# Final Biological Opinion For Kaput ® 

# Prairie Dog Bait Registered Under

Section 3 of the Federal Insecticide, Fungicide and Rodenticide Act

Photo Credit: U.S. Fish and Wildlife Service

Prepared by:

U.S. Fish and Wildlife Service Endangered Species Program, Headquarters December 14, 2012ii 

### Table of Contents

I. INTRODUCTION

............................................................................................................................. 1

II. BACKGROUND

............................................................................................................................ 1 Table 1. Federally listed species and criti cal habitats analyzed within this BO.

.................................... 4

III. CONSULTATION HISTORY

..................................................................................................... 5

IV. DESCRIPTION OF THE ACTION

............................................................................................ 6

A. CONSERVATION MEASURES

................................................................................................ 6 Species-Specific Conservation Measures

................................................................................................ 7

1. Black-footed Ferret Conservation Measure

............................................................................. 7

2. Chiricahua Leopard Frog Conservation Measure

.................................................................... 7

3. Grizzly Bear Conservation Measure

........................................................................................ 7

4. Jaguar Conservation Measure

.................................................................................................. 8

5. New Mexico Ridge-nosed Rattlesnake Conservation Measure

............................................... 8

6. Mexican Gray Wolf Conservation Measure

............................................................................ 8

7. Mexican Spotted Owl Conservation Measure

......................................................................... 8

8. Preble’s Meadow Jumping Mouse Conservation Measure

..................................................... 8

9. Northern Aplomado Falcon Conservation Measure

................................................................ 8 Non-Species-Specific Conservation Measures

........................................................................................ 9

SCIMETRICS KAPUT ® -D PRAIRIE DOG BAIT PRODUCT STEWARDSHIP PROGRAM

......... 11

B. KAPUT-D PRAIRIE DOG BAIT REGISTERED USE

........................................................... 12

C. ACTION AREA

........................................................................................................................ 13

V. GENERAL BACKGROUND AND EFFECTS OF THE ACTION RELEVANT TO ALL

SPECIES IN CONSULTATION

........................................................................................................... 16

A. INDANDIONE MODE OF ACTION AND TOXICITY

......................................................... 16

B. DIPHACINONE ENVIRONMENTAL FATE

......................................................................... 17

C. KAPUT ® -D EXPOSURE AND EFFECTS ASSESSMENT

.................................................... 18

1. Primary Exposure

.................................................................................................................. 18

2. Secondary Exposure

.............................................................................................................. 19

3. Surface Presence of Poisoned Black-tailed Prairie Dogs

...................................................... 20

4. Removal of Poisoned Black-tailed Prairie Dogs

................................................................... 21

5. Field Study Observations of Secondary Exposure or Toxicity

............................................. 23

D. REVIEW OF THE EPA’S RISK ASSESSMENT FOR KAPUT ® -D

....................................... 25

a

. Underestimated Risk to Avian Species

................................................................................. 25

b. Prairie Dog Diphacinone Residues

........................................................................................ 27 Figure 2. BTPDs (A and B) scavenged at a prai rie dog colony in 2005 after an application of

Rozol ® . Note selective feeding by scavengers that target internal body organs.

.............................. 28

c. Risk Quotient Calculations and Uncertainty

......................................................................... 29

E. WILDLIFE MORTALITY INCIDENTS

.................................................................................. 29

F. SUMMARY OF KAPUT ® -D EXPOSURE AND EFFECTS RELEVANT TO ALL LISTED

SPECIES ADDRESSED IN THIS BIOLOGICAL OPINION

............................................................. 32

VI. GENERAL CONSERVATION RECOMMENDATIONS

...................................................... 33

VII. SPECIES ANALYSES

................................................................................................................ 34

A. OVERVIEW

.............................................................................................................................. 34 Table 2. Summary of Species and Effects Determinations

.................................................................. 35

B. SPECIES FOR WHICH NO ADVERSE EFFECTS ARE ANTICIPATED

............................ 36

1. American Burying Beetle

...................................................................................................... 36iii 2. Black-capped Vireo

............................................................................................................... 37

3. Canada Lynx

.......................................................................................................................... 39

4. Eskimo Curlew

...................................................................................................................... 39

5. Golden-cheeked Warbler

....................................................................................................... 40

6. Gulf Coast Jaguarundi

........................................................................................................... 42

7. Ocelot

............................................................................................................................... ..... 42

8. Piping Plover

......................................................................................................................... 43

9. Whooping Crane

.................................................................................................................... 45

C. SPECIES FOR WHICH CONSERVATION MEASURES PRECLUDE ADVERSE EFFECTS

48

1. Chiricahua Leopard Frog

....................................................................................................... 48

2. Grizzly Bear

.......................................................................................................................... 49 Table 3. Counties in Montana with Kaput ® -D treatment timing restrictions.

.................................. 50

3. Jaguar

............................................................................................................................... ...... 51

4. Mexican Spotted Owl

............................................................................................................ 51

5. New Mexico Ridge-Nosed Rattlesnake

................................................................................. 52

6. Preble’s Meadow Jumping Mouse

........................................................................................ 53

D. SPECIES FOR WHICH CONSERVATION MEASURES WERE ADOPTED, BUT

ADVERSE EFFECTS ARE STILL ANTICIPATED

........................................................................... 57

1. Black-Footed Ferret

............................................................................................................... 57

a. Status of the Species/Critical Habitat

.................................................................................... 57 (1) Ferret Reintroductions

................................................................................................... 58

Table 4. Black-footed ferret reintroductions in North American locations, year initiated, and associated prairie dog species.

................................................................................................... 58 (2) Life History

................................................................................................................... 58

b. Environmental Baseline

......................................................................................................... 60

c. Effects of the Action

.............................................................................................................. 61

d. Cumulative Effects

................................................................................................................ 63

e. Conclusion Regarding Jeopardy

............................................................................................ 64

2. Gray Wolf

.............................................................................................................................. 65

a. Status of the Species/Critical Habitat

.................................................................................... 65 (1) Species description

........................................................................................................ 67 (2) Life history

.................................................................................................................... 67 (a) Range and habitat

...................................................................................................... 67 (b) Prey items

.................................................................................................................. 68 (c) Social nature and territory size

.................................................................................. 68 (d) Dispersal

.................................................................................................................... 68 (3) Population dynamics

..................................................................................................... 70 (4) Status, trends, and distribution

...................................................................................... 71 (5) Analysis of the species likely to be affected

.................................................................. 73

b. Environmental Baseline

......................................................................................................... 73 (1) Status of the species within the action area

................................................................... 73 (2) Factors Affecting Species Environment within the Action Area

.................................. 73

c. Effects of the Action

.............................................................................................................. 74 (1) Factors to be considered

................................................................................................ 74 (2) Analyses for the effects of the action

............................................................................ 74 (3) Species’ Response to the Action

................................................................................... 75iv d. Cumulative Effects

................................................................................................................ 76

e. Conclusion Regarding Jeopardy

............................................................................................ 76

3. Northern Aplomado Falcon

................................................................................................... 77

a. Status of the Species/Critical Habitat

.................................................................................... 77

b. Environmental Baseline

......................................................................................................... 80 (1) Status of the species within the action area

................................................................... 81 (2) Factors affecting species environment within the action area

....................................... 81 (a) Land use

.................................................................................................................... 81 (b) Livestock grazing

...................................................................................................... 82 (c) Road construction, maintenance, and use

.................................................................. 82 (d) Communications towers and power lines

.................................................................. 82 (e) Organochlorine and organophosph ate pesticide contamination

................................ 82

c. Effects of the Action

.......................................................................................................... 83

d. Cumulative Effects

............................................................................................................ 84

e. Conclusion Regarding Jeopardy

........................................................................................ 85

INCIDENTAL TAKE STATEMENT

................................................................................................... 86

I. INTRODUCTION

............................................................................................................................. 86

II. AMOUNT OR EXTENT OF TAKE ANTICIPATED

................................................................. 87

A. Black-footed ferret

................................................................................................................ 87

B. Gray wolf

............................................................................................................................... 88

C. Northern aplomado falcon

..................................................................................................... 88

III. EFFECT OF TAKE

............................................................................................................................ 89

A. Black-footed ferret

.................................................................................................................... 89

B. Gray wolf

............................................................................................................................... .... 89

C. Northern aplomado falcon

......................................................................................................... 90

IV. REASONABLE AND PRUDENT MEASURES

......................................................................... 90

V. TERMS AND CONDITIONS

....................................................................................................... 90

VI. CONSERVATION RECOMMENDATIONS

.............................................................................. 92

VII. REINITIATION NOTICE

............................................................................................................. 93

VIII. REFERENCES CITED

.................................................................................................................... 95

Personal Communications

................................................................................................................... 115

APPENDIX A

............................................................................................................................... ......... 116v ACRONYMS AND ABBREVIATIONS

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

CPW Colorado Division of Parks and Wildlife CFR Code of Federal Regulations DDE dichlorodiph enyldichloroethylene DDT dichlorodiphenyltrichloroethane

DOW Defenders of Wildlife DPS Distinct Population Segment

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

ITS Incidental Take Statement

LC Lethal Concentration

LD Lethal Dose

LOC Level of Concern MBTA Migratory Bird Treaty Act

MRID Master Record Identification NEP Nonessential Experimental Population NRM Northern Rocky Mountains PCE Primary Constituent Element

RPM Reasonable and Prudent Measure RQ Risk Quotient

Service/USFWS U.S. Fish and Wildlife Service SLN Special Local Needs TRV Toxicity Reference Value USCOE U.S. Corps of Engineers

USDC U.S. District Court of Columbia

WGL Western Great Lakes WYNDD Wyoming Natura l Diversity Database1 

## BIOLOGICAL OPINION

I. INTRODUCTION

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

“ Each Federal agency shall, in consulta tion with and with the assistance of the Secretary, insure that an y action authorized, funded, or carried out . . . is not likely to jeopardize the continued existen ce of any endangered species or threatened species or

result in the destruction or adverse modification of habitat of such species. . . . In fulfilling the requirement of this paragraph each agency shall use the best scientific and

commercial data available. ” 16 U.S.C. § 1536(a)(2)

To meet this standard, when a Federal agency determines that its proposed action may affect a listed species or critical habitat, it enters in to consultation with the U.S. Fish and Wildlife Service (Service). If the effect s are determined to be insignif icant, discountable, or entirely beneficial, the lead Federal agency should make a determination that the pr oject is not likely to adversely affect listed species or their critical habitats and request concurrence from the Service on its determination. If the effects are not insign ificant, discountable, or entirely beneficial or are likely to be adverse, the lead Federal agency should initia te formal consultation with the

Service. The Service then formulates its Biological Opinion (BO) on the proposed action.

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

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



### II. BACKGROUND

Kaput ® -D Prairie Dog Bait (Kaput ® -D) is a product registered under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) of 1947, as amended (7 U.S.C. §136 et seq.). Under the FIFRA, use of a pesticide may be restricted by how it is registered and by its use label. A pesticide use label provides pest icide applicators with directions that consist of legal requirements that may specify when, how, and where a pesticide is applied. Pesticides that are federally registered by the Envir onmental Protection Agency (EPA) as restricted-use are limited to use by pesticide applicators that are certifie d, often by passing a written exam, in accordance2 with national standards. Section 24(c) of the FIFRA allows States to register an additional use of a federally registered pesticide product, or a new end use product to meet special local needs (SLNs).

Kaput ® -D is an anticoagulan t (hinders the clotting of blood) containing the active ingredient diphacinone. Kaput ® -D was registered on October 25, 2012 (USEPA Registration No. 72500- 22) under Section 3 of FIFRA for use on black-tailed prairie dogs (BTPDs) ( Cynomys

ludovicianus ) in 10 States: Colorado, Kansas, Montan a, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyomi ng. The EPA regulates pesticide use via administration of the FIFRA, and registration of pesticides by the EPA is subject to compliance

with Section 7 of the ESA. In a letter date d October 25, 2012, the EPA requested initiation of ESA Section 7(a)(2) formal consultation under 50 CFR Part 402.46, Optional Formal

Consultation Procedures for the FIFRA. To initiate formal consultation, the EPA provided the following documents to the Service:

 Transmittal Letter (PDF) from Donald Brady, Direct or, Environmental Fate and Effects Division to Gary Frazer, Assistant Director for Endangered Speci es, U.S. Fish and Wildlife Service (October 25, 2012) (2 pp.)

 Ecological Risk Assessment for the Section 3 Ne w Use Registration of Diphacinone (PC 067701) for use on Black-tailed Prairie Dogs ( Cynomys ludovicianus ) (June 28, 2012) (60 pp.)

 Kaput ® -D Prairie Dog Bait Label; EPA Registrati on No. 72500-22; October 25, 2012 (4 pp.)

 Commitment by Scimetrics LTD. Corp. (Scimetrics) (registrant for Kaput ® -D Prairie Dog Bait) to abide by the same restrictions outlined in the Final Biological Opinion for Rozol ® Prairie Dog Bait; August 10, 2012 (5 pp.)

The “Diphacinone Ecological Risk Assessment (Kaput ® -D Assessment)” was provided to the Service in lieu of a biolog ical assessment for the pr oposed action and is titled “ Ecological Risk Assessment for the Section 3 New Use Regist ration of Diphacinone for use on Black Tailed Prairie Dogs” (USEPA 2012a). The Kaput ® -D Assessment did not provide species or critical

habitat effects determinations when submitted to the Service. In 2010, the EPA initiated formal

consultation with the Service on a similar an ticoagulant rodenticide [chlorophacinone; trade

name Rozol ® Prairie Dog Bait (Rozol ® )(USEPA 2010a)] and subsequen tly the Service issued a final biological opinion (“Final Biological Opinion for Rozol ® Use on Black-tailed Prairie Dogs Registered under Section 3 of the Federal Insec ticide, Fungicide and R odenticide Act”) on April 9, 2012 (USFWS 2012a). During the informal consultation process on Kaput ® -D, the EPA and Service came to the agreement that the manner in which Kaput ® -D is used and where it is used

is identical to that of Rozol ® . The area of potential use (w ithin the range of the BTPD), application methods, and the use season (October 1 to March 15) are identical. In addition, the exposure pathway in which listed species and/or n on-target species may be exposed to the grain

baits are also identical. The onl y apparent difference between the two products is the toxicity of the two active ingredients (diph acinone vs. chlorophacinone). Af ter discussions with the EPA, it was determined that the proposed action may affect the same listed species and critical habitats described in the Rozol® Biological Assessment (Rozol® Asse ssment) (‘Nation-wide3 Effects Determination for Chlorophacinone Relati ve to the Use of Rozol® Prairie Dog Bait,” USEPA 2010a), pending any new listings or status changes in existing listings.

Because of the similarity of the proposed action to the EPA’s registration of Rozol®, we have relied upon information in both the EPA’s Rozol® Assessment and the Service’s biological opinion for Rozol® in our curr ent analysis. In the Rozol ® Assessment, the EPA made adverse effects determinations for 21 federally listed sp ecies and adverse modification determinations for 7 critical habitat designations. After Serv ice review, we found that the California condor ( Gymnogyps californianus ), the Sonora tiger salamander ( Ambystoma tigrinum stebbinsi ), the Salt Creek tiger beetle ( Cicindela nevadica lincolniana ), and the Salt Creek tiger beetle critical habitat do not overlap with the curren t range of the proposed use of Kaput ® -D on BTPDs. Since the completion of the Rozol ® Assessment, critical habitat fo r the Chiricahua leopard frog [ Lithobates (Rana) chiricahuensis ] has been designated (USFWS 2012b) and gray wolves in the Northern Rocky Mountain Distinct Populat ion Segment (DPS) USFWS 2011a, USFWS 2012c) and the Western Great Lakes DPS (USFWS 2011b) have been delisted. This delisting also included gray wolf critical habitat in Michigan and Minnesota. Subsequently, the analysis in this BO addresses 18 listed species and 7 designated critical habitats (Table 1).4 Table 1. Federally listed species and criti cal habitats analyzed within this BO.

Common Name Scientific Name Federal Status Critical Habitat Designated/Analyzed?

