

wildfires; the FFWCC recommended 

that we also consider adaptive 

management strategies for mitigating 

any impacts to the red-cockaded 

woodpecker from increased water and 

prolonged hydroperiods. 


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Our Response: We appreciate the 

suggestion to consider the Picayune 

hydrologic restoration project and its 

potential indirect effects on redcockaded woodpeckers. We also 

appreciate the request to consider an 

adaptive management approach as a 

means to mitigate for any unanticipated 

negative impacts that would be 

correlated with the hydrologic project. 

Since this comment was submitted, 

modeling efforts conducted by the U.S. 

Army Corps of Engineers (USACE) have 

predicted impacts from the anticipated 

flooding. The model results indicate 

that the red-cockaded woodpecker 

habitat will shift below the standard of 

management as the project progresses. 

While it is still unclear how quickly 

slashpine will react to being inundated, 

modeling efforts suggest there is a 

potential projected loss of up to 3 

clusters as the result of this project. We 

are actively working with the USACE 

through the section 7 process to 

minimize any impacts. 

The Service has a long history of 

supporting the application of adaptive 

management. When applied, 

assumption-based applications have 

rigorous datasets that support informed 

decision making. We support adaptive 

management approaches that (1) 

conceptualize the problem, (2) plan 

actions and monitoring, (3) implement 

actions and monitoring, (4) analyze, use, 

and adapt from the data, and (5) capture 

and share the learning. Based on the 

FFWCC comments, we fully support 

Picayune State Forest implementing an 

assumption-based (adaptive 

management) scientific approach in 

order to provide early detection of 

potential adverse impacts to the forest’s 

red-cockaded woodpecker population. 

Conservation Efforts and Plans 

Comment 24: The NCWRC suggested 

two conservation initiatives that would 

aid in the management of the species 

after downlisting: (1) a conservation 

fund to support future land management 

and (2) a post-downlisting monitoring 

plan. 

Our Response: As we continue down 

the path towards full recovery of redcockaded woodpeckers, we will use the 

best available science to inform and 

facilitate further conservation efforts 

that benefit the species. While we do 

not have a specific conservation fund 

for red-cockaded woodpecker land 

management, we encourage partners to 

apply to grant opportunities available 

(e.g., Partners for Fish and Wildlife, 

Natural Resources Conservation Service 

(NRCS), section 6 funding (for State 

lands). 

We are not required to create a postdownlisting monitoring plan; a specific 

monitoring plan is required only after 

delisting a species due to recovery. 

However, annual population monitoring 

of red-cockaded woodpeckers will 

continue once they are downlisted. For 

example, anyone enrolled with an SHA 

will continue to provide annual reports 

that include the number of breeding 

groups and increases/decreases in active 

clusters. Additionally, annual property 

reports from section 10(a)(1)(A) permits 

will include data on active clusters, 

inactive clusters, potential breeding 

groups, and descriptions of habitat 

management completed. Furthermore, 

the 4(d) rule requires Federal agencies 

and Department of Defense (DoD) 

properties to provide a report on their 

red-cockaded woodpecker populations 

to the Service annually. 

4(d) Rule Exceptions 

Comment 25: LDWF expressed 

concern that the 4(d) rule does not 

define ‘‘short-term’’ with regard to 

incidental take of red-cockaded 

woodpecker during habitat conversion, 

if there are short-term impacts to the 

species. The State agency requested that 

the Service define ‘‘short-term’’ and 

provide greater clarification on the 

magnitude of impact that habitat 

conversions can have on a given redcockaded woodpecker population. 

Our Response: The terms ‘‘shortterm’’ and ‘‘magnitude’’ have not been 

defined in the rule because they have 

different meanings depending on many 

variables. In terms of wildlife species 

and biological populations, both shortand long-term effects, and the 

magnitude of those effects, depend on 

many influential inherent and external 

biological, ecological, and 

environmental factors like lifespan, 

reproductive timing, and generational 

time; population size, growth rate, and 

connectivity; population dynamics and 

demographics; and availability of 

natural resources. In this rule, it is 

anticipated that the temporal scale of 

short-term adverse effects (e.g., reducing 

a stand below the managed stability 

standard) to red-cockaded woodpeckers 

are likely to occur within one or two 

generations (i.e., 4–8 years; USFWS 

2022, p. 71) in a resident population. 

The magnitude of long-term beneficial 

impacts from those same short-term 

adverse management actions are 

expected to be high and to span over 

multiple generations (three generations 

or more) within a resident population. 

The 4(d) rule provides take exceptions 

only when habitat management actions 

are intended to further conservation of 

the species. However, any incidental 

adverse effects to red-cockaded 

woodpeckers from these beneficial 

management actions would likely be 

low in magnitude; therefore, in this 

context, incidental adverse effects are 

not likely to rise to the level of 

incidental take of red-cockaded 

woodpeckers. 

4(d) Rule Artificial Cavity Provisions 

Comment 26: The South Carolina 

Department of Natural Resources 

recommended the threshold minimum 

diameter of 15 inches for cavity inserts 

should be followed and that areas 

lacking trees of sufficient size for insert 

installation should use the Copeyon 

method for drilled cavities (Copeyon 

1990, pp. 303–311). Separately, a public 

commenter noted that Picayune Strand 

and Big Cypress rely on South Florida 

slash pine, which are naturally much 

smaller in diameter even when mature. 

They indicated they would have overall 

32 percent fewer artificial cavities on 

the landscape if they had to select trees 

≥14 inches. 

Our Response: We currently support 

the artificial cavity standards defined by 

Allen (1991, p. 19), Copeyon (1990, pp. 

303–311), and USFWS (2022, pp. 85– 

87). For the cavity insert technique, the 

guidance requires selected trees have a 

minimum of 15 inches diameter at 

cavity height, while the guidance for the 

drilled cavity technique generally 

requires knowledge of the tree’s 

sapwood (3.5 inches or less) to 

heartwood (7 inches or more) ratios at 

cavity height. We agree that the drilled 

cavity technique provides more 

opportunity to utilize smaller diameter 

trees at cavity height where sapwood/ 

heartwood ratios are suitable, and we 

continue to advocate drilled cavities as 

the preferred method. However, many 

landscapes are challenged with limited 

access restrictions. The number of 

return visits for drilled cavity 

applications, which includes screening, 

checks for resin leakage, and routine 

maintenance checks is often limited for 

those on access restricted landscapes. 

While we support the standards 

outlined above, we acknowledge that 

there are unique habitats in the region, 

such as Picayune and Big Cypress, that 

require site-specific application of this 

technique. These standards have been 

previously approved by the Service and 

are fundamentally based on the 

heartwood/sapwood ratio rather than 

the diameter of the tree. 

4(d) Rule Military Exception 

Comment 27: The LDWF requested 

that the annual property reporting 

language for DoD and other Federal 

properties be changed from ‘‘could’’ to 


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‘‘must’’ when detailing the requirements 

for the annual report in the following 

sentence: ‘‘could include the property’s 

recovery goal; the number of active, 

inactive, and recruitment clusters; 

information on habitat quality; and the 

number of artificial cavities the property 

installed.’’ 

Our Response: The annual property 

report language is outside of the scope 

of the 4(d) rule and played no part in 

our determination. However, as the DoD 

adjusts and modifies their INRMPs to 

best coordinate with the findings in the 

4(d) rule, we anticipate the content of 

the INRMP to reflect mutually agreed 

upon conservation, protection, and 

management of fish and wildlife 

resources as stated in the Sikes Act (16 

U.S.C. 670 et seq.). Per the Sikes Act, 

this will include requirements to 

monitor and improve the effectiveness 

of the plan. 

4(d) Rule Provisions for Prescribed 

Burning and Herbicides 

Comment 28: The LDWF requested 

that best management practices (BMPs) 

be used when prescribed burns are 

conducted in red-cockaded woodpecker 

clusters and associated foraging habitat 

and in protection of red-cockaded 

woodpecker cavity trees. Additionally, 

they recommended the 4(d) rule further 

define the BMPs using existing language 

from the SSA report. Similarly, a public 

commenter requested additional 

information be provided to clarify what 

is compatible or incompatible practice 

for prescribed fires and herbicide 

applications. 

Our Response: This 4(d) rule includes 

the requirement, in § 17.41(h)(4)(iii)(A)– 

(B), to follow applicable BMPs and 

applicable Federal and State laws for 

both prescribed burns and herbicide 

application. Privately and other nonfederally owned lands may have 

different needs and should tailor those 

individual needs to their BMPs. We 

continue to recommend the use of the 

2003 recovery plan for guidance on 

compatible or incompatible practices for 

prescribed fires and herbicide 

applications. 

4(d) Rule Exception for Service- or 

State-Approved Management Plans 

Comment 29: Multiple commenters 

brought up issues that may impact 

landowner willingness to participate in 

the Safe Harbor program, currently 

known as the Conservation Benefit 

program, and expressed concerns over 

the permitting process (i.e., lack of 

enforcement, ability to return to 

baseline conditions, and the 

burdensome process). Additionally, the 

South Carolina Department of Natural 

Resources indicated concern that the 

prescribed fire and herbicide exception 

could disincentivize further Safe Harbor 

program enrollment (currently known as 

the Conservation Benefit program). 

Our Response: We acknowledge these 

concerns now that landowners will have 

additional flexibility on how to manage 

their land for red-cockaded 

woodpeckers. Although the 4(d) rule 

and SHAs, currently known as CBAs, 

may provide many of the same benefits 

on managed non-Federal lands, the 

Conservation Benefit program provides 

the additional flexibility for land 

managers to remove new (abovebaseline) clusters that emerge on their 

property without violating certain 

section 9 prohibitions of the Act. 

Without the incidental take exceptions 

in this 4(d) rule, take resulting from 

these activities would be prohibited, 

thus requiring a section 10(a)(1)(a) 

permit associated with a CBA or section 

10(a)(1)(b) permit and habitat 

conservation plan (HCP) prior to 

implementation. These incidental take 

exceptions are applicable to all private 

lands regardless of participation in 

existing SHAs or future CBAs as long as 

the activity meets the stipulations 

described above. It is important to note 

that the 4(d) rule does not nullify 

existing SHAs or future CBAs. Existing 

enrollment and participation in SHAs or 

future CBAs does not preclude an 

enrollee from exceptions of the 4(d) rule 

(see ‘‘Provisions of the 4(d) Rule’’). 

4(d) Rule General Issue 

Comment 30: The Alabama Division 

of Wildlife and Freshwater Fisheries 

requested clarification on prohibitions 

and exemptions regarding insecticide 

use. A public commenter requested 

insecticide use within the cluster area 

be approved by the Service and used 

only when necessary. 

Our Response: This rule prohibits 

take, as set forth at § 17.21(c)(1) for 

endangered wildlife. We did not include 

any exceptions to this prohibition for 

take resulting from the use of 

insecticides from the prohibitions of 

section 9. If the property has redcockaded woodpeckers, then there is a 

potential for take to occur from such 

activities and incidental take could still 

be exempted through a section 10 

permit or an incidental take statement 

associated with a biological opinion. 

Thus, the 4(d) rule does not cause a 

change in the process for authorization 

of insecticide use in red-cockaded 

woodpecker clusters. 

Public Comments 

We received 234 unique comments 

from the general public on the proposed 

listing and 4(d) rule during the 2 public 

comment periods. We summarize and 

respond to these comments below. 

However, we do not repeat issues that 

we have already addressed above and 

instead address only new issues that 

were not raised by peer reviewers or 

State or Federal agencies. 

Downlisting 

Comment 31: One public commenter 

indicated that the Service’s targets for 

downlisting have not been met and that 

public records indicated the Service had 

been planning to downlist or delist the 

species if State and Federal agencies 

were able to provide necessary 

assurances of continued management. 

Our Response: Assurances of 

continued management are not required 

for reclassification of a species. 

Although there are uncertainties about 

the continuation of some management 

commitments, we fully expect much of 

the conservation management for redcockaded woodpecker to continue into 

the foreseeable future and have 

structured our final 4(d) rule to 

encourage the continuation of such 

management. 

Comment 32: Multiple commenters 

emphasized the importance of longleaf 

pine ecosystems in supporting 

biodiversity in the southeastern United 

States and the role of red-cockaded 

woodpeckers as umbrella and keystone 

species. Several of these commenters 

suggested that conserving red-cockaded 

woodpeckers, via management of 

longleaf pine ecosystems, provides 

cascading benefits to many other 

species, including other at-risk species, 

and proposed that the species remain 

protected for that reason. 

Our Response: While we recognize 

the importance of the longleaf pine 

habitat, as referenced in the 

‘‘Background’’ and ‘‘Summary of 

Stressors’’ below, section 4(a)(1) 

requires that the Secretary determine 

whether a species is an endangered 

species or threatened species because of 

any of the five factors listed. Section 

4(b) of the Act requires that the 

determination be made ‘‘solely on the 

basis of the best scientific and 

commercial data available.’’ Thus, we 

cannot factor the need to protect other 

at-risk species or the ecosystem at large 

into the decision of whether or not a 

species meets the definition of 

threatened or endangered. 

Comment 33: Some commenters 

believed that, since woodpeckers 

currently occupy less than their 

historical range, they should not be 

downlisted. 

Our Response: Neither downlisting 

nor delisting require that the species 


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reoccupy their historical range. Under 

the Act, a species’ status must be 

assessed using the five factors: (1) 

Present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (2) overutilization of 

the species for commercial, recreational, 

scientific, or educational purposes; (3) 

disease or predation; (4) inadequacy of 

existing regulatory mechanisms; and (5) 

other natural or manmade factors 

affecting its continued existence. 

Comment 34: One commenter 

expressed concern that, if the species is 

downlisted, land managers will return 

to past practices of reducing the use of 

fire, reducing control of woody 

understory vegetation, and illegally 

removing cavity trees on private lands; 

all of these actions would reduce habitat 

quality and quantity. 

Our Response: The red-cockaded 

woodpecker will continue to receive 

protections under the Act as a 

threatened species. The 4(d) rule is 

designed to encourage continued habitat 

management by including exceptions to 

the prohibitions for incidental take 

caused by application of prescribed 

burns or herbicides on private lands to 

create or maintain habitat (i.e., open 

pine ecosystems) or sustain and grow 

red-cockaded woodpecker populations, 

provided that the landowner, or their 

representative: (1) Follows applicable 

BMPs for prescribed burns and 

applicable Federal and State laws; (2) 

applies herbicides in a manner 

consistent with applicable BMPs and 

applicable Federal and State laws; and 

(3) applies prescribed burns and 

herbicides in a manner that minimizes 

or avoids adverse effects to known 

active clusters and red-cockaded 

woodpecker roosting and nesting 

behavior to the maximum extent 

practicable. 

Our intent for this provision is to 

provide a simple means by which to 

encourage private landowners to pursue 

certain types of voluntary forest 

management activities (i.e., prescribed 

burns and herbicide application) in a 

way that reduces impacts to the species 

and also removes any potential barriers 

to the implementation, such as the 

potential for violating the Act, of this 

beneficial forest management. 

Collaboration with partners in the 

forestry industry and their voluntary 

conservation and restoration of redcockaded woodpecker habitat has 

helped advance red-cockaded 

woodpecker recovery to the point of 

downlisting; this provision would 

continue to encourage this beneficial 

management. 

Comment 35: One commenter 

suggested that the downlisting would 

not alter any of the protections the 

species receives and is thus merely a 

symbolic gesture. 

Our Response: Downlisting the redcockaded woodpecker is not merely a 

symbolic gesture. The species has 

achieved major gains in recovery in the 

past several decades. These gains have 

benefited the species to the point that it 

no longer meets the definition of an 

endangered species. While the species 

has not yet achieved full recovery, it is 

paramount in the effective 

implementation of the Act to ensure 

every listed species has the appropriate 

status, based on the best available 

scientific information regarding its 

extinction risk. In the case of the redcockaded woodpecker, since the species 

no longer meets the definition of an 

endangered species, we are revising its 

classification to ensure its listed status 

aligns with the latest information on its 

viability. 

While downlisting the red-cockaded 

woodpecker will continue to provide 

protections under the Act, the 4(d) rule 

includes exceptions to take prohibitions 

that provide additional management 

flexibilities that do not apply while the 

species is listed as endangered (e.g., 

exception for take resulting from 

prescribed burns on private lands; 

exception for take resulting from 

installation of artificial cavities) (see 

‘‘Provisions of the 4(d) Rule’’ below). 

Comment 36: One commenter 

suggested that the species’ status had 

not changed considerably since the 2006 

5-year status review, in which we 

recommended that the species should 

remain listed as endangered and that the 

threats to the species have not been 

sufficiently ameliorated. 

Our Response: Since the 5-year 

review in 2006, the species’ status has 

continued to improve. Based on the best 

available scientific information 

including new information available 

since the 2006 5-year review (i.e., the 

new analysis in the SSA), 87 percent of 

red-cockaded woodpecker demographic 

populations for which we have trend 

data demonstrate stable to increasing 

trends. The continued growth of 

populations since 2006, and the species’ 

current stability, suggests the redcockaded woodpecker is not in 

immediate danger of extinction. We are 

also downlisting the species because we 

believe the threats currently acting on 

the species are effectively managed. 

Since 2006, managers have continued to 

install more artificial cavities, have 

continued to actively manage habitat to 

improve quality, and have continued to 

translocate birds to enhance genetic 

health and viability. These activities 

have contributed to the stabilization of 

the populations, and management of 

threats. Our rigorous analysis of 

stressors and species’ condition in the 

SSA demonstrates the improved status 

of the species and effectiveness of 

current management. 

Policy and Process 

Comment 37: Multiple commenters 

expressed confusion about the status of 

the species’ 5-year status reviews, and 

the relationship of these reviews to the 

proposed rule. 

Our Response: The December 2, 2020, 

proposed rule to reclassify the redcockaded woodpecker as a threatened 

species fulfilled the requirements of a 5- 

year status review for the species (85 FR 

63474). While the proposed rule 

referenced biological information in the 

SSA report, the SSA alone does not 

represent the 5-year status review. 

According to the Act, a 5-year status 

review must contain an evaluation of 

the five listing factors for the species, 

and a recommendation as to the species’ 

current status based on the relevant 

threats under those factors. In the 

proposed rule, we provided a thorough 

account of the stressors affecting the 

species and aligned these stressors with 

the five factors under the Act. 

Our analysis in the proposed rule also 

took into account the submissions we 

received in response to the 5-year 

review initiation notice; we are not 

required to respond to each of these 

submissions individually, as we do for 

public comments on a proposed 

rulemaking. The public had an 

opportunity to provide feedback on our 

determination of species’ status during 

the comment period on the proposed 

rule, and we have addressed that 

feedback here. 

Comment 38: Multiple commenters 

took issue with our ‘‘significant portion 

of the range’’ analysis, suggesting that 

we did not adequately explain why the 

Florida Peninsula, West Gulf Coastal 

Plain, and southernmost near-coastal 

extension of the Upper West Gulf 

Coastal Plain ecoregions are not 

‘‘significant.’’ Other commenters 

believed that our discussion of 

significance was not consistent with our 

‘‘Significant Portion of the Range’’ 

policy and court rulings concerning this 

policy. 

Our Response: We revised our 

‘‘significant portion of the range’’ 

analysis in this rule in response to these 

comments and to increase consistency 

with current practice. We removed the 

discussion of the significance of the 

portion that includes the Florida 

Peninsula, West Gulf Coastal Plain, and 

southernmost near-coastal extension of 


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the Upper West Gulf Coastal Plain 

ecoregions. 

Ultimately, this discussion of 

significance was not necessary for our 

analysis since this portion does not have 

a different status than the whole. 

Despite the vulnerability of these areas 

to hurricanes, this stressor is not 

currently accelerating extinction risk in 

this part of the range, due to effective 

conservation management. Populations 

can withstand and persist after 

hurricanes if biologists and land 

managers implement prompt, effective 

post-storm recovery actions, such as 

installing artificial cavities, reducing 

hazardous fuels, and restoring forests to 

suitable habitat. Both this emergency 

response and routine management are 

well-understood and are currently being 

implemented across the range of the 

woodpecker. In addition, much of the 

red-cockaded woodpecker’s currently 

occupied habitat is now protected under 

various management plans. As such, 

despite the regular occurrence of 

hurricanes within red-cockaded 

woodpecker habitat, 89 percent of the 

populations for which we have trend 

data demonstrate stable to increasing 

growth rates in this portion of the range, 

illustrating the effectiveness of currently 

ongoing active management in 

preventing broad impacts from 

hurricanes and other stressors (USFWS 

2022, p. 112). 

This risk may be particularly high in 

the foreseeable future in the Florida 

Peninsula, West Gulf Coastal Plain, and 

the southernmost near-coastal extension 

of the Upper West Gulf Coastal Plain 

ecoregions. Therefore, although some 

threats to the red-cockaded woodpecker 

are concentrated in these ecoregions, the 

timing of the effects of the threats in that 

portion is the same as that for the entire 

range—the foreseeable future. As a 

result, the red-cockaded woodpecker is 

not in danger of extinction now in this 

portion of its range. Given the fact that 

this portion has the same status as the 

species throughout all of its range, we 

do not need to evaluate its significance. 

Comment 39: Commenters suggested 

other areas that could be considered a 

significant portion of the species’ range 

(e.g., the populations that have low or 

very low resiliency and the western 

portion of the species’ range, where 

there are no ‘‘high’’ or ‘‘very high’’ 

resiliency populations). 

Our Response: Based on feedback 

from the comments, we considered 

whether the portion of the species’ 

range that contains low or very low 

resiliency populations could constitute 

a portion that provides a basis for 

determining that the species is in danger 

of extinction throughout a significant 

portion of its range. Based on our 

analysis, we did not find that this 

portion of the species’ range, or any 

combination of areas that lack moderate, 

high, or very high resiliency 

populations, met the definition of an 

endangered species. Managers are 

currently applying active management 

to these small populations. As a result 

of this active management, the vast 

majority of these low or very low 

resiliency populations have stable or 

increasing growth rates, demonstrating 

the effectiveness of this active 

management in supporting the 

persistence of these small populations. 

Of the 108 demographic populations in 

low or very low resiliency classes, 86 

have data on growth rates; 86 percent of 

these populations have growth rates 

greater than or equal to one (USFWS 

2022, pp. 108–110). Under this current 

paradigm, these small populations are 

not currently in danger of extinction 

due to the active management (e.g., 

translocation, habitat management, 

artificial cavity installation) that 

supports their stability and growth. As 

a result, the red-cockaded woodpecker 

is not currently in danger of extinction 

in this portion of its range. Given the 

fact that this portion has the same status 

as the species throughout all of its 

range, we do not need to evaluate its 

significance. 

Comment 40: One commenter 

expressed concern that the Service, 

contrary to the best available science, 

has been trying to downlist or delist the 

red-cockaded woodpecker to appease 

Federal partners. This commenter also 

questioned an interagency agreement 

signed with the Army on the same day 

that we announced the proposal to 

downlist the red-cockaded woodpecker, 

indicating concern that the agreement 

set a goal of eliminating section 7 

consultations in favor of general INRMP 

consultations. 

Our Response: The analysis in this 

rulemaking is based on the best 

available science, summarized in the 

SSA report. This scientific information 

has been peer-reviewed, and the public 

was provided with opportunities to 

review and comment on our analysis 

during two comment periods and one 

public meeting. We are required to 

coordinate, collaborate, and use the 

expertise of State agencies in developing 

the scientific foundation upon which 

the Service bases its determinations for 

listing actions (i.e., SSA reports) per the 

1994 joint policy and 2016 Revised 

Interagency Cooperative Policy 

Regarding the Role of State Agencies in 

Endangered Species Act Activities 

(State Representation of Species Status 

Assessment Teams). We also frequently 

collaborate with Federal partners in the 

development of SSAs to ensure we have 

the best available data and a thorough 

understanding of Federal management 

that may affect the species. In the 

development of the red-cockaded 

woodpecker SSA, we followed these 

common practices. We sought 

information from our State and Federal 

partners to inform the SSA, our 

understanding of relevant ongoing 

management, and any proposed status 

change under the Act. 

Based on the best available 

information in the SSA, we have 

determined that the species no longer 

meets the definition of an endangered 

species under the Act. However, while 

many of the landowners and managers 

within the range of the species have 

committed to continuing to implement 

their conservation programs into the 

future, we do not have certain 

commitments that all current 

management will continue and that it 

will adapt as necessary to effectively 

address emerging stressors (e.g., 

intensifying hurricanes). As a 

conservation-reliant species, securing 

management commitments for the 

foreseeable future would ensure that 

red-cockaded woodpecker populations 

grow or are maintained. This conclusion 

is reinforced by the future-scenario 

simulations, which indicate that 

management efforts equal to or greater 

than current levels will further increase 

the number of moderate to very high 

resiliency populations and preserve 

small populations. Thus, uncertainties 

about the continuation of the 

management upon which the species 

relies informed our determination that a 

downlisting status of threatened is 

appropriate. 

The purpose of the interagency 

agreement is to promote the 

conservation of the red-cockaded 

woodpecker. This agreement did not 

factor into the proposal to downlist the 

species. Additionally, it is important to 

note that Federal agency section 7 

consultations obligations have not been 

altered in any way with this final rule. 

Comment 41: One commenter 

believed that the Service’s selection of 

25 years as the foreseeable future was 

arbitrary and too short to reasonably 

forecast effects of threats to the species 

(e.g., climate change impacts), 

especially considering the species’ 

reliance on very old pine trees. 

Our Response: We determined the 

foreseeable future to be 25 years from 

present, because it is a timeframe in 

which we can reasonably estimate 

population responses to natural factors 

and management. As discussed under 

Future Conditions below, in the SSA 


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report, future population conditions 

under different management scenarios 

were simulated and modeled to 25 years 

into the future. During this process it 

was determined that we can rely on the 

timeframe presented in the scenarios 

and predict how future stressors and 

management will affect the redcockaded woodpecker. This timeframe, 

given the species’ life history, is also 

sufficient to identify any effects of 

stressors or conservation measures on 

the red-cockaded woodpecker’s viability 

at both population and species levels. 

Finally, 25 years represents four to five 

generations of red-cockaded 

woodpecker, which would be sufficient 

time for population-level impacts from 

stressors and management to be 

detected. 

Comment 42: One commenter 

contended that the proposed 4(d) rule 

fails to explain how it is necessary and 

advisable, because the rule’s effect on 

private landowners and voluntary 

conservation is not considered. In 

addition, the commenter expressed 

concern that the Service did not explain 

why the Regulatory Flexibility Act 

(RFA) and National Environmental 

Policy Act (NEPA) analyses were not 

prepared for the proposed 4(d) rule. 

Our Response: As discussed in our 

February 3, 2022, proposed 

reclassification rule, section 4(d) of the 

Act provides that the ‘‘Secretary shall 

issue such regulations as he deems 

necessary and advisable to provide for 

the conservation’’ of species listed as 

threatened. As discussed in the 

Background, the courts have recognized 

the extent of the Secretary’s discretion 

under this standard to develop rules 

that are appropriate for the conservation 

of a species. Thus, regulations 

promulgated under section 4(d) of the 

Act provide the Secretary with wide 

latitude of discretion to select 

appropriate provisions tailored to the 

specific conservation needs of the 

threatened species. 

We considered the effect on private 

landowners of our proposed rule. The 

proposed rule explains that if a manager 

has received or receives a permit for a 

particular activity (e.g., a section 

10(a)(1)(A) permit for monitoring redcockaded woodpeckers, a permit issued 

for an existing SHA, CBA, or HCP), any 

take that occurs as a result of activities 

covered by this permit would remain 

exempted from the rule’s prohibitions 

on take. Furthermore, our rule 

encourages private landowners to 

continue to enroll in the CBA program, 

under which the landowners receive 

formal regulatory assurances from the 

Service regarding their management 

responsibilities in return for 

contributions to benefit the listed 

species. Any landowner who enrolls in 

a CBA is allowed to return their 

property to ‘‘baseline’’ conditions at any 

time. Additionally, this final rule 

excepts take from activities completed 

by a landowner that, when the species 

was endangered, would have required a 

permit under the Act. 

Regarding the commenter’s concern 

that a NEPA analysis was not 

undertaken, it is our position that, 

outside the jurisdiction of the U.S. Court 

of Appeals for the Tenth Circuit, we do 

not need to prepare a NEPA analysis in 

connection with regulations adopted 

pursuant to section 4(a) of the Act (see 

National Environmental Policy Act 

section below). 

Regarding the commenter’s concern 

that an RFA analysis was not provided, 

the Secretary, in making a 

determination of endangered or 

threatened species status under section 

4(b)(1)(A) of the Act, ‘‘shall make 

determinations solely on the basis of the 

best scientific and commercial data 

available.’’ Economic considerations are 

in addition to such data and cannot be 

part of the basis for the species’ status 

determination, which includes the 4(d) 

rule. The rationale for sole use of best 

scientific and commercial information 

available is provided in the legislative 

history for the 1982 amendments to the 

Act, which describes the purposes of the 

amendments using the following 

language: ‘‘to prevent non-biological 

considerations from affecting [listing] 

decisions,’’ Conf. Rep. (H.R.) No. 97–835 

(1982) (‘‘Conf. Rep.’’), at 19. As noted in 

the House Report, economic 

considerations have no relevance to 

determinations regarding the status of 

species and the economic analysis 

requirements of Executive Order 12291, 

and such statutes as the RFA and the 

Paperwork Reduction Act, will not 

apply to any phase of the listing 

process. Conf. Rep. (H.R.) No. 97–835 

(p. 24153; 1982). 