1 American Burying

Beetle Nicrophorus

americanus Endangered Not Designated

2 Black-capped Vireo Vireo atricapilla Endangered Not Designated

3 Black-footed Ferret Mustela nigripes Endangered,

Nonessential Experimental (Portions of AZ,

CO, MT, SD, UT, and WY) Not Designated

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

5 Chiricahua Leopard Frog Lithobates [ Rana ]

chiricahuensis Threatened Designated/Analyzed

6 Eskimo Curlew Numenius borealis Endangered Not Designated

7 Golden-checked

Warbler Dendroica chrysoparia Endangered Not Designated

8 Gray Wolf Canis lupus Endangered,

Nonessential Experimental (WY, AZ, NM) Not Designated

9 Grizzly Bear Ursus arctos

horribilis Threatened Not Designated

10 Gulf Coast Jaguarundi Herpailurus (= Felis ) yagouaroundi

cacomitli Endangered Not Designated

11 Jaguar Panthera onca Endangered Not Designated

12 Mexican Spotted

Owl Strix occidentalis

lucida Threatened Designated/Analyzed

13 New Mexican Ridgenosed rattlesnake Crotalus willardi

obscurus Threatened Designated/Analyzed

14 Northern Aplomado

Falcon Falco femoralis septentrionalis Endangered,

Nonessential Experimental (NM) Not Designated

15 Ocelot Lepardus pardalis Endangered Not Designated

16 Piping Plover Charadrius melodus Threatened Designated/Analyzed

17 Preble’s Meadow Jumping Mouse Zapus hudsonius preblei Threatened Designated/Analyzed

18 Whooping Crane Grus americana Endangered Designated/Analyzed5 

### III. CONSULTATION HISTORY

The background information below includes activiti es/actions that occurred leading up to the

current consultation and issuance of this BO.



### Date Activity

2006/2007 Kaput ® -D is registered under Sectio n 24(c), Special Local Needs, under the FIFRA for use on black-tailed prairie dogs in Colorado, Kansas, Nebraska, Texas and Wyoming.

December 21, 2007 Service provides a letter to the EPA asking to disapprove the Section 24(c) Special Local Needs registration for use of Kaput ® -D Prairie Dog Bait for control of black-tai led prairie dogs (USFWS 2007a).

May 21, 2008 Scimetrics applies for an amendment to add BTPDs to the Section 3 registration of EPA Regi stration No. 72500-11 (Kaput ® Field Rodent Bait B) (USEPA 2012b).

September 8, 2009 Service provides a letter to the EPA asking that the agency not issue the FIFRA Section 3 registration for Kaput ® for use on BTPDs until the EPA completes a formal consul tation on the rodenticide with the Service (USFWS 2009a).

September 23, 2009 EPA publishes in the Federal Regist er a Notice of Receipt of the amendment to add BTPDs to the Kaput ® Field Rodent Bait B label (USEPA 2012b).

September 23, 2009 Defenders Of Wildlife (DOW) and Audubon Of Kansas (AOK) file a complaint in the U.S. District Court of Columbia (USDC) alleging among other things that the EPA failed to conduct ESA Section 7 consultation for the use of Kaput ® on BTPDs (DOW and AOK 2009b).

November 12, 2009 Service provides a letter to th e EPA recommending that the EPA disapprove the application by Scim etrics to add BTPD to the pesticide label for Kaput ® Field Rodent Bait B. The letter describes concerns for potential impacts to non-target wildlife protected under the ESA, Bald and Golden Eagle Protection Act, and the Migratory Bird Treaty Act (MBTA). At the time, BTPD was being reviewed for Federal listing (USFWS 2009b).

June 14, 2011 USDC issues a ruling on the DOW and AOK litigation against the EPA (USDC 2011). The Court ruled against the groups on some points but found that ESA Section 7 consultation must be completed.

February 27, 2012 Scimetrics submits an application for a new product, Kaput ® -D Prairie Dog Bait to control BTPDs. This application was intended to replace the application to amend the label of Kaput ® Field Rodent Bait B to include use on BTPDs (USEPA 2012b). May 30, 2012 EPA and Service discuss the upcoming registration of Kaput ® -D.

October 25, 2012 EPA submits a letter to the Service requesting formal ESA Section 7 consultation on Kaput ® -D use on BTPDs (USEPA 2012a).6 

### IV. DESCRIPTION OF THE ACTION

The proposed action by the EPA is the administrati on of the FIFRA Section 3 registration of the single product label for Kaput ® -D (Registration No. 72500-22). Kaput ® -D is manufactured by Scimetrics as loose-grain bait used to poison BTPDs in the 10 western States of Colorado, Kansas, Montana, Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas, and Wyoming.

All 10 States listed on the October 25, 2012, Kaput ® -D label (see Appendix) are considered herein. The EPA’s goal for reasse ssing registered pesticide active ingredients is to do so every 15 years. Given the EPA’s timeframe for pe sticide registration reviews, the Service’s evaluation of the proposed act ion is also for 15 years.

Scimetrics, the applicant for the Kaput ® -D registration, has agreed to abide by the Conservation Measures, Reasonable and Prudent Measures an d Terms and Conditions that were identified and incorporated into the Rozol ® Assessment (USEPA 2010a), and as a result, the EPA has incorporated these measures (Conservation Meas ures, described below) as part of their proposed action. The action area and items releva nt to use of the product, as directed by its label, were described in the EPA formal cons ultation initiation package (USEPA 2012a) and incorporated herein. Additionally, information regarding direct and indirect effects of the proposed action and potential exposure routes to fede rally listed species, as well as a review of the EPA’s Kaput ® -D Assessment, is provided in this BO. This information provides the context in which the subsequent individual species analyses were conducted.



### A. CONSERVATION MEASURES

Conservation measures are commitments by the EPA to avoid or minimize adverse impacts to federally threatened and endangered species and thei r associated critical habitats and as such are part of the proposed action that is analyzed in the effects analysis in this BO. These conservation measures were identified by the Service and agreed upon by the EPA and registrant during the formal consultation process for Rozol ® Prairie Dog Bait. Since Rozol ® and Kaput ® -D are similar products with similar m odes of action and toxicity, the EPA asked Scimetrics to incorporate the same conservation measures, as well as the reasonable and prudent measures, and terms and conditions from the Rozol ® BO (collectively referred to as conservation measures herein) as pa rt of their registration for Kaput ® -D. Scimetrics agreed to include all of the proposed conservation meas ures (Scimetrics 2012). The species-specific conservation measures 1-9 will be included online as part of the EPA’s Endangered Species Protection Bulletins (see: Bulletins Live! at http://www.epa.gov/espp/bulletins.htm ). Measures

identified on the EPA’s Bulletins Live! are considered an ex tension of the Kaput ® -D label thereby legally requiring applicators to adhere to them. Maps of each of the areas where Kaput ® -D use will not be allowed or will be rest ricted, along with any associated relevant

information will be included in the EPA’s Bulletins Live! database. Label requirements will make clear that Kaput ® -D use in these areas is restricted or prohibited. Noncompliance with

these bulletins or the label would be a violation of the FIFRA.7 

### Species-Specific Conservation Measures

The following species-specific conservation meas ures are intended to avoid, reduce, and/or minimize the effects of the action on listed spec ies and designated critical habitat. The

conservation measures address one or more of th e following: 1) temporal or geographic overlap of listed species and BTPD populations, 2) primar y exposure (i.e., direct consumption of bait), and 3) secondary exposure 1 (i.e., predation and/or scave nging of other animals that have consumed bait).

1. Black-footed Ferret Conservation Measure

 Prohibit application of Kaput ® -D within current black-footed ferret reintroduction sites (13 sites) and future reintroduction areas to reduce the level of impact to the blackfooted ferret. The locations will be made available via the EPA’s Bulletins Live! website. In addition, the EPA shall modify the EPA Bulletins Live! website to include

the location of wild extant bl ack-footed ferret populat ions if discovered in the future and prohibit the application of Kaput ® -D within those populations.

 If an applicator or the EPA becomes aware that a black-footed ferre t is known to occupy a BTPD colony outside of a reintroduction area, Kaput ® -D cannot be used on that colony until the individual or individuals have been relocated. The EPA will ensure that if a previously unknown wild black-footed ferret populat ion is discovered, Kaput ® -D will not be used on that population.

 In the event that live/dead black-footed fe rrets are found outside reintroduction sites, before, during, or after Kaput ® -D application, the Black-foote d Ferret Coordinator must be contacted immediately at (970) 897-2730, extension 224. Sufficient time must be allowed to capture and relocate black-footed ferrets before Kaput ® -D application.

Additional contact information for the Black-f ooted Ferret Coordina tor is provided in

the Incidental Take Statement section “ Disposition of federa lly listed species .”

2. Chiricahua Leopard Frog Conservation Measure

 Prohibit application of Kaput ® -D within the five southwes tern New Mexico counties of Catron, Grant, Hidalgo, Sierra, and Socorro to avoid impacts to the Chiricahua leopard frog and its critical habitat.

3. Grizzly Bear Conservation Measure

 Delay application of Kaput ® -D in the State of Montana by 2 months until December 1, and shorten the application period in the sp ring by 2 weeks to end by March 1, in areas where the range of the grizzly bear overlaps with the range of th e BTPD to reduce the risk of impacts to the grizzly bear.

1 These measures may also address some instances of tertiary exposure, where non

‐ target animals consume

other animals that have preyed or scavenged on animals that have consumed bait.8  The areas in Montana where the timing delay applies includes all, or portions of, the following counties: Carbon Count y; Stillwater County south of I-90; Sweetgrass County south of I-90; Park County south of I-90; Gallatin County sout h of I-90; Madison County; Powell County; Lewis and Clark County; Cascade County; Teton County; Pondera County; Glacier County; and Toole County.

4. Jaguar Conservation Measure

 Prohibit application of Kaput ® -D within the southwestern New Mexico County of Hidalgo to reduce the risk of impacts to the jaguar.

5. New Mexico Ridge-nosed Rattlesnake Conservation Measure

 Prohibit application of Kaput ® -D within the southwestern New Mexico county of Hidalgo to avoid impacts to the New Mexico ridge-nosed rattlesnake and its designated

critical habitat.

6. Mexican Gray Wolf Conservation Measure

 Prohibit application of Kaput ® -D within the four southwes tern New Mexico counties of Catron, Grant, Hidalgo, and Sierra to reduce the risk of impacts to the Mexican gray

wolf within the Blue Ra nge Wolf Recovery Area.

7. Mexican Spotted Owl Conservation Measure

 Prohibit application of Kaput ® -D within the five southwes tern New Mexico Counties of Catron, Grant, Hidalgo, Sierra, and Socorro to reduce the risk of impacts to the Mexican spotted owl and its designated critical habitat.

8. Preble’s Meadow Jumping Mouse Conservation Measure

 Delay application of Kaput ® -D in the fall by 1 month, until November 1, in areas where the range of the Preble’s meadow jumping mouse overlaps with th e range of the BTPD

to reduce the risk of im pacts to the Preble’s meadow jumping mouse.

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

9. Northern Aplomado Falcon Conservation Measure

 Within the range of the northern aplomado falcon, the EPA shall maintain its County Bulletin ( Bulletins Live! ) website so that a current listi ng of counties with habitat for northern aplomado falcons is available to th e public for educational purposes. The EPA shall include the following language in the EPA’s County Bulletins ( Bulletins Live! ) for

counties with falcon habitat to increas e landowner awareness in these areas:9 Prairie dog colonies in this county may be occupied by the federally endangered northern aplomado falcon. Kaput ® -D application may be harmful to the northern aplomado falcon. Please contact the U.S. Fish and Wildlife Service in
New Mexico at 505-346-2525, and in Texa s at 817-277-1100 to find out where northern aplomado falcons occur in the county before application.

 Prior to Kaput ® -D application in the range of the northern aplomado falcon, the EPA shall inform public users about the risks of Kaput ® -D to non-target organisms, such as the northern aplomado falcon and its prey, a nd how risks can be minimized. The EPA shall include content on the risks of Kaput ® -D on its Endangered Species Protection Program website. This information will be developed in coordination with the Service, and will be in a format that can be printe d as a hand-out for distribution to landowners with suitable habitat for the northern aplo mado falcon. This information will also be electronically provided to st ates that include the north ern aplomado falcon range for their use and dissemination during ce rtified applicator training.



### Non-Species-Specific Conservation Measures

1. The Kaput ® -D label will explicitly state that pe sticide applicators are responsible for ensuring that carcass searches are performed in accordance with the label requirements.

 Label requirements for carcass search es include the following language:

“Carcass searches must be performed us ing a line-transect met hod that completely

covers the baited area. Deta iled guidance on how to conduct a line-transect search is available online at [EPA website]. Transect center lines must be no more than 200 feet (about 60 meters) apart, and should be consid erably less if searches are conducted in more densely vegetated sites. Transect lines may be traveled on foot or by vehicle at a rate not to exceed 4 mph. All dead or dyi ng non-target animals must be reported to the National Pesticide Information Center 1-800-858-7378 as soon as possible. Any apparently injured or sick Federally listed sp ecies must also be i mmediately reported by calling 303 –236 - 7540 (if located in Kans as, Nebraska, the Dakotas, Montana, Colorado, or Wyoming) or 505 –248-7889 (if located in Texas, New Mexico or Oklahoma). The Black-footed Ferret Coordinat or must also be contacted if ferrets are found during Rozol ® Prairie Dog Bait applications or carcass searches at 970-897-2730

x 224.”

2. The EPA shall ensure that the best available information is applied to the Kaput ® -D label in

the future.

 If information becomes available on more effective methods for search and removal protocols than the line-trans ect protocol specified on the label (described above), the EPA shall incorporate the best available information on the Kaput ® -D label to reduce the availability of Kaput ® -D -poisoned target and non-targ et animals on the surface after coordinating with the Service.10 3. The EPA shall ensure that proper information regarding listed species and secondary poisoning risks is provided to Kaput ® -D users.

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

materials to be used relative to the co nservation measures (below) for the EPA’s additional training during a nnual pesticide applicator r ecertification programs and Scimetrics’ Kaput ® -D Prairie Dog Bait Product Stewar dship Program. At a minimum, the training materials shall in clude (in addition to the information provided below) a description of the liste d species and their habitats; the ge neral provisions of the ESA; the necessity for adhering to the provisions of the ESA; the penalties associated with violating the provisions of the ESA; the specific measures that are being implemented to use Kaput ® -D in a manner compatible with the conservation of listed species; and the boundaries in which Kaput ® -D can be lawfully applied.

 The EPA and Scimetrics shall provide the Se rvice with the opport unity to attend and participate in any education, outreach, and training sessions conducted as part of the EPA’s efforts relative to the annual pestic ide applicator recertification program and Scimetrics’ Kaput ® -D Prairie Dog Bait Product Stewardship Program.

4. EPA, in coordination with the Service and Sc imetrics, will develop website content intended to achieve the following:

a. Provide information on the importance of limiting the availabili ty of dead and dying target and non-target wildlife in order to protect the listed species of concern;

b. Describe the improved carcass search methods described in this Conservation Measure; and

c. Include the website link as part of the Kaput ® -D Prairie Dog Bait label once it is developed.

5. EPA will work with the State Lead Agencies to incorporate training sessions on secondary poisoning at their annual pesticide applicator recertification programs. The training will educate applicators on the meaning of s econdary toxicity, the hazards of Kaput ® -D, the basis for the carcass search requirements and ot her associated label restrictions and the importance of minimizing risk to non-target species. EPA sta ff may participate directly in these training sessions, through webinars, by helping to arrange for other knowledgeable persons to give presentations, or through a combination of each.

6. As a condition of registration, Scimetrics will maintain a stewardship program using the

framework as described below:11 SCIMETRICS KAPUT ® -D PRAIRIE DOG BAIT PRODUCT STEWARDSHIP

PROGRAM

PURPOSE

The Scimetrics Kaput ® -D Prairie Dog Bait Product Stew ardship Program is a commitment by Scimetrics to provide education and outreach materials and training to Kaput ® -D Prairie Dog Bait users (e.g., certified ap plicators and landow ners) on carcass search and survey methods described on the Kaput ® -D Prairie Dog Bait label. Th e purpose of this program is

to result in minimized take to the affected listed species of con cern via reduction in the incidence of secondary poisoning.

REQUIREMENTS

a. On its Kaput ® -D Prairie Dog Bait product website, Scimetrics will include a link to EPA’s Kaput ® -D Prairie Dog Bait bulletins, wh ich provide geographically-based prohibitions on Kaput ® -D Prairie Dog Bait use intended to protect listed spec ies of concern.

b. Scimetrics will provide yearly training sessions to pesticide applicators in each of the 10 States where Kaput ® -D Prairie Dog Bait will be register ed. Scimetrics will provide these training sessions prior to the 2013 Kaput ® -D Prairie Dog Bait use season. The training sessions will include information on proper dosing for Kaput ® -D Prairie Dog Bait, presentation of the carcass s earch and line transect survey methods listed on the Kaput ® -D Prairie Dog Bait label, and education on th e meaning of secondary toxicity and the importance of minimizing secondary exposure to non-target species.

c. Once EPA, the Service, and Scimetrics have developed website content, Scimetrics will include a link to EPA’s website on its Kaput ® -D Prairie Dog Bait product website. In addition, Scimetrics will deve lop and distribute a brochure with information from the

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

7. The EPA, in cooperation with Scimetrics sh all develop and maintain a system to track Kaput ® -D produced for BTPD control and report to the Service the amounts distributed in

each of the 10 states.

 Scimetrics and the EPA will provide informa tion to the Service regarding the amount of Kaput ® -D produced for BTPD control and the gro ss distribution per state for a period of 5 years. When Scimetrics and EPA provide such information to the Service, it will be marked, if appropriate, as Confidential Bu siness or Commercial Information. After 5 years, the EPA, Scimetrics, and the Serv ice will determine the need for continued reporting. The decision of whether to con tinue this reporting will be based upon the confidence that the available information pr ovides the Service with an acceptable understanding of Kaput ® -D sales for future projection over the course of the BO for the12 registration of Kaput ® -D. The factors that may be consid ered shall includ e (but shall not be limited to):

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

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

 For example, if the data suggest th at the sales trend has reached some asymptote, the continuation of add itional reporting may be unnecessary as the market has matured (other factor s may be considered in this event). If the sales trend shows a logarithmi c increase in sales, there may be a need to continue reporting to determin e if this trend estimate is accurate.

If the trend line shows a stable linear growth, the registrant my elect to terminate or continue reporting with the understanding that the trend line information up to that point would se rve as the predictor of sales and

treated acres for the remainder of the registration decision.



### B. KAPUT-D PRAIRIE DO G BAIT REGISTERED USE

The diphacinone concentration in Kaput ® -D is 0.005 percent (mg a.i. /kg-bait). According to Kaput ® -D label instructions (Appendix) , the product is to be applie d by certified applicators to BTPD colonies in rangelands and adjacent non -crop areas by inserting 1⁄4 cup (56 grams, approximately 2 ounces) by hand or by mechanical bait application machine at least 6 inches into active prairie dog burrows only between Oc tober 1 and March 15 of the following year, except as modified by the timing restrictions de scribed previously in the species-specific conservation measures sections above, when the prairie dogs most readil y consume grain bait. Any bait spilled above ground or pla ced less than 6 inches into the burrow is to be retrieved and disposed of by the applicator. When using a m echanical bait application machine, the machine should be designed, constructed a nd operated in a manner that ensu res bait is properly placed at least 6 inches down prairie dog burrows. Mech anical bait applicati on machines must be

calibrated to ensure that the proper amount of bait is dispen sed into each prairie dog burrow. Kaput ® -D should not be used with any other antico agulant prairie dog bait. For each treatment area, only one anticoagulant rodenticide active ingredient (currently, diphacinone or chlorophacinone) may be used per treatment period.

Prairie dogs that have eaten the ba it will begin to die off 4 to 5 da ys after the first treatment. The label indicates that the applicator must return to the site within 4 days after bait application and at 1- to 2-day intervals fo r a minimum of two weeks (longe r if carcasses are still being found) to collect and properly dispose of any ba it or dead or dying prairie dogs found at the

surface. Carcass collection shoul d occur in late afternoon, near sundown, to reduce the potential of nocturnal animals finding carcasses and dyi ng animals. All carcasses found above ground must be collected and disposed of properly. Ca rcasses should be buried on site in holes dug at least 18 inches deep or in in active burrows (no longer being used by prairie dogs or other species) to avoid non-target animal scavenging. Burial includes covering and packing the hole or burrow with soil. If burial is not practical (due to frozen ground, et c.) and other disposal13 methods are allowed by state and local authoritie s, collected carcasses may be disposed of by

other methods to insure that the carcasses are inaccessible to scavengers . A second application may be made if prairie dog ac tivity persists several weeks or months after the initial bait application.

Carcass searches must be performed using a li ne-transect method that completely covers the

baited area. Transect center lines must be not more than 200 feet (about 60 meters) apart, and should be considerably less if sear ches are conducted in more dens ely vegetated sites. Transect lines may be traveled on foot or by vehicle at a rate not to exceed 4 mph. All dead or dying non-target animals must be reported to the Na tional Pesticide Information Center (1-800-858- 7378) as soon as possible. Any apparently injured or sick federally listed species must also be immediately reported by calling 303-236-7540 (if lo cated in Kansas, Nebraska, the Dakotas, Montana, Colorado or Wyoming) or 505-248-7 889 (if located in Texas, New Mexico or Oklahoma). The Black-Footed Ferret Coordinator mu st also be contacted if black-footed ferrets are found during Kaput ® -D Prairie Dog Bait applications or carcass searches at 970-897-2730

x224. If live black-footed ferrets are found outside reintroduction s ites, before, during or after Kaput ® -D Prairie Dog Bait applicati on, the Black-Footed Ferret Coordinator must be contacted immediately and sufficient time must be allowe d for the Service to capture and relocate the black-footed ferret(s) before applying Kaput ® -D Prairie Dog Bait.



### C. ACTION AREA

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

identified the action area as follows:

“ For this assessment, BTPD range within the states of Colorado, Kansas, Montana,
Nebraska, New Mexico, North Dakota, Oklahoma, South Dakota, Texas and Wyoming and counties adjacent to this range is consider ed to be the action area. The action area considered for direct effects includes the BTPD range within the 10 states listed above as well as counties adjacent to this range. The action area considered for indirect effects includes only the BTPD range w ith the 10 states listed above and does not include counties adjacent to this range. This distincti on was made because indirect effects are not expected to extend beyond th e use area. However, direct effects may extend beyond the use area due to exposure to individuals or vi a prey items with diphacinone residues that could be fo und outside of thei r described range.

It is important to note that the historic range-wide action ar eas do not imply that direct and/or indirect effects and/or critical habita t modification are expected or are likely to occur over the full extent of the action are a, but rather to identify all areas that may potentially be affected by the action. The Agency uses more rigor ous analysis including consideration of available land cover data, toxicity data, and exposure information to determine areas where listed species and their designated critical habitats may be affected or modified via endpoints associated with reduced survival, growth, or reproduction.”14 In the Rozol ® Assessment (USEPA 2010a), the EPA provide d a map of the historic BTPD range from NatureServe (reproduced below in Figure 1) as an indicator of the action area and described as the “footprint” or “initial area of concern” which covers all habitats within the historic BTPD range. Range maps available on the Service’s website (http://www.fws.gov/endangered) for federally listed species and/or their critical habitats were overlaid by the EPA on that historic BTPD map to determine any overlap which was used in the

EPA’s Rozol ® Assessment (USEPA 2010a) to inform “May Affect” determinations for federally threatened or endangere d species and their critical hab itats. As the EPA recognized in

the Rozol ® Assessment (USEPA 2010a), the histor ic range map of the BTPD does not necessarily include the entire “Effects Determina tion Area” and additional data were used as appropriate to determine effects to species and cr itical habitats. The cu rrent range of the BTPD has contracted from its historic range so, in some areas, the species’ current overlap with federally listed species has been reduced (USF WS 2009c). This consultation addresses Kaput ®

- D use within the 10 States identified in the October 25, 2012, Kaput ® -D label (Appendix). Additionally, some of the cons ervation measures listed above further amend the EPA’s action area by precluding Kaput ® -D use in some areas. For the purpo ses of this consultation, and in accordance with the definition of “action area” pr ovided above, the Service agrees with the

EPA’s broad action area.15 Figure 1. The historic range of the BTPD by NatureServe as presented in the EPA’s

Rozol ® Assessment (USEPA 2010a).

Area of Concern for use of Kaput-D ® Prairie Dog Bait16 

### V. GENERAL BACKGROUND AN D EFFECTS OF THE ACTION

RELEVANT TO ALL SPEC IES IN CONSULTATION

The BTPD is considered a keyst one species that has a unique a nd substantial influence on plant

and animal communities and is critical to the in tegrity of grassland ecosystems (Kotliar et al. 2006). The habitat they create is associated with more than 1 50 species of amphibians, birds, mammals, plants, and reptiles as well as spec ies federally listed fo r protection under the ESA (Kotliar et al. 2006). In west ern South Dakota, 40 percent of all wildlife (represented by 134 vertebrate species) is associated with BTPD colonies (Sharps a nd Uresk 1990). The presence of mountain plovers ( Charadrius montanus ) and burrowing owls ( Athene cunicularia ), two species of conservation concern (USFWS 2008a), is also considerably higher on BTPD colonies than grassland habitats without prairi e dogs in eastern Colorado (Tip ton et al. 2008). When prairie dog towns are poisoned, many other species are likely to be pois oned as well or be negatively affected by loss of prairie dog habitat or the sp ecies associated with that habitat. Loss of seasonal habitat for bird species may be of speci al concern. The number of bird species present in the summer was significantly higher on prairi e dog towns than paired sites without prairie dog towns (Smith and Lomolino 2004). Burrowing owls, killdeer ( Charadrius vociferous ), horned larks ( Eremophila alpestris ), and western meadowlarks ( Sturnella neglecta ) are positively and significantly associated with prairie dog towns during summer, while horned larks and ferruginous hawks ( Buteo regalis ) are significantly associat ed with prairie dog towns during fall (Smith and Lomolino 2004). Species’ declines from the reduction of prairie dog habitat can result in cascading effects through the grassland ecosystem that extend beyond the poisoned prairie dog towns.

The toxicity and exposure profile for Kaput ® -D is similar to that of the chlorophacinone-based

bait Rozol ® (USEPA 2012a). Because of this, we rely on data for both chemicals to inform this analysis, especially concerning fi eld studies and incident report s, where more data exist for

Rozol ® due to its longer history of use on BTPDs. As stated above, only one anticoagulant

rodenticide is authorized for use for each season (i.e., users may apply either Kaput ® -D or

Rozol ® , but not both to a BTPD town) so the magnitude of species’ exposure is not expected to

increase as a result of the registration of Kaput ® -D.

A. INDANDIONE MODE OF ACTION AND TOXICITY

Diphacinone, the active ingredient in Kaput ® -D, is an anticoagulant chemical and, along with chlorophacinone, belongs to the indandione class of compounds. Chlorophacinone and diphacinone are the only indandione rodenticides currently registered for use in the United States under FIFRA, and the onl y two anticoagulant rodenticides currently registered for use on BTPDs. Indandiones depress live r synthesis of vitamin K-depende nt blood-clotting factors and increase permeability of capillaries throughout the body, resulting in systemic internal hemorrhaging (Reigart and Roberts 1999). Un like the coumarin class of anticoagulant compounds (e.g., warfarin, brodifaco um, difenacoum), indandiones can cause neurologic and cardiopulmonary injury leading to death before hemorrhage occurs (Reigart and Roberts 1999, Hazardous Substances Data Bank 2003). Indand iones also uncouple oxidative phosphorylation (energy generation) which may result in fatigue and restlessness (Van Den Berg and Nauta17 1975, Bryson 1996). Clinical effect s typically do not occur until several days after ingestion due to the persistence of blood-clotting factors. In humans, clinical eff ects include anemia (red blood cell deficiency), fatigue, dy spnea (breathlessness), nosebl eeds, bleeding gums, hematuria (blood in the urine), melena (darkened feces asso ciated with gastrointestinal bleeding), and extensive ecchymosis (large bruise s) (Reigart and Roberts 1999).

Indandiones are first generation anti coagulant rodenticides that are most toxic when animals are exposed to daily doses for multiple days (Vyas an d Rattner 2012). A dietar y toxicity test that provided a measured diphacinone-treated diet for daily consumption by eastern screech-owls ( Megascops asio ) found that repeated low-dosage exposur e over 7 days increased diphacinone toxicity by more than an order of magnitude compared to an acute oral toxicity test (Rattner et al. 2012, Vyas and Rattner 2012). Thus, the single dose LD 50 test, which was developed to evaluate rodenticides causing acute responses such as zinc phosphide, is not an appropriate test for evaluating toxicity for first generation antic oagulants such as diphaci none that have their greatest toxicity from repeated da ily exposures. We believe that acu te standardized toxicity test results for diphacinone greatly underestimates ri sk to non-target species because indandiones are much more lethal when multiple doses are consumed over multiple days as opposed to a single feeding.

Laboratory data for diphacinone exposure to BTPD s are not available at this time, so speciesspecific values for LD50s, residues in tissue, time to onset of symptoms, and time to death are unavailable. Time-to-death can vary both in ter- and intra-specifically, which individuals documented to survive up to 18 days af ter exposure to diphacinone (black rats, Rattus rattus; Swift 1998). BTPDs that were exposed to chloro phacinone exhibited much variability in their susceptibility to mortality and time to death, a nd most were symptomatic for at least 24 hours before death (Yoder 2008). BTPD signs from chlorophacinone exposure (e.g., loss of attentiveness, lethargy, sw ollen or closed eyes) were similar to those reported for individuals of other species exposed to diphacinon e (Swift 1998, Yoder 2008, USEPA 2012a).

B. DIPHACINONE ENVIRONMENTAL FATE

The number of days for diphacinone to degrade by 50 percent (half-life) has been reported by laboratory studies that evaluate degradation by soil and water. The half-life of diphacinone incorporated into sandy loam soil averaged 30 days in the single soil study available (USEPA 2012a). In water, the half- life of diphacinone was 44 days at pH 5, and remained relatively stable against simple hydrolysis at pH 7 and 9; thus, breakdown by exposure to water is not expected to be an importa nt degradation process.

Persistence of rodenticide bait fo llowing application to the envir onment can be highly variable and influenced by factors such as temperatur e, weather, density of target and nontarget consumers, and caching (Golden et al. 2011). A small number of controlled studies have evaluated the field persistence of diphacinone and chlorophacinone roden ticide baits. A study

that tested weather resistan ce of various pellets found that Ramik-brown pellets (0.005% diphacinone) showed good weather resistance (Merson and Byers 1985). Though efficacy of diphacinone was not tested after wet weather ex posure, no difference in efficacy between wet and dry Rozol ® pellets (0.005 % chlorophacinone) wa s found (Merson and Byers 1985). A18 supplemental terrestrial field dissipation study re ported no dissipation of chlorophacinone in

Rozol ® prairie dog bait samples for up to 10 days and actually found concentrations increased over this time period, perhaps as a result of insect consumption of the internal part of the grain or changes to bait water content (Jones, pers. comm. 2011). In this study, the ability to evaluate dissipation of chlorophacinone on grain samples was hampered by consumption of the grain, and it was concluded that the primary route of dissipation of chlo rophacinone is through consumption of the treated grain (Jones, pers. comm. 2011).

Based on the information above, we agree with the EPA’s assumption that the mobility from

bait into soil or water is c onsidered a negligible exposure pathway to non-target organisms (USEPA 2012a). We assume diphacinone remain s undegraded in bait af ter applications and share the EPA’s assumption that the only relevant dissipation of Kaput ® -D occurs through its consumption.

C. KAPUT ® -D EXPOSURE AND EFFECTS ASSESSMENT

1. Primary Exposure

Direct ingestion of Kaput ® -D (primary exposure) by non-target species can be expected for species that feed on grain. Although the label re quirement to place bait “six inches in the burrow” is designed to limit exposure to grani vorous birds, it does not preclude exposure to avian or other non-target species that may use BTPD holes. A field study was performed to evaluate nontarget exposure to the chlorophacinone bait Rozol ® , which is subject to identical application requirements a nd restrictions as Kaput ® -D in BTPD colonies (Vyas 2010a). In this study, bait was visible in many BTPD burrows that contained angled entr ances (as opposed to vertical entrances), and horned la rks appeared to be preferentially drawn to these burrows where they could easily feed on bait (Vyas 2010a). The presence of green-stained droppings, indicative of exposure to Rozol ® bait which contains a green dye thereby making product appear green, was observed and susp ected to be from pheasants ( Phasianus colchicus ), horned larks, and western meadowlarks. Green dr oppings from these birds suggest they were consuming bait; an assumption subsequently confirmed by detecti on of chlorophacinone residues in these droppings (Vyas et al. in press ).

In addition to feeding on bait within the burrow, non-target species ma y also feed on bait found on the surface. Bait spilled by a pplicators or not entirely placed in burrows can be difficult and time consuming to collect. Further, bait that is placed in burrows can be brought back to the surface of a colony over time by the action of pr airie dogs and other animals using the burrow system (Vyas 2010a). We currently lack informa tion concerning applicator willingness to cease operations and collect misplaced bait or return to the colony days to weeks later to collect and dispose of bait found on the surface. Absent that information, it appears that bait retrieval from the surface of a prairie dog colony, days to w eeks post application, could be an unrealistic expectation of the label. Thus, even if applicators attempted to follow label instructions regarding retrieval and disposal of bait at the time of application, the size of bait and landscapes where it is used brings up the practicality of adhering to that label re quirement. We are aware of one field study that found bait on the surface (Vyas 2010a) and have no information from19 anywhere else that indicate s applicators are collecting a nd disposing of bait found above ground.