Comment 43: One commenter 

requested that the Service be more 

involved with assessing, approving, and 

enforcing actions affecting species 

protected under the Act so that the State 

agencies are not left with the burden of 

interpreting the 4(d) rule. 

Our Response: We acknowledge the 

importance of our conservation 

partnership with State agencies and the 

role they play when interpreting rules 

for federally listed species in response 

to public inquiries. In addition to 

providing Frequently Asked Questions 

documents about the 4(d) rule, our local 

field offices are available to provide 

technical assistance. State agencies can 

direct questions to field offices to assist 

with the interpretation of the 4(d) rule 

in addition to requesting assistance 

when enforcing protections for federally 

protected species. 

Comment 44: Another commenter 

recommended that non-Federal 

management plans, including analyses 

of potential impacts from ongoing and 

proposed activities (within the time 

covered), be more ‘‘programmatic’’ in 

nature, such as ‘‘worst case’’ estimates 

included in some Army INRMP 

endangered species management 

components (ESMCs). 

Our Response: While we are available 

to provide technical assistance to 

private landowners, we do not have the 

authority to tell private landowners how 

to manage their properties. The 

suggestion described by the commenter 

would be a relatively unique and 

specific situation to occur. We 

anticipate that people will follow the 

intent of the 4(d) rule and, as such, will 

apply appropriate management for the 

species to their properties. 

General Biology, Ecology, and 

Population Issues 

Comment 45: Several commenters 

provided critiques of the data and 

methodologies used in the SSA. One 

commenter expressed concerns that the 

data they provided for the SSA was the 

best possible outcome and worried that 

all the data might be inflated. Another 

commenter indicated concern that the 

‘‘moderate’’ resiliency class included 

both populations that were declining 

and were not declining. Yet another 

commenter stated that the Service did 

not adequately articulate uncertainties 

related to the model. 

Our Response: The data for the SSA 

was collected and analyzed according to 

established scientific procedures. Expert 

solicitation and peer review provided 

opportunities for public comment, and 

all analysis and decisions were based on 

the data provided. We rely on and trust 

that land managers provided accurate 

data. 

The SSA report provides a description 

of the approach and method used to 

delineate demographic populations. The 

report also describes how the moderate 

category is a transitional resilience 

category, in which population sizes 

range from 102 to 248 active clusters 

and consist of both increasing and stable 

populations. The moderate category 

populations, unlike those in the high 

and very high categories, may vary 

considerably in their resilience 

depending on population size, 

management, and the spatial 

distribution and density of active 

clusters (USFWS 2022, p. 113). 


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We also described uncertainties 

within the SSA report, including the 

uncertainties associated with 

performing analyses with an imputed 

data set. With imputed data, a single 

value is provided for each missing value 

and analyzed as though it were true, 

while in reality there is uncertainty 

about the value of each missing 

observation (USFWS 2022, p. 227). 

All of the issues raised were either 

already addressed in the SSA report or 

have been incorporated into the SSA 

report and/or this final rule. 

Comment 46: One commenter 

provided details about concerns that the 

way the 2003 recovery plan delineated 

populations of red-cockaded 

woodpeckers was incorrect. 

Our Response: SSA reports are 

scientific documents meant to be a 

single source for the species’ biological 

information needed to inform decisionmaking in the rule. The SSA report did 

not use the same population boundaries 

as the 2003 recovery plan. As reviewed 

in the 2003 recovery plan, red-cockaded 

woodpecker populations functioned as 

demographically closed populations 

due to infrequent long-distance 

dispersal (USFWS 2003, pp. 25, 32). In 

the 2003 recovery plan, territory 

densities or distances among territories 

were not defined to explicitly categorize 

demographic populations. In the SSA, 

we instead used red-cockaded 

woodpecker dispersal data from longterm monitoring data and radiotelemetry studies to spatially delimit 

demographic populations according to 

nearest neighbor active clusters within 6 

km (3.7 miles) (USFWS 2022, pp. 80– 

82). Ultimately, we delineated 124 

demographic populations. In the SSA 

report, the essential support population 

this commenter referenced was split 

into nine demographic populations for 

our analysis. Although we are not 

currently contemplating changes to the 

2003 recovery plan, we will consider 

this commenter’s suggestion if we 

embark on any revisions to this plan. 

Population Stressors 

Comment 47: One commenter shared 

that, according to the North American 

Breeding Bird Survey, the woodpecker 

has had a cumulative population 

decline of 86 percent between 1966 and 

2014, with an average of over 3.3 

percent population decline per year 

(Red-cockaded Woodpecker Life 

History); they believed this decline 

would continue until the species 

becomes extinct. 

Our Response: The Breeding Bird 

Survey is a roadside survey of North 

American birds that primarily covers 

the continental United States and 

southern Canada. Every June, 

experienced birders volunteer to 

conduct surveys along established 

roadside routes to facilitate the 

estimation of population change for 

birds that are encountered during 

surveys. Although the Breeding Bird 

Survey provides a very large data set, 

there are potential problems with 

estimates of population change that are 

derived from Breeding Bird Survey data. 

Therefore, ‘‘regional credibility 

measures’’ are used to check certain 

attributes of the survey data, such as 

relative abundance on survey routes, 

precision of trends, and the 

completeness of the data set. It is 

possible that data analysis can be 

inaccurate and imprecise, depending on 

the level of data deficiency in a region; 

thus, the data are categorized into three 

credibility categories to assist in 

assessing reliability of the results. The 

Breeding Bird Survey results for the redcockaded woodpecker reflect that the 

majority of the data are in the red 

category, meaning the data have 

important deficiencies and are not of 

sufficient quality to use in estimates of 

population change or for other reasons. 

Decades of species-specific, redcockaded woodpecker survey data have 

been obtained using standardized data 

collection methodology, and are the 

data that the Service relied upon in the 

SSA and to inform this rule. These data 

sets provide a large amount of highquality data for assessing attributes of 

red-cockaded woodpecker populations 

and informing management decisions. 

Data collected during red-cockaded 

woodpecker surveys represent the best 

available species’ information and are 

superior to species’ data provided by the 

Breeding Bird Survey and any other 

means. 

Comment 48: Several commenters 

believed that because a majority of 

populations have low resiliency to 

stochastic events and threats (primarily 

due to small population sizes), they 

remain in immediate danger of 

extirpation and do not have sufficient 

resiliency to warrant downlisting. 

Our Response: These commenters 

correctly accounted for the number of 

demographic populations in the low 

and very low resiliency categories. 

However, the majority (65 percent) of 

total active clusters (5,062 active 

clusters out of 7,794 total active 

clusters) across the range of the species 

are in the 16 moderate-to-very-high 

resiliency populations. Furthermore, of 

the 98 populations for which we had 

sufficient data to measure growth rates, 

only 13 percent are in decline; in other 

words, 87 percent of red-cockaded 

woodpecker populations (for which we 

had sufficient data) are stable or 

increasing, including the vast majority 

of low and very low resiliency 

populations (USFWS 2022, pp. 112– 

116). These stable and positive growth 

rates are indicative of the positive 

effects of red-cockaded woodpecker 

conservation management programs on 

these locations and the ability of such 

management to offset inherently low or 

very low population resilience. 

In summary, after evaluating the 

threats to the species and assessing the 

cumulative effect of the threats under 

the section 4(a)(1) factors, we find that 

the stressors identified above continue 

to negatively affect the red-cockaded 

woodpecker, but new restoration 

techniques and changes in silvicultural 

practices have led to stabilization of the 

red-cockaded woodpeckers’ viability 

and even resulted in a substantial 

increase in the number and distribution 

of populations. Sixty-five percent of all 

current red-cockaded woodpecker 

clusters are within moderately, highly, 

or very highly resilient populations, and 

populations are spread across multiple 

ecoregions, providing for redundancy 

and representation. Given these current 

levels of resiliency, redundancy, and 

representation, we conclude that the 

red-cockaded woodpecker is not 

currently in danger of extinction 

throughout all or a significant portion of 

its range (i.e., it no longer meets the 

definition of an endangered species). 

Comment 49: Multiple commenters 

expressed concern about the continued 

loss of suitable habitat constraining 

population growth of the species, with 

one commenter stating that the Service 

did not adequately address carrying 

capacity issues in the SSA report. 

Our Response: We recognize that 

some habitat loss may still be occurring 

and acknowledge that the lingering 

impacts of historical clearcutting and 

incompatible forest management, and 

conversion to urban and agricultural 

land still negatively affect the ability of 

red-cockaded woodpecker populations 

to grow, even when managed, as the 

carrying capacity of suitable forest areas 

across much of the range can be quite 

low. However, restoration activities 

such as prescribed fire and strategic 

placement of recruitment clusters can 

reduce gaps between populations and 

increase habitat and population size 

toward current carrying capacity. These 

activities are occurring across the range 

of the red-cockaded woodpecker on 

properties actively managed for redcockaded woodpecker conservation (85 

FR 63474 at 63479, October 8, 2020). 

Carrying capacity was taken into 

consideration when assessing 

population size within the foreseeable 


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future in the simulations and scenarios 

run in the SSA. Values for each 

population were acquired from property 

and population managers who estimated 

carrying capacity for their populations 

at the end of the 25-year period. 

Carrying capacity reflected the 

estimated future amount of nesting and 

foraging habitat, and whether a potential 

increase in active territories to capacity 

was the result of recruitment clusters, 

budding, or pioneering (USFWS 2022, 

pp. 12–13). Additionally, we 

acknowledged in the SSA report 

(USFWS 2022, p. 14) that carrying 

capacity may have been underestimated 

in our analysis. The high densities of 

red-cockaded woodpeckers that occur in 

high-quality habitat suggest that 

carrying capacity estimates are overly 

conservative. If so, greater growth than 

our conservative simulations project 

and larger differences between 

management scenarios are possible. 

Comment 50: One commenter shared 

their concern that small woodpecker 

populations in low-quality habitats, 

experiencing additional stressors, can 

quickly lose their pools of helper birds, 

leading to rapid population decline. 

Our Response: Helpers are nonbreeding adult offspring that remain on 

their natal territories for one or more 

years after fledging. Helpers assist in the 

rearing of young and other essential 

activities during years of delayed 

dispersal or until becoming replacement 

breeders on their natal territories. 

Annual levels of productivity and 

mortality may affect the following year’s 

total number of helpers and the total 

number of groups with helpers found 

within a small red-cockaded 

woodpecker population; however, these 

variables do not similarly affect the total 

number of potential breeding groups 

(PBGs) in that same population. We 

acknowledge that small population size 

and limited availability of resources are 

impacting the species’ viability within 

the foreseeable future, thus contributing 

to our decision to reclassify the redcockaded woodpecker as a threatened 

species to ensure continued protections 

under the Act. 

Climate Change and Catastrophic Events 

Comment 51: Multiple commenters 

expressed that red-cockaded 

woodpeckers will not be able to shift to 

new areas or habitats, given their 

reliance on old, mature pines, rendering 

them even more vulnerable to climaterelated stressors. One commenter 

suggested the need to protect and 

restore new habitats as climate refugia 

to ensure the continued survival of redcockaded woodpeckers. 

Our Response: We agree that redcockaded woodpeckers are habitat 

specialists that rely on habitat 

management occurring in specific areas; 

they thus have limited capacity to shift 

their range in response to future climate 

changes. The majority of clusters are in 

moderate to very high resiliency 

populations, and 87 percent of 

populations with sufficient data 

indicate stable to increasing growth 

rates (USFWS 2022, pp. 107–112). 

However, if climate change decreases 

the suitability of habitat in certain parts 

of the species’ range, as DeMay and 

Walters (2019, entire) suggest, it could 

increase extinction risk, due to the lack 

of unoccupied suitable habitat at more 

northern latitudes. Since red-cockaded 

woodpeckers have limited capacity to 

shift their range, ongoing, nimble 

habitat management applications, 

designed to meet changing climate 

conditions, will help the species 

achieve long-term population viability. 

Thus, while the species’ limited 

capacity to shift their range is not 

currently manifesting in any declines in 

resiliency, redundancy, or 

representation, it is possible that, 

without effective management, this 

limited capacity could result in future 

viability declines. We cannot predict the 

scope of these potential declines due to 

limitations in our modeling. 

Consequently, while enhancing the 

resiliency of inland populations could 

further increase species’ viability in the 

face of future impacts from climate 

change, the species currently has 

sufficient resiliency, redundancy, and 

representation such that it no longer 

meets the definition of an endangered 

species and warrants reclassification to 

a threatened species. 

Comment 52: Public commenters 

suggested that the Service inadequately 

analyzed the potential synergistic effects 

of climate change on other stressors, 

such as large wind events, wildfires, sea 

level rise, tornadoes, ice storms, and 

pine beetles. 

Our Response: In the SSA report, we 

discuss the stressors that wildfire 

(USFWS 2022, pp. 126–127); large wind 

events, tornadoes, sea level rise, and ice 

storms (USFWS 2022, pp. 84, 96, 121); 

and pine beetles (USFWS 2022, pp. 84, 

126) can present to the species. While 

these natural disturbances are already 

occurring in parts of the species’ range, 

effective management after disturbances 

(e.g., installing artificial cavities, 

reducing hazardous fuels, and restoring 

forests to suitable habitat) results in 

these disturbances currently only 

influencing individuals or temporarily 

affecting populations. As a result, these 

stressors are not currently having 

detrimental species-level effects. As 

evaluated in the SSA, the stable to 

increasing population trend in 87 

percent of the populations demonstrates 

that effective management has 

ameliorated these stressors such that 

they only have isolated and temporary 

negative effects (USFWS 2022, p. 112). 

However, as these commenters 

suggest, uncertainty remains as to how 

these stressors may influence the 

species in the future. We were not able 

to model how resiliency of redcockaded woodpecker populations 

might change in the future as a result of 

bark beetle outbreaks, sea level rise, 

tornados, drought, and other influences 

due to inconsistency in or unavailability 

of data (USFWS 2022, appendix 2, pp. 

6–7). Should these stressors increase 

their scope or intensity in the future, 

and should effective management not 

keep pace with these increases, they 

could start to negatively affect 

populations, though we do not know of 

any research suggesting this will occur. 

We fully expect this post-disturbance 

management to continue into the 

foreseeable future, and we have 

structured our final 4(d) rule to facilitate 

the continuation of such management. 

The information these commenters 

provided supports our conclusion that, 

while the red-cockaded woodpecker is 

not currently in danger of extinction, 

the effects of climate change, paired 

with uncertain future management 

means that the species continues to 

meet the definition of a threatened 

species. 

General Stressors 

Comment 53: One commenter 

suggested that the Service did not 

adequately consider the cumulative 

effects of stressors on red-cockaded 

woodpeckers when making the decision 

to downlist the species. 

Our Response: We incorporated the 

cumulative effects of stressors into the 

SSA when we characterize the current 

and future condition of the species. In 

order to assess the current and future 

condition of the species, we completed 

an iterative analysis that encompassed 

and incorporated threats individually 

and then accumulated and evaluated the 

effects of all the factors that may be 

influencing the species, including 

threats and conservation efforts. 

Because the SSA framework considers 

not just the presence of the factors, but 

to what degree they collectively 

influence risk to the entire species, our 

assessment integrated the cumulative 

effects of the factors and replaced a 

standalone cumulative effects analysis. 

To help clarify, we have added a brief 

discussion of cumulative effects to the 


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Summary of Biological Status and 

Threats section of this rule. 

Comment 54: Multiple commenters 

took issue with the fact that the 

proposed downlisting did not consider 

the effects of southern pine beetles as a 

potential stressor. 

Our Response: We agree that loss of 

cavity trees resulting from both outbreak 

(i.e., epidemic) and non-outbreak (i.e., 

endemic) southern pine beetles can 

substantially impact red-cockaded 

woodpeckers, as noted in the SSA 

report (USFWS 2022, pp. 39–40). In the 

SSA report we detail how southern pine 

beetles do not directly impact redcockaded woodpeckers but do directly 

impact cavity trees. Southern pine 

beetle outbreaks can be minor or locally 

significant through killing the cavity 

trees and other pines used for foraging. 

The practice of thinning stands with 

outbreaks can cause direct loss of active 

clusters; however, the long-term benefits 

of stopping the outbreak often outweigh 

the short-term impacts of losing a few 

clusters (USFWS 2022, p. 84). Even 

though the SSA report provided a 

description of issues facing the redcockaded woodpecker as it relates to 

southern pine beetles, these variables 

were not explicitly modeled; instead, 

they were implicitly present in the 

resulting models in the intercept and 

residual error terms, to the extent that 

they affected changes in population size 

over time (USFWS 2022, appendix 2, p. 

5). Despite known outbreak events 

within red-cockaded woodpecker 

habitat (USFWS 2022, p. 140), 87 

percent of populations evaluated in the 

SSA demonstrate stable to increasing 

growth rates, illustrating the 

effectiveness of currently ongoing active 

management such as described in the 

SSA report regarding species-level 

impacts from hurricanes (USFWS 2022, 

p. 112). 

Comment 55: Multiple commenters 

suggested that we did not adequately 

consider the stressor of diseases, such as 

avian keratin disorder, in our SSA 

report or proposed rule. 

Our Response: Given that avian 

keratin disorder research is ongoing, we 

could not explicitly include the data in 

the species-wide analysis (USFWS 2022, 

appendix 2, p. 5). Currently, there is no 

evidence that this disease or other novel 

diseases are having more than an 

individual-level effect on the species. 

4(d) Rule Take Prohibitions 

Comment 56: One commenter 

expressed their concern that potential 

section 9 violations are not being 

properly investigated, resulting in no 

punitive actions taken. 

Our Response: We encourage the 

commenter to bring any information 

about specific potential section 9 

violations to the attention of our Office 

of Law Enforcement. 

Comment 57: One commenter 

expressed frustration that the Service 

did not account for economic costs 

when developing the 4(d) rule and 

indicated that failing to do so would 

make people see red-cockaded 

woodpeckers as a liability. Additionally, 

they indicated that the Service did not 

have sufficient justification for 

extending restrictions and costs 

associated with the section 9 

prohibition and that this approach does 

not meet the ‘‘necessary and advisable’’ 

standard. 

Our Response: In 1982, Congress 

amended the Act to add the requirement 

that listing determinations are to be 

made solely on the basis of the best 

scientific and commercial data 

available. In the Conference Report for 

the 1982 amendments to the Act, 

Congress specifically stated that 

economic considerations are not to be 

considered in determinations regarding 

the status of species and that the 

economic analysis requirements of 

Executive Order 12291 and such 

statutes as the Regulatory Flexibility Act 

do not apply to any phase of 

determining the listing status of an 

entity under the Act. If we determine 

that a species is a threatened species 

under the Act, part of our consideration 

for completing the listing process is to 

consider what regulations are necessary 

and advisable to provide for the 

conservation of the species under 

section 4(d) of the Act. As a result, a 

cost benefit analysis is not part of the 

process required to propose or finalize 

a section 4(d) rule. 

We described on page 6120 of the 

revised proposed rule (87 FR 6118, 

February 3, 2022) that we have 

developed revisions to the section 4(d) 

rule that are designed to address the 

red-cockaded woodpecker’s specific 

threats and conservation needs. The 

statute does not require us to make a 

‘‘necessary and advisable’’ finding with 

respect to the adoption of specific 

prohibitions under section 9; however, 

we find that this rule as a whole satisfies 

the requirement in section 4(d) of the 

Act to issue regulations deemed 

necessary and advisable to provide for 

the conservation of the red-cockaded 

woodpecker. 

As stated in the revised proposed 

rule, the section 4(d) rule will provide 

for conservation of the red-cockaded 

woodpecker by adopting the same 

prohibitions that apply to an 

endangered species under section 9 of 

the Act and 50 CFR 17.21 and several 

exceptions to those prohibitions (87 FR 

6118 at 6122, February 3, 2022). 

Included in the proposed rule are the 

revisions to the proposed section 4(d) 

rule that are designed to address the 

red-cockaded woodpecker’s specific 

threats and conservation needs (87 FR 

6118 at 6120, February 3, 2022). These 

revisions have been carried forward into 

this final 4(d) rule. 

4(d) Rule Exceptions 

Comment 58: One commenter 

requested that the Service provide 

additional guidance in the Background, 

or in subsequent documents, to enable 

land managers to understand beneficial 

silviculture and management actions 

that would minimize incidental take 

versus actions that would likely be 

adverse for which the exceptions would 

apply. 

Our Response: We acknowledge this 

concern and are committed to 

continuing to provide guidance 

pertaining to silvicultural and habitat 

management actions on red-cockaded 

woodpecker conservation. Additional 

guidance is also available by contacting 

the local Ecological Services Field 

Office. 

Comment 59: Multiple commenters 

expressed concern that Federal agencies 

will start harvesting the older age 

classes of pines for the purpose of redcockaded woodpecker habitat 

management or to gain timber sales 

revenue. They requested that take 

exemptions provided under this rule not 

extend to the removal of older age 

classes of pines and that such activities 

be undertaken only in consultation with 

the Service. 

Our Response: We acknowledge the 

importance of older pine trees for redcockaded woodpecker management; 

however, it is important to note that the 

incidental take exceptions in this 4(d) 

rule are intended to encourage 

necessary and beneficial habitat 

restoration and species’ management to 

advance recovery. To increase and 

maintain sustainable current and future 

habitat, red-cockaded woodpecker 

populations may require conversion of 

older age class stands of loblolly, slash, 

or other planted pines to siteappropriate species, as well as 

regenerating stands of older pines 

thereby providing a diversity of ageclasses necessary to ensure the 

availability of foraging and nesting 

habitat in the future. We recognize that 

short-term adverse effects to redcockaded woodpecker may be necessary 

to provide improved habitat quality and 

quantity in the long term with the 

expectation of increasing numbers of 


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red-cockaded woodpecker. While 

incidental take resulting from these 

activities may be excepted under certain 

circumstances, Federal action agencies 

would still need to fulfill their section 

7 obligations under the Act. Through 

section 7 consultation, we would have 

the opportunity to review these 

activities and provide input on how to 

minimize impacts to the species. 

Comment 60: One public commenter 

recommended that 50 CFR 

17.41(h)(4)(iii) exceptions for private 

properties be strengthened by making 

the following changes: (1) explicitly 

incorporating the methods of cavity tree 

protections from the 2003 recovery plan 

into the rule and (2) requiring a take 

permit with specific requirements for 

how to avoid and minimize 

disturbances to roosting and nesting 

behavior when applying herbicide or 

prescribed burning. 

Our Response: (1) The methods and 

levels of cavity tree protection needed 

varies across properties and ownership 

according to local habitat conditions, 

availability of resources for 

management, and several other factors; 

thus, land managers have latitude to 

incorporate appropriate, site-specific 

measures into their red-cockaded 

woodpecker habitat management plans, 

as long as those measures provide 

sufficient cavity tree protections. (2) 

These types of habitat management 

parameters are appropriately addressed 

in a population’s red-cockaded 

woodpecker habitat management plan 

rather than a legal regulation, such as 

this rule. 

Comment 61: Several public 

commenters requested the Service 

define the following terminology in the 

rule: (1) ‘‘known active cluster,’’ (2) 

‘‘red-cockaded woodpecker habitat 

restoration and management,’’ and (3) 

‘‘conditions not able to support redcockaded woodpeckers.’’ 

Our Response: (1) ‘‘Active cluster’’ is 

defined in the revised rule as a cluster 

in which one or more of the cavity trees 

exhibit fresh resin as a result of redcockaded woodpecker activity or in 

which one or more red-cockaded 

woodpeckers are observed, and the 

word ‘‘known’’ is used in this context 

by the common definition found to be 

generally recognized in MerriamWebster’s dictionary. Our intent for the 

term ‘‘known active cluster’’ is to 

encourage private landowners to pursue 

certain types of voluntary forest 

management activities (i.e., prescribed 

burns and herbicide application) in a 

way that reduces impacts to the species 

but also removes any potential barriers 

to the implementation of this beneficial 

forest management, such as fear of 

prosecution for take of the red-cockaded 

woodpecker. (2) Red-cockaded 

woodpecker habitat restoration and 

management encompasses a variety of 

activities designed to improve 

conditions for the species but that must 

be developed on site-specific bases to 

account for local habitat complexities. 

(3) The minimum habitat and resource 

conditions needed to support redcockaded woodpeckers exhibit variation 

within and among populations across 

the species’ range and are dependent on 

site-specific conditions and, therefore, 

are not quantifiable in this rule in a 

standard way that is representative of 

every population. 

Comment 62: One public commenter 

expressed concern about language in the 

October 8, 2020, proposed rule (85 FR 

63474) that indicated take would be 

limited to only ‘‘active cavity trees or 

suitable foraging habitat’’ and stated that 

this limitation could drastically reduce 

a red-cockaded woodpecker group’s 

ability to persist given their dependency 

upon old pines for foraging and nesting. 

Our Response: The rule language 

noted by the commenter was intended 

to give an example of take but was not 

meant to be a comprehensive list of 

what could cause take for the species. 

Under the Act, take is defined as ‘‘to 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect, or 

attempt to engage in any such conduct.’’ 

This language was removed in the most 

recent proposed rule (87 FR 6118, 

February 3, 2022). 

Comment 63: One public commenter 

requested that State employees continue 

to report any red-cockaded woodpecker 

injuries, deaths, or other impacts in a 

manner consistent with section 10 

permittees if they are excepted by the 

proposed 4(d) rule. 

Our Response: The 4(d) rule does not 

change this reporting process. Under 

section 6, State agencies will continue 

to report red-cockaded woodpecker 

injuries, deaths, and/or other impacts to 

the Service. 

Comment 64: One commenter 

requested exceptions for incidental take 

resulting from other forest management 

activities, specifically mechanical brush 

clearing and thinning operations. 

Our Response: We recognize the need 

for and support mechanical brush 

clearing and thinning when conducted 

to maintain or enhance red-cockaded 

woodpecker foraging and nesting 

habitat. However, incidental take 

resulting from such activities is not 

anticipated when conducted outside 

red-cockaded woodpecker clusters as it 

is not expected to significantly impair 

essential behavioral patterns, including 

breeding, feeding, or sheltering. Within 

clusters during the breeding season, 

these activities may repeatedly disturb 

roosting and nesting red-cockaded 

woodpeckers, thereby significantly 

impairing essential behavioral patterns, 

including breeding, feeding, or 

sheltering, potentially resulting in 

cavity abandonment or nest failure thus 

resulting in incidental take. Within 

clusters outside the breeding season, 

these activities are not anticipated to 

result in incidental take when avoided 

within at least 1 or 2 hours of dawn and 

dusk. Thus, flexibility exists to conduct 

such activities with red-cockaded 

woodpecker clusters outside the 

breeding season without the need for a 

take exception. 

4(d) Rule Artificial Cavity Provisions 

Comment 65: One public commenter 

expressed support of the Service’s 

efforts to automate/streamline the 

permitting process associated with 

installing artificial cavity inserts, but 

questioned if it would require much 

more effort to amend permits if the 

Service employee is already going to 

have to review and file documentation 

letters for new trainees. 

Our Response: We agree that this 

specific exception may not be 

substantial for all practitioners, but 

many partners have expressed that the 

permitting approval process is 

significantly delayed. To help clarify, 

we will be requiring only an 

acknowledgement letter from the 

certified trainer that the trainee has met 

the certification requirement. The letter 

should go to the Service’s National Redcockaded Woodpecker Coordinator and 

not through the permit process. 

Comment 66: A few public 

commenters stated that there should be 

no exception for take associated with 

installation of artificial cavities and 

cavity restrictors, with several 

commenters expressing concern over 

risks associated with cavity restrictors if 

they are not installed and monitored 

properly. 

Our Response: We acknowledge that 

we have had reports where redcockaded woodpeckers have been 

adversely impacted due to issues related 

to artificial cavities. However, we 

advocate that proper installation 

protocols and training, onsite 

supervision, and attentive cavity 

maintenance scheduling will reduce 

potential adverse impacts. For example, 

take that occurs from the installation of 

artificial cavities and cavity restrictors is 

unfortunate; however, because proper 

training and maintenance protocols 

remain as they always have been, we 

expect take from artificial cavity 


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installation and restrictor plates to 

remain limited across the range. 

Comment 67: Multiple commenters 

provided feedback pertaining to the 

minimum diameter of trees for artificial 

cavity installation, as well as 

recommendations for cavity 

maintenance (e.g., screening damaged 

unusable artificial cavity inserts, 

checking cavity trees annually) and safe 

installation practices (i.e., inspection by 

a federally permitted biologist). 

Our Response: The current standards 

for cavity tree selection and artificial 

cavity installation continue to satisfy 

the best available science standard and 

will remain as the standards used to 

guide artificial cavity tree selection and 

installation. We currently support the 

artificial cavity standards defined by 

Allen (1991, p. 19), Copeyon (1990, pp. 

303–311), and USFWS (2022, pp. 85– 

87). For the cavity insert technique, the 

guidance requires selected trees to have 

a minimum of 15-inch diameter at 

cavity height, while the drilled cavity 

technique, generally, requires 

knowledge of the tree’s sapwood (3.5 

inches or less) to heartwood (7 inches or 

more) ratios at cavity height. 

We agree that attending to unsuitable 

cavities or cavities in disrepair should 

be part of a regular maintenance routine. 

Many of the procedures used to protect 

red-cockaded woodpeckers from 

unsuitable cavity conditions includes 

screening to minimize adverse effects. 

The SSA report describes protocols and 

procedures that are designed and 

intended to avoid and limit potential 

adverse effects to red-cockaded 

woodpeckers for both suitable and 

unsuitable cavities that have fallen into 

disrepair (USFWS 2022, pp. 22, 41, 42, 

and 53). 