Furthermore, bait applied to a colony may ex ceed the amount necessary to successfully poison prairie dogs, increasing availabil ity to non-target species. On average, there are 3.9 active burrow entrances for each BTPD (Biggins et al. 2006). If each entrance is baited, the amount of bait applied will exceed the amount needed to poison each prairie dog by several times. If inactive burrows are mistakenly baited, then even further bait availabil ity to both target and non-target animals would occur. To illustrate the point, when Forgacs (2010) treated 1,358 burrows on a 15.7 acre prairie dog plot where they ha d a visual count of 30 prairie dogs, they applied 71,974 grams of Rozol ® (at least 13,580 lethal doses, US FWS 2012a) on a plot with an estimated population of 348 BTPDs using a scie ntifically accepted methodology to estimate prairie dog numbers from active burrows (Biggins et al. 2006). While that level of dosing likely ensures high lethality to prai rie dogs, it likely also contribut es to prairie dogs consuming multiple lethal doses as well as providing left -over bait to remain available for non-target species to consume after the prai rie dogs have been killed.

2. Secondary Exposure

Species that ingest animals that consume anticoa gulant rodenticides are al so at risk of being negatively affected, especially predators and scavengers that may gorge on poisoned prairie dogs and selectively feed on internal tissues (see “Prairie Dog Diphacinone Residues” section below) . Five of six domestic ferrets were killed after each ferret was fe d four chlorophacinonepoisoned BTPDs over 8 days (Fisher and Timm 1987). While no similar data exist for ferrets fed diphacinone-poisoned BTPDs, a preliminary study examined the effects to domestic ferrets fed diphacinone-poisoned Norway rats ( Rattus norvegicus , USEPA 2006). One of two ferrets fed rats poisoned with Kaput ® -D pocket gopher bait (50 ppm diph acinone) died. In the same study, two ferrets exposed secondarily to PC Q Pelleted Rodent Ba it (100 ppm diphacinone)

died. As described further in the “Field St udy Observations of Sec ondary Toxicity” section below, field observations indicate that the availability of BTPDs to secondary consumers is facilitated by prairie dogs spending time above ground after ingesting anticoagulant baits (USFWS 2007b, Golden and Gober 2010, Vyas 2010a). When subjected to poisoning, BTPDs can return to the surface of the colony, becoming increasingly debilitated until death. Prairie dogs in this debilitated state can be more susceptible to preda tion due to changes in behavior that render them more conspicuous and less wary and evasive in the presence of a predator (Hunt et al. 1992, Relyea and Hoverman 2006) . Avian predator hunting success increases dramatically when injured or abnormal prey are available (Rudebeck 1950), and scavengers, including some raptors, are a ttracted to easily obtained food sources, including poisoned prey (Chesser 1979, Vyas 1999, Vyas et al. 2003). Some avian predators such as ferruginous hawks are attracted to anticoag ulant-treated prairie dog colonies, lik ely due to the increased presence of moribund and dead prairie dogs and perhaps other non-target species (Vyas 2010a). Thus, even though anticoagulant-treated prairie dog col onies may make up only a small percentage of a predator’s overall foraging range, preferential selection of prey from these areas may lead to a disproportionate opportun ity for exposure.20 No studies have examined the longevity of moribund BTPDs on th e surface following application of Kaput ® -D. However, in studies performed for Rozol ® , exposed prairie dogs were

debilitated on the surface fo r at least a month following application (Vyas 2010a, Lee and Hygnstrom 2007). Thus, predators may continue to feed from the same poisoned prairie dog town for weeks or may encounter other poisone d prairie dog towns that were sequentially poisoned and are within th eir home range or migration path. As described earlier, lethality of diphacinone increases greatly with repeated expo sure. We assume that many of the effects

described in the above “Indandione Mode of Action and Toxicity” section including sub-lethal neurologic effects, cardiopulmonary effects, energy loss, and hemorrhaging could occur in federally listed species from chronic exposure and ultimately result in decreased growth, survival or reproductive effects.

The Kaput ® -D Assessment and previous risk asse ssments by the EPA (Erickson and Urban 2004) indicate that mammals are at a greater ri sk from secondary dipha cinone toxicity than birds; however, if sub-lethal effects are consider ed, then birds exposed in the field may be at equal or greater risk than mammals as the eff ects of anticoagulant rodenticide toxicosis can differ between mammal and avian species. For example, pulmonary hemorrhage is far more common in mammals than birds, but birds can have excessive external bleeding from minor superficial wounds, a condition not reported in ma mmals (Stone et al. 1999). Also, the first observed signs of secondary toxicity in ra ptors include fatigue such as wing-drooping (Radvanyi et al. 1988). For species such as ra ptors that rely upon speed and stamina to attain prey, fatigue induced from exposure to poisone d prey can result in decreased survival by impairing their ability to capture prey. Because of differences in pathologies, birds may be even more susceptible to chronic effects than mammals . Furthermore, some avian species may be just as susceptible as mammals or more susceptibl e when sub-lethal effects are considered in conjunction with other factors that influence exposure and cumulative effects to birds such as: a) body condition from migration; b) increased sus ceptibility to contact injury; c) environmental conditions such as weather extremes; and d) high energy demands in the winter.

3. Surface Presence of Poisoned Black-tailed Prairie Dogs

The greatest pathway for effects to listed sp ecies from the proposed action comes from the presence of moribund or dead animals found on the surface of a prairie dog colony as a result of Kaput ® -D poisoning. The Service is aw are of three studies that in form the issue of dead and dying prairie dogs on the colony surface followi ng application of the chlorophacinone bait

Rozol ® , although, no studies are available for Kaput ® -D. Two of three Rozol ® studies, repeatedly found dead and dying prairie dogs above ground on the surfa ce of the prairie dog colony during multiple return visits (Lee and Hygnstrom 2007, Vyas 2010a). The other study (Forgacs 2010) did not find prairie dogs on the surface but qualified that result noting that weather conditions deteriorated after the applic ation to the point that precipitation prevented researchers from even being able to return to some poisoned sites to se arch for prairie dogs. That study also noted that the inclement weat her, which began afte r the chlorophacinone application, may have contributed to decrea sed above-ground prairi e dog activity (Forgacs 2010).21 Instances of dead and dying prairie dogs f ound above-ground following application have also been reported to the Service’s Law Enfor cement Division (USFWS 2007b, Golden and Gober 2010). An excerpt below from an interview with a Rozol ® applicator after a bald eagle ( Haliaeetus leucocephalus ) poisoning incident in Nebraska il lustrates both the regularity that poisoned prairie dogs return to the surface and the altered state of awareness of poisoned prairie dogs (USFWS 2007b). REDACTED also explained that he knew poisoned prairie dogs often returned to the surface before dying, as evidenc ed by the bloody stools he often saw when he returned to inspect the sites. REDACTED further relayed an incident when the poison Rozol ®

had been applied to the prairie dog town, as per label instructions and the lady owning the property watched as poisoned prairie dogs stumbl ed around the surface fo r two weeks after the application . REDACTED added when he does see prairie dogs on the surface after they have been poison, they seem to be in a stupor, and not wary at all. REDACTED said he could often walk right up to these poisoned prai rie dogs and they would not run away. At the time this statement was provided to Law Enforcement Agents in 2007, the Rozol ® SLN label did not require collection of impaired or moribund prairi e dogs but rather just retrieval of carcasses found on the surface. Even though the current label requires collection and disposal of live prairie dogs, we have encountered applicators who indicate that this is not readily accomplished (see following section below). Given the instances of Service Law Enforcement agents finding moribund and dead prairie dogs on the surface after a Rozol ® application (Golden and Gober 2010) and applicators reporting prairie dogs on the colony surface following Rozol ®
applications (USFWS 2007b), we believe prairie dogs and other animals exposed to Kaput ® -D will also regularly return to the surface of a colony and be available to federally listed species, including the northern aplomado falcon and gray wo lf, resulting in a secondary exposure risk pathway for these species.

4. Removal of Poisoned Black-tailed Prairie Dogs

Although the Kaput ® -D label requires return vi sits to the colony to search for and remove dead and dying prairie dogs following application, the limited information on applicator behavior indicates that few, if any, moribund or dead pr airie dogs are collected and disposed of in a manner that substantially reduces secondary e xposure (USFWS 2010a, Tosh et al. 2011). This outcome may be due to the difficulty of finding prairie dogs on the surface as illustrated by Vyas (2010b) (click here for video) or because resources and commitments needed to make multiple return visits to a colony are not avai lable (USFWS 2010a). During a meeting in 2010 attended by the EPA and hosted by the North Da kota Department of Agriculture and Standing Rock Sioux Indian Reservation, ra nchers and professional pesticid e applicators indicated that they do not have the time, resour ces or inclination to conduct multip le return visits to treated prairie dog colonies to collect dead and dying pr airie dogs, and that labe l requirements for two return visits to treated prairie dog towns we re unrealistic and imprac tical (USFWS 2010a). These remarks were in response to an EPA inquiry to the attendees what they would think about increasing the required returns visits to a poi soned prairie dog colony from two times as required by the Rozol ® label in effect at that time (August 2010) to potentially many more visits. The EPA prefaced their inquiry to the ranche rs in attendance that additional return visits might be added to the label to address commen ts that the EPA received from environmental groups about dead and dying prairie dogs on th e surface of a colony. One of the meeting participants indicated that if the EPA needed to increase the number of return visits on the label22 to pacify environmental groups, it may not matter since that speaker did not believe there was rigorous adherence for two return visits to collec t prairie dogs; thus, requ iring even more return visits would likely meet a similar fate. The M ontana Department of Agriculture also questioned the practicality of the Rozol ® label, to which the Kaput ® -D label will be identical, especially the retrieval of live prairie dogs, and expressed thei r belief that most applicators will have difficulty

with strict adherence to the label (de Yong 2009). Of particul ar note from that North Dakota meeting was that none of the attendees had ever pi cked up and disposed of live prairie dogs or

their carcasses after a Rozol ® application. At the time of the meeting, Rozol ® had only been approved for use on prairie dogs for one seas on in North Dakota and South Dakota. Some attendees have since indicated that applicators did go back out to search per the label and did not find BTPDs on the surface, and surmised that above-ground BTPDs had been scavenged or died underground.

A recent on-farm survey on anticoagulant use in Northern Ireland found that applicators seldom followed best practice guidelines designed to ma ximize efficacy and reduce risk of non-target species exposure (Tosh et al. 2011 ). They found that applicators almost never searched for and removed poisoned carcasses and many baited for pr olonged periods or permanently. We are not aware of any similar anticoagulant use behavior studies conducted in the United States that would inform Kaput ® -D applicator use behavior. However, we suspect that challenges with label restrictions, especially re trieval of live prairie dogs and ca rcasses, is an issue given the amount of effort needed to accomplish this task and the few resources available to ensure compliance. We conclude that while most labe ls are difficult to enforce, the comparatively complex nature of the Rozol ® and Kaput ® -D labels render them pa rticularly vulnerable to noncompliance, and reports from users indicate that failure to pick up prairie dogs is a “widespread and commonly recognized practice,” a designation outlined in FIFRA as a means for determining registration eligibility. Quick searches that lack systematic protocols are expected to find fewer poisoned ca rcasses than those that include walking transects of specified width (e.g., Lee and Hygnstrom 2007, Vyas 2010a, Witmer et al. 1995). Furthermore, Vyas (2010a) observed dying BTPDs on his last search 29 days after a Rozol ® application. Thus, applicators that cease carcasse s searches after 2 weeks if no animals are found, as specified on the label, would miss later mortalities as indicated by Yoder (2008). We believe that diphacinone-exposed prairie dogs may be found d ead or debilitated on the surface of a colony for at least a month following application and that searches, even as described on the label, are inadequate to consistently locate poisoned prairie dogs above ground and thus unlikely to

prevent non-target exposure.

Though we note that follow-up search protocols may not always be followed, we believe that efficacy of any searches conducted will be enhanc ed by following a transect-style protocol as described on the label. A random search pa ttern has been found to produce low success in detecting target and non-target animals, and se archer efficacy is significantly increased if systematic searches, such as transect-line se arches, are employed (Witmer et al. 1995, Lee and Hyngstrom 2007, Vyas 2010a). One study found th at searcher effectiveness when using protocols for walking transects or circular subplots ranged fr om 24.5 – 36.2 percent compared to just 2.6 percent when using a random sear ch pattern protocol (Witmer et al. 1995).23 Many prairie dogs are likely s cavenged prior to th e opportunity for removal by applicators. Carcass retrieval studies, aimed at evaluating pesticide mortality events, have found that as high as 92 percent of carcas ses are scavenged within 24 hour s and that carcass removal by scavengers is more rapid in areas of higher carc ass density than in lower density kills because clumped food sources can attract scavengers (V yas 1999). Thus, even if the label is followed and applicators remove carcasses at 1- to 2-day intervals, it is unlikely to outpace removal by scavengers. Further, poisoned an imals are alive for an extended period of time (days to weeks) and non-target animals in particul ar, may move away from the appl ication area before they die.

We could locate no information to indicate that the current label requirements in practice prevent secondary exposure, mainly because we can locate no information that prairie dogs are being collected per the label restrictions. Furt hermore, there is no indi cation that if carcasses were retrieved from the surface, they would be removed from the site since the label allows prairie dogs found on the surface to be placed in prairie dog burrows or otherwise buried on site. Such carcasses could be targeted by coyotes, f oxes, badgers, bears, black-footed ferrets, and

other carnivores that can dig up prey or carrion.

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

5. Field Study Observations of Secondary Exposure or Toxicity

As indicated previously, chlo rophacinone and diphacinone toxici ty share a similar mode of action and, where data exist, have a similar toxicity profile; t hus, we consider information on secondary exposure to non-target species from chlorophacinone as relevant in evaluating Kaput ® -D exposure. Four studies have evaluate d diphacinone or chlorophacinone exposure to non-target species following a pplications to poison BTPDs (B ruening 2007, Lee and Hygnstrom 2007, Forgacs 2010, Vyas 2010a). These studies are discussed briefly below.

In a field study sponsored by Scim etrics, the registrant for Kaput ® -D, sick and lethargic prairie dogs were observed above ground following a field application, and researchers observed a bald eagle flying off the treatment plot with a prairie dog in its talo ns (Bruening 2007). Field studies sponsored by Liphatech, the registrant of Rozol ® , reported little to no evidence of secondary exposure and did not observe any scavenging by avian predators (Lee and Hygnstrom 2007, Forgacs 2010). Lee and Hygnstrom (2007) perfor med a study designed to assess the efficacy of chlorophacinone in killing BTPDs that included searches for carcasses only on and immediately around baited plots. They found 10 carcasses above ground [9 BTPDs and a cottontail rabbit ( Sylvilagus sp. )] at a ratio of 1 carcas s found per 14 acres searched. Forgacs (2010) quantified the number of dead and dying prairie dogs a bove ground following a field application and

included searches on three test plots consisting of approximate ly 24 acres for 21 days after application. They did not find a ny dead prairie dogs or non-targ et carcasses; however, the study was performed in early February and include d precipitation and storm events that the researchers believe limited the prairie dog act ivity above ground and the ability of the

researchers to return to the sites to search for prairie dogs (Forgacs 2010).24 A study sponsored by the Service and performe d by the U.S. Geological Survey (Vyas 2010a) documented avian and mammalian non-target exposur e and effects following a field application

of Rozol ® . Signs of exposure reported in this study included mort ality, morbidity, discolored droppings, scavenging, possible bloo d stained soil, and a general change in the number of BTPDs and other wildlife (Vyas 2010a). Carcas s searches were conducted over an area of approximately 43 acres for 14 days over a 29-day post-application period a nd recovered 2 intact 13-lined ground squirrels ( Spermophilus tridecemlineatus ), 9 intact BTPDs, 7 scavenged BTPDs, and 1 intact western meadowlark (Vyas 2010a). The meadowlark had abundant hemorrhaging in the pectoral muscle, one focal hemorrhage in the brain, and chlorophacinone was detected in the liver and lower gastrointestinal contents (Vyas et al. in press ). Meadowlarks are a recognized food source for the federally endangered northern aplomado falcon (USFWS 2002a). Raptors were also seen visiting the poisoned prairie dog colony and foraging on BTPDs (Vyas 2010a).

A Rozol ® application in South Dakota on a prai rie dog colony in 2005 found approximately 400-500 dead and dying prairie dogs on the surface when a 160- acre densely populated prairie dog town was treated with Rozol ® (Golden and Gober 2010). The South Dakota incident was investigated by the EPA and confirmed to be related to an ap plication of Rozol ® . At that time,

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

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

Enforcement and submitted to the National Fish and Wildlife Forensics Laboratory in Ashland, Oregon (USFWS 2007b). The necropsy reveal ed that poisoning with chlorophacinone and physical trauma had occurred. The laboratory report concluded that “the observed small hemorrhagic skin laceration on the dorsal elbow region of the right wing was caused by trauma

from an undetermined source. This trauma may have initiated the extensive hemorrhaging caused by the presence of the an ticoagulant rodenticide in th e eagle.” Chlorophacinone was detected in the bald eagle’s liver at 0.30 μ g/g ww, a concentration similar to that detected in the liver of another bald eagle (0.40 μ g/g ww, as described below) and considered indicative of chlorophacinone poisoning (USFWS 2011c). The Service Special Agent working on the Nebraska bald eagle mortality ca se interviewed a licensed applic ator regarding the incident. The applicator remarked that even when label directions for Rozol ® applications are followed, BTPDs are often seen above ground in a moribund st ate of stupor that leaves them vulnerable to capture or predation (USFWS 2007b).

In January 2009, a sub-adult female ferruginou s hawk and an adult male great-horned owl ( Bubo virginianus ) were collected by Service Law Enfor cement and submitted to the National Fish and Wildlife Forensics Laboratory in As hland, Oregon (USFWS 200 9d). Both raptors had a liver chlorophacinone concentration of 0.25 μ g/g ww and were found in an area in Kansas

where Rozol ® was being used to control prairie dogs . The ferruginous hawk had prairie dog hair in its stomach contents, and the owl’s stomach contents had hairs from rodents and/or insectivores (Rodentia; Soricomorpha).25 In March 2011, another bald eagle carcass was opportunistically recove red in Nebraska and analyzed by the National Fish and Wildlife Fore nsics Laboratory. The bald eagle’s cause of death was diagnosed as ingestion of chlo rophacinone due to a liver chlorophacinone

concentration of 0.4 μ g/g ww and hemorrhage of the subcutaneous tissues, body cavities and lungs (USFWS 2011c). According to the examin er, “no gut contents were available for examination, but toxicity was likely incurred through ingestion of one or more poisoned rodents.” Prairie dog colonies were in the ge neral vicinity of where the bald eagle was recovered, and the law enforcement case is still under investigation.

Based on the reports described above (Lee and Hygnstrom 2007; USFWS 2007b, 2009d; Bruening 2007; Vyas 2010a), we conclude that diphacinone exposure to fe derally listed species and non-target animals is likely to occur where species overlap with field applications of Kaput ® -D on BTPD colonies.

D. REVIEW OF THE EPA’S RISK ASSESSMENT FOR KAPUT ® -D

We believe that risk calculations in the EPA’s assessment likely underestimate risk to nontarget species (described in detail below). While we ultimately agree with EPA’s risk conclusion, we present the following as feedback to the EPA for consideration in developing

future effects determinations in order to avoid missing risk to listed species.

a

. Underestimated Risk to Avian Species

A Risk Quotient (RQ) is equal to the Estimat ed Environmental Concentration (EEC), a term used to estimate exposure, divided by the releva nt toxicological endpoint or Toxicity Reference Value (TRV). The Kaput ® -D Assessment provides RQ’s less than 0.02 for avian species, which do not exceed the EPA’s Level of Concern (LOC ) of 0.1 (USEPA 2012a). The TRV used to calculate these RQs were based st udies performed on bobwhite quail ( Colinus virginianus ), mallard ( Anas platyrhynchos ), and American kestrel ( Falco sparverius ). Although the inclusion of a sub-acute dietary LC 50 test value for the TRV (mallard va lue) is preferred to a single dose

LD 50 value, this TRV is still likely to underest imate risk to avian species. As dietary LC 50 results can be highly dependent on a species’ willingness to eat the bait and their ability to cope with reduced nutriment, their applicability in qu antitative risk assessment has been questioned (Hill 1993, Mineau et al. 1994, Hoffman 2003). In addi tion, data suggest that a species such as the mallard, which eats primarily insects and vege tation, is not likely to be representative of other more sensitive avian species , especially those that prey u pon and scavenge prairie dogs or other non-target small animals. Though toxicity data are lacking for di phacinone effects to a wide breadth of species, recent investigations ha ve found that sensitivity of raptors is much greater than predicted from test species used in pesticide re gistrations. Acute diphacinone toxicity tests indicate that American kestre ls are over 20 times more sensitive than northern bobwhite quail and over 30 times more sensitive than mallard duc ks, two test species required by the EPA for pesticide registration (Rattner et al. 2010a and 2011). Eastern screech-owls ( Megascops asio ) showed similar toxicity to kestrels, and sensitivity was greater increased when diphacinone was provided for daily consum ption as compared to a single oral dose (Rattner et al. 2012). Golden eagles ( Aquila chrysaetos ) appear to be even more sensitive to diphacinone than kestrels (Savarie et al. 1979, Rattner et al. 2011). Though LD 50 values for26 kestrels were considered in estimating risk, these TRVs likely underest imate risk to species from daily consumption.

Furthermore, the LC 50 -based TRV does not account for potential sub-lethal effects of diphacinone that can decrease listed species’ surv ival and/or reproducti on. Accounting for sublethal effects from diphacinone exposure su ch as fatigue, clotting abnormalities, and hemorrhaging is important when evaluating risk to federally listed species. This is especially true when evaluating cumulative effects that include sub-lethal effects from exposure to diphacinone as well as other environmental stress ors such as adverse weather, food shortages, and predation (Vyas et al. 2006). The Kaput ® -D Assessment identifies external bleeding, internal hemorrhaging, and increased blood coagul ation time as sub-lethal effects to avian species from secondary exposure to diphacinon e -poisoned food; however, other sub-lethal effects (e.g., fatigue) can occur even prior to gr oss observation of internal and external bleeding. As mentioned previously, inda ndione rodenticides uncouple oxidative phosphorylation, and studies have reported that the first observed signs of secondary toxicity in raptors can include fatigue such as wing-drooping (Radvanyi et al. 1988). Fatig ue induced from diphacinone exposure is expected to substant ially reduce a listed sp ecies’ ability to capture prey and thus negatively affect its reproduction and survival in the wild. S ub-lethal effects have been documented in raptors exposed to anticoagulants and those effects can occur despite low tissue residue concentrations. For example, American kestrels administered diphacinone had liver residues just above the detection limits of 0.263 and 0.280 μ g/g ww diphacinone, but histological evidence revealed hemorrhages in lung and liver tissues (R attner et al. 2011). Eastern-screech-owls fed diphacinone for 7 da ys exhibited subletha l responses such as coagulopathy and histopathological lesions at a small fraction (<5%) of the acute oral dose and had liver concentrations from 0.473 - 2.21 ug/g ww diphacinone (Rattner et al. 2012). Golden eagles fed muscle from diphacinone-treated sheep exhibited extreme weakness, ataxia (lack of muscle control), and hemorrhages (Savarie et al . 1979). These studies indi cate that raptors are susceptible to indandione’s multiple modes of action. Although some avian species have survived laboratory studies after being fe d anticoagulant poisoned rodents until time of euthanasia (Savarie et al. 1979, Mendenhall a nd Pank 1980, Radvanyi et al. 1988), sub-lethal

effects described in these st udies (e.g., fatigue; wing-drooping ; and lung, heart, and liver hematomas) are expected to result in decrease d survival or reproduction under field conditions. A comprehensive assessment of potential eff ects of diphacinone e xposure to sensitive populations of migratory birds has not been comp leted, and reliance on labe led use restrictions does not protect vulnerable species (Golden a nd Gober 2010). Thus, we recommend that the EPA exercise their authority under the FIFRA to require additional field assessments that include tracking avian predator s and scavengers (e.g., ferruginous hawks, eagles) that are expected to be the most susceptible to use of Kaput ® -D in prairie dog towns (Schwarz and Gober 2011). Until such studies are completed to provide data on sublethal effects and subsequent reproduction and survival , it is difficult to evaluate th e secondary toxicity risk of Kaput ® -D exposure to federally listed species such as the northern aplomado falcon.

An acute exposure to listed species from a one -time feeding of diphaci none bait or poisoned prey may still result in death or harmful sub-lethal effects because even minor increases in fatigue in predators can undermin e their ability to acquire prey. However, there is high27 potential for chronic effects to occur in birds because LD 50 and LC 50 data indicate that acute environmental exposures can result in doses that do not result in immediat e direct lethality but instead create potential for long-term exposures and chronic toxicity. Th e potential for chronic exposure to birds is further increased by the poten tial for exposure to anti coagulant rodenticides from other use patterns, as well as repeated exposures to chlorophaci none and diphacinone from applications to BTPDs on multiple sites as species forage over large home ranges and migrate. Previous studies indicate that anticoagulant rode nticides have a wide ge ographic use for general

rodent control and detection of one or more of these compounds in the li vers of predatory birds is common (Stone et al. 2003, Albert et al. 2010). Therefore, it is a reas onable assumption that raptors such as the northern aplomado falcon ma y already be carrying an anticoagulant burden and are thus more susceptible to a dverse effects from additional exposure.

b. Prairie Dog Diphacinone Residues

No data exist for diphacinone residues in poisone d BTPDs. In its risk assessment, the EPA uses a maximum carcass whole-body residue value of 3.4 μ g/g ww based on residues in California ground squirrels ( Otospermophilus beecheyi) in evaluating secondary risk to species that consume poisoned BTPDs; however, this value may underestimate exposure. EPA highlights many of the uncertainties in using this data, including partial decomposition of bodies in the field, opportunistic collection of carcasses that may miss the full range of body burdens, and scavenger/predator preference for individual organs that may contain higher concentrations of rodenticide than whole-body.

The use of whole-body diphacinone residues, as opposed to diphacinone residues in liver, may underestimate secondary exposure risk to non-ta rget wildlife, particularly scavenging and predating birds. Concentration of diphacinone in internal orga ns, such as liver, may contain much greater concentrations than whole-body samp les. Eight BTPD carca sses collected after a field application of chlorophaci none bait had a mean concentrati on of chlorophacinone in liver

of 5.86 ± 1.88 μ g/g ww (maximum of 6.66 μ g/g) compared to a whole body mean concentration

of 1.48 ± 0.46 μ g/g ww (maximum of 2.24 μ g/g) (Primus 2007). Use of a liver concentration instead of a carcass concentration may be more appropriate based on feed ing behavior of some animals that selectively eat parts of prairie dogs . For instance, some predators may only forage on the most readily accessible body cavity organs , including the liver (Figure 2). When multiple carcasses or moribund prairie dogs are readily available, internal organs may also be preferentially selected over other less accessible or digestible prairie dog body parts. A realistic

worst-case scenario would include a maximum liver concentration for the EEC, as opposed to the maximum whole body residue used in the BA.28 Figure 2. BTPDs (A and B) scavenged at a prairie dog colony in 2005 after an application

of Rozol ® . Note selective feeding by scavenger s that target internal body organs.



# A29 c. Risk Quotient Calculations and Uncertainty

We believe that TRVs selected for non-target sp ecies and residue values in prairie dogs used by the EPA are both too low to represent a realistic worst case scenario. Several lines of evidence regarding Kaput ® -D exposure and associated effects s uggest that the calculated RQs should be greater to account for uncertain ty and missing data. For exampl e, as calculated in the Kaput ® -D Assessment, the RQ derived from the ground squirrel whole-body con centrations does not exceed the LOC for secondary toxicity to avia n species (USEPA 2012a). Not only are greater exposure estimates warranted that increase the EEC based on consumption of diphacinone concentrations in liver, but the TRV is also ove restimated when TRV values are based on acute toxicity and surrogate species. Both an increased EEC and d ecreased TRV would result in a greater RQ. Further, the EPA’s RQ calculations in the assessment do not specifically address uncertainty from the influence of environmenta l stressors that can ma ke non-target animals more susceptible to poisoned food (e.g., adverse weather conditions, food shortages, migration, and predation). Uncertainty factors are recomm ended for use in risk assessments to protect federally listed species as scientifically appropria te or where available data are incomplete or otherwise warrant its applicati on (USEPA 1995 and 2011a). For Kaput ® -D, all three reasons to include uncertainty factors are valid. Accordi ng to the EPA technical guidance, reasonable uncertainty factors may range from 1-100 for inte rspecies uncertainty, 1-10 for intraspecies variability, and 1-10 for sub-acute to chroni c toxicity (USEPA 1995). In the case of diphacinone, studies indicate that interspecies se nsitivity could be as much as 20 or 30 times greater than toxicity values measured in test species (Rattner et al. 2010a, 2012). Reported mortality incidents involving rapt ors described herein support the likelihood that these taxa are likely to be killed from exposure to Kaput ® -D in its use in BTPD co lonies. In addition, RQs

were not calculated for chronic or sub-lethal effects to federally listed birds, presumably due to the lack of registrant-submitted reproduction studies. In the absence of da ta, a lack of effects cannot be assumed, but available lines of evidence must be examined to determine if effects can be reasonably ruled out. In the case of Kaput ® -D, chronic exposure to anticoagulant rodenticides is likely for predat ory and scavenging species and can cause death or sub-lethal effects that may hasten death when combined w ith other stressors (Stone et al. 1999). These effects have been documented to occur in rapt ors at diphacinone con centrations below those which would produce lethality in a laboratory se tting and therefore must be considered as distinct endpoints (Rattner et al. 2012). Where data are la cking to produce quantitative RQs with much certainty or assign numeric uncertainty factors, a preferred opti on is to express risk in qualitative terms. Professional judgment or other qualitative eval uation techniques are appropriate for ranking risks into categories such as low, medium, and high when exposure and effects data are limited or are not easily ex pressed in quantitative te rms (EPA 1998a). For example, the EPA appropriately determined that birds are at risk for adverse effects, including mortality, by qualitatively examining the uncertain ty inherent in the RQ, as well as other lines

of evidence such as incident reports.

E. WILDLIFE MORTALITY INCIDENTS

Based on sub-lethal effects to non-target species as reported from laboratory studies as well as reported mortalities and concerns based on opport unistic field recoveries (Erickson and Urban 2004, USFWS 2007b, EPA 2010b, Ruder et al. 2011, Rattner et al. 2012), there is a need for

field studies that eval uate anticoagulant exposure and effect s to the many species that consume30 anticoagulant poisoned prairie dogs and other primary consumers of the bait. Although a lack of incident reporting is likely a factor in addressing risk unc ertainty (Erickson and Urban 2004), wildlife mortality incide nts involving diphacinone exposure reported to the EPA include owls, hawks, vultures, coyotes, San Joaquin kit foxe s, a mountain lion, raccoons, white-tailed deer, gray squirrels, and a kangaroo rat (Erick son and Urban 2004, USFWS 2007b, USEPA 2012a). It is noteworthy that the liver concentrations in these samples were variable, ranging from 0.18

to 4.89 μ g/g, indicating the difficulty in relying solely upon this measurement as a diagnostic

tool.

Ruder et al. (2011) reported three mortality even ts in Kansas that involved several species, including wild turkeys ( Meleagris gallopavo ), a raccoon ( Procyon lotor ), and an American badger ( Taxidea taxus ). In all three cases, chlorophacinone, alone or in combination with other anticoagulants, was detected in the liver of th e non-target species. The first incident in 2002

included the death of 1 wild tu rkeys found 2.5 weeks after a Rozol ® application; concentrations of chlorophacinone in th eir livers were 0.69 and 0.40 μ g/g (Ruder et al., 2011). The second incident in 2009 included 45 dead turkeys from exposure to zinc phosphide as well as a raccoon

with liver concentrations of chlorophacinone, brodifacoum, bromadiolone, and diphacinone of

1.4 μ g/g, 0.5 μ g/g, 0.37 μ g/g, and trace, respectively. The authors suspected that the raccoon exposure to brodifacoum, bromadiolone, and di phacinone was from the use of over-the-counter rodenticides against commensal rodents (Ruder et al., 2011). The badger was found within an

area in western Kansas where Rozol ® had been used on BTPDs and had a high chlorophacinone

concentration of 4.4 μ g/g ww in its liver (Ruder et al., 2011). The authors concluded that their opportunistic findings of non-target species mort alities likely underestim ate actual non-target species losses. This conclusion seems justified as a 4-year survey of anticoagulant poisonings

of wildlife in France based on a wildlife disease surveillance network yielded 59 confirmed diagnoses for bromadiolone and 41 for chloroph acinone, indicating that chlorophacinone is frequently detected in non-targ et species (Ber ny et al. 1997).