Comment 68: One public commenter 

suggested that the training requirements 

for the number of installed artificial 

cavity inserts and drilled cavities be the 

same as the existing permit 

requirements and provided some 

potential detailed language to include in 

the rule in § 17.41(h)(4)(iv)(A). 

Our Response: The training 

requirements are not the same as the 

permit requirements so that the trainer 

is able to ensure the proficiency and 

skill level appropriate for the situation, 

as determined by the trainer. Training 

requirements for the number of installed 

artificial cavity inserts and drilled 

cavities can be obtained from the 

Service’s National Red-cockaded 

Woodpecker Coordinator. 

4(d) Rule Military Exception 

Comment 69: Many public 

commenters expressed concern that the 

INRMP process is insufficient and 

indicated mistrust that military 

installations would maintain the highest 

level of ecosystem habitat management 

without requirements in place. 

Our Response: The Sikes Act states 

that INRMPs shall reflect mutual 

agreement of the military service, the 

Service, and the States on the 

conservation, protection, and 

management of fish and wildlife 

resources. Mutual agreement is reflected 

by signature of the plan or letter of 

concurrence. As such, we believe that 

the INRMP process is sufficient and 

trust in the commitment of the military 

installations to implement them. 

Comment 70: One commenter 

questioned why the DoD installation 

exception was needed given existing 

Army Red-cockaded Woodpecker 

Guidelines already provide reduced 

restrictions as installations approach, 

meet, and/or exceed their population 

goals. 

Our Response: The conditions 

described in the 1996 ‘‘Management 

Guidelines for the Red-Cockaded 

Woodpecker on Army Installations’’ 

would still apply as site conditions 

dictate their applicability; however, 

newly constructed INRMPs would better 

align with the conditions proposed in 

the 4(d) rule. In part, this is because the 

Army’s Red-cockaded Woodpecker 

Guidelines were developed and 

implemented with the red-cockaded 

woodpecker listed as endangered, 

which in turn requires installations to 

develop an ESMC. It is clear then that 

not all the requisites of an ESMC will be 

applicable under the 4(d) rule. 

Additionally, site-specific military 

operations are not part of the Armywide guidelines but are proposed as an 

integral component to best utilize the 

4(d) rule’s structure. Finally, with the 

implementation of the 4(d) rule, it is 

likely the Army may consider revising 

their guidelines to better align with the 

4(d) rule. 

Comment 71: Regarding the DoD 

installation exception, one commenter 

expressed concern that the Service 

approval of INRMPs would be a 

continuation of historical practices but 

with more exception requirements. 

Additionally, without the Service’s 

approval of an INRMP, there is no valid 

exception for any take incidental to 

military training or management to 

maintain or restore red-cockaded 

woodpecker habitat and that the 

Service’s denial of an INRMP approval 

could, by this exception, appear to be an 

additional form of notification for joint 

resolution among agencies, or to lead to 

formal consultation. 

Our Response: The Sikes Act states 

that INRMPs shall reflect mutual 

agreement of the military service, the 

Service, and the States on the 

conservation, protection, and 

management of fish and wildlife 

resources. If the process of approving 

INRMPs, by way of the requirements of 

the Sikes Act, were at a point of impasse 

between the Service and the DoD, then 

we agree that a notification for joint 

resolution among agencies or a request 

to enter formal consultation are 

potential solutions to achieve 

resolution. 

Comment 72: Commenters 

recommended numerous additional 

conditions and amendments be applied 

to the exceptions for DoD installations. 

A summary of some of the 

recommendations include: (1) Creating 

standards for the INRMP process, (2) 

using a population-driven approach for 

the exceptions (for example, excluding 

the DoD exception for installations with 

populations in decline that have not met 

population goals), (3) requiring 

compliance with management 

guidelines for exceptions to apply, and 

(4) requiring that each INRMP under 

this rule has an ESMC. 

Our Response: ‘‘Standards’’ would be 

valuable and are likely to enhance both 

INRMPs and new project proposals 

when articulating the expectations for 

evaluating and implementing redcockaded woodpecker management 

applications under the 4(d) rule. Of 

course, we would likewise prefer that 

take, under either scenario, is limited. 

However, because many red-cockaded 

woodpecker populations have sitespecific conditions, we anticipate local 

plan and project determinations to be 

most effective when guarding against 

population reductions. We anticipate 

red-cockaded woodpecker managers to 

align with, and continue to work 

toward, the regionwide description of 

the desired future condition that 

characterizes the optimal red-cockaded 

woodpecker habitat conditions. 

Comment 73: One commenter 

requested clarification around long-term 

habitat projects in the vicinity of 

military bases currently being used by 

some military installations to offset 

destruction of red-cockaded 

woodpecker habitat. They indicated that 

these programs attempt to rely on an 

installation’s promises that it will 

restore off-base habitat that it has 

acquired, which may not be suitable for 

either nesting or foraging, to offset takes 

from the destruction of currently 

suitable nesting and/or foraging habitat 

within the installation. This commenter 

asked that the Service not allow this by, 

at a minimum, ensuring that the longterm habitat projects do not fall under 

the ‘‘habitat management and military 


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training activities’’ outlined in the 

proposed rule. 

Our Response: Section 4(d) of the Act 

requires that the Secretary issue 

regulations that are necessary and 

advisable to provide for the 

conservation of threatened species. 

Similarly, the intent of the INRMP is to 

follow the ESA and provide regulatory 

flexibility for the conservation of 

protected species. As a reminder, there 

are no changes in section 7 

responsibilities for Federal agencies due 

to a 4(d) rule. With regard to the 

commenter’s concerns, there are 

rigorous requirements through formal 

consultation with the Service that 

would have to be met before an Army 

‘‘compatible use buffer’’ property could 

be used as an offset (e.g., land is 

permanently encumbered for 

protections, an endowment is set up to 

provide funding for management, the 

land has been validated by way of a 

spatially explicit population model that 

red-cockaded woodpecker will occupy 

the habitat in the future, there is a 

unique management plan). The details 

of consultation language, along with the 

parameters identified, would be 

reflected in the INRMP. 

4(d) Rule Provisions for Prescribed 

Burning and Herbicides 

Comment 74: A public commenter 

reported concerns that most private 

landowners are unlikely to contact a 

State agency prior to burning and that 

State agencies may not be aware of the 

protected status of the species. 

Our Response: There are already 

requirements in place for private 

landowners to contact State wildlife 

agencies when conducting prescribed 

fires within red-cockaded woodpecker 

populations. Given the many decades of 

cooperation between the Service and the 

State wildlife agencies, and the past and 

present conservation programs enacted 

for the conservation of the red-cockaded 

woodpecker by these State wildlife 

agencies, we contend that all State 

wildlife agencies in the range of the redcockaded woodpecker are aware of the 

species’ status under the Act. 

Comment 75: One commenter stated 

that there is a risk of take occurring 

during prescribed burns on private 

lands for clusters lacking intensive 

monitoring, and that raking around 

cavity trees can only minimize the risk. 

Another commenter stated that habitat 

management intended to benefit the 

species should not result in take and 

requested a distinction in the exceptions 

for both Federal and private lands for 

take of actual woodpeckers compared to 

forms of harm or harassment. 

Our Response: Take can result 

knowingly or otherwise, by direct and 

indirect impacts, and intentionally or 

incidentally. Additionally, there is a 

difference between short-term take of an 

individual and the long-term benefit to 

the conservation of the species from 

habitat management actions taken to 

benefit the species. This section 4(d) 

rule would prohibit take on both public 

and private lands with exceptions as 

described in § 17.41(h)(4)(ii)–(iii). 

Incidental take that results from 

activities such as prescribed burns 

could be allowed under certain 

authorizations, including being 

excepted under this section 4(d) rule, 

authorized by a permit under the Act 

(e.g., section 10(a)(1)(A) permit issued 

for a CBA, section 10(a)(1)(B) permit 

issued for an HCP), or exempted 

through section 7 consultation (e.g., 

consultations that cover landowners 

enrolled in NRCS or Partners for Fish 

and Wildlife conservation programs). 

Given the array of management 

activities and how each could result in 

one or more forms of incidental take, 

distinguishing between take of 

individuals directly through killing or 

indirectly through harm or harassment 

affecting other aspects of the species’ 

ecology or behavior is not practical as 

both may result in lethal take. Federal 

agencies would still consult under 

section 7 of the Act if their actions may 

affect red-cockaded woodpecker, and if 

take is anticipated, the form of take 

would be identified in the subsequent 

biological opinion. This includes 

intraservice section 7 consultation for 

the issuance of section 10(a)(1)(A) 

permits for existing SHAs or future 

CBAs on private land, which identify 

the anticipated forms of take. 

Additionally, we agree that managers 

have a responsibility to avoid killing 

red-cockaded woodpeckers, as we 

included language that Federal land 

management agencies must incorporate 

appropriate conservation measures to 

minimize or avoid adverse effects of 

excepted habitat management activities 

on the red-cockaded woodpecker 

foraging habitat, on clusters, and on the 

species’ roosting and nesting behavior to 

the maximum extent practicable. 

4(d) Rule Exception for Service- or 

State-Approved Management Plans 

Comment 76: One commenter noted 

that not all State agencies involved in 

red-cockaded woodpecker conservation 

have section 6 cooperative agreements 

with the Service and thus are not able 

to utilize exceptions. Additionally, they 

stated that many conservation plans 

required for section 6 cooperative 

agreements with the Service are out of 

date or lack the level of detail necessary 

for red-cockaded woodpecker 

management. 

Our Response: We acknowledge that 

not all State agencies conducting redcockaded woodpecker management 

activities have section 6 agreements 

with the Service. Section 6 cooperative 

agreements are limited to a State agency 

that establishes and maintains an 

adequate and active program for the 

conservation of endangered species and 

threatened species fitting the 

requirements of section 6(c)(1). Given 

the requirements, section 6 is often 

limited to State wildlife agencies with 

State regulatory authority, thus other 

State agencies that may manage for redcockaded woodpeckers on their lands 

are ineligible. 

We also acknowledge that State 

conservation plans throughout the redcockaded woodpecker range vary and 

recognize that State agencies possess 

valuable expertise and foster crucial 

relationships with State conservation 

agency partners contributing to 

woodpecker conservation. The 

exceptions for conservation actions (50 

CFR 17.31(b)) apply only to any 

qualified employee or agent of a State 

conservation agency that is a party to a 

cooperative agreement with the Service 

in accordance with section 6(c) of the 

Act. 

Comment 77: In general, commenters 

recommended additional detail and 

conditions be added to the Federal land 

management agency exception 

(§ 17.41(h)(4)(ii)). A summary of the 

recommendations include: (1) Clarify in 

the Background how the three 

requirements will be assessed, (2) use a 

population-driven approach for the 

exceptions, (3) conduct thorough 

Service review of proposed take due to 

management/restorations actions, and 

(4) add clarification on types of analyses 

and information in Federal habitat 

management plans with regard to 

‘‘habitat management actions.’’ 

Our Response: Population dynamics 

of the red-cockaded woodpecker are 

complex, involving number of adults 

and helpers and amount, type, and 

spatial arrangement of suitable roosting, 

nesting, and foraging habitat. Therefore, 

we believe it is appropriate for 

Ecological Services Field Office staff 

and species leads to cooperate with 

Federal partners during preparation, 

review, and/or revision of Federal plans, 

annual reviews, and/or reporting 

requirements, if applicable, and section 

7 consultations. Because of this 

complexity, we chose not to specify 

how the three requirements associated 

with the exception for Federal land 

management agency properties will be 


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assessed or a limit to any decline or 

reduction in the property population 

size that may result because of 

implementing beneficial conservation 

management. 

Federal land management agencies 

often cooperate with the Service and the 

States to prepare their habitat 

management plans (e.g., LRMPs and 

National Wildlife Refuge comprehensive 

conservation plans (CCPs)) and 

incorporate management methods to 

sustain and increase red-cockaded 

woodpecker populations as detailed in 

the 2003 recovery plan. Also, they have 

established procedures to give Federal, 

State, and local governments and the 

public adequate notice and an 

opportunity to participate in the 

planning process. Lastly, under this or 

any section 4(d) rule Federal land 

management agencies would still need 

to fulfill their section 7 obligations 

under the Act. As a result, Service 

approval of Federal agency habitat 

management plans is not needed for this 

exception to apply for the red-cockaded 

woodpecker. 

While this 4(d) rule does not provide 

additional guidance reflecting our intent 

for plans or detailed guidance 

describing the kinds of information 

expected in the exception, it is 

important to note that this 4(d) rule 

would not alter or invalidate the 2003 

recovery plan. Recovery plans are not 

regulatory documents, but rather 

provide a strategy to guide conservation 

and recovery of listed species. 

Comment 78: One commenter 

suggests that the Service should (1) 

provide examples of suitable 

management plan details in the 

Background section, (2) provide 

consistent guidance to Federal agencies 

on the kinds of measures needed to 

effectively minimize and avoid adverse 

effects, and (3) require an analysis of the 

effects of certain types of management, 

which the Service should also be 

willing to provide as guidance or by 

other forms. 

Our Response: Population dynamics 

of the red-cockaded woodpecker are 

complex, including but not limited to 

number of adults and helpers and 

amount, type, and spatial arrangement 

of suitable roosting, nesting, and 

foraging habitat. Therefore, we believe it 

is appropriate for Ecological Services 

Field Office staff and species leads to 

cooperate with Federal partners during 

preparation, review, and/or revision of 

Federal plans, annual reviews, and/or 

reporting requirements, if applicable, 

and section 7 consultations. Much of the 

guidance and examples being requested 

are already provided in various forms 

(e.g., 2003 recovery plan, Management 

Guidelines for the Red-cockaded 

Woodpecker on Army Installations, 

Service memos, site-specific redcockaded woodpecker consultation 

documents, among other sources). 

Comment 79: One commenter 

suggests that the term ‘‘maximum extent 

practicable’’ be deleted as it could be 

misinterpreted. 

Our Response: If a Federal agency’s 

ability to manage for the species is 

limited for any reason, this information 

will be described with justification in 

their consultation with us. Federal 

agencies are responsible for 

implementing the recovery goals and 

subsequent recovery criteria and should 

share the goal of moving the redcockaded woodpecker to the point 

where the size, number, and 

distribution of populations will be 

sufficient to be delisted in the future. As 

a result, the terminology ‘‘maximum 

extent practicable’’ has remained in the 

final rule. 

Comment 80: One public commenter 

requested that ‘‘State conservation 

agency’’ be defined in the rule and 

requested a table listing the agencies 

within each State that are authorized to 

permit red-cockaded woodpecker 

impacts. 

Our Response: We will still be 

responsible for issuing and managing all 

section 10 permits and Federal agencies 

will continue to consult with us on 

activities that may affect the redcockaded woodpecker. State agencies 

are responsible for the State-approved 

plans but are unable to permit or 

approve take under the ESA. As a result, 

it would not be necessary to include a 

table listing the specific State agencies 

responsible for authorizing permits. 

Comment 81: Several commenters 

expressed some confusion regarding 

SHAs. One commenter requested 

clarification regarding the numbers 

cited in the rule for active clusters (295) 

and above baseline clusters (241) on 

Safe Harbor properties. They wanted to 

know if the 295 referred to baseline 

clusters. Another commenter asked that 

there be exception for SHAs, now 

known as CBAs, only if the ‘‘above 

baseline’’ clusters have exceeded State 

recovery goals. 

Our Response: The description of redcockaded woodpecker clusters and 

SHAs in the proposed 4(d) rule did not 

specify the number of baseline redcockaded woodpecker clusters enrolled 

in these agreements. The number 

provided for active clusters includes 

both above baseline and baseline active 

clusters. The number provided for above 

baseline clusters on Safe Harbor 

properties includes both active and 

inactive above baseline clusters. 

Currently there are 273 red-cockaded 

woodpecker active clusters (both above 

baseline and baseline) in SHAs across 

the species’ range; 295 was written in 

error. We have excluded this level of 

detail in the rule to simplify the 

language and focus on our intended 

description that this section 4(d) rule 

does not alter this valuable program or 

the permits associated with it. 

The regulations being promulgated by 

this 4(d) rule do not change or authorize 

the reduction of baseline clusters 

associated with existing SHAs or future 

CBAs. Take exceptions for privately 

owned properties would not provide 

any additional flexibility. The permits 

associated with existing SHAs and 

future CBAs authorize take associated 

with prescribed burns, herbicide use, 

and other activities, as long as 

landowners follow the stipulations in 

their SHA or CBA and do not decrease 

the number of red-cockaded 

woodpecker clusters below their 

baseline. Restricting excepted take to 

only above baseline clusters would not 

provide additional protection to redcockaded woodpecker populations on 

private lands and may disincentivize 

beneficial habitat management. 

Additionally, limiting these exceptions 

to only properties exceeding their 

recovery goal could be detrimental to 

red-cockaded woodpecker populations 

below their recovery goal that require 

habitat management activities necessary 

to ensure sustainable nesting and 

foraging habitat. Excepted take resulting 

from the habitat management activities 

described in this 4(d) rule is intended to 

increase and maintain sustainable 

current and future habitat. We recognize 

that short-term adverse effects to redcockaded woodpecker may be necessary 

to provide improved habitat quality and 

quantity in the long term with the 

expectation of increasing numbers of 

red-cockaded woodpecker. 

Comment 82: One commenter 

questioned why properties enrolled in 

SHAs have ‘‘baseline’’ and ‘‘above 

baseline’’ and military installations have 

‘‘protected’’ and ‘‘unprotected’’ clusters, 

but that similar mechanisms are not in 

place for the USFS, State agencies, and 

private landowners not enrolled in 

SHAs, now known as CBAs. 

Our Response: All public land 

managers and applicable State land 

management agencies are able to enroll 

and participate in the Conservation 

Benefit Agreement program. While the 

mechanism for ‘‘protected’’ and 

‘‘unprotected’’ clusters was originally 

developed for military installations, if 

the USFS, State agencies, and private 

landowners would like the same 

coverage, they can seek consultation 


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with the Service. It is important to note 

that, in this context, ‘‘unprotected’’ and 

‘‘protected’’ clusters only pertains to 

areas where military training can or 

cannot occur. Only training that would 

not be expected to impact red-cockaded 

woodpeckers could occur within 

‘‘unprotected’’ clusters, whereas 

military training cannot occur within 

‘‘protected’’ clusters. 

Comment 83: One public commenter 

suggested that the Service except take 

associated with activities done in 

accordance with the private lands 

guidelines set forth in the 2003 recovery 

plan. The commenter stated that the 

plan clearly lists habitat management 

practices that benefit the species and 

that forest landowners are already 

implementing across the landscape. 

Our Response: The Service is not 

excepting take associated with activities 

done in accordance with the private 

lands guidelines. We support beneficial 

forest management practices conducted 

in accordance with the private lands 

guidelines in the 2003 recovery plan 

guidelines. Incidental take resulting 

from such activities is not anticipated 

when they are conducted outside redcockaded woodpecker clusters or inside 

red-cockaded woodpecker clusters 

outside the breeding season but not 

within at least 1 or 2 hours of dawn and 

dusk as such activities are not expected 

to significantly impair essential 

behavioral patterns, including breeding, 

feeding, or sheltering. Within clusters 

during the breeding season, these 

activities may repeatedly disturb 

roosting and nesting red-cockaded 

woodpeckers thereby significantly 

impairing essential behavioral patterns, 

including breeding, feeding, or 

sheltering, potentially resulting in 

cavity abandonment or nest failure, thus 

resulting in incidental take. Thus, 

flexibility exists to conduct such 

activities within red-cockaded 

woodpecker foraging habitat and nesting 

habitat outside the breeding season 

without the need for a take exception. 

Comment 84: One public commenter 

asked if the Service is required to 

request a formal intraservice section 7 

consultation on the effect of any final 

4(d) rule. They noted that they did not 

see any information about this 

requirement in the proposed rule and 

expressed that this would be an 

opportunity to provide additional 

guidance to agencies and landowners on 

how best to manage for the species. 

Our Response: The Service is required 

to conduct an intraservice section 7 

consultation on any final 4(d) rule. We 

described this consultation requirement 

in the revised proposed rule (87 FR 

6118, February 3, 2022). In the rule we 

clarify that section 7(a)(2) of the Act 

requires Federal agencies, including the 

Service, to ensure that any action they 

fund, authorize, or carry out is not likely 

to jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. 

4(d) Rule General Issues 

Comment 85: We received multiple 

comments on the 4(d) rule as originally 

proposed in our October 8, 2020, 

proposed rule (85 FR 63474). These 

comments expressed confusion and 

concern about the framing of the 

prohibitions and exceptions. Some 

commenters believed the 4(d) rule, as 

originally proposed, was overly 

restrictive (even more restrictive than 

the regulations that apply while the 

species is listed as endangered), while 

other commenters believed the 

proposed 4(d) rule provided inadequate 

protection. 

Our Response: We reconsidered the 

proposed 4(d) rule and published a 

revised proposed 4(d) rule on February 

3, 2022 (87 FR 6118). The revisions 

addressed the vast majority of concerns 

raised in the public comments on the 

October 8, 2020, proposed rule (85 FR 

63474). 

Final Reclassification Determination 

Background 

A thorough review of the taxonomy, 

range and distribution, life history, and 

ecology of red-cockaded woodpecker is 

presented in the SSA report (USFWS 

2022, pp. 16–34; available at https://

www.regulations.gov at Docket No. 

FWS–R4–ES–2019–0018) and is briefly 

summarized here. 

Red-cockaded woodpeckers were first 

described as Picus borealis (Vieillot 

1807, p. 66). However, in the recent 

59th supplement to the checklist of 

North American birds by the American 

Ornithological Society (AOS), the AOS 

Committee on Classification and 

Nomenclature changed the classification 

of Picoides borealis to Dryobates 

borealis (Chesser et al. 2018, pp. 798– 

800). We accept the change of the redcockaded woodpecker’s classification 

from Picoides borealis to Dryobates 

borealis, and in this final rule, we 

amend the scientific name to match the 

currently accepted AOS nomenclature. 

The red-cockaded woodpecker is a 

territorial, non-migratory bird species 

that makes its home in mature pine 

forests in the southeastern United 

States. The red-cockaded woodpecker is 

a relatively small woodpecker. Both 

male and female adult red-cockaded 

woodpeckers are black and white with 

a ladder back and large white cheek 

patches. Males have a tiny red streak, or 

red ‘‘cockade’’, on their upper cheek. 

Red-cockaded woodpeckers live in 

groups that share, and jointly defend, 

territories throughout the year. In 

cooperative breeding systems, some 

mature adults forgo reproduction and 

instead assist in raising the offspring of 

the group’s breeding male and female 

(Emlen 1991, entire). A potential 

breeding group (PBG) may consist of 

zero to as many as five helpers, but most 

PBGs consist of only a breeding pair 

plus one to two helpers. 

Young birds either disperse in their 

first year or remain on the natal territory 

and become helpers. First-year dispersal 

is the dominant strategy for females, but 

both strategies are common among 

males (Walters et al. 1988, pp. 287–301; 

Walters and Garcia 2016, pp. 69–72). 

Male helpers may become breeders by 

inheriting breeding status on their natal 

territory or by dispersing to fill a 

breeding vacancy at another territory 

(Walters et al. 1992, p. 625). Female 

helpers almost never inherit the 

breeding position on their natal 

territory, instead relying on dispersal to 

neighboring territories to become 

breeders. 

Red-cockaded woodpeckers are 

unique among North American 

woodpeckers in that they nest and roost 

in cavities they excavate in living pines 

(Steirly 1957, p. 282; Jackson 1977, 

entire). Cavities are an essential 

resource for red-cockaded woodpeckers 

throughout the year, because the birds 

use them for roosting year-round, as 

well as nesting seasonally. The 

aggregation of active and inactive cavity 

trees within the area defended by a 

single group is termed the cavity tree 

cluster (Conner et al. 2001, p. 106). 

Red-cockaded woodpeckers were 

once common throughout open, firemaintained pine ecosystems, 

particularly longleaf pine that covered 

approximately 92 million acres before 

European settlement (Frost 1993, p. 20). 

Original pine forests were old and open, 

and contained a structure dominated by 

two layers, a canopy and diverse 

herbaceous ground cover, maintained by 

frequent low-intensity fire (Brockway et 

al. 2006, pp. 96–98). 

Currently, nesting and roosting 

habitat of red-cockaded woodpeckers 

varies across the species’ range. The 

largest populations tend to occur in the 

longleaf pine woodlands and savannas 

of the East Gulf Coastal Plain, South 

Atlantic Coastal Plain, Mid-Atlantic 

Coastal Plain, and Carolina Sandhills 

(Carter 1971, p. 98; Hooper et al. 1982, 

entire; James 1995, entire; Engstrom et 


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al. 1996, p. 334). The shortleaf/loblolly 

forests of the Piedmont, Cumberlands, 

and Ouachita Mountain regions (Mengel 

1965, pp. 306–308; Sutton 1967, pp. 

319–321; Hopkins and Lynn 1971, p. 

146; Steirly 1973, p. 80) are another 

important habitat type. Red-cockaded 

woodpeckers also occupy a variety of 

additional pine habitat types at the 

edges of their range, including slash 

(Pinus elliottii), pond (P. serotina), pitch 

(P. rigida), and Virginia pines (P. 

virginiana) (Steirly 1957, entire; Lowery 

1974, p. 415; Mengel 1965, pp. 206–308; 

Sutton 1967, pp. 319–321; Jackson 1971, 

pp. 12–20; Murphy 1982, entire). 

Once a common bird distributed 

contiguously across the southeastern 

United States, the red-cockaded 

woodpecker was estimated range-wide 

around the time of listing in 1970 to be 

fewer than 10,000 individuals 

(approximately 1,500 to 3,500 active 

clusters; an aggregate of cavity trees 

used by a group of woodpeckers for 

nesting and roosting) in widely 

scattered, isolated, and declining 

populations (Jackson 1971, pp. 12–20; 

Jackson 1978, entire; USFWS 1985, p. 

22; Ligon et al. 1986, pp. 849–850). 

Today, the Service’s conservative 

estimate is that there are 7,800 active 

clusters range-wide (USFWS 2022, pp. 

16, 108–110), almost double the number 

of clusters that existed in 1995. 

Recovery Criteria 

Section 4(f) of the Act directs us to 

develop and implement recovery plans 

for the conservation and survival of 

endangered and threatened species 

unless we determine that such a plan 

will not promote the conservation of the 

species. Under section 4(f)(1)(B)(ii), 

recovery plans must, to the maximum 

extent practicable, include objective, 

measurable criteria which, when met, 

would result in a determination, in 

accordance with the provisions of 

section 4 of the Act, that the species be 

removed from the Lists of Endangered 

and Threatened Wildlife and Plants. 

Recovery plans provide a roadmap for 

us and our partners on methods of 

enhancing conservation and minimizing 

threats to listed species, as well as 

measurable criteria against which to 

evaluate progress towards recovery and 

assess the species’ likely future 

condition. However, they are not 

regulatory documents and do not 

substitute for the determinations and 

promulgation of regulations required 

under section 4(a)(1) of the Act. A 

decision to revise the status of a species, 

or to delist a species, is ultimately based 

on an analysis of the best scientific and 

commercial data available to determine 

whether a species is no longer an 

endangered species or a threatened 

species, regardless of whether that 

information differs from the recovery 

plan. 

There are many paths to 

accomplishing recovery of a species, 

and recovery may be achieved without 

all of the criteria in a recovery plan 

being fully met. For example, one or 

more criteria may be exceeded while 

other criteria may not yet be 

accomplished. In that instance, we may 

determine that the threats are 

minimized sufficiently, and that the 

species is robust enough that it no 

longer meets the definition of an 

endangered species or a threatened 

species. In other cases, we may discover 

new recovery opportunities after having 

finalized the recovery plan. Parties 

seeking to conserve the species may use 

these opportunities instead of methods 

identified in the recovery plan. 

Likewise, we may learn new 

information about the species after we 

finalize the recovery plan. The new 

information may change the extent to 

which existing criteria are appropriate 

for identifying recovery of the species. 

The recovery of a species is a dynamic 

process requiring adaptive management 

that may, or may not, follow all of the 

guidance provided in a recovery plan. 

The original recovery plan was issued 

by the Service on August 24, 1979. A 

first revision was issued on April 11, 

1995, and the second, and current, 

revision on January 27, 2003. The 2003 

recovery plan provided management 

guidelines fundamental to the 

conservation and recovery of redcockaded woodpeckers. The Service 

continues to strongly encourage the 

application of these guidelines to the 

management of woodpecker populations 

on public and private lands. 

Implementation of the 2003 recovery 

plan has been carried out through the 

incorporation of management guidelines 

for installing artificial cavities, 

management of cavity trees and clusters, 

translocation, silviculture, and 

prescribed fire into various Federal and 

State land management plans. In 

addition to the management guidelines, 

the 2003 recovery plan provides 

guidelines to private landowners for 

managing foraging habitat on private 

lands occupied by red-cockaded 

woodpeckers. After the issuance of the 

2003 recovery plan, two additional sets 

of foraging guidelines were developed 

(USFWS 2005, entire). As described in 

the 2005 guidance, the recovery 

standard for good quality foraging 

habitat is intended for recovery 

management to sustain and increase 

populations. 

The 2003 recovery plan contains both 

downlisting and delisting criteria 

(USFWS 2003, pp. 141–145). The 

current status of red-cockaded 

woodpecker partially meets the 2003 

downlisting criteria. The number of redcockaded woodpecker active clusters 

has increased from 5,627 to more than 

7,800 since 2003 (USFWS 2022, entire). 

The population size objectives to meet 

applicable downlisting criteria have 

been met for 15 of 20 designated 

populations. All of these designated 

populations show stable or increasing 

long-term population growth rates (l ≥ 

1). However, not all of the designated 

recovery populations are 

demographically a single functional 

population as intended by the 2003 

recovery plan. Nine of the 20 designated 

recovery populations that count toward 

fulfilling downlisting population size 

criteria consist of multiple smaller 

demographic populations. Based on the 

largest single demographic population 

for a designated recovery population, 14 

of 20 designated recovery populations 

have achieved downlisting population 

size criteria. As to delisting criteria, 

because the delisting criteria all require 

all-natural cavities, none of the delisting 

criteria have been fully met. With 

continued forest management to retain 

and produce sufficient old pines for 

natural cavity excavation, future 

populations would no longer be 

dependent on artificial cavities. 

Regardless, there has been encouraging 

progress towards meeting the delisting 

criteria, as 12 of 29 demographically 

delineated populations corresponding to 

designated recovery populations 

currently have achieved population 

sizes that meet the delisting criteria. We 

described that status of the downlisting 

and delisting criteria in detail in the 

proposed rule (85 FR 63474, October 8, 

2020). 

For the red-cockaded woodpecker, 

although all of the population objectives 

from the 2003 recovery plan have yet to 

be reached, the primary recovery task of 

increasing existing populations on 

Federal and State lands has been 

successful, and the population growth 

rates indicate sufficient resiliency to 

stochastic disturbances with effective 

management. In addition, redundancy 

of moderate to very high resiliency 

populations suggests that risks from 

future catastrophic events to overall 

viability are low. 

Regulatory and Analytical Framework 

Regulatory Framework 

Section 4 of the Act (16 U.S.C. 1533) 

and the implementing regulations in 

title 50 of the Code of Federal 


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Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Rules and Regulations 85315 

Regulations set forth the procedures for 

determining whether a species is an 

endangered species or a threatened 

species, issuing protective regulations 

for threatened species, and designating 

critical habitat for endangered and 

threatened species. On April 5, 2024, 

jointly with the National Marine 

Fisheries Service, the Service issued a 

final rule that revised the regulations in 

50 CFR part 424 regarding how we add, 

remove, and reclassify endangered and 

threatened species and what criteria we 

apply when designating listed species’ 

critical habitat (89 FR 24300). On the 

same day, the Service published a final 

rule revising our protections for 

endangered species and threatened 

species at 50 CFR 17 (89 FR 23919). 

These final rules are now in effect and 

are incorporated into the current 

regulations. Our analysis for this final 

decision applied our current 

regulations. Given that we proposed 

reclassifying this species under our 

prior regulations (revised in 2019), we 

have also undertaken an analysis of 

whether our decision would be different 

if we had continued to apply the 2019 

regulations and we concluded that the 

decision would be the same. The 

analyses under both the regulations 

currently in effect and the 2019 

regulations are available on https://

www.regulations.gov. 

The Act defines an ‘‘endangered 

species’’ as a species that is in danger 

of extinction throughout all or a 

significant portion of its range, and a 

‘‘threatened species’’ as a species that is 

likely to become an endangered species 

within the foreseeable future throughout 

all or a significant portion of its range. 

The Act requires that we determine 

whether any species is an endangered 

species or a threatened species because 

of any of the following factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. We consider these same five 

factors in downlisting a species from 

endangered to threatened. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

species’ expected response and the 

effects of the threats—in light of those 

actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species—such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis which is 

further described in the 2009 

Memorandum Opinion on the 

foreseeable future from the Department 

of the Interior, Office of the Solicitor 

(M–37021, January 16, 2009; ‘‘MOpinion,’’ available online at https://

www.doi.gov/sites/ 

doi.opengov.ibmcloud.com/files/ 

uploads/M-37021.pdf). The foreseeable 

future extends as far into the future as 

the Services can make reasonably 

reliable predictions about the threats to 

the species and the species’ responses to 

those threats. We need not identify the 

foreseeable future in terms of a specific 

period of time. We will describe the 

foreseeable future on a case-by-case 

basis, using the best available data and 

taking into account considerations such 

as the species’ life-history 

characteristics, threat-projection 

timeframes, and environmental 

variability. In other words, the 

foreseeable future is the period of time 

over which we can make reasonably 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction, in light of 

the conservation purposes of the Act. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of the species, 

including an assessment of the potential 

threats to the species. The SSA report 

does not represent our decision on 

whether the species should be 

reclassified as a threatened species 

under the Act. However, it does provide 

the scientific basis that informs our 

regulatory decisions, which involve the 

further application of standards within 

the Act and its implementing 

regulations and policies. 

To assess red-cockaded woodpecker 

viability, we used the three conservation 

biology principles of resiliency, 

redundancy, and representation (Shaffer 

and Stein 2000, pp. 306–310). Briefly, 

resiliency is the ability of the species to 

withstand environmental and 

demographic stochasticity (for example, 

wet or dry, warm or cold years), 

redundancy is the ability of the species 

to withstand catastrophic events (for 

example, droughts, large pollution 

events), and representation is the ability 

of the species to adapt to both near-term 

and long-term changes in its physical 

and biological environment (for 

example, climate conditions, 

pathogens). In general, species viability 

will increase with increases in 

resiliency, redundancy, and 

representation (Smith et al. 2018, p. 

306). Using these principles, we 

identified the species’ ecological 

requirements for survival and 

reproduction at the individual, 

population, and species levels, and 

described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how the species arrived 

at its current condition. The final stage 

of the SSA involved making predictions 


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about the species’ responses to positive 

and negative environmental and 

anthropogenic influences. Throughout 

all of these stages, we used the best 

available information to characterize 

viability as the ability of a species to 

sustain populations in the wild over 

time, which we then used to inform our 

regulatory decision. 

The following is a summary of the key 

results and conclusions from the SSA 

report; the full SSA report (USFWS 

2022, entire) can be found at Docket No. 

FWS–R4–ES–2019–0018 on https://

www.regulations.gov and at https://

ecos.fws.gov/ecp/species/7614. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of the species and 

its resources, and the threats that 

influence the species’ current and future 

condition, in order to assess the species’ 

overall viability and the risks to that 

viability. In addition, the SSA report 

(USFWS 2022, entire) documents our 

comprehensive biological status review 

for the species, including an assessment 

of the potential threats to the species. 

The following is a summary of this 

status review and the best available 

information gathered since that time 

that have informed this decision. In the 

discussion below, we summarize the 

conclusions of that assessment, which 

we provide in full under Docket No. 

FWS–R4–ES–2019–0018 on https://

www.regulations.gov and at https://

fws.gov/species/red-cockadedwoodpecker-dryobates-borealis. 

Summary of Species Needs 

In the SSA report, we discuss 

individual-, population-, and specieslevel needs of the red-cockaded 

woodpecker in detail (USFWS 2022, pp. 

32–104). Red-cockaded woodpeckers 

require open pine woodlands and 

savannas with large, old pines for 

nesting and roosting. Old pines are 

required as cavity trees because cavity 

chambers must be completely within 

the heartwood to prevent pine resin in 

the sapwood from entering the chamber 

(Conner et al. 2001, pp. 79–155); a tree 

must be old and large enough to have 

sufficient heartwood to contain a cavity. 

In addition, old pines have a higher 

incidence of the heartwood decay that 

greatly facilitates cavity excavation. 

Cavity trees must be in open stands with 

little or no hardwood midstory and few 

or no overstory hardwoods. Hardwood 

encroachment on cavity trees resulting 

from fire suppression is a well-known 

cause of cluster abandonment. 

Red-cockaded woodpeckers also 

require adequate foraging habitat. Over 

75 percent of the red-cockaded 

woodpecker’s diet consists of 

arthropods. Individuals generally 

capture arthropods on and under the 

outer bark of live pines and in dead 

branches of live pines. A large 

proportion of the arthropods on pine 

trees crawl up into the trees from the 

ground, which implies the condition of 

the ground cover is an important factor 

influencing abundance of prey for redcockaded woodpecker (Hanula and 

Franzreb 1998, entire). The density of 

pines has a negative relationship with 

arthropod abundance and biomass, 

likely due at least in part to the negative 

effect of pine density on ground cover, 

from which some of the prey comes 

(Hanula et al. 2000, entire). Arthropod 

abundance and biomass also increase 

with the age and size of pines (Hooper 

1996, entire; Hanula et al. 2000, entire), 

which is another reason older pines are 

so critical to this species. Accordingly, 

suitable foraging habitat generally 

consists of mature pines with an open 

canopy, low densities of small pines, a 

sparse hardwood or pine midstory, few 

or no overstory hardwoods, and 

abundant native bunchgrass and forb 

groundcovers. Frequent fire likely 

increases foraging habitat quality by 

reducing hardwoods and by increasing 

the abundance and perhaps nutrient 

value of prey (James et al. 1997, entire; 

Hanula et al. 2000, entire; Provencher et 

al. 2002, entire). Thus, frequent growing 

season fire may be critical in providing 

red-cockaded woodpeckers with 

abundant prey. 

For the red-cockaded woodpecker to 

maintain viability, its populations or 

some portion thereof must be resilient. 

The SSA assessed resiliency at the 

population level, primarily by 

evaluating the current population size 

as the number of active clusters and 

secondarily by the associated past 

growth rate. Ultimately, a resilient 

population of red-cockaded woodpecker 

has a large number of active clusters and 

a positive growth trajectory. Redcockaded woodpecker resiliency 

primarily depends upon a single factor: 

amount of managed suitable habitat. 

Representation provides the ability of 

the species to adapt to physical (e.g., 

climate conditions, habitat conditions or 

structure across large areas) and 

biological (e.g., novel diseases, 

pathogens, predators) changes in its 

environment presently and into the 

future; it is a proxy measure for the 

evolutionary capacity or flexibility of 

the species. Representation is the range 

of variation found in a species, and this 

adaptive diversity is the source of 

species’ adaptive capabilities. The redcockaded woodpecker’s adaptive 

diversity can be thought of as the 

amount and spatial distribution of 

genetic and phenotypic diversity. By 

maintaining these two sources of 

adaptive diversity across a species’ 

range, the responsiveness and 

adaptability of a species over time is 

preserved (USFWS 2022, pp. 90–104). 

The SSA evaluated representation based 

on the extent and variability of habitat 

characteristics across the geographical 

range of the species and characterized 

representative units for the redcockaded woodpecker using ecoregions. 

This analysis generally followed the 

approach to representation used in the 

species’ 2003 recovery plan (USFWS 

2003, pp. 148, 152–155). 

For the red-cockaded woodpecker to 

maintain viability, the species also 

needs to exhibit some degree of 

redundancy. Measured by the number of 

populations, their resiliency, and their 

distribution, redundancy increases the 

probability that the species has a margin 

of safety to withstand, or can bounce 

back from, catastrophic events. The SSA 

reported redundancy for red-cockaded 

woodpeckers as the total number and 

resilience of population segments and 

their distribution within and among 

representative units. 

In summary, a species needs a 

suitable combination of all three 

characteristics (resilience, 

representation, and redundancy) for 

long-term viability. 

Summary of Stressors 

We note that, by using the SSA 

framework to guide our analysis of the 

scientific information documented in 

the SSA report, we have analyzed the 

cumulative effects of identified threats 

and conservation actions on the species. 

To assess the current and future 

condition of the species, we evaluate the 

effects of all the relevant factors that 

may be influencing the species, 

including threats and conservation 

efforts. Because the SSA framework 

considers not just the presence of the 

factors, but to what degree they 

collectively influence risk to the entire 

species, our assessment integrates the 

cumulative effects of the factors and 

replaces a standalone cumulative-effects 

analysis. 

The primary risk factor (i.e., stressor) 

affecting the status of the red-cockaded 

woodpecker remains the lack of suitable 

habitat (Factor A). Wildfire, pine 

beetles, ice storms, tornadoes, 

hurricanes, and other naturally 

occurring disturbances that destroy 

pines used for cavities and foraging are 

stressors for the red-cockaded 

woodpecker (Factor E), especially given 

the high number of very small 


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woodpecker populations (Factor E) 

(USFWS 2022, pp. 40–41, 83–85, 105, 

121–129). The number and severity of 

major hurricanes (Bender et al. 2010, 

entire; Knutson et al. 2010, entire; 

Walsh et al. 2014, pp. 41–42) is 

expected to increase in response to 

global climate change, and this increase 

could also disproportionately affect the 

smaller, less resilient woodpecker 

populations (Factor E). With rare 

exception, the vast majority of redcockaded woodpecker populations 

remain dependent on artificial cavities 

due to the absence of sufficient old 

pines for natural cavity excavation and 

habitat treatments to establish and 

maintain the open, pine-savanna 

conditions favored by the species 

(Factor E). These populations will 

decline without active and continuous 

management to provide artificial 

cavities and to sustain and restore forest 

conditions to provide suitable habitat 

for natural cavities and foraging similar 

to the historical conditions (Conner et 

al. 2001, pp. 220–239, 270–299; 

Rudolph et al. 2004, entire). 

Although published after the 

completion of the SSA report, a recent 

publication indicated potential effects of 

warming temperatures, resulting from 

climate change, on breeding phenology 

of red-cockaded woodpeckers. A 

description of this preliminary research 

has been incorporated below. 

Habitat Loss and Degradation 

The primary remaining threats to the 

red-cockaded woodpecker’s viability 

have the same fundamental cause: lack 

of suitable habitat. Historically, the 

significant impacts to red-cockaded 

woodpecker habitat occurred as a result 

of clearcutting, incompatible forest 

management, and conversion to urban 

and agricultural land uses. Both the 

longleaf pine and other open pine 

ecosystems were eliminated from much 

of their original range because of early 

(1700s) European settlement, 

widespread commercial timber 

harvesting, and the naval stores 

(turpentine) industry (1800s). Early to 

mid-1900 commercial tree farming, 

urbanization, and agriculture 

contributed to further declines. Much of 

the remaining habitat is very different 

from the vast, historical pine forests in 

which the red-cockaded woodpecker 

evolved. The second growth longleaf 

pine forests of today, rather than being 

dominated by centuries-old trees as the 

original forests were, are just reaching 

the age (90–100 years) required to meet 

all the needs of the red-cockaded 

woodpecker. Furthermore, in many 

cases, the absence of fire has caused the 

original open savannas to degrade into 

dense pine/hardwood forest. Much of 

today’s forest is young and dense, and 

dominated by loblolly pine, with a 

substantial hardwood component and 

little or no herbaceous groundcover 

(Noel et al. 1998, entire; Frost 2006, pp. 

37–38). 

The impacts from this clearcutting 

and incompatible forest management 

have been significantly curtailed and 

replaced by beneficial conservation 

management that sustains and increases 

populations; however, stressors caused 

by adverse historical practices still 

linger, including insufficient numbers of 

cavities, low numbers of suitable old 

pines, habitat fragmentation, degraded 

foraging habitat, and small populations. 

These lingering impacts can negatively 

affect the ability of populations to grow, 

even when populations are actively 

managed for growth, as the carrying 

capacity of suitable forest areas across 

much of the range can be quite low. 

However, restoration activities such as 

prescribed fire and strategic placement 

of recruitment clusters can reduce gaps 

between populations and increase 

habitat and population size toward 

current carrying capacity. These 

activities are occurring across the range 

of the red-cockaded woodpecker on 

properties actively managed for redcockaded woodpecker conservation. 

Currently, stressors to the species 

resulting from exposure to habitat 

modification or destruction are lower, 

especially when compared to historical 

levels. Periodically, military training on 

DoD installations requires clearing of 

red-cockaded woodpecker habitat for 

construction of ranges, expansion of 

cantonments, and related infrastructure, 

but these installations have management 

plans to sustain and increase redcockaded woodpecker populations. In 

addition, silvicultural management on 

Federal, State, and private lands also 

occasionally results in temporary 

impacts to habitat; for example, redcockaded woodpecker habitat may be 

unavoidably, but temporarily, adversely 

affected in old, even-aged loblolly pine 

stands that require regeneration prior to 

stand senescence to sustain a matrix of 

future suitable habitat for a net longterm benefit. Similarly, red-cockaded 

woodpecker habitat may be temporarily 

destroyed in areas where offsite loblolly, 

slash, or other pines are removed and 

replaced by the more fire-tolerant native 

longleaf pine. However, the net result of 

these activities is a long-term benefit, as 

the goal is to restore these areas to 

habitat preferred by woodpeckers. 

Climate Change 

In 2019, DeMay and Walters 

published preliminary investigations 

that examined the ‘‘effects of climate on 

breeding phenology and productivity in 

19 populations across the range of the 

red-cockaded woodpecker’’ (DeMay and 

Walters 2019, p. 1). They found that 

birds at higher latitudes appear to be 

adjusting the timing of breeding in 

response to warming temperatures; they 

are nesting earlier and have resultingly 

higher productivity. However, they 

found that birds in the southwestern 

portion of the range have been 

exhibiting declining productivity, even 

in populations with high-quality habitat 

and ongoing active management (e.g., 

Eglin Air Force Base); the authors 

hypothesized this decline in 

productivity could be due to ‘‘a possible 

shift in acceptable climate conditions 

for the species’’ or an inability of these 

populations to make appropriate 

adjustments to the timing of 

reproduction in the face of a changing 

climate. 

While the SSA report did not 

incorporate the findings of DeMay and 

Walters (2019), it did acknowledge that 

southwestern populations have lower 

productivity (USFWS 2022, p. 26) and 

referenced earlier research to similarly 

suggest that climate change has the 

potential to influence productivity 

through anticipated changes in 

temperature and precipitation patterns 

(USFWS 2022, p. 92; Schiegg et al. 2002, 

entire).Even with the lower productivity 

in the southwestern populations, it 

should be noted that the current species 

distribution covers 13 different 

ecoregions, all with unique climatic 

profiles, suggesting that the species has 

an increased ability to adapt. 

Natural Disturbances 

Wildfire, pine beetles, ice storms, 

tornadoes, and hurricanes are naturally 

occurring disturbances that destroy 

pines used for cavities. The loss of pines 

can result in subsequent reductions to 

population size unless management 

actions are taken to reduce or ameliorate 

adverse impacts. These management 

actions include providing artificial 

cavities, reducing hazardous fuels, and 

restoring forests to suitable habitat 

following these events. These 

disturbances can also destroy or degrade 

foraging habitat and cause direct 

mortality of woodpeckers. Small 

populations are the most vulnerable to 

these disturbances as there are fewer 

individuals to recover from the 

disturbance, potentially resulting in 

poorer survival or reproduction for the 

population. See the SSA report for more 

information about these natural 

disturbances (USFWS 2022, pp. 121– 

129). 


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Habitat destruction caused by 

hurricanes is the most acute and 

potentially catastrophic disturbance 

because hurricanes can impact entire 

populations. As noted in the SSA 

report, of the 124 current demographic 

populations, about 63 populations in 

the East Gulf Coastal Plain, West Gulf 

Coastal Plain, the lower portion of the 

Upper West Gulf Coastal Plain, and 

Florida Peninsula ecoregions are 

vulnerable to potential catastrophic 

impacts of hurricanes, particularly 

major hurricanes. Fifty-six of these 63 

populations (89 percent) are identified 

as low or very low resiliency in the SSA 

report, which makes them significantly 

vulnerable to adverse impacts from 

exposure to hurricanes. In addition, the 

frequency of intense Atlantic basin 

hurricanes, particularly major Category 

4 and 5 storms, may be expected to 

increase in response to global climate 

change during the 21st century (Bender 

et al. 2010, entire; Knutson et al. 2010, 

entire; Walsh et al. 2014, pp. 41–42, 

Vecchi et al. 2021, entire). That being 

said, we are unable to precisely predict 

the location and frequency of future 

storms affected by climate change 

relative to particular red-cockaded 

woodpecker populations, which is why 

we are unable to identify specific 

populations as being at risk from 

hurricanes. While larger populations 

(greater than 400 active clusters) are the 

most likely to withstand a strike by a 

major hurricane (e.g., Hooper et al. 

1990, entire; Hooper and McAdie 1995, 

entire; Watson et al. 1995, entire), 

smaller populations are more vulnerable 

to adverse effects from them, including 

extirpation, as well as to the effects of 

recurring storms that subsequently 

deplete cavity trees and foraging habitat, 

causing reductions in population size. 

However, these smaller populations 

may be able to withstand and persist 

after hurricanes if biologists and land 

managers implement prompt, effective 

post-storm recovery actions, such as 

installing artificial cavities, reducing 

hazardous fuels, and restoring forests to 

suitable habitat. Such actions have been 

occurring after storm events for 

managed populations, such as the quick 

response after Hurricane Michael in 

October 2018. 

Summary of Conservation Management 

As noted above, the red-cockaded 

woodpecker is a conservation-reliant 

species and responds well to active 

management. The vast majority of 

properties on public lands harboring 

red-cockaded woodpeckers have 

implemented management programs to 

sustain or increase populations 

consistent with population size 

objectives in the 2003 recovery plan or 

other plans (e.g., INRMP, USFS 

management plans, National Wildlife 

Refuge (NWR) management plans). 

Plans are specific to each property or 

management unit but generally contain 

the same core features (e.g., cavity 

management, translocation, prescribed 

burning). The most comprehensive 

plans call for intensive cavity 

management with the installation of 

artificial cavities to offset cavity loss in 

existing territories, maintenance of 

sufficient suitable cavities to avoid loss 

of active territories, and creation of new 

territories with recruitment clusters and 

artificial cavities in restored or suitable 

habitat to increase population size. The 

development of techniques to construct 

artificial cavities (Copeyon 1990, entire; 

Allen 1991, entire) offsets the lack of 

natural cavities and provides managers 

a new tool to greatly increase cavity 

availability. Fortunately, red-cockaded 

woodpeckers readily adapt to these 

artificial cavities, with thousands 

installed since the early 1990s. These 

cavity management activities are 

necessary until mature forests are 

restored with abundant old pines 65 and 

more years of age for natural cavity 

excavation. 

Managers also reduce fragmentation 

by restoring and increasing habitat with 

strategic placement of recruitment 

clusters to reduce gaps within and 

between populations. Furthermore, redcockaded woodpecker subadults from 

large or stable donor populations are 

translocated to augment growth of 

small, vulnerable populations. Of the 

current 124 demographic populations, 

108 are small (fewer than 99 active 

clusters) with inherently very low or 

low resiliency. These are the most 

vulnerable to future extirpation due to 

stochastic demographic and 

environmental factors and inbreeding 

depression. Inbreeding depression in 

small, fragmented populations of up to 

50 to 100 active clusters without 

adequate immigration can further 

increase the probability of decline and 

future extirpation; for these populations, 

red-cockaded woodpecker translocation 

programs reduce risks of adverse 

inbreeding impacts. As noted in the 

SSA report (see Current Condition, 

below), while resiliency is moderate for 

10 of the current populations with 100 

to 249 active clusters, and 6 populations 

exhibit high or very high resiliency, 

potential adaptive genetic variation is 

still expected to decline in all redcockaded woodpecker populations 

(Bruggeman 2010, p. 22, appendix B, 

pp. 39–42; Bruggeman et al. 2010, 

entire; Bruggeman and Jones 2014, pp. 

29–33). Effective management programs 

to sustain even the smallest populations 

are critical to reduce the risks of 

inbreeding, establish genetic 

connectivity among fragmented 

populations, and maintain ecological 

diversity and life-history demographic 

variation as patterns of representation 

within and across broad ecoregions. 

Additionally, managers are 

implementing compatible silviculture 

methods to sustain, restore, and increase 

habitat with an increased use of 

effectively prescribed fire. Finally, 

managers are implementing monitoring 

programs looking at both habitat and 

populations to provide feedback for 

effective management. The future 

persistence of the species will require 

these management actions to continue. 

In order to facilitate this, we have 

structured our final 4(d) rule to 

encourage the continuation of such 

management. However, while many of 

the landowners and managers within 

the range of the species have committed 

to continuing to implement their 

conservation programs into the future, 

we do not have certain commitments 

that all current management will 

continue. 

In the SSA report, we identified 124 

current demographic populations with a 

total of 7,794 active clusters. Seventyone of the 124 currently delineated redcockaded woodpecker populations 

occur on lands solely owned and 

managed by Federal agencies, with 

4,033 current active clusters. Seven 

additional populations with 2,026 active 

clusters occur on lands that are under 

mixed Federal and State ownership but 

are predominately managed by Federal 

agencies. Thirty-one populations are on 

lands managed solely by State agencies, 

with 557 active clusters. Thus, 88 

percent of delineated populations with 

6,616 active clusters (85 percent of all 

7,794 active clusters in 124 populations) 

are on lands managed entirely by 

Federal and State agencies with statutes 

to require management plans addressing 

the conservation of natural resources. 

Two populations occur in a matrix of 

public and private lands, mostly Federal 

and State properties, with 816 active 

clusters. One population with 20 active 

clusters is managed by a State agency 

and private landowner. 

There are additional active clusters of 

red-cockaded woodpeckers on 

nongovernmental lands enrolled in 

SHAs, but as noted above, we did not 

have adequate data to spatially delineate 

all demographic populations on these 

lands. Of the 933 active clusters 

managed by landowners with existing 

SHAs in 8 States (Alabama, Florida, 

Georgia, Louisiana, North Carolina, 


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South Carolina, Texas, and Virginia), 

demographic populations with 

respective population sizes have not 

been delineated for approximately 558 

active clusters. 

Below is a summary of the types of 

management plans that include 

elements directed at red-cockaded 

woodpecker management and 

conservation. Note that the numbers of 

populations below do not necessarily 

add up to the 124 current demographic 

populations identified in the SSA 

report, because some populations cross 

property boundaries and are managed 

by more than one landowner. 

Department of Defense 

Within the range of the red-cockaded 

woodpecker, the DoD manages habitat 

for 14 populations, 5 of which are in the 

moderate to very high resiliency 

categories, and 9 are in the low to very 

low resiliency categories. The Sikes Act 

requires DoD installations to conserve 

and protect the natural resources within 

their boundaries. INRMPs are planning 

documents that outline how each 

military installation with significant 

natural resources will manage those 

resources, while ensuring no net loss in 

the capability of an installation to 

support its military testing and training 

mission. Within the range of the redcockaded woodpecker, all DoD 

installations have current INRMPs that 

address protection and recovery of the 

species, both through broader 

landscape-scale ecosystem stewardship 

and more specific management 

activities targeted directly at redcockaded woodpecker conservation. 

These activities include providing 

artificial cavities to sustain active 

clusters, installing recruitment clusters 

to increase population size, sustaining 

and increasing habitat through 

compatible forest management and 

prescribed fire, and increasing the 

number and distribution of old pines for 

natural cavity excavation. Each 

installation has a red-cockaded 

woodpecker property or population size 

objective with provisions for 

monitoring. For most installations, a 

schedule is available for reducing 

certain military training restrictions in 

active clusters in response to increasing 

populations and attaining population 

size thresholds. 

U.S. Forest Service 

The USFS manages habitat for 49 redcockaded woodpecker populations on 

17 National Forests and the Savannah 

River Site Unit (owned by the 

Department of Energy but managed by 

the USFS). Of these populations, 10 

have moderate to very high resiliency 

and 39 identified as having low or very 

low resiliency. Under the National 

Forest Management Act of 1976 (16 

U.S.C. 1600 et seq.), National Forests are 

required to develop plans that provide 

for multiple use and sustained yield of 

forest products and services, which 

includes timber, outdoor recreation, 

range, watershed, fish and wildlife, and 

wilderness resources. These plans, 

called ‘‘land and resource management 

plans’’ (LRMPs) and their amendments, 

have been developed for every National 

Forest in the current range of the redcockaded woodpecker. The LRMPs for 

National Forests in three States 

(Louisiana, North Carolina, and Texas) 

predate the Service’s 2003 recovery 

plan. Nevertheless, all National Forests 

(even those with outdated LRMPs) have 

implemented management strategies to 

protect and manage red-cockaded 

woodpecker habitat and increase 

populations. 

Current LRMPs approved prior to the 

2003 recovery plan were developed in 

coordination with the Forest Service’s 

1995 regional plan for managing the redcockaded woodpecker on southern 

National Forests (USFS 1995, entire). 

The 1995 regional plan includes most of 

the new and integrated management 

methods (Rudolph et al. 2004, entire) to 

sustain and increase populations as 

incorporated in the recovery plan. These 

include installing artificial cavities, 

increasing population size with 

recruitment clusters, and restoring 

suitable habitat with forest management 

treatments and prescribed fire. Some of 

the more recent LRMPs, such as for 

National Forests in Mississippi, are 

more broadly programmatic, but 

incorporate the 2003 recovery plan by 

reference for appropriate conservation 

methods and objectives. 

U.S. Fish and Wildlife Service 

The National Wildlife Refuge (NWR) 

System manages 14 NWRs with redcockaded woodpeckers, with 10 NWRs 

supporting rangewide species recovery. 

In the SSA report, we considered 3 of 

19 populations found on NWRs to be 

moderate to very high resiliency while 

16 have low to very low resiliency. 

Under the NWR System Improvement 

Act of 1997 (Pub. L. 105–57), NWRs 

prepare comprehensive conservation 

plans (CCPs), which provide a blueprint 

for how to manage for the purposes of 

each refuge; address the biological 

integrity, diversity, and environmental 

health of a refuge; and facilitate 

compatible wildlife-dependent 

recreation. NWRs have assigned 

population objectives from the 2003 

recovery plan through their CCPs or 

modified in their habitat management 

plans. Specific tasks in these plans 

include installation of artificial cavities; 

translocation; establishing recruitment 

clusters; population monitoring; 

prescribed fire; and silvicultural 

treatments, such as mid-story removal, 

thinning of younger stands, and, where 

necessary, increasing stand age diversity 

with regeneration of pine stands. 