In addition to the opportunistic wildlife morta lity incidents noted above, there are likely many more individuals and non-target species poisoned from anticoagul ants such as chlorophacinone and diphacinone that have not been found. As me ntioned previously, carcass-detection studies

have found that even when sear ches are performed in areas k nown to contain carcasses, a significant percentage will never be found due to scavenging, size or coloration that renders the carcass inconspicuous, or field conditions such as remote, inaccessible areas, that impede searches (Vyas 1999). In the case of anticoagulan ts, the delayed toxicity can temporally or geographically distance the carcass from the appl ication area (Colvin et al. 1988). In addition, exposure to anticoagulants may result in sub-lethal effects that occur at concentrations below a diagnostic threshold for lethality, masking their role in mortality incidents where acute lethal hemorrhage is not the proximal cause of death and may be attributed to causes such as trauma or disease (Stone et al. 1999) . Opportunistic recoveries from anticoagulant use on BTPDs indicate that raptors may be at high risk to secondary toxici ty from diphacinone use Service Law Enforcement recovered two bald eagles in Nebraska and a great horned owl and ferruginous hawk in Kansas that died fo llowing chlorophacinone exposure (USFWS 2007b, 2009d, 2011b). More dead raptors were found in that same area of Kansas after Rozol ® was used to control prairie dogs in 2009, includi ng two more ferruginous hawks and a bald eagle31 that were found shot and thus not tested for chlorophacinone (USFWS 20 09d). Also in that same area of Kansas, Audubon of Kansas reported that, in addition to the raptors provided to Service Law Enforcement in 2009, they had found an additional 17 dead hawks, mostly ferruginous hawks that were not pi cked up in the field. It is not firmly established whether the raptor mortalities are attribut ed to chlorophacinone or Rozol ® as no definitive testing for chlorophacinone in body tissues was conducted on the raptors; however, the opportunistic finding of the raptors coincided with Rozol ® applications nearby.

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

without additional conservation action (USFWS 2008a). Further, although bald eagles have been delisted under the ESA, both bald and golden eagles are protected under the Bald and Golden Eagle Protection Act. In particular , ferruginous hawks and golden eagle populations appear to be experiencing d eclines throughout most of their range, and the availability of poisoned prey, which occurs when anticoagulants ar e used for prairie dog control, are expected to exacerbate population declines . Golden eagle populations ma y not be able to withstand

additional loss of individual s (USFWS 2009e, Golden and Gobe r 2010). Bald eagles have a kleptoparasitic association with ferruginous hawks (whereby eag les pursue ferruginous hawks and steal their prey) which are an efficient predator of prairie dogs (Jorde and Lingle 1988). Thus, both species may be particularly vulnerabl e to anticoagulants use to kill BTPDs (Golden and Gober 2010). This suspected vulnerabilit y is further supporte d by the opportunistic recovery of two bald eagles killed from chlor ophacinone exposure previo usly described and the abundance of dead ferruginous hawks reported by Audubon of Kansas from an area where

Rozol ® was being used to poison prai rie dogs. Migratory bird deaths attributed to anticoagulant poisoning are not permitted or authorized under the MBTA.

The Service has been developing a better understanding of the Kaput ® -D label requirements regarding multiple return visits to retrieve d ead and dying prairie dogs and exposed bait. Based on the information provided by the EPA and for r easons explained above, we believe the label requirements do not prevent exposure to migrator y birds and other pred ators and scavengers, and that some label requirements may be im practical or not reas onably implementable. Furthermore, Kaput ® -D use on BTPDs is expected to result in take of migratory birds, including federally listed species such as the northern aplomado falcon.

As noted earlier, anticoagulant use on BTPDs was determined to have killed a bald eagle in 2006, when that species was prot ected under the ESA, which prohi bits unauthorized taking of federally listed endangered or threatened speci es. In accordance with the bald eagle postdelisting monitoring plan (USFWS 2010b), the bald eagle monitoring team continues to track32 new and potentially significant sources of bald eagle mortality. Since anticoagulants were authorized for BTPD control in 2006, there have been two bald eagle deaths attributed to poisoning in Nebraska. We c onsider anticoagulant use on BTPDs as a new and potentially significant source of mortality to bald eagles fr om secondary poisoning that can occur when a bald eagle eats dead or dying pr airie dogs that have been poisoned.

F. SUMMARY OF KAPUT ® -D EXPOSURE AND EFFE CTS RELEVANT TO ALL

LISTED SPECIES ADDRESSED IN THIS BIOLOGICAL OPINION

 Toxic effects from diphacinone exposure in clude fatigue and increased permeability of capillaries resulting in systemic internal hemorrhaging prior to death. There is no evidence of taste aversion to Kaput ® -D; thus, non-target species may continue consumption until they receive a lethal dose (or greater, due to de layed mortality), or they may suffer from sub-lethal effects. S ub-lethal effects could result in death when combined with other stressors (e.g., temper ature, predation, trauma, food scarcity, migration), or growth and reproductive impa irments could be detrimental to species’

recovery.

 Diphacinone is most toxic when animals ar e exposed to multiple doses for multiple days. Thus, current required acute standard ized toxicity tests fo r diphacinone greatly

underestimate risk to non-target animals.

 According to the EPA, mobility from Kaput ® -D bait into soil or water is considered a negligible exposure pathway to non-target or ganisms, and diphacinone is expected to remain undegraded in bait. Actual consumption of bait and consumption of poisoned animals is the primary environmental dissipation pathway for Kaput ® -D. We agree with the EPA on those points.

 Excessive lethal doses per BTPD may be applied and result in increased risk to nontarget species. In additio n to having excess bait availabl e for direct consumption by non-target species, over-application and Kaput ® -D’s prolonged toxic mode of action may result in a high risk of secondary expos ure to non-target speci es, especially those species attracted to poisoned BTPD coloni es. A 6-month application season for Kaput ®

- D can result in a long durati on and increased oppor tunity for repeated exposure to chlorophacinone and/or diphacinone rodenticid es as the species migrates or moves within their territory.

 Despite current label restrictions and require ments, previous studi es and observations indicate that Kaput ® -D is available to non-target speci es by both primary and secondary exposure routes and may even result in tert iary poisoning. Label requirements aimed at reducing exposure to non-target species that are based on re turn site visits for weeks after the application to pick up dead and dying prairie dogs and bait may be impractical. Burying prairie dogs on the colony may not be effective at preventing exposure to nontarget species that can dig up carcasses or feed on poi soned prey between carcass

searches.33  RQs derived in the EPA’s Kaput ® -D Assessment underestimate non-target species risk to Kaput ® -D because they are: a) based on study pr otocols that consider limited (1- to 5- day) exposures in the lab; b) do not comp rehensively account for information indicating that raptors may be 20-30 times more sensitiv e than standard avian test species such as quail and ducks; c) do not attempt to quantif y known sub-lethal effects; and d) do not consider higher concentrations of diphacinone in the liver, especially for species that may selectively consume internal or gans instead of wholebody tissues.

 Although wildlife mortality incidents are underreported and surveillance efforts are lacking, opportunistic recoveries of non-targ et species exposed to diphacinone include: owls, hawks, vultures, coyotes, San Joaquin kit foxes, a mountain lion, raccoons, whitetailed deer, gray squirrels, and a kangaroo rat.

 Opportunistic recoveries ha ve shown that anticoagulant use on BTPDs has killed nontarget species protected under the ESA, MBTA, and the Bald and Golden Eagle Protection Act. Many of these species (e .g., bald eagles, golden eagles, ferruginous hawks, American kestrels, owls) appear to be especially susceptible to anticoagulant toxicity and are expected to continue to die from Kaput ® -D exposure given current label

use restrictions.



### VI. GENERAL CONSERVA TION RECOMMENDATIONS

Section 7(a)(1) of the ESA directs Federal agenci es to utilize their authorities to further the purposes of the ESA by carrying out conservatio n programs for the benefit of endangered and threatened species. Conservation recommendati ons are discretionary agency activities to minimize or avoid adverse effects of a proposed ac tion on listed species or critical habitat, to help implement recovery plans, or to develop information. Based on the above discussion of Kaput ® -D’s mode of action, its environmental fate and effects and known exposure routes and risks to non-target animals we believe it is impor tant to identify conservation recommendations

that address those concerns. Accordi ngly, we provide the following conservation

recommendations for EPA’s consideration that are within your authoritie s and will further the purposes of the ESA and benefit the li sted species in this consultation.

A. If the EPA chooses to continue registration of Kaput ® -D and other anticoagulants for use on prairie dogs, it should first develop alternative tes ting protocols to evaluate their toxicity to non-target species. The curren tly required standardized t oxicity tests for diphacinone greatly underestimates risk to non-target spec ies because indandiones are much more lethal when multiple doses are consumed over multiple days as opposed to a one-time feeding. We recommend future assessments for first gene ration indandione rodenticides are modified to include multiple-day exposures tests that measure individual daily dosage and responses. This would complement the current required avia n oral test and dietar y lethality tests. Additionally, protocols should be designed to evaluate sub-lethal effects by including observational periods, sensitive blood clotti ng assays (Rattner et al., 2010b), gross pathology, and microscopic examina tion of tissues (histopathology).34 B. If the EPA chooses to continue registration of Kaput ® -D or other anticoagulants for use on prairie dogs, it should first study how to prev ent secondary poisoni ng of predators and scavengers that may feed upon dead and dying prairie dogs. The results of such studies should be used to modify the label.

C. If the EPA chooses to continue registration of Kaput ® -D or other anticoagulants for use on prairie dogs, it should first study detrimental e ffects to raptors and other wildlife that consume dead and dying prairie dogs. Thus, we recommend that the EPA exercise their authority under FIFRA to require an avia n reproduction study a nd additional field

assessments that include tracki ng predators and scavengers that are expected to be most susceptible (e.g., ferruginous hawks, eagles, corvids, canines) to Kaput ® -D poisoning from applications at prairie dog towns. Such in formation would benefit our evaluation of the endangered northern aplomado falc on, gray wolves, and other predators and scavengers if those species were to become fe derally listed under the ESA.

D. If the EPA chooses to continue registration of Kaput ® -D or other anticoagulants for use on prairie dogs, it should not rely on quail and mallard s as the test species for development of anticoagulant risk assessments. These species do not reflect the risks to raptors which can be 20 to 30 times more sensitive than these sp ecies. Further, rapt ors are the likely avian species that will have the greatest exposure risk from Kaput ® -D applications to BTPDs. We

recommend that risk assessments for anticoa gulants include measures to assess harmful effects to the likely affected bird guild. Ra ptors and scavengers are those likely end-point species, and the Kaput ® -D risk assessment should reflect that.

E. If the EPA chooses to continue registration of Kaput ® -D or other anticoagulants, the EPA

should conduct tests to determine the minimum amount of product that should be applied to accomplish the intended task and revise the label accordingly.

F. Given our concerns with secondary toxicit y, we encourage the EPA and Scimetrics to support Integrated Pest Manageme nt (IPM) education and outreach to applicators. An IPM approach could prevent unnecessary applications when good alternat ives to pesticides exist. Guidance on how to perform IPM should be accessible on the EPA’s Bulletins Live! online

site.



### VII. SPECIES ANALYSES

A. OVERVIEW

After carefully reviewing EPA’s Transmittal Letter and Assessment, and informally consulting with the EPA prior to initiati on of formal consultation, it was determined that the proposed action may affect the same listed species and critical habitats de scribed in the Rozol ® Biological Assessment (Rozol ® Assessment) (‘Nation-wide Effect s Determination for Chlorophacinone

Relative to the Use of Rozol ® Prairie Dog Bait,” USEPA 2010a), pending any new listings or status changes in existing listings. As di scussed earlier, some changes from the Rozol assessment have been made to the list of speci es and critical habitat that may be potentially affected by the registration of Kaput ® -D. See Table 2 below.35 Table 2. Summary of Species and Effects Determinations

Species and critical habitat; (*) denotes species with designated critical habitat No Adverse

Effects Anticipated Conservation

Measures

Preclude

Adverse Effects Conservation

Measures Adopted, but

Adverse Effects Still Anticipated

1 American Burying Beetle ( Nicrophorus americanus ) 

2 Black-capped Vireo ( Vireo atricapilla ) 

3 Black-footed Ferret ( Mustela nigripes ) 

4 Canada Lynx* ( Lynx Canadensis ) 

5 Chiricahua Leopard Frog* ( Lithobates [ Rana ] chiricahuensis ) 

6 Eskimo Curlew ( Numenius borealis ) 

7 Golden-checked Warbler ( Dendroica chrysoparia ) 

8 Gray Wolf ( Canis lupus ) 

9 Grizzly Bear ( Ursus arctos

horribilis ) 

10 Gulf Coast Jaguarundi ( Herpailurus [= Felis ] yagouaroundi cacomitli ) 

11 Jaguar ( Panthera onca ) 

12 Mexican Spotted Owl* ( Strix occidentalis lucida ) 

13 New Mexican Ridge-nosed

Rattlesnake* ( Crotalus willardi obscurus ) 

14 Northern Aplomado Falcon ( Falco femoralis septentrionalis ) 

15 Ocelot ( Lepardus pardalis ) 

16 Piping Plover* ( Charadrius melodus ) 

17 Preble’s Meadow Jumping Mouse* ( Zapus hudsonius preblei ) 

18 Whooping Crane* ( Grus Americana ) 36 The details regarding the anticipat ed effects of the proposed action on each of the species in this consultation are provided in the analyses below.



### B. SPECIES FOR WHICH NO ADVERSE EFFECTS ARE

ANTICIPATED

The Service does not anticipate adve rse effects as a result of Kaput ® -D use on BTPDs for the following nine species being analyzed in this BO. Those species incl ude: 1) American burying beetle, 2) black-capped vireo, 3) Canada lynx, 4) Eskimo curlew, 5) golden-cheeked warbler, 6) Gulf Coast jaguarundi, 7) ocelot, 8) piping plover, and 9) whooping crane.

1. American Burying Beetle

The EPA concluded in their recent Rozol ® Assessment that the use of chlorophacinone to control BTPDs was likely to adve rsely affect the American bu rying beetle based on direct reproductive effects.

The reproductive effects are due to lower carcass size in chlorophacinone treated carcasses and effects to larvae. An acut e toxicity test for the earthworm (MRID 47383002) and an open literature study (Fishe r et al. 2007) indicate that there is no risk to invertebrates at exposure levels relevant to this use. Furthermore, the second phase of the burying beetle st udy (MRID 47383001) that showed reproductive effects to burying beetles based on lower carcass weights showed that there were no direct acute effects to adult burying beetles fed chlorophacinone treated ground beef. In fact, those exposed to the chlorophacinone faired better than the control group.

Chlorophacinone use is expected to affect reproduction of the American burying beetle through effects to emerged beetles. Number of emerged beetles is negatively affected by use of chlorophacinone poisoned carcasses in burying beetles (MRID 47383001). This type of effect is consider ed to be a direct effect.

Comparable studies do not exist for terrestrial invertebrates exposed to diphacinone and

therefore the EPA was unable to assess risk for this species. In their request for formal consultation for Kaput ® -D, the EPA demonstrated that ch lorophacinone and diphacinone have similar exposure and toxicity profiles and ther efore suggested that affects to listed species

would be similar.

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

includes Nebraska and South Dakota where the ra nge of this species overlaps the use of Kaput ® -D as BTPD bait. The current range know n from South Dakota includes portions of Bennett, Gregory, Tripp, and Todd Counties. Ho wever, a comprehensive status survey has never been completed in South Dakota, so American burying beetles may occur in other counties with suitable habitat. In Nebraska, two disjunct populations of American burying

beetles occur over much of the State. Habitats between the two populations are dissimilar with

the northern Nebraska/South Da kota population occurring in the Sandhills, while the southwest Nebraska population occurs in th e Loess Hills. These two populat ions alone contain as much as37 half of the known Midwest American burying bee tle population and are a strong-hold for this species. The other Midwest populations (Arkan sas, Kansas, Missouri, and Oklahoma) are outside of the BTPD range.

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

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

In summary, we do not anticipate adverse effects to the American burying beetle from the use of diphacinone to control BTPDs. This conclusion is based primarily on th e fact that American burying beetles are not active during the peri od in which the label allows the use of diphacinone. In addition, prairie dog carrion is not a preferred food source of American burying beetles, and individuals of this species are extremely unlikely to directly or inadvertently consume the bait. For these reasons, we assume that exposure of American burying beetles to diphacinone is extremely unlikely to occur and the effects are considered discountable. No critical habitat for the American burying beetle has been designated; therefore, none will be

affected.

2. Black-capped Vireo

The black-capped vireo is a small (12 centimet ers (cm) or 4.5 inches (in.)) insect-eating songbird that was once common as far north as Kansas but is now limited largely to western and central Texas, north-central Mexico, and the Wichita Mountains of Oklahoma (Gryzbowski 1995). Black-capped vireos were federally listed as endangere d in 1987. Black-capped vireos arrive in Texas from late March to mid-April (l ate April in dry years). They arrive in Oklahoma from mid-April to early May (mid -May in dry years). The black -capped vireo usually migrates southward from Oklahoma by late August-Sept ember and from Texas by mid-September (USFWS 1991) to winter in Mexico. The black-capped vireo occurs in mixed deciduous/evergreen shrubland. Black-capped vire os require broadleaf sh rub vegetation in the form of low deciduous cover [e.g., juniper ( Juniperus sp.) and oak sp. (Quercus sp.)] which is a key element in their habitat. Nests are pref erentially located in de nse deciduous vegetation. Nests are placed in the fork of a variety of deciduous species with blackjack oak ( Quercus

marilandica ) being preferred in Oklahoma and shin oak ( Quercus havardii ), Texas oak, and sumac ( Rhus sp.) commonly used in Texas (USFWS 1991).