National Park Service 

Within the Big Cypress National 

Preserve (Preserve) in Florida, the 

National Park Service (NPS) manages 

two red-cockaded woodpecker 

populations, one with low and the other 

with very low resilience. The NPS’s 

plans do not include specific provisions 

for red-cockaded woodpecker 

management; however, at the Preserve, 

the NPS conducts prescribed fire to 

maintain and improve the south Florida 

slash pine forest communities that 

support the species. The NPS also 

allows FFWCC biologists to conduct 

red-cockaded woodpecker surveys, 

monitor, periodically install a limited 

number of artificial cavities, and 

conduct translocations on occasion. 

From surveys and monitoring by the 

FFWCC, 75 percent of all cavity trees 

within the Preserve consist of natural 

cavities, which is an unusually high 

number relative to other populations, 

reflecting the predominately old 

condition of the Big Cypress south 

Florida slash pine forests (Spickler 

2019, pers. comm.). 

State Lands 

The States of Arkansas, Florida, 

Georgia, Louisiana, North Carolina, 

Oklahoma, South Carolina, Texas, and 

Virginia have red-cockaded woodpecker 

populations on State-owned lands. All 

or parts of 40 currently delineated 

populations occur on State lands. Seven 

populations on or partially on State 

lands have moderate to very high 

resiliency, while 32 populations have 

low to very low resiliency. These 

properties range from State Forest 

Service or Forest Commission holdings 

to Department of Wildlife, Department 

of Natural Resources, and State Park 

Service properties. The mission, and 

therefore the extent and type of 

management, of each unit varies. For 

example, some State lands are managed 

generally to provide ecosystem benefits, 

such as managing pine-dominated 

forests with prescribed fire. However, 

other State properties implement 

proactive conservation management 

specifically for the red-cockaded 

woodpecker. For example, the FFWCC 

manages all of its properties under the 

umbrella of the Florida Red-cockaded 

Woodpecker Management Plan, with 


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other specific plans for the agency’s 

WMAs. 

Other Lands 

Eight States have a Service-approved 

programmatic SHA with a section 

10(a)(1)(A) enhancement of survival 

permit under the Act to enroll nonFederal landowners that voluntarily 

provide beneficial management. Of 459 

enrolled non-Federal landowners, one is 

for a State property and all others are 

private nongovernmental lands. All or 

parts of 12 currently delineated 

demographic populations are covered 

under a current SHA. Again, we are 

aware of additional active clusters 

covered under SHAs, but we lack the 

data to delineate them as demographic 

populations. SHAs, now known as 

CBAs, are partnerships between 

landowners and the Service involving 

voluntary agreements under which the 

property owners receive formal 

regulatory assurances from the Service 

regarding their management 

responsibilities in return for 

contributions to benefit the listed 

species. 

For the red-cockaded woodpecker, 

this includes voluntary commitments by 

landowners to maintain and enhance 

red-cockaded woodpecker habitat to 

support baseline active clusters, which 

is the number of clusters at the time of 

enrollment, and additional abovebaseline active clusters that increase in 

response to beneficial management. 

Beneficial management includes the 

maintenance and enhancement of 

existing cavity trees and foraging habitat 

through activities such as prescribed 

fire, mid-story thinning, seasonal 

limitations for timber harvesting, and 

management of pine stands to provide 

suitable foraging habitat and cavity 

trees. Because above-baseline active 

clusters and habitat covered under these 

plans can be returned to ‘‘baseline’’ 

conditions, any population growth on 

lands covered by existing SHAs or 

future CBAs may not be permanent. In 

addition, enrolled landowners can 

terminate their agreement at any time. 

However, fewer than 5 of the 459 

enrolled landowners have ever used 

their permit authorities to return the 

number of active clusters to baseline 

conditions, and only 12 landowners 

have terminated their agreement. There 

currently are 241 active above-baseline 

clusters in the program. 

In summary, the red-cockaded 

woodpecker is a conservation-reliant 

species, but one that responds very well 

to active management. The majority of 

red-cockaded woodpecker populations 

are managed under plans that address 

population enhancement and habitat 

management to sustain or increase 

populations, and to meet the 2003 

recovery plan objectives for primary 

core, secondary core, and essential 

support populations. We expect these 

property owners will continue to 

implement their respective management 

plans while the species is listed as 

threatened, as the red-cockaded 

woodpecker will remain protected 

under the Act and the 2003 recovery 

plan is still applicable. 

Current Condition 

Resiliency 

In the SSA report, we identified 124 

demographic populations across the 

range of the red-cockaded woodpecker 

for which sufficient data were available 

to complete the SSA analysis for the 

recent past to current condition. We 

acknowledge there are other small 

occurrences of red-cockaded 

woodpeckers, particularly on private 

lands; however, spatial data for these 

other occurrences were incomplete, so 

for purposes of the SSA analysis, and 

subsequently throughout this final rule, 

we focused only on the 124 

demographic populations that could be 

spatially delineated. The SSA 

categorizes two important parameters 

related to current population resiliency: 

current population size and associated 

population growth rate. Population 

resilience size categories are defined as 

follows: very low (fewer than 30 active 

clusters); low (30 to 99 active clusters); 

moderate (100 to 249 active clusters); 

high (250 to 499 active clusters); and 

very high (greater than or equal to 500 

active clusters). 

Population resilience size-classes 

were derived from spatially explicit 

individual-based models and 

simulations for this species (Letcher et 

al. 1998, entire; Walters et al. 2002, 

entire), the performance of which have 

been reasonably validated with 

reference to actual populations (Schiegg 

et al. 2005, entire; Walters et al. 2011, 

entire). We also considered subsequent 

modifications of these models and 

simulations that incorporated adverse 

effects of inbreeding depression on 

population persistence and growth 

(Daniels et al. 2000, entire; Schiegg et al. 

2006, entire). These models were 

developed from extensive biological 

data and specifically designed to 

incorporate the dynamics of the redcockaded woodpecker’s cooperative 

breeding system that are not accurately 

represented in other types of population 

models (Zieglar and Walters 2014, 

entire). These models simulated 

populations of different initial sizes 

under natural conditions without any 

limiting habitat and cavity conditions 

that could impair population growth. 

We consider these results as 

indicators of inherent resilience because 

effects of conservation management 

actions to sustain and increase 

populations were not simulated. These 

beneficial management practices would 

include installation of recruitment 

clusters with artificial cavities to induce 

new red-cockaded woodpecker groups 

and translocation to augment the size 

and growth of small populations. The 

vast majority of the 124 current 

populations have been, and currently 

are, subject to specific conservation 

management actions for this species, 

including recruitment clusters. Thus, 

the inherent resilience size-classes 

derived from population models and 

simulations have been further qualified 

by actual growth rates as indicators of 

effects of beneficial management for this 

conservation-reliant species. 

Populations with very low resiliency 

(fewer than 30 active clusters) are the 

most vulnerable to future extirpation 

following stochastic events, with 

declining growth and extirpation likely 

in 50 years. Populations with low 

resiliency (30 to 99 active clusters) are 

more persistent, but remain vulnerable 

to declining growth, inbreeding 

depression, and extirpation. Inbreeding 

depression reduces red-cockaded 

woodpecker egg hatching rates and 

survival of fledglings (Daniels and 

Walters 2000a, entire). Inbreeding in 

red-cockaded woodpeckers is a 

consequence of breeding among close 

relatives in response to naturally short 

dispersal distances of related birds 

among nearby breeding territories, 

exacerbated by small populations and 

fragmentation among populations that 

reduce immigration rates of unrelated 

individuals (Daniels and Walters 2000a, 

entire; 2000b, entire; Daniels et al. 2000, 

entire; Schiegg et al. 2002, entire; 2006, 

entire). 

The consequences of inbreeding 

depression further reduce population 

growth rates and increase the 

probabilities of extirpation in 

populations in sizes up to about 100 

active clusters (Daniels et al. 2000, 

entire; Schiegg et al. 2006, entire). The 

largest populations with low resiliency 

may have long-term average growth 

rates (l or lambda) near 1.0 (a l of 1.00 

is considered stable, less than 1.00 is 

declining, and greater than 1.00 is 

increasing), but with slow rates of 

decline and a high risk of inevitable 

future extirpation. 

The moderate resiliency category (100 

to 249 active clusters) is a large 

transitional class. Smaller populations 

without inbreeding likely will 


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experience a slow decline, but without 

extirpation, in 25 to 50 years because 

the populations in at least some 

territories will survive, although as 

much smaller and more vulnerable 

populations. The largest populations in 

the moderate resiliency category may be 

relatively stable or nearly so. 

Populations with a high resiliency (250 

to 499 active clusters) on average should 

be stable except perhaps for the very 

smallest, which may have average 

growth rates slightly less than 1.00. 

In high resiliency populations, 

adverse demographic effects of 

inbreeding depression are not expected. 

Populations in the very high resiliency 

class (greater than or equal to 500 active 

clusters) are stable and the most 

resilient, with average growth rates of 

1.0 or slightly greater. Based on the most 

recent data, 3 red-cockaded woodpecker 

populations fall within the very high 

resilience category (totaling 2,143 

clusters); 3 are in high resilience 

populations (1,364 total clusters); 10 are 

in moderate resilience populations 

(1,555 total clusters); 37 are in low 

resilience populations (1,923 total 

clusters); and 71 are in very low 

resilience populations (809 total 

clusters). In short, of the estimated 7,794 

active clusters distributed among 124 

populations across the range of the 

species, 5,062, or 65 percent, are in 16 

moderate to very high resiliency 

populations. 

The second resiliency parameter 

measured in the SSA was growth rate of 

the populations. For the SSA, there was 

only sufficient GIS data to delineate past 

demographic populations with 

population size data to compute past-tocurrent growth rates for 98 of the 124 

populations. Of these 98 populations, 

the Service determined that 13 (13.3 

percent) were declining (l < 1.00), 19 

(19.4 percent) were stable (l = 1.00– 

1.02). and 66 (67.3 percent) were 

increasing (l < 1.02). Combining growth 

rates with population sizes of these 98 

populations, growth rates have been 

stable to increasing for all of those 

moderate, high, and very high resiliency 

populations where growth rate could be 

measured. 

Of the 86 very low and low resiliency 

populations where growth rate could be 

measured, 73 populations demonstrated 

stable and positive growth rates, with 

several populations showing very high 

growth rates. This is indicative of the 

positive effects of red-cockaded 

woodpecker conservation management 

programs on these locations and the 

ability of such management to offset 

inherently low or very low population 

resilience. Growth rates are decreasing 

in only 13 (15 percent) of the low and 

very low resiliency populations where 

growth rate could be measured. 

Current population conditions in the 

SSA report were derived from the 

number and location of active clusters 

primarily in 2016 and 2017. These 

conditions did not take into account 

Hurricane Michael, which came ashore 

near Mexico Beach, Florida, on October 

10, 2018, as a Category 4 storm. More 

than 1,500 cavity trees were blown 

down or damaged in populations in the 

Apalachicola National Forest, Silver 

Lake WMA, Jones Ecological Research 

Center, and Tate’s Hell State Forest 

(Dunlap 2018, entire; McDearman 2018, 

entire). These represented three 

demographic populations: Apalachicola 

National Forest-St. Marks NWR-Tate’s 

Hell State Forest, Jones Ecological 

Research Center, and Silver Lake WMA. 

The effects of Hurricane Michael did not 

change current conditions for these 

populations in terms of their resilience 

size-classes as described in the SSA 

report, and as summarized here. 

After Hurricane Michael, 870 clusters 

were rapidly assessed in Apalachicola 

National Forest where 1,410 cavity trees 

were damaged or blown down, followed 

by the installation of 682 artificial 

cavities (Dunlap 2018, entire). In 2018, 

prior to this hurricane, the Apalachicola 

National Forest population survey 

estimate was 833 active clusters (Casto 

2018, pers. comm.). After the hurricane, 

the 2019 survey estimate was 857 active 

clusters (Casto 2019, pers. comm). At 

Silver Lake WMA, 154 cavity trees were 

damaged or lost; however, within 2 

weeks of the storm more than 90 

artificial cavities were installed 

(Burnham 2019a, p. 9). The pre-storm 

population was 36 active clusters and 

32 PBGs, with a post-storm decline to 33 

active clusters and 28 PBGs (Burnham 

2019b, p. 6). About 24 percent of all 

cavity trees at the Jones Ecological 

Research Center were damaged or 

destroyed (Rutledge 2019, p. 13). The 

pre-storm Jones Center population was 

38 active clusters with 34 PBGs 

(Henshaw 2019, p. 4). Post-storm, after 

installation of artificial cavities, there 

were 40 active clusters with 31 PBGs 

(Henshaw 2019, p. 4). At Tate’s Hell 

State Forest, about 23 of 527 cavity trees 

among 61 active clusters and 51 PBGs 

were blown down (Alix 2018, pers. 

comm.). After post-storm management, 

the Tate’s Hell State Forest currently 

consists of 64 active clusters and 54 

PBGs (Alix 2020, pers. comm.). 

The total increase of active clusters 

from all of the properties demonstrates 

that with prompt, active management, 

the vulnerability of these populations to 

stochastic events can potentially be 

reduced. Additional intermediate and 

long-term habitat restoration treatments 

at these properties are still required to 

reduce hazardous fuels from large and 

small woody debris, restore habitat, and 

implement reforestation or regeneration 

in the most severely damaged pine 

stands. Overall, we do not anticipate 

that Hurricane Michael will affect longterm viability of these populations. 

However, we will continue to evaluate 

the success of the emergency, 

intermediate, and long-term response 

efforts. 

In summary, although most of redcockaded woodpecker populations for 

which we have data are still small and 

remain vulnerable to stochastic events 

and possibly inbreeding depression, the 

vast majority of populations are 

showing stable or increasing growth 

rates, and the majority of birds and 

clusters occur in a few large, resilient 

populations. Of the 98 populations for 

which trend data are available, only 13 

percent are declining. In addition, over 

65 percent of red-cockaded woodpecker 

clusters are currently in moderate to 

very high resiliency populations. 

Representation 

We evaluated representation based on 

the extent and variability of habitat 

characteristics across the species’ 

geographical range. For the redcockaded woodpecker, the SSA report 

characterizes representative units using 

ecoregions, which align with the 

recovery units identified in the 2003 

recovery plan (USFWS 2003, pp. 145– 

161). These ecoregions are broad areas 

defined by physiography, topography, 

climate, and major historical and 

current forest types and thus serve as 

surrogates for the variability of habitat 

characteristics across the species’ range, 

such as ecology, life history, geography, 

and genetics. There are currently 13 

ecoregions containing at least one redcockaded woodpecker population: (1) 

Cumberland Ridge and Valley; (2) 

Florida Peninsula (South/Central 

Florida); (3) East Gulf Coastal Plain; (4) 

Mid-Atlantic Coastal Plain; (5) Ouachita 

Mountains; (6) Piedmont; (7) South 

Atlantic Coastal Plain; (8) Sandhills; (9) 

Upper East Gulf Coastal Plain; (10) 

Upper West Gulf Coastal Plain; (11) 

West Gulf Coastal Plain; (12) Gulf Coast 

Prairie and Marshes; and (13) 

Mississippi River Alluvial Plain. In the 

SSA report, figures 20 and 24 provide 

maps illustrating the ecoregions 

(USFWS 2022, pp. 93, 111), and figure 

25 includes the historical county 

records for the range of the species 

(USFWS 2022, p. 118). 

The historical range of the redcockaded woodpecker included the 

entire distribution of longleaf pine 


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ecosystems, but the species also 

inhabited open shortleaf, loblolly, slash 

pine, and Virginia pine forests, 

especially in the Ozark-Ouachita 

Highlands and the southern tip of the 

Appalachian Highlands with occasional 

occurrences noted for New Jersey, 

Pennsylvania, Maryland, and Ohio 

(Costa and Walker 1995, pp. 86–87). 

Red-cockaded woodpeckers no longer 

occur in six ecoregions (Ozarks, Central 

Mixed-Grass Prairies, Cross Timbers and 

Southern Mixed-Grass Prairies, 

Northern Atlantic Coast, Central 

Appalachian Forest, and Southern Blue 

Ridge). The 2003 recovery plan did not 

consider recovery in these areas to be 

essential to the conservation of the 

species. 

In the 13 ecoregions containing the 

species, red-cockaded woodpeckers 

occupy a wide variety of pinedominated ecological settings scattered 

across a broad geographic range. 

Considerable geographic variation in 

habitat types exists, illustrating the 

species’ ability to adapt to a wide range 

of ecological conditions within the 

constraints of mature or old growth, 

southern pine ecosystems. However, of 

these 13 ecoregions, only 4 currently 

have populations that are considered to 

have high or very high resiliency (East 

Gulf Coastal Plain, South Atlantic 

Coastal Plain, Sandhills, and MidAtlantic Coastal Plain), and 6 have 

populations that are low or very low 

resiliency (Florida Peninsula, Ouachita 

Mountains, Cumberland Ridge and 

Valley, Piedmont, Gulf Coast Prairie and 

Marshes, and Mississippi River Alluvial 

Plain). Of those six, the latter four have 

only one or two populations each (a 

total of six populations), meaning these 

ecoregions, and the ecology, life history, 

geography, and genetics they represent, 

are particularly vulnerable to stochastic 

events. However, five of the six 

populations in these four ecoregions all 

demonstrate stable or increasing growth 

rates (growth rate for the sixth, Mitchell 

Lake in the Piedmont Ecoregion, could 

not be measured), primarily because 

they are being actively managed. 

With regards to the genetic 

component of the ecoregions, a genetic 

analysis of material prior to 1970 in 

eight ecoregions indicates the species 

appears to have been a single genetic 

unit or population without significant 

genetic structure or differentiation 

(Miller et al. 2019, entire). The best 

available range-wide genetic data 

indicate a loss of genetic variation after 

1970 with development of significant 

contemporary genetic structure among 

ecoregions. This structuring is most 

likely in response to fragmentation of 

this historically more widespread and 

abundant species, reduced dispersal 

between populations and regions, and 

genetic drift (Stangel et al. 1992, entire; 

Haig et al. 1994, p. 590; Haig et al. 1996, 

p. 730; Miller et al. 2019, entire). 

However, the similarity of genetic 

parameters between the 1992–1995 and 

2010–2014 periods indicates that a 

further significant loss of genetic 

diversity with an increase in 

differentiation among ecoregions may 

have been ameliorated by conservation 

management that began in the 1990s to 

rapidly increase populations and 

translocate individuals from large 

populations to augment small 

populations (Miller et al. 2019, entire). 

Mitochondrial DNA haplotype diversity 

has declined significantly since the pre1970s, but not to the extent of a loss of 

any phylogenetically distinct lineages 

that may represent evolutionarily 

significant units (Miller et al. 2019, pp. 

9–10). 

In summary, the species no longer 

persists in six ecoregions where it was 

historically present. However, it is still 

currently represented in the 13 

remaining ecoregions, and this level of 

representation has not decreased further 

since the 2003 recovery plan revision, 

which did not consider the extirpated 

ecoregions necessary for recovery. 

Nevertheless, while populations persist 

in the 13 ecoregions, many of the 

ecoregions contain only populations 

that have low or very low resiliency, 

and 4 ecoregions only have 1 or 2 

populations, which are all low or very 

low resiliency, making them vulnerable 

to stochastic events. 

Redundancy 

In the SSA report, redundancy for 

red-cockaded woodpeckers is 

characterized by the number of resilient 

populations and their distribution 

within each ecoregion. Of the 124 

current populations, there are 3 

populations that have very high 

resiliency, 3 with high, 10 with 

moderate, 37 with low, and 71 with very 

low resiliency. As noted above, 4 of 13 

ecoregions currently harbor high or very 

high resiliency populations: East Gulf 

Coastal Plain (2 populations), MidAtlantic Coastal Plain (1 population), 

Sandhills (2 populations), and South 

Atlantic Coastal Plain (1 population). In 

terms of redundancy, only two 

ecoregions, East Gulf Coastal Plain and 

Sandhills, have more than one 

population classified as having high or 

very high resiliency, and only these two 

ecoregions also have more than two 

populations classified as having 

moderate to very high resiliency. 

Redundancy of smaller populations is 

higher with a greater number of 

populations in the moderate, low, and 

very low resiliency categories within 

and across ecoregions. Four ecoregions 

(South Atlantic Coastal Plain, MidAtlantic Coastal Plain, West Gulf 

Coastal Plain, and Upper East Gulf 

Coastal Plain) have two populations 

exhibiting moderate to high resiliency, 

and thus some level of redundancy in 

terms of resilient populations. Most of 

the populations in these regions have 

moderate resiliency. The greatest 

number of current populations reside in 

the Mid-Atlantic Coastal Plain (24) and 

Florida Peninsula (22), although most of 

these are in the very low and low 

resiliency class. However, even for the 

more resilient populations, habitat 

fragmentation has resulted in wide gaps 

between forested areas, meaning there is 

little connectivity between populations. 

Across the range of the red-cockaded 

woodpecker, the populations with the 

most resiliency (high or very high) tend 

to be in the eastern half of the range and 

in coastal or near coastal ecoregions 

rather than interior. Florida Peninsula 

and the western ecoregions currently 

have populations in the moderate to 

very low resiliency categories. This 

concentration of the more resilient 

populations in coastal and near coastal 

areas could affect the species’ ability to 

withstand catastrophic events such as 

hurricanes. Particularly for these 

populations, post-storm management 

actions are critical, as they can mitigate 

cavity loss and reduce hazardous fire 

fuels. 

In summary, a species needs a 

suitable combination of all three 

characteristics (resiliency, 

representation, and redundancy) for 

long-term viability. Based on our 

analysis of the three factors, the redcockaded woodpecker demonstrates 

some degree of stability or improvement 

in all three factors. The species’ viability 

is reduced over historical levels, but 

habitat conditions and population 

numbers are improving. In terms of 

resiliency, most of the populations are 

still quite small, but the vast majority 

are stable or even growing. The species 

has not lost any representative 

populations since the 2003 revised 

recovery plan, and while a few 

ecoregions still contain only one or two 

populations, most of these populations 

are stable or growing. Finally, there is a 

fair degree of redundancy within 

ecosystems across the range of the 

species, although, again, most of these 

populations are still quite small and are 

isolated from each other. The improving 

viability of the red-cockaded 

woodpecker has been largely due to 

intensive, extensive management, 

including actions immediately after 


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large storm events to offset cavity loss 

and reduce hazardous fuels. Without 

this intervention, many populations, 

especially the low and very low 

resilience populations, likely would 

have been extirpated. 

Future Conditions 

Our analysis of stressors and risk 

factors, as well as the past, current, and 

future influences on what the redcockaded woodpecker needs for longterm viability, revealed that the primary 

predictor of future viability of the 

species is the continuation of active 

management (including cavity 

management, midstory treatment such 

as prescribed fire, and translocation 

efforts). 

We assessed future red-cockaded 

woodpecker population growth, 

population size (active clusters), and 

resiliency by first modeling past trends 

and variation in population size of 

demographically delineated populations 

as affected by factors including 

management treatments (e.g., number of 

artificial cavities, recruitment clusters, 

birds received by translocations, and 

frequency of prescribed fire and 

midstory hardwood control), dominant 

pine species, the density of active 

clusters, and parameters to account for 

unexplained sources of variation to 

population size by this procedure 

(USFWS 2022, chapter 6 and appendix 

2). We obtained historical information 

for 87 demographically delineated 

populations and were also able to 

extrapolate missing data for certain 

populations by imputation with an 

expectation-maximization algorithm 

(USFWS 2022, appendix 1). Populations 

were separately modeled as small (6 to 

29 clusters), medium (30 to 75 clusters), 

and large (more than 75 clusters) 

classes. Populations with fewer than six 

active clusters were not modeled 

because of high variation in growth 

rates. 

For past growth rate of small 

populations, the most important 

variables were the number of new 

recruitment clusters, number of new 

artificial cavities in previously existing 

clusters (cavity management), midstory 

treatments by prescribed fire or 

mechanical methods, number of redcockaded woodpeckers translocated into 

the population, and dominant pine type. 

Translocation had the greatest positive 

effect on growth of any management 

technique. For medium populations, 

recruitment clusters and midstory 

treatments by prescribed fire were 

significant management covariates. The 

best model for large populations 

included recruitment clusters, cavity 

management, and spatial configuration 

of active clusters. In all cases, effects of 

recruitment clusters, cavity 

management, midstory treatment, and 

translocation were positive. 

We then used the best assessed future 

growth and conditions for each redcockaded woodpecker population to 

assess viability under four future 25- 

year management scenarios: Low 

management, medium management, 

high management, and the ‘‘manager’s 

expectation.’’ In the manager’s 

expectation scenario, we elicited 

estimates for red-cockaded woodpecker 

conservation management treatments 

(e.g., number of artificial cavities, 

number of recruitment clusters, 

midstory treatments, prescribed fire 

frequency, translocation, etc.) from 

property biologists, foresters, and 

managers. 

For the low management scenario, 

values for each management covariate 

(e.g., cavity management, prescribed fire 

treatments, number of recruitment 

clusters, midstory hardwood treatment, 

translocation) were set to zero. 

However, this scenario does not reflect 

no management, but rather, the absence 

of management techniques specific to 

red-cockaded woodpeckers and instead 

a reliance on ecosystem management. 

Thus, some baseline habitat 

management, which would indirectly 

provide some nesting and foraging 

habitat, would be expected under the 

low management scenario. However, 

because most of the past populations for 

which we had sufficient data have been 

actively managed more aggressively 

than this scenario, we were unable to 

accurately model this type of minimal 

baseline habitat management. Therefore, 

future simulated population growth in 

the low management scenario is 

probably overestimated. Management 

covariate parameters for the medium 

management scenario assume the 

average of the past parameters employed 

to conserve red-cockaded woodpeckers 

over the past 20 years will continue into 

the future. For the high management 

scenario, management treatments for 

simulated populations reflect the 

parameter values in the 90th percentile 

of all past population treatments, as if 

populations were more intensely and 

extensively managed. The high 

management scenario thus represents 

projections of what might potentially be 

achieved should the species be 

systematically managed more 

intensively across its range than it has 

been in the past. The manager’s 

expectation scenario was based on what 

the experts, described above, thought 

was the most likely annual future 

number of recruitment clusters, artificial 

cavities, prescribed fire treatments, and 

other management parameters at 5-year 

intervals for a 25-year period. 

We chose to project 25 years into the 

future because the combination of 

species’ response to natural factors and 

management and the ability of managers 

to accurately predict future management 

treatments becomes highly uncertain at 

longer intervals. This is the timeframe 

in which the 95 percent confidence 

intervals around the future scenario 

modeling have reasonable bounds of 

uncertainty. This timeframe, given the 

species’ life history, is also sufficient to 

identify any effects of stressors or 

conservation measures on the redcockaded woodpecker’s viability at both 

population and species levels. Finally, 

25 years represents four to five 

generations of red-cockaded 

woodpecker, which would be sufficient 

time for population-level impacts from 

stressors and management to be 

detected. Additionally, the redcockaded woodpecker is a conservationreliant species that depends on open, 

mature southern pine forests that are 

developed and maintained by fire. 

These forest conditions do not currently 

occur without management due to the 

history of fire-exclusion, incompatible 

forest management, and other land uses. 

Planning and successfully 

implementing management and 

treatments for each active cluster and 

population requires extensive resources 

that are difficult for managers to 

accurately predict for longer than 25 

years. In addition to a population’s 

response to management, there is 

natural variation in nest success, 

number of fledglings, survival of youngof-year and adults, and cooperative 

breeding dynamics with replacement of 

adult breeders by other birds dispersing 

from other territories. In turn, this 

affects annual variation in population 

size (active clusters) and patterns of 

population growth or decline. 

Simulations of future population 

conditions under different management 

scenarios included effects of some 

management treatments, though not all, 

as model parameters. However, effects 

of these management treatment 

parameters did not account for all 

sources of annual variation affecting 

population size that still occurred in the 

model and simulations. Because of the 

variation in future simulated population 

size at 25 years (USFWS 2022, appendix 

2), future estimates of population size 

after 25 years are more uncertain. 

Table 1 summarizes the model 

outputs for the four scenarios at the end 

of the 25-year simulation period. Data 

from 106 of the 124 current populations 

were available for future simulations. Of 

those 106 populations, initial 


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populations with fewer than 6 active 

clusters were not simulated unless they 

demographically merged with other 

populations to create new, larger 

populations during the 25-year period. 

In addition, the total number of 

simulated future populations at year 25 

are not equal among management 

scenarios because of the different 

number of initial populations that 

demographically merge to establish new 

populations. In other words, a lower 

number of populations at the end than 

the start for each scenario does not 

mean that all those populations were 

extirpated, rather some of the 

populations increased and merged to 

create new, larger populations. 

Therefore, the initial starting number of 

populations, and predicted number of 

populations at the end of the simulation 

period, varied. We also compare the 

results of current and future population 

resiliency classes as percentages in this 

final rule rather than absolute numbers 

because of this variation. Furthermore, 

although the initial starting numbers 

varied for each of the scenarios for the 

reasons discussed above, we present the 

current condition of the 124 

demographic populations as the starting 

place for each of these scenarios. The 

current condition (Past-to-Current in 

table 1) for these populations are: 57.3 

percent have very low resiliency, 29.8 

percent have low, 8.1 percent have 

moderate, 2.4 percent have high, and 2.4 

percent have very high. For more details 

on the model, please see the SSA report 

(USFWS 2022, pp. 132–138, appendix 1, 

appendix 2). 

TABLE 1—RESILIENCE SUMMARY BASED ON CURRENT CONDITION AND POPULATION SIMULATIONS UNDER FOUR FUTURE

MANAGEMENT SCENARIOS

Model series/scenario 

Population resilience category percentages 

Very low Low Moderate High Very high 

Past-to-Current ......................................................................................................................... 57.3 29.8 8.1 2.4 2.4 

Future Low ............................................................................................................................... 61.7 14.8 11.1 6.2 6.2 

Future Medium ......................................................................................................................... 25.0 45.2 15.5 8.3 6.0 

Future High .............................................................................................................................. 22.2 39.5 21.0 11.1 6.2 

Future Manager’s ..................................................................................................................... 28.6 42.9 14.3 8.3 5.9 

Low Management Scenario 

At the end of the 25-year simulation 

period, the predicted resiliency for the 

resulting 81 simulated demographic 

populations is: 6.2 percent of 

populations (5) very high; 6.2 percent 

(5) high; 11.1 percent (9) moderate; 14.8 

percent (12) low; and 61.7 percent (50) 

very low. The low management scenario 

projects a modest increase in the 

percentage of current populations of 

moderate to very high resiliency from 

about 13 percent (16) to about 24 

percent (19) of the 81 simulated 

populations compared to current 

conditions, but the majority of the 

populations that currently have low 

resiliency decline sufficiently to 

transition into the very low resiliency 

category. The projected outcome of this 

scenario clearly demonstrates the 

dependence of red-cockaded 

woodpecker population resiliency on 

intensive, species-specific management. 

Medium Management Scenario 

At the end of the 25-year simulation 

period, the predicted resiliency for the 

resulting 84 simulated demographic 

populations is: 6.0 percent of 

populations (5) very high; 8.3 percent 

(7) high; 15.5 percent (13) moderate; 

45.2 percent (38) low; and 25.0 percent 

(21) very low. The medium management 

scenario projected a more substantial 

increase in the percentage of 

populations of moderate to very high 

resiliency from about 13 percent (16) to 

about 30 percent (25) of the populations. 

At the other end, the percentage of low 

and very low resiliency populations 

decreased. 

High Management Scenario 

At the end of the 25-year simulation 

period, the predicted resiliency for the 

resulting 81 demographic populations 

are as follows: 6.2 percent of 

populations (5) very high; 11.1 percent 

(9) high; 21.0 percent (17) moderate; 

39.5 percent (32) low; and 22.2 percent 

(18) very low. The high management 

scenario projected an even more 

substantial increase in the percentage of 

populations of moderate to very high 

resiliency, increasing to about 38 

percent (31) of the populations. 

However, the land base available for 

conservation has a substantial effect on 

the growth of these populations under 

this scenario. For example, none of the 

populations with low or very low 

resiliency in this scenario has the 

carrying capacity on their respective 

managed properties to transition to a 

higher resiliency category, regardless of 

the intensive management reflected in 

this scenario. Thus, there are 50 redcockaded woodpecker populations that, 

in the absence of acquisition of 

additional habitat for population 

expansion, will always remain small 

regardless of the management efforts. 

Manager’s Expectation Scenario 

At the end of the 25-year simulation 

period, the predicted resiliency for the 

resulting 84 demographic populations 

is: 5.9 percent of the populations (5) 

very high; 8.3 percent (7) high; 14.3 

percent (12) moderate; 42.9 percent (36) 

low; and 28.6 percent (24) very low. The 

results are very similar to the medium 

management scenario. 

Future Representation and Redundancy 

of the Species 

Under all management scenarios, five 

populations in four ecosystems are 

predicted to have very high resiliency 

(East Gulf Coastal Plain (2), Sandhills 

(1), Mid-Atlantic Coastal Plain (1), and 

South Atlantic Coastal Plain (1)). Under 

the Manager’s Expectation and medium 

management scenarios, seven 

populations in five ecosystems are 

considered to have high resiliency (East 

Gulf Coastal Plain (2), South Atlantic 

Coastal Plain (1), Sandhills (2), Upper 

West Gulf Coastal Plain (1), and West 

Gulf Coastal Plain (1)). Also, compared 

to current conditions, the greater 

number of future high and very high 

resiliency populations are more widely 

distributed among ecoregions and 

include the western geographic range; 

however, over the whole range of the 

woodpecker, the occurrence of high and 

very high resiliency populations is most 

concentrated in the East Gulf Coastal 

Plain and Sandhills ecoregions. 

Only two ecoregions (Cumberland 

Ridge and Valley and Gulf Coast Prairie 

and Marshes) have no simulated 

populations of moderate to very high 

resiliency in the manager’s expectation, 

medium management, and high 

management scenarios, compared to six 

ecoregions (Florida Peninsula, Ouachita 

Mountains, Cumberland Ridge and 


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Valley, Piedmont, Gulf Coast Prairie and 

Marshes, and Mississippi River Alluvial 

Plain) that currently do not have 

moderate to very high resiliency 

populations. The one current 

population in the Mississippi River 

Alluvial Plain ecoregion was not 

simulated in the future. In the low 

management scenario, four ecoregions 

(Cumberland Ridge and Valley, Gulf 

Coast Prairie and Marshes, Ouachita 

Mountains, and Piedmont) that 

currently only have low or very low 

resiliency populations are not projected 

to gain any moderate to very high 

resiliency populations at 25 years. 

Summary of Future Condition 

The total number of simulated 

populations at 25 years varied slightly 

among the management scenarios 

because of a different number of initial 

populations that demographically 

merged during simulations to establish 

new and larger populations. Results of 

the manager’s expectation and medium 

management scenarios were most 

similar, while the low management and 

high management scenarios represented 

more extreme future resiliency 

conditions. These simulations, 

particularly for the low management 

and high management scenarios, 

illustrate the extent to which the redcockaded woodpecker is a conservationreliant species that responds positively 

to management, and how successful 

management can sustain small 

populations with low or very low 

resiliency. 

In all scenarios, most populations at 

year 25 were still in the very low, low, 

and moderate resiliency categories. 

However, the majority of populations 

were projected to be stable or increasing 

in all but the low management scenario, 

highlighting how successful 

management can sustain even small 

populations. The low management 

scenario illustrates that without 

adequate species-level management, in 

contrast to ecosystem management 

alone, very little increase in the number 

of moderate to very high resiliency 

populations can be expected and small 

populations of low or very low 

resiliency are unlikely to persist. The 

high management scenario represents 

the limit of what can be accomplished 

given the current land base and carrying 

capacity to support populations. 

However, management at current levels, 

as represented by the medium 

management scenario, further increases 

the number of moderate to very high 

resiliency populations and projects that 

small populations can be preserved. In 

addition, at current (or greater) levels of 

future management, redundancy and 

representation are expected to improve 

significantly in response to increasing 

populations. 

See the SSA report (USFWS 2022, 

entire) for a more detailed discussion of 

our evaluation of the biological status of 

the red-cockaded woodpecker and the 

influences that may affect its continued 

existence. Our conclusions in the SSA 

report, which form the basis for the 

determination below, are based upon 

the best available scientific and 

commercial data. 

Determination of Red-Cockaded 

Woodpecker Status 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of an endangered species 

or a threatened species. The Act defines 

an endangered species as a species ‘‘in 

danger of extinction throughout all or a 

significant portion of its range,’’ and a 

threatened species as a species ‘‘likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range.’’ The 

Act requires that we determine whether 

a species meets the definition of an 

endangered species or a threatened 

species because of any of the following 

factors: (A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

Overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) Disease or predation; (D) 

The inadequacy of existing regulatory 

mechanisms; or (E) Other natural or 

manmade factors affecting its continued 

existence. 

Status Throughout All of Its Range 

Red-cockaded woodpeckers were 

once considered a common bird across 

the southeastern United States. At the 

time of listing in 1970, the species was 

severely threatened by lack of adequate 

habitat due to historical logging, 

incompatible forest management, and 

conversion of forests to urban and 

agricultural uses. Fire-maintained old 

growth pine savannas, on which the 

species depends, were extremely rare. 

What little habitat remained was mostly 

degraded due to fire suppression and 

silvicultural practices that hindered the 

development of older, larger trees 

needed by the species for cavity 

development and foraging. Even after 

listing, the species continued to decline. 

However, new restoration techniques, 

such as artificial cavities, along with 

changes in silvicultural practices and 

wider use of prescribed fire to recreate 

open pine parkland structure, has led to 

stabilization of the species’ viability and 

resulted in an increase in the number 

and distribution of populations. The 

majority of populations for which we 

were able to determine trends are stable 

or increasing (l = 1.0 or greater), and 

only 13 percent are declining. 

Specifically, of the 86 very low and low 

resiliency populations where growth 

rate could be measured, 73 populations 

demonstrated stable and positive growth 

rates, with several populations showing 

very high growth rates. This is 

indicative of the positive effects of redcockaded woodpecker conservation 

management programs on these 

locations and the ability of such 

management to offset inherently low or 

very low population resilience. 

Additionally, there are currently at least 

124 populations across 13 ecoregions. 

As discussed under Future Conditions 

above, in the SSA report, future 

population conditions under different 

management scenarios were simulated 

and modeled to 25 years into the future, 

and we determined that we can rely on 

the timeframe presented in the scenarios 

and predict how future stressors and 

management will affect the redcockaded woodpecker. 

When we modeled future scenarios, 

the majority of populations were 

projected to be stable or increasing in all 

but the low management scenario, 

highlighting how successful 

management can sustain even small 

populations. Future management at 

current and recent past levels, as 

represented by the medium 

management scenario, further increases 

the number of moderate to very high 

resiliency populations and projects that 

small populations can be preserved. In 

addition, at current (or greater) levels of 

management, redundancy and 

representation are expected to 

significantly improve because most 

populations are expected to increase in 

size across the ecoregions. 

The red-cockaded woodpecker 

continues to face a variety of stressors 

due to inadequate habitat across its 

range, but these are now mostly legacy 

stressors resulting from historical forest 

conversion and fire suppression 

practices rather than current habitat 

loss. These legacy stressors include 

insufficient numbers of cavities and 

suitable, abundant old pines for natural 

cavity excavation; habitat fragmentation 

and its effects on genetic variation, 

dispersal, and connectivity to support 

demographic populations; lack of 

suitable foraging habitat for population 

growth and expansion; and small 

populations. The species also continues 

to face stress from natural events, 

especially hurricanes, the frequency and 


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intensity of which may continue to 

increase in the future. 

Active conservation management over 

many decades has allowed the species’ 

populations to expand, even in the face 

of this historically limited habitat and 

natural disturbances. However, redcockaded woodpeckers rely on, and will 

continue to rely almost completely on, 

active management by property 

managers and biologists to install 

artificial cavities and manage clusters, 

restore additional habitat and 

strategically place recruitment clusters 

to improve connectivity, control the 

hardwood midstory through prescribed 

fire and silvicultural treatments, and 

translocate individuals to augment 

small populations and minimize loss of 

genetic variation. In addition, 

emergency response after severe storms 

and other natural disasters will continue 

to be necessary to prevent cluster 

abandonment and minimize wildfire 

fuel loading. However, both the 

emergency response and routine 

management are well-understood and 

are currently being implemented across 

the range of the woodpecker, and much 

of the red-cockaded woodpecker’s 

currently occupied habitat is now 

protected under various management 

plans. As a conservation-reliant species, 

securing management commitments for 

the foreseeable future would ensure that 

red-cockaded woodpecker populations 

grow or are maintained. This conclusion 

is reinforced by the future scenario 

simulations, which indicate that 

management efforts equal to or greater 

than current levels will further increase 

the number of moderate to very high 

resiliency populations and preserve 

small populations. 

After evaluating the threats to the 

species and assessing the cumulative 

effect of the threats under the section 

4(a)(1) factors, we find that, while the 

legacy stressors identified above 

continue to negatively affect the redcockaded woodpecker, new restoration 

techniques and changes in silvicultural 

practices have led to stabilization of the 

red-cockaded woodpecker’s viability 

and even resulted in a substantial 

increase in the number and distribution 

of populations such that the species is 

not currently in danger of extinction. 

Sixty-five percent of all current redcockaded woodpecker clusters are 

within moderate, high, or very highly 

resilient populations, and populations 

are spread across multiple ecoregions, 

providing for redundancy and 

representation. However, the species 

remains highly dependent on continued 

conservation management and the 

majority of populations contain small 

numbers of clusters, which could be 

especially vulnerable to hurricanes or 

other natural disturbances in the 

foreseeable future without prompt 

management response. 

We expect current conservation 

management to continue into the 

foreseeable future given that many of 

the landowners and managers within 

the range of the species have committed 

to continuing to implement their 

conservation programs and that we have 

structured our final 4(d) rule to facilitate 

the continuation of such management. 

However, absent the protections of the 

Act, we do not have commitments that 

all current management will continue 

and that it will adapt as necessary to 

effectively address emerging stressors 

(e.g., intensifying hurricanes). The 

absence of commitments to implement 

effective conservation efforts into the 

future for this conservation reliant 

species increases the risk of extinction 

in the foreseeable future. Thus, after 

assessing the best available information, 

we conclude that the red-cockaded 

woodpecker is not in danger of 

extinction but is likely to become in 

danger of extinction within the 

foreseeable future throughout all of its 

range. 

Status Throughout a Significant Portion 

of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so within the 

foreseeable future throughout all or a 

significant portion of its range. The 

court in Center for Biological Diversity 

v. Everson, 435 F. Supp. 3d 69 (D.D.C. 

2020) (Everson), vacated the provision 

of the Final Policy on Interpretation of 

the Phrase ‘‘Significant Portion of Its 

Range’’ in the Endangered Species Act’s 

Definitions of ‘‘Endangered Species’’ 

and ‘‘Threatened Species’’ (hereafter 

‘‘Final Policy’’; 79 FR 37578; July 1, 

2014) that provided that if the Services 

determine that a species is threatened 

throughout all of its range, the Services 

will not analyze whether the species is 

endangered in a significant portion of its 

range. 

Therefore, we proceed to evaluating 

whether the species is endangered in a 

significant portion of its range—that is, 

whether there is any portion of the 

species’ range for which both (1) the 

portion is significant; and (2) the species 

is in danger of extinction in that 

portion. Depending on the case, it might 

be more efficient for us to address the 

‘‘significance’’ question or the ‘‘status’’ 

question first. We can choose to address 

either question first. Regardless of 

which question we address first, if we 

reach a negative answer with respect to 

the first question that we address, we do 

not need to evaluate the other question 

for that portion of the species’ range. 

Following the court’s holding in 

Everson, we now consider whether there 

are any significant portions of the 

species’ range where the species is in 

danger of extinction now (i.e., 

endangered). In undertaking this 

analysis for red-cockaded woodpecker, 

we choose to address the status question 

first—we consider information 

pertaining to the geographic distribution 

of both the species and the threats that 

the species faces to identify portions of 

the range where the species may be 

endangered. 

We evaluated the range of the redcockaded woodpecker to determine if 

the species is in danger of extinction 

now in any portion of its range. The 

range of a species can theoretically be 

divided into portions in an infinite 

number of ways. We focused our 

analysis on portions of the species’ 

range that may meet the definition of an 

endangered species. For red-cockaded 

woodpecker, we considered whether the 

threats or their effects on the species are 

greater in any biologically meaningful 

portion of the species’ range than in 

other portions such that the species is 

in danger of extinction now in that 

portion. 

The statutory difference between an 

endangered species and a threatened 

species is the timeframe in which the 

species becomes in danger of extinction; 

an endangered species is in danger of 

extinction now while a threatened 

species is not in danger of extinction 

now but is likely to become so within 

the foreseeable future. Thus, we 

reviewed the best scientific and 

commercial data available regarding the 

time horizon for the threats that are 

driving the red-cockaded woodpecker to 

warrant listing as a threatened species 

throughout all of its range. 

We then considered whether these 

threats or their effects are occurring in 

any portion of the species’ range such 

that the species is in danger of 

extinction now in that portion of its 

range. We examined the following 

threats: natural disasters such as 

hurricanes and vulnerability due to 

small population sizes and 

fragmentation, including cumulative 

effects. Other identified stressors, such 

as inadequate habitat, are uniform 

throughout the red-cockaded 

woodpecker’s range. Although 

hurricanes may impact populations 

across the red-cockaded woodpecker’s 

range, return intervals are shorter and 

impacts are more pronounced in nearcoastal populations compared to inland 

populations (USFWS 2022, pp. 121– 


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124). Furthermore, while small 

populations occur throughout the 

species’ range, we found a portion of the 

range that may have a different 

extinction risk due to a concentration of 

threats from the combination of both 

hurricanes and small population sizes 

in the Florida Peninsula, West Gulf 

Coastal Plain, and the southernmost 

near-coastal extension of the Upper 

West Gulf Coastal Plain ecoregions. This 

means these populations when 

combined together may constitute a 

portion of the species’ range where the 

species could have a different status. 

Despite the vulnerability of these 

areas to hurricanes, this stressor is not 

currently accelerating extinction risk in 

this portion of the range due to effective 

conservation management. Populations 

can withstand and persist after 

hurricanes if biologists and land 

managers implement prompt, effective 

post-storm recovery actions, such as 

installing artificial cavities, reducing 

hazardous fuels, and restoring forests to 

suitable habitat. Such actions have been 

occurring after storm events for 

managed populations, such as the quick 

response after Hurricane Michael in 

October 2018. Both this emergency 

response and routine management are 

well-understood and are currently being 

implemented across the range of the 

woodpecker. In addition, much of the 

red-cockaded woodpecker’s currently 

occupied habitat is now protected under 

various management plans. As such, 

despite the regular occurrence of 

hurricanes within red-cockaded 

woodpecker habitat, especially in the 

coastal areas in the Florida Peninsula, 

West Gulf Coastal Plain, and the 

southernmost near-coastal extension of 

the Upper West Gulf Coastal Plain 

ecoregions, 89 percent of the 

populations for which we have trend 

data demonstrate stable to increasing 

growth rates in this portion of the range, 

illustrating the effectiveness of currently 

ongoing active management in 

preventing broad impacts from 

hurricanes and other stressors (USFWS 

2022, p. 112). Catastrophic risk from 

natural events is being effectively 

managed (e.g., through prompt poststorm response) such that the species is 

not currently in danger of extinction in 

this portion of the range. 

However, we also noted in the 

proposed rule and in this final rule that 

the frequency of major hurricanes 

(Bender et al. 2010, entire; Knutson et 

al. 2010, entire; Walsh et al. 2014, pp. 

41–42) may increase in the future in 

response to global climate change, and 

this increase could disproportionately 

affect the smaller, less resilient 

woodpecker populations. Immediate 

management response after natural 

disasters is key to preventing cluster 

abandonment in all populations and is 

critical to keeping smaller populations 

from being extirpated altogether. As a 

conservation-reliant species, securing 

management commitments for the 

foreseeable future, including 

commitments for effective post-storm 

response, would ensure that redcockaded woodpecker populations grow 

or are maintained. However, given 

potential increased negative impacts 

from hurricanes in the future and due to 

the lack of certainty that effective poststorm response will continue in the 

foreseeable future, we find that redcockaded woodpeckers are likely to 

become endangered within the 

foreseeable future throughout all of their 

range. This risk may be particularly high 

in the foreseeable future in the Florida 

Peninsula, West Gulf Coastal Plain, and 

the southernmost near-coastal extension 

of the Upper West Gulf Coastal Plain 

ecoregions. However, although some 

threats to the red-cockaded woodpecker 

are concentrated in the Florida 

Peninsula, West Gulf Coastal Plain, and 

the southernmost near-coastal extension 

of the Upper West Gulf Coastal Plain 

ecoregions, the timing of the effects of 

the threats and the species’ anticipated 

responses in that portion is the same as 

that for the entire range for the 

foreseeable future. As a result, the redcockaded woodpecker is not in danger 

of extinction now in this portion of its 

range. 

We also considered whether the 

portion of the species’ range that 

contains low or very low resiliency 

populations could constitute a portion 

that provides a basis for determining 

that the species is in danger of 

extinction in a significant portion of its 

range. However, based on our analysis, 

we did not find that this portion of the 

species’ range, or any combination of 

areas that lack moderate, high, or very 

high resiliency populations, met the 

definition of an endangered species. 

Managers are currently applying active 

management to these small populations. 

As a result of this active management, 

the vast majority of these low or very 

low resiliency populations have stable 

or increasing growth rates, evidencing 

the effectiveness of this active 

management in supporting the 

persistence of these small populations. 

Of the 108 demographic populations in 

low or very low resiliency classes, 86 

have data on growth rates; 86 percent of 

these populations have growth rates 

greater than or equal to one (USFWS 

2022, pp. 108–110). Under this current 

paradigm, these small populations are 

not currently in danger of extinction 

due to the active management (e.g., 

translocation, habitat management, 

artificial cavity installation) that 

supports their stability and growth. 

However, as we discuss above, given 

potential increased negative impacts 

from other stressors (e.g., hurricanes) in 

the foreseeable future and due to the 

lack of certainty that all active 

woodpecker management will continue 

at current rates in the foreseeable future, 

we find that the red-cockaded 

woodpecker meets the definition of 

threatened as the species is likely to 

become endangered within the 

foreseeable future throughout all of its 

range. These smaller populations will 

likely be particularly sensitive to these 

potential changes in stressors and 

management in the future. Therefore, 

although within the Florida Peninsula, 

West Gulf Coastal Plain, and the 

southernmost near-coastal extension of 

the Upper West Gulf Coastal Plain 

ecoregions, the red-cockaded 

woodpecker may be more vulnerable to 

future changes in threats and 

conservation, the best scientific and 

commercial data available do not 

indicate that the species’ responses to 

the threats are such that the redcockaded woodpecker is in danger of 

extinction now within the Florida 

Peninsula, West Gulf Coastal Plain, and 

the southernmost near-coastal extension 

of the Upper West Gulf Coastal Plain 

ecoregions. Therefore, we determine 

that the species is not in danger of 

extinction now in any portion of its 

range, but that the species is likely to 

become in danger of extinction within 

the foreseeable future throughout all of 

its range. This does not conflict with the 

courts’ holdings in Desert Survivors v. 

U.S. Department of the Interior, 321 F. 

Supp. 3d 1011, 1070–74 (N.D. Cal. 2018) 

and Center for Biological Diversity v. 

Jewell, 248 F. Supp. 3d 946, 959 (D. 

Ariz. 2017) because, in reaching this 

conclusion, we did not apply the 

aspects of the Final Policy, including 

the definition of ‘‘significant’’ that those 

court decisions held were invalid. 

Determination of Status 

Our review of the best scientific and 

commercial data available indicates that 

the red-cockaded woodpecker meets the 

definition of a threatened species. 

Therefore, we are downlisting the redcockaded woodpecker as a threatened 

species in accordance with sections 

3(20) and 4(a)(1) of the Act. 

Available Conservation Measures 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 


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upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. With this 

downlisting of the red-cockaded 

woodpecker, conservation measures 

continue to be provided including 

recognition as a listed species, planning 

and implementation of recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

As discussed above, the 2003 recovery 

plan provides guidelines for installing 

artificial cavities, management of cavity 

trees and clusters, translocation, 

silviculture, prescribed fire under the 

management guidelines, and guidelines 

for managing foraging habitat on private 

lands under the private land guidelines. 

In addition, section 7(a)(1) and 7(a)(2) 

responsibilities of Federal agencies 

remain. 

Section 7 of the Act is titled 

Interagency Cooperation and mandates 

all Federal action agencies to use their 

existing authorities to further the 

conservation purposes of the Act and to 

ensure that their actions are not likely 

to jeopardize the continued existence of 

listed species or adversely modify 

critical habitat. Regulations 

implementing section 7 are codified at 

50 CFR part 402. 

Section 7(a)(2) states that each Federal 

action agency shall, in consultation with 

the Secretary, ensure that any action 

they authorize, fund, or carry out is not 

likely to jeopardize the continued 

existence of a listed species or result in 

the destruction or adverse modification 

of designated critical habitat. Each 

Federal agency shall review its action at 

the earliest possible time to determine 

whether it may affect listed species or 

critical habitat. If a determination is 

made that the action may affect listed 

species or critical habitat, formal 

consultation is required (50 CFR 

402.14(a)), unless the Service concurs in 

writing that the action is not likely to 

adversely affect listed species or critical 

habitat. At the end of a formal 

consultation, the Service issues a 

biological opinion, containing its 

determination of whether the federal 

action is likely to result in jeopardy or 

adverse modification. 

Examples of discretionary actions for 

the red-cockaded woodpecker that may 

be subject to consultation procedures 

under section 7 are land management or 

other landscape-altering activities on 

Federal lands administered by the DoD, 

USFS, USFWS, NWR, Federal Highway 

Administration, and U.S. Department of 

Energy as well actions on State, Tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. Federal agencies should 

coordinate with the local Service Field 

Office (see FOR FURTHER INFORMATION

CONTACT) with any specific questions on 

Section 7 consultation and conference 

requirements. 

Please contact us if you are interested 

in participating in recovery efforts for 

the red-cockaded woodpecker. 

Additionally, we invite you to submit 

any new information on this species 

whenever it becomes available and any 

information you may have for recovery 

implementation purposes (see FOR

FURTHER INFORMATION CONTACT). 

It is the policy of the Services, as 

published in the Federal Register on 

July 1, 1994 (59 FR 34272), to identify 

to the extent known at the time a 

species is listed, specific activities that 

will not be considered likely to result in 

violation of section 9 of the Act. To the 

extent possible, activities that will be 

considered likely to result in violation 

will also be identified in as specific a 

manner as possible. The intent of this 

policy is to increase public awareness of 

the effect of a listing on proposed and 

ongoing activities within the range of 

the species. Although most of the 

prohibitions in section 9 of the Act 

apply to endangered species, sections 

9(a)(1)(G) and 9(a)(2)(C) of the Act 

prohibit the violation of any regulation 

under section 4(d) pertaining to any 

threatened species of fish or wildlife, or 

threatened species of plant, 

respectively. Section 4(d) of the Act 

directs the Secretary to promulgate 

protective regulations that are necessary 

and advisable for the conservation of 

threatened species. As a result, we 

interpret our policy to mean that, when 

we list a species as a threatened species, 

to the extent possible, we identify 

activities that will or will not be 

considered likely to result in violation 

of the protective regulations under 

section 4(d) for that species. 

At this time, we are unable to identify 

specific activities that will or will not be 

considered likely to result in violation 

of section 9 of the Act beyond what is 

already clear from the descriptions of 

prohibitions and exceptions established 

by protective regulation under section 

4(d) of the Act. 

Questions regarding whether specific 

activities would constitute violation of 

section 9 of the Act should be directed 

to the Georgia Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). 

Protective Regulations Under Section 

4(d) of the Act 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary shall issue such 

regulations as she deems necessary and 

advisable to provide for the 

conservation of species listed as 

threatened species. Conservation is 

defined in the Act to mean the use of 

all methods and procedures which are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Additionally, the second 

sentence of section 4(d) of the Act states 

that the Secretary may by regulation 

prohibit with respect to any threatened 

species any act prohibited under section 

9(a)(1), in the case of fish or wildlife, or 

section 9(a)(2), in the case of plants. 

With these two sentences in section 

4(d), Congress delegated broad authority 

to the Secretary to determine what 

protections would be necessary and 

advisable to provide for the 

conservation of threatened species, and 

even broader authority to put in place 

any of the section 9 prohibitions, for a 

given species. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld, as a valid exercise of agency 

authority, rules developed under section 

4(d) that included limited prohibitions 

against takings (see Alsea Valley 

Alliance v. Lautenbacher, 2007 WL 

2344927 (D. Or. 2007); Washington 

Environmental Council v. National 

Marine Fisheries Service, 2002 WL 

511479 (W.D. Wash. 2002)). Courts have 

also upheld 4(d) rules that do not 

address all of the threats a species faces 

(see State of Louisiana v. Verity, 853 

F.2d 322 (5th Cir. 1988)). As noted in 

the legislative history when the Act was 

initially enacted, ‘‘once an animal is on 

the threatened list, the Secretary has an 

almost infinite number of options 

available to [her] with regard to the 

permitted activities for those species. 

[She] may, for example, permit taking, 

but not importation of such species, or 


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[she] may choose to forbid both taking 

and importation but allow the 

transportation of such species’’ (H.R. 

Rep. No. 412, 93rd Cong., 1st Sess. 

1973). 

The provisions of this species’ 

protective regulations under section 4(d) 

of the Act are one of many tools that we 

will use to promote the conservation of 

the red-cockaded woodpecker. Nothing 

in 4(d) rules change in any way the 

recovery planning provisions of section 

4(f) of the Act, the consultation 

requirements under section 7 of the Act, 

or the ability of the Service to enter into 

partnerships for the management and 

protection of the red-cockaded 

woodpecker. 

As mentioned previously in Available 

Conservation Measures, Section 7(a)(2) 

of the Act requires Federal agencies, 

including the Service, to ensure that any 

action they authorize, fund, or carry out 

is not likely to jeopardize the continued 

existence of any endangered species or 

threatened species or result in the 

destruction or adverse modification of 

designated critical habitat of such 

species. These requirements are the 

same for a threatened species regardless 

of what is included in a 4(d) rule. 