Black-capped vireos are insecti vores during the breeding season, gl eaning insects off the foliage of oaks and other deciduous trees (Grabe r 1961, Grzybowski 1995). The common prey items found in stomach contents include spiders and ins ects of the orders Lepidoptera (butterflies and moths), Coleoptera (beetles), and Hemiptera with suborder Homoptera (cicadas, aphids, planthoppers, leafhoppers, shield bugs, and othe rs) (Graber 1961). During winter, black-capped38 vireos switch to an omnivorous diet, and nearly 50 percent of stomach contents sampled from western Mexico included seeds (Graber 1961).

To determine the risk that Kaput ® -D may pose to black-capped vireos, we conducted a thorough review of their life history to de termine to what extent the range, habitat preferences, and diet of this species overlaps with areas where BTPD colonies occur and the likelihood that blackcapped vireos would come into dire ct or indirect exposure with Kaput ® -D bait or dead/dying (poisoned) prairie dogs, resulting in adverse effects. Label restri ctions that were designed to limit impacts to non-target species were also cons idered, but some were not heavily weighted in this analysis due to fact ors previously discussed.

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

that extend into north Texas. The BTPDs tend to avoid areas of heavy brush and tall grass due to the reduced visibility that these habitats im pose. Therefore, habitats used by black-capped vireos do not overlap with the open prairie habitat re quired by BTPDs.

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

are considered.

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

Although the range for the black-capped vireo hi storically was larger than today, current overlap of the range of the black -capped vireo with BTPDs is geographically limited. Likewise, BTPDs historically occurred over most of the west ern half of Texas but have been extirpated from portions of their former range (Davis and Schmidly 1994). The range for the black-capped vireo today only marginally ove rlaps with the range for BT PDs, and different habitat requirements preclude the co-existence of these two species in the same location.

We conclude that adverse effect s to black-capped vireos from the proposed action are extremely unlikely to occur due to: 1) limited geographic ov erlap between the current ranges of the blackcapped vireo and BTPD; 2) black-capped vireos migrate to Mexico during the time frame in which Kaput ® -D application would be permitted; and 3) in the highly unlikely event that blackcapped vireos used habitat where Kaput ® -D was applied, their dietary requirements would39 minimize the probability of prim ary or secondary exposure. T hus the effects to black-capped vireos from the proposed action ar e considered discountable. No critical habitat for the blackcapped vireo has been designated; therefore none will be affected.

3. Canada Lynx

The Kaput ® -D Assessment describes that direct effect s to mammals are expected to occur based on the potential for them to consume prey items that have consumed the diphacinone bait. Effects to growth and reproduction were not described and ca nnot be precluded.

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

occurs in Colorado.

Canada lynx are dependent on presence of snowshoe hares ( Lepus americanus ) and the hare’s preferred habitat conditions which include dense understori es of young trees, shrubs or overhanging boughs that protrude above the snow and mature multistoried stands with conifer boughs touching the snow surface. Snowshoe hare s are not found in BTPD habitat. Canada lynx have been observed (via snow tracking) to avoid open habitats (i .e., prairie dog towns) (Koehler 1990, Staples 1995) during daily move ments within the home range. Canada Lynx prefer to move through continuous forest using th e highest terrain available such as ridges and saddles (Koehler 1990, Staples 1995). While some Canada lynx may move through open habitats at times during transient or disper sal movements, the likelihood of a Canada lynx moving through a BTPD colony is small, and th e likelihood that they would move through a black tailed prairie dog colony that is also being treated with Kaput ® -D is so unlikely that it is discountable. Therefore, we do not anticipate adverse effects to Canada lynx from the use of Kaput ® -D to treat BTPD colonies.

Critical habitat for Canada lynx is not designated in Colorado, and critic al habitat in Wyoming and Montana does not overlap with BTPD known occurrences and potential range. Therefore, we conclude that the use of Kaput ® -D in BTPD colonies would not adversely affect designated critical habitat for Canada lynx.

4. Eskimo Curlew

The Kaput ® -D Assessment anticipates direct and indir ect effects to birds that are exposed to diphacinone. While RQs were not exceeded for dire ct consumption of bait, we believe that TRV

values used in these calculations to be underestim ations of risk and that adverse effects from exposure to bait cannot be precl uded, should such exposure occur. Direct effects to Eskimo curlew could also occur due to pot ential for this species to consum e terrestrial invertebrate prey items that have consumed Kaput ® -D. Additionally, impacts to te rrestrial invertebrates from Kaput ® -D exposure may indirectly affect Eskimo curl ews by depleting their prey base. In its

Rozol ® Assessment, the EPA concluded that poten tial exposure of Eskimo curlews to bait40 would be limited to the spring migration (USE PA 2010a). We anticipate that effects from Kaput ® -D would be similar should exposure occur.

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

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

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

estimates are based on the last uncontroversial r ecord of observance, a specimen that was shot in Barbados in 1963 (USFWS 2011d). From 196 3 to the spring of 2009, 39 potential sightings have occurred in 22 different years (Committee on the Status of Endangered Wildlife in Canada 2009); however, the reliability of these sightings is variable, and none have been confirmed by physical evidence (USFWS 2011d). If controversia l records of observan ce are included, then the analysis estimates an extinction date of 2008 with the upper bound of 95 percent confidence interval reaching 2013 (USFWS 2011d).

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

associated with BTPD colonies in western South Dakota, but that species also uses short- and mixed-grass prairies absent of prairie dogs (Sharps and Uresk 1990) . In Kansas, where the last Eskimo curlew sighting was in 1902, habitat pref erence purportedly included prairie dog towns where they fed on invertebrates (Kansas Depa rtment of Wildlife and Parks 2000). Although there is some indication that prairie dog to wns may provide foraging habitat for Eskimo curlews, more relevant habitat factors that have likely contributed to th eir decline include the wide-scale conversion of grassl and to agriculture, fire suppre ssion, and the extinction of the Rocky Mountain grasshopper ( Melanoplus spretus ) as an important food source (USFWS 2011d).

In conclusion, Eskimo curlews are likely already ex tinct or at best extremely rare; thus, direct and indirect effects from Kaput ® -D exposure are so extremely unlikely to occur as to be considered discountable. Therefore, the Service does not anticipate adve rse effects to Eskimo curlew from use of Kaput ® -D on BTPDs. No critical habitat for the Eskimo curlew has been designated; therefore none will be affected.

5. Golden-cheeked Warbler

The golden-cheeked warbler is the only breeding bird endemic to the State of Texas. The golden-cheeked warbler is a sma ll 12 cm (4.5 in.) migratory s ongbird whose nesting range is41 currently confined to habitat in 33 counties in central Texas. Golden-cheeked warblers were federally listed as endangered in 1990. The bi rds are dependent on Ashe juniper (blueberry juniper or cedar) for fine bark strips used in nest construction. Although nests may be placed in various species of trees, such as Ashe junipe r, Texas oak, live oak, and cedar elm, all nests contain strips of Ashe juniper ba rk woven together with spider webs. Golden-cheeked warblers feed almost entirely on caterpil lars, spiders, beetles, and othe r insects found in foliage. The species winters in southern Mexico and Central America. In the period from July to August, golden-cheeked warblers migrate southward fr om Texas through the pine-oak woodlands of eastern Mexico and begin returning to Texas in la te February. The earliest arrival date on the breeding grounds in Texas is March 2; howev er, most arrive mid-March (Pulich 1976).

\ The Kaput ® -D Assessment anticipates direct and indir ect effects to birds that are exposed to diphacinone. While RQs were not exceeded for dire ct consumption of bait, we believe that TRV

values used in these calculations to be underestim ations of risk and that adverse effects from exposure to bait cannot be pr ecluded. For our assessment of the risk that Kaput ® -D may pose to golden-cheeked warblers, we reviewed their life history to determine to what extent the range, habitat preferences, and diet of this species overlaps with areas where BTPD colonies occur and the likelihood that golden-cheeked warblers woul d come into direct or indirect exposure with Kaput ® -D bait or poisoned prairie dogs that could result in adverse effects. Label restrictions that were designed to limit impacts to non-targ et species were also considered, but some requirements were not heavily weig hted due to limitations with th e label restricti ons previously

discussed.

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

BTPDs.

Golden-cheeked warblers are exclusively insect ivorous. Thus, we do not anticipate that they will purposefully or inadvertently consume the bait intended for the BTPDs. Golden-cheeked warblers do not prey on rodents or small mammals such as BTPDs, so risk of secondary Kaput ® -D poisoning from consumption of small mamma ls is not expected. The risk posed to golden-cheeked warblers from secondary poiso ning through consumption of insects containing residues of Kaput ® -D (i.e., consumption of insects that have come into contact with Kaput ® -D grain bait or poisoned BTPDs) is possible but considered unlikely when life histories of the species and its prey species are considered.

The golden-cheeked warbler’s migration timing is also a factor we have considered in this analysis. The Kaput ® -D label restricts appli cations to the period between October 1 and March 15 which somewhat limits potential exposures to th is species. Golden-cheeked warblers leave Texas in August, returning in late February the following ye ar and, therefore, would be wintering in Mexico and Centra l America during the majority of the October 1 to March 15 timeframe when Kaput ® -D applications are allowed.42 Although the range for the golden-cheeked warbler was historically larger th an today, its current overlap with BTPDs is limited geographically. Historically, BTPDs occurred over most of the western half of Texas, but they have been ex tirpated from portions of their former range (Natural Science Research Laboratory 2012). Although the range fo r the golden-cheeked warbler marginally overlaps with the range for BTPDs, different habita t requirements preclude the co-existence of this avian species with the BTPD.

We conclude that adverse eff ects to golden cheeked warblers from the proposed action are extremely unlikely to occur due to: 1) limited ge ographic overlap between the current ranges of the golden-cheeked warbler and BTPD; 2) in the highly unlikely even t that golden-cheeked warblers would use habitat where Kaput ® -D was applied, their dietary requirements would minimize the probability of primary or seconda ry exposure; and 3) golden-cheeked warblers winter in Mexico during the time frame in which Kaput ® -D application would be permitted. Thus effects to golden-cheeked warblers from the proposed action area considered discountable. No critical habitat for the golden-cheeked warb ler has been designated; therefore none will be

affected.

6. Gulf Coast Jaguarundi

Based upon the exposure and effects sections of EPA’s Rozol ® Assessment and its Kaput ® -D Assessment, diphacinone exposure to the Gulf Co ast jaguarundi may occur from potential direct effects from prey that consume diphacinone ba it, including BTPDs and non-target animals. However, the EPA’s Rozol® Assessment indicated that there would be no indirect effects from prey-base loss expected because this species’ habitat is distinct from BTPD habitat.

The Gulf Coast jaguarundi is reported from Mexic o, southern Arizona, and southern Texas. It is not found within the BTPD range. As such, any effects from the action to the Gulf Coast jaguarundi are considered to be extremely unlikel y to occur, and are considered discountable. Therefore, the Service does not anticipate advers e effects to the Gulf Coast jaguarundi from use of Kaput ® -D on BTPDs. No critical habitat for the Gulf Coast jaguarondi has been designated;

therefore none will be affected.

7. Ocelot

The ocelot may be adversely affected by Kaput ® -D use based on potential direct effects from prey that may consume diphacinone bait, includ ing BTPDs and non-target animals. However,

the EPA’s Rozol® Assessment indicated that ther e would be no indirect effects from prey-base loss expected because this species’ habita t is distinct from the BTPD habitat.

The ocelot is found in Mexico, southern Arizon a, and southern Texas. There is no overlap between the BTPD and the ocelot; any primary or secondary exposur e effects to this species are extremely unlikely to occur and are considered di scountable. Therefore, we conclude that the proposed action is not likely to adve rsely affect the ocelot. No cri tical habitat for the ocelot has been designated; therefor e none will be affected.43 8. Piping Plover

The action area encompasses the entire United St ates breeding range of the Northern Great Plains population of the piping plover. Piping plovers have nested near prairie dog towns (within 0.10 mile) (USCOE 2011, Kempema et al. 2009, Montana Natural Heritage Program 2011). However, our analysis sugge sts that there is little, if a ny, direct overlap between prairie dog towns and piping plover critical habitat or known nesting areas. Additionally, piping plovers’ predilection to nest and forage in sandy or gravelly areas near water with little vegetation make it unlikely that they would exte nsively use prairie dog towns. In areas where prairie dog towns are in close proximity to nest ing habitat, it is possible that piping plovers could ingest invertebra tes that had fed on Kaput ® -D or that dying prai rie dogs may expire along the shoreline, exposing piping plovers to Kaput ® -D through maggots. However, because piping plovers are not expected to forage in th e prairie dog towns directly and the Kaput ® -D use season ends before piping plovers are lik ely to encounter prairie dog coloni es (see below), the risk of exposure to piping plovers is unlikely.

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

and unsuitable until the next flood inundates the hab itat again, clearing it of vegetation. Since prairie dogs use vegetated areas wh ich are not suitable for piping plovers even af ter the prairie dogs have clipped the grasses in the area, prairie dog towns would not have the primary constituent element of “sparsely vegetated shoreline beaches.” Therefore, since Kaput ® -D application would occur only in prairie dog towns which do not have the primary constituent elements that define piping plover critical habi tat and the effects of the proposed action would be extremely unlikely to extend to or measurably affect nearby critical habitat, we do not anticipate impacts to designated criti cal habitat for the piping plover.

The Kaput ® -D label allows treatment only between October 1 and March 15 of the following year. During this time period, piping plovers would be on the winter ing grounds which do not overlap with the BTPD range. Contaminated prairie dog carcasses have been documented on the surface up to 29 days post treatment, so some piping plovers arriving on the breeding grounds in April and May could overlap temporally when contaminated carcasses are available. There is some potential for disturbance by applicat ors collecting carcasses in April when piping plovers have started to arrive, bu t this disturbance is expected to be minimal since the activity will be concentrated in the prairie dog town s, which piping plovers do not use for nesting.

A number of documented prairie dog towns occur near the designated crit ical habitat along the Missouri River and reservoir system in North Dakota and South Dakota. However, no piping plover nests have been documented to occur within the prairie dog towns (USCOE 2011), nor have piping plovers been observed to forage within prairie dog towns (Someson 2012, personal communication). Piping plovers have not been documented to eat grains, so they would be unlikely to feed directly on Kaput ® -D. Secondary poisoning is a pot ential risk if piping plovers were to prey on maggots or othe r insects that had fed on the ba it directly or on contaminated44 prairie dogs. In the Great Lakes, maggots were po stulated to be the source of Type E botulism

that infected and killed some piping plovers (USFWS 2009f). In the two reported cases where piping plovers have been obser ved foraging on carcasses, the ca rcasses have been along the shoreline; plovers were not documented to leav e their traditional foraging areas to forage on carcasses (Keane 2002, USFWS 2009f). We do not anticipate Kaput ® -D use along the Missouri River shoreline, so exposure of piping plove rs to contaminated ma ggots is not expected. Piping plovers have been documented to nest up to one-half mile from the water along the reservoirs (Pavelka 2008, pers onal communication), but this was in low water years and the

nests were below the elevation at which the re servoirs are considered full in a normal year.

Most nests are initiated relative ly close to the water (Anteau et al. 2011). The average number of piping plovers nesting on the Missouri Rive r reservoirs annually from 1994-2010 has been 496 (USCOE 2011), but only a very small subset (l ess than a few dozen) of these were near prairie dog towns and none we re in prairie dog towns.

The risk of secondary poisoning is unlikely due to the chain of ev ents that would have to occur for piping plovers to be exposed. Since pipi ng plovers do not eat grai n directly, poisoning would have to occur via a secondary route, such as via insect pre y. For terrestrial insects to be available for piping plover forage, contaminated insects would have to leave the prairie dog town and move to unvegetated habitat (most lik ely along the water’s edge ) where piping plovers do most of their foraging, and be ingested by pipi ng plovers. It is extrem ely unlikely that piping plovers would be exposed to sufficient Kaput ® -D concentrations in this manner. Additionally, we do not anticipate that pipi ng plovers will consume BTPD or other non-target mammal carcasses, so this secondary route of exposure is also ex tremely unlikely to occur.

In summary, impacts to piping plovers are ex tremely unlikely to occur and are considered

discountable because:

 The Kaput ® -D label only allows application to occur between October 1 and March 15 of the following year, when piping plovers are absent from the breeding grounds.