Section 7 consultation is required for 

Federal actions that ‘‘may affect’’ a 

listed species regardless of whether take 

caused by the activity is prohibited or 

excepted by a 4(d) rule (‘‘blanket rule’’ 

or species-specific 4(d) rule). A 4(d) rule 

does not change the process and criteria 

for informal or formal consultations and 

does not alter the analytical process 

used for biological opinions or 

concurrence letters. For example, as 

with an endangered species, if a Federal 

agency determines that an action is ‘‘not 

likely to adversely affect’’ a threatened 

species, this will require our written 

concurrence (50 CFR 402.13(c). 

Similarly, if a Federal agency 

determines that an action is ‘‘likely to 

adversely affect’’ a threatened species, 

the action will require formal 

consultation and the formulation of a 

biological opinion (50 CFR 402.14(a)). 

Because consultation obligations and 

processes are unaffected by 4(d) rules, 

we may consider developing tools to 

streamline future intra-Service and 

inter-Agency consultations for actions 

that result in forms of take that are not 

prohibited by the 4(d) rule (but that still 

require consultation). These tools may 

include consultation guidance, 

Information for Planning and 

Consultation effects determination keys, 

template language for biological 

opinions, or programmatic 

consultations. 

The red-cockaded woodpecker 

requires cavity trees, nesting habitat, 

and foraging habitat (USFWS 2022, pp. 

83–87). Red-cockaded woodpeckers rely 

on cavities for nesting and roosting 

(USFWS 2022, p. 33). Old pines are 

required as cavity trees because cavity 

chambers must be completely within 

the heartwood to prevent pine resin in 

the sapwood from entering the chamber 

and because heartwood diameter is a 

function of tree age (Jackson and 

Jackson 1986, pp. 319–320; Clark 1993, 

pp. 621–626; USFWS 2022, p. 32). In 

addition, old pines have a higher 

incidence of the heartwood decay that 

greatly facilitates cavity excavation 

(USFWS 2022, p. 32). As we explain in 

the 2003 recovery plan, given that the 

species requires these cavities to 

complete its life cycle, the number of 

suitable cavities available can limit 

population size (USFWS 2003, p. 20). 

Thus, the recovery plan states, ‘‘to 

prevent loss of occupied territories, 

existing cavity trees should be 

protected, so that a sufficient number of 

suitable ones are maintained at all 

times’’ (USFWS 2003, p. 20). 

Red-cockaded woodpeckers also 

require open pine woodlands and 

savannas with large old pines for 

nesting and roosting (i.e., nesting 

habitat) (USFWS 2022, p. 32). Cavity 

trees, with rare exception, occur in open 

stands with little or no hardwood 

midstory and few or no overstory 

hardwoods (USFWS 2022, p. 32). 

Suitable foraging habitat generally 

consists of mature pines with an open 

canopy, low densities of small pines, a 

sparse hardwood or pine midstory, few 

or no overstory hardwoods, and 

abundant native bunchgrass and forb 

groundcovers (USFWS 2022, p. 41). 

Additionally, the red-cockaded 

woodpecker is a conservation-reliant 

species ‘‘highly dependent on active 

conservation management with 

prescribed fire, beneficial and 

compatible silvicultural methods to 

regulate forest composition and 

structure, the provision of artificial 

cavities where natural cavities are 

insufficient, translocation to sustain and 

increase small vulnerable populations, 

and effective monitoring to identify 

limiting biological and habitat factors 

for management’’ (USFWS 2022, p. 131). 

We emphasize this conservation 

reliance in the proposed rule (85 FR 

63474, October 8, 2020) and indicate 

that the future persistence of the species 

will require these management actions 

to continue. As such, in addition to 

providing prohibitions necessary to 

protect individuals, the section 4(d) rule 

provides exceptions that will maintain 

and restore these essential nesting and 

foraging resources for the species (i.e., 

cavity trees, nesting habitat, and 

foraging habitat), which will advance 

the species’ recovery and conservation. 

Specifically, the exceptions in the 

section 4(d) rule encourage beneficial 

habitat management on Federal lands, 

compatible prescribed burns and use of 

herbicides on eligible private and other 

non-Federal lands, and the provision of 

artificial cavities throughout the species’ 

range. These activities provide 

considerable benefit to the species and 

its habitat by maintaining or increasing 

the quantity and quality of cavity trees, 

nesting habitat, and foraging habitat. 

Additionally, this section 4(d) rule 

retains the exception for take that 

results from activities authorized by a 

permit under the Act, which includes 

permits we have issued under the SHA 

program or will issue under the CBA 

program. Together, these prohibitions 

and exceptions will maintain and 

restore essential nesting and foraging 

resources for the species, improving the 

availability of suitable habitat, and will 

promote continued recovery. 

Additionally, one of the primary 

purposes of the Act is to provide a 

means whereby the ecosystems upon 

which endangered and threatened 

species depend may be conserved (16 

U.S.C. 1531(b)); crafting a section 4(d) 

rule for red-cockaded woodpecker that 

encourages habitat management that 

benefits the species will also support 

conservation of the native pine-grass 

ecosystems upon which the species 

depends. 

The provisions of this section 4(d) 

rule will promote conservation of the 

red-cockaded woodpecker by 

prohibiting take that can directly or 

indirectly impact population 

demographics. They also promote 

conservation of the species by providing 

more flexibility for incidental take that 

may result from activities that maintain 

and restore requisite habitat features. 

Moreover, we acknowledge and 

commend the accomplishments of our 

Federal partners, State agencies, 

nongovernmental organizations, and 

private landowners in providing 

conservation for the red-cockaded 

woodpecker for the past four decades. 

This intensive management has 

facilitated population growth since the 

time of listing, thereby allowing us to 

downlist the species from endangered to 

threatened. Private and other nonFederal landowners’ SHAs and HCPs, 

DoD’s INRMPs, USFS LRMPs, and the 

NWR System’s CCPs currently provide 

specific measures for the active 

management and conservation of the 

species throughout its range, which 

have aided in the recovery of the species 

and its habitat. Overall, the majority of 

red-cockaded woodpecker populations 


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are managed under plans that address 

population enhancement and habitat 

management to sustain or increase 

populations and to meet the 2003 

recovery plan objectives for primary 

core, secondary core, and essential 

support populations (USFWS 2003, pp. 

156–159). Our section 4(d) rule does not 

invalidate or replace these successful 

programs. In fact, the section 4(d) rule 

continues to encourage participation in 

the CBA program, previously known as 

the SHA program, and provides 

incentives for public land managers and 

applicable State land management 

agencies to continue providing specific 

management for the benefit of the 

species and its habitat. 

The provisions of this section 4(d) 

rule are only one of the many tools we 

can use to promote conservation of the 

red-cockaded woodpecker. For example, 

private and other non-Federal 

landowners may still pursue regulatory 

flexibility through existing mechanisms 

that currently promote the species’ 

conservation, such as CBAs or HCPs. 

These mechanisms will continue to 

provide considerable assurances for 

landowners. 

Similarly, this section 4(d) rule does 

not change an eligible private or other 

non-Federal landowner’s ability to 

enroll in conservation programs such as 

those available through the NRCS or the 

Partners for Fish and Wildlife Program. 

These Federal programs provide 

technical and financial assistance to 

eligible private and other non-Federal 

landowners to support habitat 

management for the benefit of wildlife 

and other natural resources in the openpine systems of the southeastern United 

States, as well as other habitat types 

throughout the country. Nationwide, 

these programs help conserve or restore 

hundreds of thousands of acres of 

wildlife habitat every year. As a result 

of the consultations these Federal 

programs conduct with us, enrolled 

private and other non-Federal 

landowners already receive allowances 

for incidental take associated with 

beneficial conservation practices, 

without having to embark on a complex 

permitting process; the reclassification 

of the red-cockaded woodpecker and the 

section 4(d) rule do not alter these 

programs. We encourage eligible private 

and other non-Federal landowners to 

continue participating in these valuable 

conservation programs. 

Finally, this section 4(d) rule does not 

alter or invalidate the 2003 recovery 

plan. Recovery plans are not regulatory 

documents, but rather they provide a 

strategy to guide the conservation and 

recovery of the red-cockaded 

woodpecker. 

The only portion of this document 

that has regulatory effect is the text 

presented below under Regulation 

Promulgation (i.e., the text we add as 

paragraph (h) of § 17.41 of title 50 of the 

Code of Federal Regulations (50 CFR 

17.41(h)); the explanatory text above 

and in ‘‘Provisions of the 4(d) Rule’’ 

below merely clarifies the intent of 

these regulations. 

Provisions of the 4(d) Rule 

Prohibitions 

Exercising the Secretary’s authority 

under section 4(d) of the Act, we have 

developed a rule that is designed to 

address the red-cockaded woodpecker’s 

conservation needs. As discussed 

previously in Summary of Biological 

Status and Threats, we have concluded 

that the red-cockaded woodpecker is 

likely to become in danger of extinction 

within the foreseeable future primarily 

due to lack of suitable roosting, nesting, 

and foraging habitat resulting from the 

legacy effects of historical logging, 

incompatible forest management, and 

conversion of forests to urban and 

agricultural uses. Section 4(d) requires 

the Secretary to issue such regulations 

as she deems necessary and advisable to 

provide for the conservation of each 

threatened species and authorizes the 

Secretary to include among those 

protective regulations any of the 

prohibitions that section 9(a)(1) of the 

Act prescribes for endangered species. 

We are not required to make a 

‘‘necessary and advisable’’ 

determination when we apply or do not 

apply specific section 9 prohibitions to 

a threatened species (In re: Polar Bear 

Endangered Species Act Listing and 4(d) 

Rule Litigation, 818 F. Supp. 2d 214, 

228 (D.D.C. 2011) (citing Sweet Home 

Chapter of Cmtys. for a Great Or. v. 

Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), 

rev’d on other grounds, 515 U.S. 687 

(1995))). Nevertheless, even though we 

are not required to make such a 

determination, we have chosen to be as 

transparent as possible and explain 

below why we find that, if finalized, the 

protections, prohibitions, and 

exceptions in this rule as a whole satisfy 

the requirement in section 4(d) of the 

Act to issue regulations deemed 

necessary and advisable to provide for 

the conservation of the red-cockaded 

woodpecker. 

The protective regulations for redcockaded woodpecker incorporate 

prohibitions from section 9(a)(1) to 

address the threats to the species. The 

prohibitions of section 9(a)(1) of the Act, 

and implementing regulations codified 

at 50 CFR 17.21, make it illegal for any 

person subject to the jurisdiction of the 

United States to commit, to attempt to 

commit, to solicit another to commit or 

to cause to be committed any of the 

following acts with regard to any 

endangered wildlife: (1) import into, or 

export from, the United States; (2) take 

(which includes harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, 

or collect) within the United States, 

within the territorial sea of the United 

States, or on the high seas; (3) possess, 

sell, deliver, carry, transport, or ship, by 

any means whatsoever, any such 

wildlife that has been taken illegally; (4) 

deliver, receive, carry, transport, or ship 

in interstate or foreign commerce, by 

any means whatsoever and in the course 

of commercial activity; or (5) sell or 

offer for sale in interstate or foreign 

commerce. This protective regulation 

includes all of these prohibitions 

because the red-cockaded woodpecker 

is at risk of extinction in the foreseeable 

future and putting these prohibitions in 

place will help to prevent negative 

effects from other ongoing or future 

threats. 

In particular, this 4(d) rule will 

provide for the conservation of the redcockaded woodpecker by prohibiting 

the following activities, unless they fall 

within specific exceptions or are 

otherwise authorized or permitted: 

importing or exporting red-cockaded 

woodpeckers; take of red-cockaded 

woodpeckers; possession and other acts 

with unlawfully taken specimens; 

delivering, receiving, transporting, or 

shipping red-cockaded woodpeckers in 

interstate or foreign commerce in the 

course of commercial activity; and 

selling red-cockaded woodpeckers or 

offering red-cockaded woodpeckers for 

sale in interstate or foreign commerce. 

Under the Act, ‘‘take’’ means to 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect, or 

to attempt to engage in any such 

conduct. Some of these provisions have 

been further defined in regulations at 50 

CFR 17.3. Take can result knowingly or 

otherwise, by direct and indirect 

impacts, intentionally or incidentally. 

Regulating take will help decrease 

synergistic, negative effects from other 

ongoing or future threats. Therefore, we 

are prohibiting take of the red-cockaded 

woodpecker, except for take resulting 

from those actions and activities 

specifically excepted by the 4(d) rule. 

As discussed in the SSA report for the 

species, effective monitoring, research, 

and translocation are important 

elements of the active management that 

promotes red-cockaded woodpecker 

conservation and recovery. However, in 

this section 4(d) rule, we prohibit all 

forms of take, which include capturing, 

handling, and similar activities. Such 


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activities include, but are not limited to, 

translocation, banding, collecting tissue 

samples, and research involving 

capturing and handling red-cockaded 

woodpeckers. While these activities are 

essential to conservation and recovery 

of the species, there are proper 

techniques to capturing and handling 

birds that require training and 

experience. Improper capture, banding, 

or handling can cause injury or even 

result in death of red-cockaded 

woodpeckers. Therefore, to ensure that 

these activities continue to be 

conducted correctly by properly trained 

personnel, the section 4(d) rule 

continues to prohibit take associated 

with translocation, banding, research, 

and other activities that involve capture 

or handling of red-cockaded 

woodpeckers; however, take that results 

from these activities could still be 

allowed under a section 10(a)(1)(A) 

permit. 

Exceptions 

Exceptions to the prohibition on take 

include all of the general exceptions to 

the prohibition against take of 

endangered wildlife as set forth in 50 

CFR 17.21 and additional exceptions, as 

described below. 

Despite these prohibitions regarding 

threatened species, we may under 

certain circumstances issue permits to 

carry out one or more otherwiseprohibited activities, including those 

described above. The regulations that 

govern permits for threatened wildlife 

state that the Director may issue a 

permit authorizing any activity 

otherwise prohibited with regard to 

threatened species. These include 

permits issued for the following 

purposes: for scientific purposes, to 

enhance propagation or survival, for 

economic hardship, for zoological 

exhibition, for educational purposes, for 

incidental taking, or for special 

purposes consistent with the purposes 

of the Act (50 CFR 17.32). The statute 

also contains certain exemptions from 

the prohibitions, which are found in 

sections 9 and 10 of the Act. 

Furthermore, we encourage 

landowners to continue to enroll in the 

CBA program, previously known as the 

SHA program. Exactly like the 

regulatory regime that applies while the 

species is listed as endangered, any new 

permits issued under the authority of 

the CBA program will provide 

landowners with additional 

management flexibility and exemption 

from some of the take prohibitions in 

this rule. As discussed in greater detail 

above, CBAs are partnerships between 

landowners and us or between the State 

and us involving voluntary agreements 

under which the landowners receive 

formal regulatory assurances from us 

regarding their management 

responsibilities in return for 

contributions to benefit the listed 

species. This section 4(d) rule does not 

alter this valuable program, or the 

permits associated with it. 

In addition, to further the 

conservation of the species, any 

employee or agent of the Service, any 

other Federal land management agency, 

the National Marine Fisheries Service, a 

State conservation agency, or a federally 

recognized Tribe, who is designated by 

their agency or Tribe for such purposes, 

may, when acting in the course of their 

official duties, take threatened wildlife 

without a permit if such action is 

necessary to: (i) Aid a sick, injured, or 

orphaned specimen; or (ii) dispose of a 

dead specimen; or (iii) salvage a dead 

specimen that may be useful for 

scientific study; or (iv) remove 

specimens that constitute a 

demonstrable but nonimmediate threat 

to human safety, provided that the 

taking is done in a humane manner; the 

taking may involve killing or injuring 

only if it has not been reasonably 

possible to eliminate such threat by livecapturing and releasing the specimen 

unharmed, in an appropriate area. 

Next, we incorporate the exception to 

take prohibitions for threatened species 

found in 50 CFR 17.31(b), which 

authorizes employees or agents of the 

Service or State conservation agencies 

operating under a cooperative 

agreement with us in accordance with 

section 6(c) of the Act to take redcockaded woodpeckers in order to carry 

out conservation programs for the 

species. We recognize the special and 

unique relationship that we have with 

our State natural resource agency 

partners in contributing to conservation 

of listed species. State agencies often 

possess scientific data and valuable 

expertise on the status and distribution 

of endangered, threatened, and 

candidate species of wildlife and plants. 

State agencies, because of their 

authorities and their close working 

relationships with local governments 

and landowners, are in a unique 

position to assist us in implementing all 

aspects of the Act. States solely own and 

manage lands occupied by at least 31 

demographic populations and oversee 

State-wide SHAs, now known as CBAs, 

that have enrolled 459 non-Federal 

landowners covering approximately 2.5 

million acres (85 FR 63474, October 8, 

2020). 

In this regard, section 6 of the Act 

provides that we must cooperate to the 

maximum extent practicable with the 

States in carrying out programs 

authorized by the Act. Therefore, any 

qualified employee or agent of a State 

conservation agency that is a party to a 

cooperative agreement with us in 

accordance with section 6(c) of the Act, 

who is designated by his or her agency 

for such purposes, will be able to 

conduct activities designed to conserve 

red-cockaded woodpecker that may 

result in otherwise prohibited take 

without additional authorization. 

This exception is very similar to an 

exception that currently applies while 

the woodpecker is listed as endangered 

(the exception under 50 CFR 

17.21(c)(5)). While the exception in 50 

CFR 17.31(b) is similar to the exception 

that currently applies while the species 

is listed as endangered (50 CFR 

17.21(c)(5)), it does not provide the 

same limitations on take associated with 

carrying out conservation programs in 

States’ cooperative agreements. State 

agencies may also enroll in the 

Conservation Benefit program, 

previously known as the Safe Harbor 

program, to receive permits that allow 

for certain types of take, if they are not 

otherwise covered by a cooperative 

agreement or otherwise prohibited. 

The 4(d) rule will also provide for the 

conservation of the species by allowing 

exceptions that incentivize conservation 

actions or that, while they may have 

some minimal level of take of the redcockaded woodpecker, are not expected 

to rise to the level that would have a 

negative impact (i.e., would have only 

de minimis impacts) on the species’ 

conservation. These exceptions will 

promote the maintenance and 

restoration of the habitat resources 

(cavity trees, nesting habitat, and 

foraging habitat) crucial to red-cockaded 

woodpecker recovery and conservation 

and not be subject to penalties and 

enforcement in accordance with section 

11 of the Act. 

As discussed above, active 

management targeted at maintaining 

and restoring red-cockaded woodpecker 

populations and habitat is essential to 

the continued recovery of the species. 

The analyses in the SSA report illustrate 

that it could take ‘‘many decades . . . to 

attain a desired future ecosystem 

condition in which red-cockaded 

woodpeckers are no longer dependent 

on artificial cavities and related special 

treatments. Without adequate specieslevel management, in contrast to 

ecosystem management alone, very little 

increase in the number of moderately to 

very highly resilient populations can be 

expected, and small populations of low 

or very low resilience are unlikely to 

persist’’ (USFWS 2022, p. 14). The 

species-specific exceptions in this 

section 4(d) rule aim to facilitate 


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management that will protect and 

enhance red-cockaded woodpecker 

populations. 

For several reasons, conservation of 

red-cockaded woodpeckers as a species 

depends primarily on the conservation 

of populations on Federal properties 

(e.g., National Forests, NWRs, DoD 

installations). First, the vast majority of 

red-cockaded woodpeckers in existence 

today are on Federal lands (USFWS 

2022, pp. 108–110; see table 7 in 

USFWS 2003, p. 137). Second, Federal 

properties contain most of the land that 

can reasonably be viewed as potential 

habitat for red-cockaded woodpeckers 

(USFWS 1985, p. 133). Third, existing 

Federal statutes, especially the Act, 

require that Federal agencies conserve 

listed species and maintain biodiversity 

within their lands. Section 2(c)(1) of the 

Act declares that it is the policy of 

Congress that all Federal departments 

and agencies shall seek to conserve 

endangered species and threatened 

species (16 U.S.C. 1531(c)(1)); the Act 

defines conservation as the use of all 

methods and procedures necessary to 

bring an endangered species or 

threatened species to the point at which 

the measures provided pursuant to the 

Act are no longer necessary (16 U.S.C. 

1532(3)). Private and other non-Federal 

landowners, in contrast, can contribute 

substantially to conservation, but such 

contributions above complying with the 

statutory prohibitions (e.g., direct harm) 

are voluntary. For those private and 

other non-Federal landowners that wish 

to increase the size of their population, 

we strongly encourage them to aim to 

achieve the recovery standard in the 

2003 recovery plan or join the 

Conservation Benefit program, 

previously known as the Safe Harbor 

program (USFWS 2003, pp. 188–189). 

Therefore, the species-specific 

exceptions in this section 4(d) rule 

address eligible private and other nonFederal lands differently from Federal 

lands for three reasons. First, these 

entities have differing recovery 

responsibilities. Second, because of 

section 7 consultation obligations, we 

will potentially be involved with 

Federal agencies’ habitat management 

activities and any conservation 

activities that are authorized, funded, or 

carried out through Federal 

conservation programs on eligible 

private and other non-Federal lands. 

Third, there are other flexible programs 

that permit take that are already 

available to some State conservation 

agencies and other eligible private and 

non-Federal landowners (e.g., permits 

issued from existing SHAs, future CBAs, 

and HCPs and assistance provided by 

various conservation programs, such as 

those administered by NRCS and the 

Partners for Fish and Wildlife Program). 

First, we include an exception to the 

take prohibitions to allow incidental 

take on DoD installations that occurs as 

a result of implementing red-cockaded 

woodpecker habitat management and 

military training activities detailed in 

Service-approved INRMPs. In this rule, 

we define habitat management activities 

as activities intended to maintain or 

improve the quality and/or quantity of 

red-cockaded woodpecker habitat, 

including, but not limited to, prescribed 

burning; using herbicides and 

equipment to reduce midstory 

encroachment, thin overstocked pine 

stands, promote an open canopy pine 

system, and promote herbaceous 

groundcover; converting loblolly, slash, 

or other planted pines to more firetolerant native pines such as longleaf 

pine; planting and seeding native, siteappropriate pines and groundcover 

species; and regenerating areas of older 

pine forest, or any overrepresented age 

class, to increase and maintain 

sustainable current and future habitat. 

Within the range of the species, most 

DoD Army, Air Force, and Marine Corps 

installations have red-cockaded 

woodpecker management plans and 

guidelines incorporated into their 

Service-approved INRMPs to minimize 

the adverse effects of the military 

training activities outlined in the 

INRMPs and to achieve red-cockaded 

woodpecker recovery objectives. These 

plans and guidelines all contain an 

ESMC for red-cockaded woodpecker 

conservation, which includes 

population size objectives, management 

actions to achieve conservation goals, 

monitoring and reporting, and specific 

training activities that are allowed or 

restricted within clusters and near 

cavity trees. Under the Sikes Act (16 

U.S.C. 670 et seq.), we are required to 

review and approve INRMPs, when they 

are revised, at least every 5 years, and 

participate in annual reviews. In 

addition to this review and approval 

under the Sikes Act, we conduct section 

7 consultation under the Act on INRMPs 

and ESMCs to ensure DoD installations’ 

activities are not likely to jeopardize the 

continued existence of any listed 

species, including red-cockaded 

woodpeckers. Even with this exception 

in the section 4(d) rule, DoD 

installations will still need to comply 

with the Sikes Act requirement to obtain 

our approval of INRMPs and will still 

need to fulfill their section 7 obligations 

under the Act, including consulting, 

tracking and reporting amounts of 

incidental take that occur as a result of 

activities outlined in the INRMP (see 

‘‘Implications for Implementation,’’ 

below, for more detail on section 7 

processes under section 4(d) rules). 

In addition to excepting incidental 

take that results from red-cockaded 

woodpecker habitat management 

activities in INRMPs, this section 4(d) 

rule will except incidental take 

associated with routine military training 

activities that are included in a Serviceapproved INRMP. The military training 

activities that DoD installations include 

in their INRMPs have been specifically 

designed to minimize incidental take of 

listed species, including red-cockaded 

woodpeckers. The DoD uses longestablished guidelines (e.g., 

Management Guidelines for the RedCockaded Woodpecker on Army 

Installations (U.S. Army 1996, entire)) to 

inform minimization measures that 

reduce incidental take associated with 

military training. Moreover, the DoD 

conducts section 7 consultation with us 

on the content of their INRMPs to 

ensure these military training activities 

will not jeopardize the species. Any 

incidental take resulting from new 

proposed training or construction 

activities that are not incorporated into 

a Service-approved INRMP are not 

excepted under this rule but could be 

exempted through an incidental take 

statement associated with a biological 

opinion resulting from a separate 

section 7 consultation under the Act. In 

other words, if a military installation’s 

activities do not fall within the 

exceptions in this section 4(d) rule (i.e., 

they are not incorporated in a Serviceapproved INRMP) or are not otherwise 

covered in an existing section 7 

biological opinion, incidental take that 

results from those activities could still 

be exempted from the prohibitions in 

this section 4(d) rule via a new 

biological opinion’s incidental take 

statement as long as the activities will 

not jeopardize the continued existence 

of the species. 

To further ensure the DoD continues 

to monitor their red-cockaded 

woodpecker populations and habitats, 

the provisions in the section 4(d) rule 

will require each installation to share an 

annual property report regarding their 

red-cockaded woodpecker populations. 

This annual property report could 

include the property’s recovery goal; the 

number of active, inactive, and 

recruitment clusters; information on 

habitat quality; and the number of 

artificial cavities the property installed. 

All military installations with redcockaded woodpecker populations 

currently provide such a report to us, 

and we expect this to continue while 

the species is listed as threatened. This 

monitoring could inform adaptive 


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management during annual INRMP 

reviews. 

As a result of existing conservation 

programs under Service-approved 

INRMPs, red-cockaded woodpecker 

populations have increased on all DoD 

installations. Of note, Fort Liberty, Fort 

Stewart, Eglin Air Force Base, Fort 

Moore, and Camp Blanding all have 

achieved or surpassed their 2003 

recovery plan population size objectives 

and are expected to continue to manage 

towards larger populations (USFWS 

2003, pp. xiii–xx, 212–213). Active and 

beneficial red-cockaded woodpecker 

management to increase population 

sizes on DoD installations has been an 

essential component of sustaining the 

species, and such management can 

balance the effects of military training. 

Given the close, formal involvement 

we have in reviewing and approving 

INRMPs under the Sikes Act, the 

species-specific beneficial management 

practices that DoD installations must 

incorporate into the ESMCs of these 

plans, the monitoring that the DoD 

installations must conduct, and the 

section 7 consultation that will still 

occur for these plans to ensure 

conservation activities do not jeopardize 

the species, we find that the 

management resulting from INRMPs 

will continue to advance the 

conservation of the species, even if 

incidental take occurs. Therefore, this 

section 4(d) rule excepts incidental take 

resulting from red-cockaded 

woodpecker habitat management and 

military training activities on DoD 

installations carried out in accordance 

with a Service-approved INRMP. 

Second, we include an exception to 

take prohibitions to allow incidental 

take that results from habitat 

management activities intended to 

restore or maintain red-cockaded 

woodpecker habitat on Federal land 

management agency properties; as noted 

earlier, we define ‘‘habitat management 

activities’’ for the purposes of the 

section 4(d) rule (see Regulation 

Promulgation, below). We provide this 

exception separately from the 

aforementioned exception for DoD 

properties to account for the fact that 

the Sikes Act requires a different level 

of our involvement in the development 

of INRMPs and provides different 

standards for content in INRMPs than 

other Federal natural resource 

management planning processes. 

In order to benefit from this 

exception, Federal land management 

agencies must detail these planned 

habitat management activities in a 

Federal habitat management plan that 

includes a red-cockaded woodpecker 

management component, which 

addresses factors including, but not 

limited to, the red-cockaded 

woodpecker population size objective 

and the habitat management necessary 

to sustain, restore, or increase foraging 

habitat, nesting habitat, and cavity trees 

to attain population size objective. 

Suitable management plans may be 

stand-alone documents or may be stepdown plans with red-cockaded 

woodpecker-specific management 

components that implement more 

general plans (e.g., the habitat 

management plans that implement the 

NWR System’s CCPs and red-cockaded 

woodpecker-specific amendments to 

LRMPs). In addition to describing these 

habitat management activities in a 

Federal habitat management plan, 

Federal land management agencies must 

also incorporate appropriate 

conservation measures to minimize or 

avoid adverse effects of these habitat 

management activities on red-cockaded 

woodpecker foraging habitat, on 

clusters, and on the species’ roosting 

and nesting behavior to the maximum 

extent practicable; Federal agencies may 

identify these avoidance and 

minimization measures in these habitat 

management plans or in other 

documentation associated with the 

section 7 consultation process. The 

inclusion of ‘‘clusters’’ in this provision 

ensures Federal land managers are 

adequately protecting nesting habitat 

and cavity trees, in addition to foraging 

habitat, while executing their planned 

beneficial habitat management 

activities. We expect the red-cockaded 

woodpecker components of these 

Federal management plans to allow for 

adaptive management and frequent 

reevaluation of appropriate conservation 

activities and minimization measures. 

Moreover, to further ensure Federal 

land management agencies continue to 

monitor their red-cockaded woodpecker 

populations and habitats, the provisions 

in the section 4(d) rule require each 

Federal property to share an annual 

property report with us regarding their 

red-cockaded woodpecker populations. 

This annual property report could 

include the property’s recovery goal; the 

number of active, inactive, and 

recruitment clusters; information on 

habitat quality; and the number of 

artificial cavities the property installed. 

All Federal properties with redcockaded woodpecker populations 

currently provide such a report to us, 

and we expect this practice to continue 

while the species is listed as threatened. 

The reporting Federal agencies provide 

as part of section 7 consultations will 

also qualify as this annual property 

report. 

As a result of this provision in the 

section 4(d) rule, we will, under certain 

conditions, except incidental take 

associated with habitat management 

activities on Federal lands that have 

short-term adverse effects to redcockaded woodpeckers but that are 

intended to provide for improved 

habitat quality and quantity in the long 

term, with coinciding increases in 

numbers of red-cockaded woodpeckers, 

if these activities are detailed in a 

management plan that can adequately 

address site-specific considerations. 

Current and future red-cockaded 

woodpecker habitat conditions that 

require such restoration can vary 

significantly among sites and properties, 

to the extent that it would be ineffective 

to prescribe a universal condition by 

which this exception will apply. 

Therefore, in this section 4(d) rule, we 

state that incidental take associated with 

these activities will be excepted as long 

as the activities are intended to restore 

and maintain red-cockaded woodpecker 

habitat and are detailed in a Federal 

agency habitat management plan. These 

management plans can strategically and 

accurately assess the site-specific 

conditions. According to the section 

4(d) rule, Federal agencies must also 

incorporate appropriate conservation 

measures to minimize the adverse 

effects of these activities on redcockaded woodpecker foraging habitat, 

on clusters, and on the species’ roosting 

and nesting behavior. Because Federal 

agencies will still need to complete 

section 7 consultation, as appropriate, 

on these habitat management plans or 

projects, we will have the opportunity 

to review these restoration projects and 

provide input on how to minimize 

impacts to the species. 

Again, we encourage comprehensive, 

proactive management that results in 

red-cockaded woodpecker population 

growth and stability since, according to 

the 2003 recovery plan, ‘‘development 

and maintenance of viable recovery 

populations is dependent on restoration 

and maintenance of appropriate habitat’’ 

(USFWS 2003, p. 32). Continued 

conservation activities and beneficial 

land management are necessary to 

address the threats of habitat 

degradation and fragmentation, and it is 

the intent of this rule to encourage these 

activities. 

Most Federal properties within the 

range of the red-cockaded woodpecker 

already have management plans that 

detail habitat management activities 

specifically intended to restore or 

maintain red-cockaded woodpecker 

habitat; this exception will not require 

these agencies to rewrite these 

management plans or to reinitiate 


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section 7 consultation on these plans or 

on relevant projects. Moreover, because 

this section 4(d) rule does not remove or 

alter the obligation of Federal agencies 

to complete section 7 consultation on 

their management plans, we will have 

the opportunity to review any major 

changes to these site-specific plans to 

ensure the Federal agency’s habitat 

management activities are not likely to 

jeopardize the continued existence of 

any listed species, including the redcockaded woodpecker. As part of this 

section 7 process, we will produce an 

incidental take statement for the 

estimated amount of take reasonably 

likely to occur as a result of the 

management plan’s activities, even 

though that take is excepted under the 

section 4(d) rule. Additionally, Federal 

agencies will still track all incidental 

take, even if it is excepted under this 

provision. If they exceed the amount of 

take in this incidental take statement as 

a result of carrying out the activities in 

their management plan, they will need 

to reinitiate consultation (see 

‘‘Implications for Implementation,’’ 

below, for more detail on section 7 

processes under section 4(d) rules). 

This provision does not except take 

resulting from habitat management or 

other activities that provide no benefit 

to red-cockaded woodpecker recovery, 

even if these activities are also 

described in the Federal management 

plan; however, incidental take from 

such activities could still be exempted 

through an incidental take statement 

associated with a biological opinion 

resulting from section 7 consultation 

under the Act. In other words, if a 

Federal land management agency’s 

activities cannot comply with the 

exceptions in this section 4(d) rule, 

incidental take that results from those 

activities could still be exempted from 

the prohibitions in this section 4(d) rule 

via a project-specific section 7 

consultation as long as the activities 

will not jeopardize the continued 

existence of the species. Finally, 

because the prohibitions in this section 

4(d) rule match those that currently 

apply under an endangered status, if 

Federal agencies are currently 

conducting management activities 

without resulting in take of redcockaded woodpeckers, this rule will 

not affect their ability to continue 

conducting those activities, 

independent of this exception. 

In short, if incidental take of redcockaded woodpeckers occurs as a 

result of Federal land management 

agencies carrying out habitat 

management activities, as defined in the 

rule, this take is not prohibited as long 

as: (1) the habitat management activities 

were implemented specifically to 

restore or maintain red-cockaded 

woodpecker habitat; (2) the Federal land 

management agency details these 

habitat management activities in a 

habitat management plan; (3) the 

Federal land management agency 

incorporates appropriate conservation 

measures to minimize or avoid adverse 

effects of these habitat management 

activities on red-cockaded woodpecker 

foraging habitat, on clusters, and on the 

species’ roosting and nesting behavior to 

the maximum extent practicable; and (4) 

the Federal land management agency 

provides annual reporting to us. 

Third, we include an exception to 

encourage private and other non-Federal 

landowners who are not enrolled in the 

existing SHA or future CBA program to 

carry out specific compatible forest 

management activities (namely, 

prescribed burns and application of 

herbicides), given the importance of 

these forest management tools for redcockaded woodpecker recovery (USFWS 

2022, p. 131). This provision does not 

change the measures in any existing 

SHAs or HCPs. While Federal lands bear 

additional responsibility when it comes 

to achieving the recovery goals for redcockaded woodpeckers, private and 

other non-Federal lands still play an 

important role in the conservation of the 

species. They provide for connectivity 

between populations, which boosts 

resiliency, and support additional redcockaded woodpecker clusters to 

enhance redundancy and representation 

of the species. This section 4(d) rule 

will continue to encourage voluntary 

red-cockaded woodpecker conservation 

on private and other non-Federal lands 

through the CBA program. 

The exception further supports 

compatible forest management on 

private and other non-Federal lands, 

while continuing to maintain existing 

populations and is especially relevant 

for landowners that do not currently 

participate in the SHA, now known as 

the CBA, program. This provision 

provides an exception to take 

prohibitions for incidental take caused 

by application of prescribed burns or 

herbicides on private and other nonFederal lands to create or maintain 

habitat (i.e., open pine ecosystems) or 

sustain and grow red-cockaded 

woodpecker populations, provided that 

the landowner, or their representative: 

(1) follows applicable BMPs for 

prescribed burns and applicable Federal 

and State laws; (2) applies herbicides in 

a manner consistent with applicable 

BMPs and applicable Federal and State 

laws; and (3) applies prescribed burns 

and herbicides in a manner that 

minimizes or avoids adverse effects to 

known active clusters and red-cockaded 

woodpecker roosting and nesting 

behavior to the maximum extent 

practicable. 

The first condition on this provision 

requires landowners to follow 

applicable BMPs for prescribed burns. 

States and counties within the range of 

red-cockaded woodpecker provide 

guidance documents with these BMPs to 

ensure practitioners safely apply 

prescribed burns in a way that 

minimizes impacts to communities, 

riparian ecosystems, forest roads, and 

vegetation (e.g., North Carolina Forestry 

BMP Manual; Recommended Forestry 

BMPs for Louisiana). 

The second condition on this 

provision requires landowners to follow 

applicable Federal and State laws in 

addition to the BMPs when applying 

herbicide. Some management plans 

specify additional criteria for the use of 

herbicides in habitat management that 

would benefit red-cockaded 

woodpeckers or their habitat. 

The third condition on this provision 

calls for private and other non-Federal 

landowners to incorporate reasonable 

preventative measures, to the maximum 

extent practicable, to reduce any direct 

adverse effects of these activities where 

red-cockaded woodpeckers are already 

known to roost or nest, increasing the 

net benefit that prescribed burns and 

herbicide application can provide to 

red-cockaded woodpecker habitat and 

clusters. However, it does not require 

these private and other non-Federal 

landowners to survey for new clusters 

prior to carrying out a burn or using 

herbicides, nor does it require them to 

follow particular preventative measures 

we prescribe, although the methods we 

outline for cavity tree protection in our 

2003 recovery plan can provide a 

helpful resource to landowners when 

identifying practical ways to minimize 

adverse effects (USFWS 2003, pp. 201– 

205). Thus, this measure asks that 

landowners responsibly apply 

prescribed burns and herbicides, 

without being unreasonably prohibitive 

on landowners’ compatible or beneficial 

activities. 

This provision also is relevant only in 

situations where take might occur as a 

result of a prescribed burn or the 

application of herbicides. For example, 

if a landowner does not currently have 

any red-cockaded woodpecker cavity 

trees, clusters, or foraging woodpeckers 

on their land, then it is not possible for 

these activities to result in incidental 

take. Thus, this landowner can proceed 

with prescribed burns or the use of 

herbicides without the possibility of 

violating the take prohibitions in the 

section 4(d) rule because such activities 


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do not result in take. It is only when a 

prescribed burn or the use of herbicides 

could result in incidental take of redcockaded woodpeckers that private and 

other non-Federal landowners may wish 

to take advantage of this exception by 

following BMPs and conducting 

activities in a manner that minimizes or 

avoids adverse effects to known active 

clusters and red-cockaded woodpecker 

roosting and nesting behavior to the 

maximum extent practicable. Under this 

section 4(d) rule, if a private or other 

non-Federal landowner follows these 

BMPs and incorporates reasonable 

preventative measures while conducting 

prescribed burns and applying 

herbicides, while incidental take is 

unlikely, if it were to occur, the 

landowner would not be liable for such 

take. This provision only provides an 

exception to the take prohibitions for 

incidental take associated with 

prescribed burns or the use of 

herbicides when the use of these 

management practices are associated 

with maintaining any known redcockaded woodpecker populations on 

their land; in other words, if a private 

or other non-Federal landowner wishes 

to pursue a prescribed burn that could 

impair red-cockaded woodpecker 

population dynamics in the long term, 

this exception does not cover any 

incidental take that results from that 

burn, even if the landowner follows 

relevant BMPs. 

Finally, if landowners are already 

enrolled in the Safe Harbor program, 

this exception does not provide any 

additional flexibility; the permits 

associated with SHAs authorize take 

associated with prescribed burns, 

herbicide use, and other activities as 

long as landowners follow the 

stipulations in their SHA and do not 

decrease the number of red-cockaded 

woodpecker clusters below their 

baseline. 

Our intent for this provision is to 

provide a simple means by which to 

encourage private and other non-Federal 

landowners to pursue certain types of 

voluntary forest management activities 

(i.e., prescribed burns and herbicide 

application) in a way that reduces 

impacts to the species but also removes 

any potential barriers to the 

implementation of this beneficial forest 

management, such as fear of prosecution 

for take. Collaboration with partners in 

the forestry industry and their voluntary 

conservation and restoration of redcockaded woodpecker habitat has 

helped advance red-cockaded 

woodpecker recovery to the point of 

downlisting; this provision continues to 

encourage this compatible or beneficial 

management. We also continue to 

encourage eligible private and other 

non-Federal landowners to participate 

in existing conservation programs that 

promote forest management benefiting 

red-cockaded woodpeckers and 

provides take allowances for 

participating landowners through other 

means (e.g., permits issued from 

existing SHAs, future CBAs, and HCPs; 

assistance provided by various 

conservation programs, such as those 

administered by NRCS and the Partners 

for Fish and Wildlife Program; and the 

associated section 7 consultations these 

Federal programs conduct with us that 

provide allowances for incidental take 

associated with beneficial conservation 

practices). 

Finally, the section 4(d) rule provides 

an exception to take prohibitions for 

incidental take that occurs as a result of 

the installation of artificial cavities as 

long as individuals conducting the 

installation have completed training, 

have achieved a certain level of 

proficiency as detailed below, and are 

following appropriate guidelines. As 

described above, maintaining an 

adequate number of suitable cavities in 

each woodpecker cluster is fundamental 

to the conservation of the species. Loss 

of natural cavity trees was a major factor 

in the species’ decline, and availability 

of natural cavity trees currently limits 

many populations. Until a sufficient 

number of large, old pines becomes 

widely available, installation and 

maintenance of artificial cavities is an 

essential management tool to sustain 

populations and bring about population 

increases, and we continue to encourage 

the installation of artificial cavities. 

However, we also acknowledge that 

there are proper techniques to install 

cavity inserts or drill cavities, and these 

techniques require training and 

experience. Improperly installed 

artificial cavities can cause injury or 

even result in death of red-cockaded 

woodpeckers attempting to roost or nest 

in them. Currently, because the species 

is listed as endangered, individuals 

must seek a section 10(a)(1)(A) permit to 

install artificial cavity inserts or drilled 

cavities. 

However, we recognize that many of 

our partners have training and extensive 

experience in installing artificial 

cavities. Moreover, given the essential 

nature of artificial cavity installation for 

the continued conservation of the 

species, we want to remove any 

potential hurdles to the efficient and 

effective provisioning and maintenance 

of artificial cavities. Therefore, we 

provide an exception to take 

prohibitions in this rule for the 

installation, maintenance, and 

replacement of artificial cavity inserts 

and drilled cavities on public and 

private lands. However, this exception 

applies only if the individual 

conducting the installation has either 

held a valid Service permit for that 

purpose and has continued to install, 

maintain, and replace cavities since the 

expiration of their permit or has 

completed a period of apprenticeship 

under the direction of a person that has 

been involved in cavity installation for 

at least 3 years (the trainer). 

In order to complete their training, 

under the direct supervision of the 

trainer, the apprentice must install at 

least 10 drilled cavities, if they plan to 

install drilled cavities, or 10 inserts, if 

they plan to install inserts, and learn the 

proper maintenance and inspection 

procedures for cavities. After the 

apprentice has completed their training, 

the trainer must provide a letter to the 

apprentice and to our regional redcockaded woodpecker recovery 

coordinator; the letter will outline the 

training the apprentice received and 

will serve as a record of the apprentice’s 

training. Please note that a provision 

pertaining to restrictor plates, which 

was included in the proposed rule at 

proposed § 17.41(h)(2)(iii) (February 3, 

2022, 87 FR 6118), has been removed 

from this final rule as the result of 

advancements, such as the use of PVC 

(polyvinyl chloride) inserts, in 

preserving cavity integrity. 

Additionally, the individual 

conducting the installation must follow 

appropriate guidelines for the 

installation and use of artificial cavity 

inserts and drilled cavities, including: 

(1) Monitoring the cavity resource; (2) 

installing and maintaining the 

recommended number of suitable 

cavities in each cluster; (3) using the 

appropriate type of artificial cavity 

insert and method of artificial cavity 

installation; (4) installing artificial 

cavities as close to existing cavity trees 

as possible, preferably within 71 meters 

(200 feet) when adding to an existing 

cluster; (5) selecting a tree that is of 

appropriate age or diameter when 

installing a cavity insert; (6) selecting 

the appropriate location for artificial 

cavity installation on the tree; and (7) 

protecting red-cockaded woodpeckers 

from sap leakage by ensuring that no 

artificial cavity has resin leaking into 

the chamber or entrance tunnel. 

The 2003 recovery plan can provide 

some additional detail on how an 

installer can ensure they successfully 

follow these guidelines (USFWS 2003, 

pp. 175–178). If an installer does not 

comply with the qualification 

requirements (i.e., they have not held a 

valid Service permit or they have not 

completed the necessary training) or 


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with the installation guidelines in the 

section 4(d) rule and incidental take 

occurs as a result of artificial cavity 

installation, the installer will still be 

liable for this take. However, if an 

installer is qualified and follows the 

installation guidelines, while incidental 

take is highly unlikely, if it were to 

occur, the installer will not be liable for 

such take under this rule. We included 

this exception in our section 4(d) rule as 

a result of public comments on the 

October 8, 2020, proposal that 

supported its incorporation. 

Implications for Implementation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

The trigger for consultation is whether 

a Federal action may affect a listed 

species or its critical habitat, not 

whether the action will result in 

prohibited take; species-specific section 

4(d) rules, regardless of the take they 

prohibit or allow, cannot change this 

requirement to consult. Consultation is 

still required to satisfy the requirements 

of section 7(a)(2) of the Act to ensure 

that the activity will not jeopardize the 

species or result in adverse modification 

of critical habitat. 

Thus, if a Federal agency determines 

that their action is not likely to 

adversely affect a listed species or its 

critical habitat, they must still receive 

our written concurrence, even if this 

activity is excepted under a section 4(d) 

rule. If a Federal agency determines that 

their action is likely to adversely affect 

a listed species or its critical habitat, 

even if it results only in take that is 

excepted under a section 4(d) rule, they 

must still pursue formal consultation 

with us and we must formulate a 

biological opinion that includes an 

incidental take statement. Even if a 

section 4(d) rule includes specific 

exceptions to take prohibitions, we must 

still describe or enumerate the amount 

or extent of this incidental take that is 

reasonably certain to occur (i.e., in an 

incidental take statement), and the 

Federal action agency must monitor and 

report any such take that occurs. If an 

action agency’s activities exceed the 

amount of incidental take enumerated 

in the incidental take statement, those 

activities will trigger reinitiation of the 

consultation, even if this excessive take 

is still excepted under the section 4(d) 

rule (see Center for Biological Diversity 

v. Salazar, 695 F.3d 893 (2012)). This 

system allows the agency to keep track 

of any take to stay abreast of the status 

of the species. The Federal action 

agency may also trigger reinitiation of 

consultation if they do not implement 

the action as described in the biological 

opinion or as directed in the section 

4(d) rule. 

Even though section 4(d) rules do not 

remove or alter Federal agencies’ section 

7 consultation obligations, we will 

consider methods by which we might be 

able to streamline section 7 consultation 

on activities that may result in take that 

is excepted under this section 4(d) rule. 

This information and determination can 

be used to inform and serve as part of 

the basis of our analysis of whether an 

action is likely to jeopardize the 

continued existence of the species, 

making consultation more 

straightforward and predictable. For 

example, because of the nature of 

activities that will be consistent with 

this section 4(d) rule, and as the section 

4(d) rule includes an explanation for 

why such activities provide for the 

conservation of the species, we could 

draft an analysis of the effects of these 

habitat management activities on the 

species for inclusion in all section 7 

analyses that consider effects on the redcockaded woodpecker. This analysis 

could be incorporated into any Service 

biological opinion (or action agency 

biological assessment), thereby creating 

efficiencies in the development of these 

documents and providing consistency 

for consultation on activities that are 

covered by the section 4(d) rule. 

Finally, if Federal agencies have 

already completed section 7 

consultation on particular projects, 

activities, or management plans and the 

biological opinion remains valid, they 

do not need to reinitiate consultation 

when the section 4(d) rule takes effect, 

if their Federal action (e.g., management 

plan) has not changed. However, given 

the provisions in this section 4(d) rule, 

Federal agencies may find that 

reinitiating consultation, although not 

required, could grant additional 

flexibilities for their ongoing actions 

and activities. 

Required Determinations 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

Regulations adopted pursuant to 

section 4(a) of the Act are exempt from 

the National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.) and do 

not require an environmental analysis 

under NEPA. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

includes listing, delisting, and 

reclassification rules, as well as critical 

habitat designations and speciesspecific protective regulations 

promulgated concurrently with a 

decision to list or reclassify a species as 

threatened. The courts have upheld this 

position (e.g., Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995) 

(critical habitat); Center for Biological 

Diversity v. U.S. Fish and Wildlife 

Service., 2005 WL 2000928 (N.D. Cal. 

Aug. 19, 2005) (concurrent 4(d) rule)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951, May 4, 

1994), Executive Order 13175 

(Consultation and Coordination with 

Indian Tribal Governments), the 

President’s memorandum of November 

30, 2022 (Uniform Standards for Tribal 

Consultation; 87 FR 74479, December 5, 

2022), and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

federally-recognized Tribes and Alaska 

Native Corporations on a governmentto-government basis. In accordance with 

Secretary’s Order 3206 of June 5, 1997 

(American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the 

Endangered Species Act), we readily 

acknowledge our responsibilities to 

work directly with Tribes in developing 

programs for healthy ecosystems, to 

acknowledge that Tribal lands are not 

subject to the same controls as Federal 

public lands, to remain sensitive to 

Indian culture, and to make information 

available to Tribes. We did not receive 

any comments from Tribes on the 

proposed rulemaking, nor have we 

received any requests for governmentto-government consultation. As such, 

we have fulfilled our relevant 

responsibilities. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 


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Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Rules and Regulations 85337 

internet at https://www.regulations.gov 

and upon request from the Georgia 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this final rule 

are the staff members of the Fish and 

Wildlife Service’s Species Assessment 

Team and the Georgia, Louisiana, and 

South Carolina Ecological Services Field 

Offices. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Plants, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. Amend § 17.11, in paragraph (h), in 

the List of Endangered and Threatened 

Wildlife by revising the entry for 

‘‘Woodpecker, red-cockaded’’ under 

BIRDS to read as set forth below: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations and applicable rules 

*******

BIRDS

*******

Woodpecker, redcockaded.Dryobates borealis ......... Wherever found .............. T 35 FR 16047, 10/13/1970; 89 FR [INSERT FIRST 

PAGE OF THE FEDERAL REGISTER DOCUMENT], 10/25/2024; 50 CFR 17.41(h).4d

* * * * * * * 

■ 3. Amend § 17.41 by adding paragraph 

(h) to read as follows: 

§ 17.41 Species-specific rules—birds. 

* * * * * 

(h) Red-cockaded woodpecker 

(Dryobates borealis). (1) Definitions. For 

the purposes of this paragraph (h), we 

define the following terms: 

(i) Habitat management activities are 

activities intended to maintain or 

improve the quality and/or quantity of 

red-cockaded woodpecker habitat, 

including, but not limited to, prescribed 

burning; using herbicides and 

equipment to reduce midstory 

encroachment, thin overstocked pine 

stands, promote an open canopy pine 

system, and promote herbaceous 

groundcover; converting planted pines 

to more fire-tolerant, site-appropriate 

native pines found within the associated 

native pine, fire-dependent ecosystem; 

planting and seeding native, siteappropriate pines and groundcover 

species; and regenerating areas of older 

pine forest to increase and maintain 

sustainable current and future habitat 

for red-cockaded woodpeckers. 

(ii) Cavity tree means any tree 

containing one or more active or 

inactive natural or artificial cavities. 

(A) An active cavity is a completed 

natural or artificial cavity or cavity start 

exhibiting fresh pine resin associated 

with red-cockaded woodpeckers’ cavity 

maintenance, cavity construction, or 

resin well excavation. 

(B) An inactive cavity is a cavity that 

is not presently being used by redcockaded woodpeckers. 

(C) A cavity start is a void formed in 

the bole of the tree during the initial 

stages of cavity excavation and can be 

active or inactive. 

(iii) Cluster means the aggregation of 

cavity trees within an area previously or 

currently used and defended by a single 

red-cockaded woodpecker group. A 

cluster may be active or inactive. A 

cluster encompasses the minimum 

convex polygon containing all of a 

group’s cavity trees and the 61-meter 

(200-foot) buffer surrounding that 

polygon. The minimum cluster area size 

is 4.05 hectares (10 acres), as some 

clusters may contain only one cavity 

tree. 

(A) An active cluster is defined as a 

cluster in which one or more of the 

cavity trees exhibit fresh resin as a 

result of red-cockaded woodpecker 

activity or in which one or more redcockaded woodpeckers are observed. 

(B) An inactive cluster is defined as a 

cluster that is not currently supporting 

any red-cockaded woodpeckers and 

shows no evidence of red-cockaded 

woodpecker activity. 

(C) A group is a red-cockaded 

woodpecker social unit, consisting of a 

breeding pair with one or more helpers, 

a breeding pair without helpers, or a 

solitary male. 

(iv) Foraging habitat is habitat that 

generally consists of mature pines with 

an open canopy, low densities of small 

pines, a sparse hardwood and/or pine 

midstory, few or no overstory 

hardwoods, and abundant native 

bunchgrass and forb groundcovers. 

(2) Prohibitions. The following 

prohibitions in this paragraph (h)(2) that 

apply to endangered wildlife also apply 

to the red-cockaded woodpecker. Except 

as provided under paragraphs (h)(3) and 

(4) of this section and §§ 17.4 and 17.5, 

it is unlawful for any person subject to 

the jurisdiction of the United States to 

commit, to attempt to commit, to solicit 

another to commit, or cause to be 

committed, any of the following acts in 

regard to this species: 

(i) Import or export, as set forth at 

§ 17.21(b) for endangered wildlife. 

(ii) Take, as set forth at § 17.21(c)(1) 

for endangered wildlife. 

(iii) Possession and other acts with 

unlawfully taken specimens, as set forth 

at § 17.21(d)(1) for endangered wildlife. 

(iv) Interstate or foreign commerce in 

the course of commercial activity, as set 

forth at § 17.21(e) for endangered 

wildlife. 

(v) Sale or offer for sale, as set forth 

at § 17.21(f) for endangered wildlife. 

(3) General exceptions from 

prohibitions. In regard to this species, 

you may: 

(i) Conduct activities as authorized by 

a permit issued under § 17.32. 

(ii) Take, as set forth at § 17.21(c)(2) 

through (4) for endangered wildlife, 

and § 17.21(c)(6) and (7) for endangered 

migratory birds. 

(iii) Take, as set forth at § 17.31(b). 


ddrumheller on DSK120RN23PROD with RULES2
85338 Federal Register / Vol. 89, No. 207 / Friday, October 25, 2024 / Rules and Regulations 

(iv) Possess and engage in other acts 

with unlawfully taken red-cockaded 

woodpeckers, as set forth at § 17.21(d)(2) 

for endangered wildlife and § 17.21(d)(3) 

and (4) for endangered migratory birds. 

(4) Exceptions from prohibitions for 

specific types of incidental take. The 

following activities that cause take that 

is incidental to an otherwise lawful 

activity are not in violation of the 

prohibitions: 

(i) Department of Defense (DoD) 

installations. Red-cockaded woodpecker 

habitat management and military 

training activities on DoD installations 

carried out in accordance with a 

Service-approved integrated natural 

resources management plan, provided 

that the DoD installation reports 

annually to the Service regarding their 

red-cockaded woodpecker populations. 

(ii) Federal land management agency 

properties. Habitat management 

activities intended to restore or 

maintain red-cockaded woodpecker 

habitat on Federal land management 

agency properties, provided that: 

(A) The Federal land management 

agency details these habitat 

management activities in a Federal 

habitat management plan; 

(B) The Federal habitat management 

activities incorporate appropriate 

conservation measures to minimize or 

avoid adverse effects of these habitat 

management activities on, but not 

limited to, red-cockaded woodpecker 

foraging habitat, on clusters, and on the 

species’ roosting and nesting behavior to 

the maximum extent practicable; and 

(C) The Federal land management 

agency reports annually to the Service 

regarding their red-cockaded 

woodpecker populations. 

(iii) Privately and other non-federally 

owned properties. Application of 

prescribed burns or herbicides on 

private and other non-Federal lands to 

create or maintain habitat (i.e., open 

pine ecosystems) or sustain and grow 

red-cockaded woodpecker populations, 

provided that the landowner or their 

representative: 

(A) Follows applicable best 

management practices for prescribed 

burns and applicable Federal and State 

laws; 

(B) Applies herbicides in a manner 

consistent with applicable best 

management practices and applicable 

Federal and State laws; and 

(C) Applies prescribed burns and 

herbicides in a manner that minimizes 

or avoids adverse effects to known 

active clusters and red-cockaded 

woodpecker roosting and nesting 

behavior to the maximum extent 

practicable. 

(iv) Artificial cavities. Installation, 

maintenance, and replacement of 

artificial cavity inserts and drilled 

cavities on public and private lands, 

provided that: 

(A) The individual conducting the 

installation, maintenance, or 

replacement has either: 

(1) Held a valid Service permit for 

that purpose, which expired after 

November 25, 2024, and has continued 

to install, maintain, and replace cavities 

since the expiration of their permit; or 

(2) Completed the following training 

procedures for the type of artificial 

cavity they plan to install, maintain, or 

replace: 

(i) The individual (‘‘apprentice’’) has 

completed a period of apprenticeship to 

learn proper installation, maintenance, 

and replacement procedures for 

artificial cavities under the direction of 

a person (‘‘trainer’’) who has been 

installing, maintaining, and replacing 

cavities for at least the past 3 years; 

(ii) The apprentice has installed at 

least 10 drilled cavities or 10 inserts 

under direct supervision and to the 

satisfaction of the trainer; and 

(iii) The apprentice has learned the 

proper maintenance and inspection 

procedures for cavities. 

(B) If the individual conducting the 

installation is an apprentice, the 

apprentice’s trainer provides a letter to 

the apprentice and to the Service redcockaded woodpecker recovery 

coordinator that outlines the training 

the apprentice received, which will 

serve as a record of the apprentice’s 

training. 

(C) The individual conducting the 

installation follows appropriate 

guidelines for the installation and use of 

artificial cavity inserts and drilled 

cavities, including, but not limited to: 

(1) Monitoring the cavity resource; 

(2) Installing and maintaining the 

recommended number of suitable 

cavities in each cluster; 

(3) Using the appropriate type of 

artificial cavity insert and method of 

artificial cavity installation; 

(4) Installing artificial cavities as close 

to existing cavity trees as possible, 

preferably within 71 meters (200 feet), 

when adding to an existing cluster; 

(5) Selecting a tree that is of 

appropriate age or diameter, when 

installing a cavity insert; 

(6) Selecting the appropriate location 

for artificial cavity installation on the 

tree; and 

(7) Protecting red-cockaded 

woodpeckers from sap leakage by 

ensuring that no artificial cavity has 

resin leaking into the chamber or 

entrance tunnel. 

* * * * * 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2024–23786 Filed 10–24–24; 8:45 am] 

BILLING CODE 4333–15–P 


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