 The potential Kaput ® -D exposure routes are circuitous with both possible transmissions being via insects; neither of which is expected to occur.

o Route 1 – the invertebrates have eaten th e bait directly and then move to piping plover foraging areas. While this route is possible, the time lag between the last application of Kaput ® -D and the arrival of piping plovers reduces the likelihood of impact. Further, prairie dog colonies are generally well removed from piping plover nesting areas, and contaminated invertebrates would have to move from the prairie dog town to piping plover habitat to be exposed to ingestion by piping plovers.

o Route 2 - the invertebrates (most likely maggots) may become contaminated through feeding on a contaminated carcass. This route would require a contaminated carcass from a Kaput ® -D application (that had occurred weeks to months earlier) to be

located in piping plover foraging habita t on the shoreline, which would be out of the prairie dog town, and remain in place long enough to become infested with maggots.45 The maggots would have to be carrying a high enough concentration of Kaput ® -D to affect piping plovers and/or the piping plovers would have to consume them in sufficient quantity to be impacted.

 Most of the activity associated with pois oning would occur outside of piping plover use areas, so disturbance associated w ith poisoning activities is unlikely.

 By definition, prairie dog habitat does not have the primary constituent elements that define piping plover critical habitat. Thus, we do not anticipate that Kaput ® -D application would adversely affect designated critical habitat.

Based on the above information, the Service conc ludes that adverse effe cts to piping plovers from the use of Kaput ® -D to poison BTPDs are extremely unl ikely to occur and are considered discountable. We also assume that, the propos ed action is not likely to adversely affect designated critical habitat.

9. Whooping Crane

The Kaput ® -D Assessment anticipates direct and indir ect effects to birds that are exposed to diphacinone. While RQs were not exceeded for dire ct consumption of bait, we believe that TRV

values used in these calculations to be undere stimations of risk and adverse effects from exposure to bait cannot be preclude d. Indirect effects could occur if there is loss of the prey base. Prey species are expected to be killed because effects to indivi duals within populations have been demonstrated in mammals, birds, and te rrestrial invertebrates. No indirect effects from habitat loss are expected because th is species does not use BTPD burrows.

The map in the Rozol ® Assessment, which was also used for refe rence in this consultation, indicates some overlap between the whooping crane and BTPD in Montana, North Dakota, South Dakota, Wyoming, Colorado, Nebraska, Kansas, and Oklahoma. The map does not depict any counties in Texas; the Service ha s sent a map of Texas counties to the EPA indicating potential wh ooping crane presence.

Three populations of whooping cranes exist in the wild: 1) the Aransas Wood Buffalo Population, 2) the Florida Population, and 3) the Eastern Migratory P opulation. The Aransas Wood Buffalo Population nests in the Wood Buffalo National Park in the Northwest Territories of Canada and in Alberta, Canada. This popul ation migrates through eas tern Montana, North Dakota, South Dakota, Nebraska, Kansas, Okla homa, and Texas between breeding grounds in Canada and wintering grounds of Aransas National Wildlife Refuge on the Gulf Coast of Texas. This migration route overlaps with the range of BTPDs. The Florida Population is nonmigratory and is located on the Kissimmee Prai rie, south of Orlando in Osceola and Polk counties and does not overlap with the range of BTPDs. The Eastern Mi gratory Population was reintroduced to the Necedah National Wildlife Refuge in Wisconsin with captive birds trained to migrate to Chassahowitzka National Wildlife Refuge on the Gulf Coast of Florida and does not overlap with the range of BTPDs. The Ar ansas Wood Buffalo Population is the only selfsustaining wild population. The Florida Popul ation and Eastern Migr atory Population are introduced and are designated nonessential experimental populations by the Service.46 The whooping crane is a territorial nester and returns to the same area each year. Whooping cranes summer in marshes and prairie potholes and winter in coastal marshes and prairies. Eggs are laid from April to mid-May. Incubation la sts for a month. At Wood Buffalo National Park, whooping cranes migrate southward in the fall from mid-September to mid-November to winter at the Aransas National Wildlife Refuge. Howe ver, those dates may vary. Ten Aransas Wood Buffalo Population whooping cranes were f itted with Global Positioning System (GPS) platform transmitters and were tracked by the Service and The Crane Trust as they migrated

from Wood Buffalo National Park to Aransa s National Wildlife Refuge. In 2010, whooping

cranes left Wood Buffalo National Park as early as August 20 and continued until October 31. They arrived at Aransas National Wildlife Refuge between October 28 and November 26. Whooping cranes spent most of their time in Saskatchewan followed by North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, and Texa s. The whooping cranes made stopovers on 39 private properties and 15 public land sites and varied between rive rs (including reservoirs on the Missouri River), lakes, wetlands, and uplands. Upla nd roost sites consisted of corn fields, fields planted in winter wheat, and a harvested rice field. In spri ng, the migration begins between March 25 and April 15, and some may not leave Aransas National Wildlife Refuge until May.

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

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

Buffalo National Park to Aransas National Wildlife Refuge which is the first half of the Kaput ®

- D application season. During their spring migrat ion from Aransas National Wildlife Refuge to

Wood Buffalo National Park in late March, it is possible that Kaput ® -D will have been applied to areas within days prior to their departure and contaminated prairie dog carcasses have been documented on the surface up to 29 days post-tr eatment. Whooping cranes are not known to use BTPD colonies during their migration be tween wintering and breeding areas. Whooping cranes are known to eat agricultural grains, frogs , fish, insects, tubers, rodents, and crayfish, which may be exposed to diphacinone, but the whopping crane’s risk of exposure to affected prey is uncertain.

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

cranes and BTPD reduces the chance that the whooping cranes would enc ounter treated grain.

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

factor in their death. If the tracking study or necropsies reveal significant new information or indicate adverse effects are occurring to whooping cranes, we will request that the EPA reinitiate consultation (as per the new information clause in the Reinitiation Notice at the end of the BO). In summary: a) whooping cranes have not been documented to forage or roost in BTPD colonies, b) the occurrence of the species in the proximity of BTPD colonies is not likely to be frequent, c) during migr ation, whooping cranes are not exp ected to venture into BTPD colonies, creating a degree of habitat isolation between the two species, and d) mechanisms are in place to further assess whether whooping cranes use BTPD colonies.

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

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

 Cheyenne Bottoms State Waterfowl Manage ment Area and Quivira National Wildlife Refuge in Kansas;

 The Platte River between Le xington and Denman, Nebraska;

 Salt Plains National Wildlife Refuge in Oklahoma; and

 Aransas National Wildlife Ref uge and vicinity in Texas.

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

With exception of the Platte River in Nebraska, all designated critical habitats are Service National Wildlife Refuges or Waterfowl Manage ment Areas that are unlikely to have Kaput ® -D use on their properties; doing so would result in a future Section 7 consultation. The BTPD48 colonies are not known to occur in the designa ted critical habitat areas. Burrows are not specified critical elements of whooping crane cr itical habitat. The EP A’s conceptual impact

model in the Rozol ® Assessment (and which is also used in this analysis) lists “altered plant community composition” as a second indirect eff ect on habitat resulting from BTPD control.

Reduction or eradication of BTPD colonies could lead to incr eases in vegetation height and density at sites treated with Kaput ® -D. However, some thicker vegetation is unlikely to cause

adverse effects to the critical habitat for species because there are minimal BTPD colonies in whooping crane designated critical habitat. We conclude that adverse eff ects to the whooping crane from the proposed action ar e extremely unlikely to occur a nd are considered discountable. Additionally, we believe that ad verse effects to whooping crane cr itical habitat are unlikely.



### C. SPECIES FOR WHICH CONSER VATION MEASURES PRECLUDE

ADVERSE EFFECTS

The following species analyses are based on the EPA’s adoption of conservation measures that are anticipated to result in the avoidance of adverse effects to federally listed species/critical habitats, primarily by identifying areas where th e product is prohibited an d/or applying timing

restrictions for the application of Kaput ® -D. As a result of the conservation measures incorporated into the proposed action by the EPA and the applicant, we conclude that adverse effects are not likely for: 1) the Chiricahua le opard frog, 2) grizzly bear, 3) jaguar, 4) New Mexico ridge-nosed rattlesnake, 5) Mexican spotted owl, and 6) Preble’s Meadow Jumping

Mouse. Conservation measures were also deve loped for the black-footed ferret, gray wolf (Mexican subspecies) and north ern aplomado falcon; see “Spe cies for which conservation measures were adopted, but adverse effects are still anticipated” section of this BO for those species analyses.

1. Chiricahua Leopard Frog

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

The EPA determined that the proposed action may directly affect the Chiricahua leopard frog because the range of the species overlaps with BTPD habitat. Although Catron, Hidalgo, Grant, Sierra, and Socorro Counties do no t have large colonies of BTPD s (1,541 acres or 2 percent of Statewide acres), small scattered colonies ma y occur adjacent to Chiricahua leopard frog habitat, thus creating th e possibility that Kaput ® -D could be used within or near Chiricahua leopard frog habitats (Johnson et al. 2003). Th e EPA determined that the Chiricahua leopard frog could be affected by Kaput ® -D applications through consump tion of poisoned invertebrates that have ingested Kaput ® -D or loss of invertebrate prey ba se. Most likely, we believe such

effects would be limited to indi vidual Chiricahua leopard frogs and would not result in large scale die-offs or population losses. In addition, Chiricahua leopa rd frogs only eat live prey and49 would not consume a dead organism; they do not scavenge. A large portion of the Chiricahua leopard frog range in New Mexico is located on U.S. Forest Service lands, and agency approval would be required before Kaput ® -D could be deployed.

The EPA has agreed to adopt conservation meas ures as part of thei r proposed action to minimize potential exposure of Chiricahua leopard frogs to Kaput ® -D by precluding its application in Catron, Hidalgo, Grant, Sierra , and Socorro Counties. Because designated critical habitat captures a large portion of the range of Chiricahua leopard frog in New Mexico, the proposed conservation m easure of prohibiting Kaput ® -D use in Catron, Hidalgo, Grant, Sierra, and Socorro Counties would greatly reduce the potential for exposure to Kaput ® -D and significantly reduce the potential for adverse e ffects to the Chiricahua leopard frog and its proposed critical habita t. Additionally, Kaput ® -D would not be applied within critical habitat; thus, no Kaput ® -D impacts to critical habitat are anticipated.

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

2. Grizzly Bear

In the Kaput ® -D assessment, the EPA describes that di rect effects are expe cted to occur to mammals based on their potential to consume diphacinone bait (pri mary exposure) or other prey items that may have consumed diphacinone bait (secondary exposure). In the Rozol ®
Assessment, the EPA assumed exposure to grizzl y bears would occur because the grizzly bear range overlaps BTPD habitat and the applicati on season overlaps period s during which grizzly

bears are active and not hibern ating. The EPA defines the Kaput ® -D application period on the label as occurring between October 1 and Marc h 15. The EPA assumed acute exposure based on the assumption that a grizzly bear is most lik ely to encounter a rode nticide application area shortly before or after hibernation at which tim e the bear is engorging itself (USEPA 2010a). However, growth and reproductive effects cannot be precluded. The EPA calculated RQs that exceeded a 0.1 LOC for grizzly bears, especially for primary consumption (RQ = 24.04), values that we believe may be underestimated. The Kaput ® -D Assessment also indicates potential indirect effects to mammals due to the loss of prey base.

As part of the proposed action, the EPA has agre ed to impose a timing restriction so use of Kaput ® -D would only be used during the grizzly bear denning period (use would only occur between December 1 and March 1) within those counties in Montana where grizzly bears may occur and may overlap with BTPDs (see Table 3). This measure would greatly reduce the potential for overlap of grizzly bears and Kaput ® -D -treated BTPD col onies during the period where grizzly bears could be exposed to Kaput ® -D through primary or secondary exposure (the non-denning period). Further, there are very few BTPD colonies that exist in the mountain/prairie transition zone where the o ccasional grizzly bear may encounter BTPD colonies. Based on a map produced by the Montana Natural Heritage Tracker website, less than

10 known or documented BTPD colonies occur where grizzly bears currently may occur (Montana Natural Heritage Program 2011).50 Table 3. Counties in Montana with Kaput ® -D treatment timing restrictions.

Carbon Pondera

Cascade Powell Gallatin, South of I-90 Stillwater, South of I-90 Glacier Sweetgrass, South of I-90

Lewis and Clark Teton

Madison Toole Park, South of I-90

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

With the timing restriction conser vation measure, we conclude th at adverse effects to grizzly bears from primary exposure to Kaput ® -D are extremely unlikely to occur and are considered discountable. In study of Rozol ® application to BTPDs, prevalence of chlorophacinone bait visible in or around burrows declined by a pproximately 87 percent by day 7 (Lee and Hygnstrom 2007) and we assume simila r values and/or trends for Kaput ® -D prevalence. Thus, after approximately 50 days pos t-application when grizzly be ars may first encounter a Kaput ®

- D -poisoned BTPD town, essentiall y all of the bait is likely to have been consumed by BTPDs or non-target species. Therefore, based on th e timing restriction and the minimal overlap of grizzly bear habitat and BTPD colonies, we c onclude that the likelihood of a grizzly bear encountering and consuming a su fficient quantity of Kaput ® -D bait to result in harmful effects

is so low that it is discountable.

The likelihood of detrim ental effects to grizzly bears fr om secondary exposure to Kaput ® -D is

also so low that it is discountable. The di e-off of BTPDs and non-target animals following a Kaput ® -D application would likely reach its conclusi on before a grizzly bear would encounter a poisoned colony. Fifty or more days following application, few, if any, Kaput ® -D-poisoned carcasses or prey debili tated by exposure to Kaput ® -D would be available for consumption by grizzly bears. While moribund BTPDs were detected 29 days after Rozol ® application (Vyas 2010a), the prairie dog availability is not expected to be high 50 days following application. Most prairie dogs are expected to die within da ys to weeks of applic ation, and predators and scavengers would likely remove most prairie dogs by the tim e grizzly bears may encounter Kaput ® -D-poisoned colonies.51 Therefore, by the time grizzly bears may use ha bitat within these areas, the Services concludes there will be insufficient quantities of available prey items or bait to cau se adverse effects.

It is also the Service’s conclusion that indirect effects to grizzly bears due to the loss of prey base from use of Kaput ® -D are insignificant. Few BTPD co lonies occur in areas where grizzly bears also occur, and prairie dogs are not a significant dietary item for grizzly bears.

In summary, few BTPD coloni es occur in areas accessed by grizzly bears and, with the restricted timing of Kaput ® -D use in grizzly bear areas (between December 1 and March 1), the Service does not anticipate adverse effect s to grizzly bears as a result of Kaput ® -D use on

BTPDs in those areas. No critical habitat for the grizzly bear has been designated; therefore

none will be affected.

3. Jaguar

In the Kaput ® -D assessment, the EPA describes that di rect effects are exp ected to occur to mammals based on their potential to consume diphacinone bait (pri mary exposure) or other prey items that may have consumed diphacinone bait (secondary exposure). In the Rozol ®
Assessment, the EPA assumed exposure to ja guars would occur because the jaguar range overlaps BTPD habitat. In addition, the EPA’s Kaput ® -D Assessment indicates that there could be indirect effects from prey-base loss.

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

4. Mexican Spotted Owl

The proposed action may directly affect the Me xican spotted owl because the range of the species overlaps with BTPD habitat at a large landscape scale. The Me xican spotted owl could be affected by application of Kaput ® -D through consumption of poisoned prey or loss of prey base, and adverse effects to Mexican s potted owl critical habitat may occur.

Within the action area for this project, the Mexican spotted owl occurs within Colorado, New Mexico, and western Texas. In Texas, th e Mexican spotted owl is only known from the Guadalupe Mountains National Pa rk (USFWS 1995). The action ar ea was analyzed for possible effects to the Mexican spotted ow l that include the BTPD range w ithin the three States listed. Effects may extend beyond the use area due to exposure to individua ls or via prey items with diphacinone residues if found outside of their described range. The final Mexican spotted owl52 critical habitat rule (USFWS 2004) designated approximately 3.5 million ha (8.6 million acres)

of critical habitat in Arizona , Colorado, New Mexico, and Utah, mostly on Federal lands (USFWS 2004). Within this larger area, critical habitat is limited to areas that contain the primary constituent elements (USFWS 2004). The primary constituent elements include forest structure for nesting and prey maintenance but not the prey base itself (USFWS 2004). In

summary:

 Known habitat use by the Mexican spotted ow l does not correspond with BTPD habitat; thus, the Mexican spotted owl is considered extremely unlikely to occur within BTPD habitats where Kaput ® -D will be applied. The potential for Mexican spotted owls to experience secondary exposure to diphacinone is considered so unlikely as to be

discountable.

 The proposed action will not re sult in any effects to the PC Es of designated critical habitat for the Mexican spotted owl. PCEs for the Mexican spotted owl include mixedconifer, pine-oak, and riparian forest types that provide for one or more of the owl’s habitat needs for nesting, roosting, fora ging, and dispersing. These PCEs do not correspond with BTPD habitat and are unl ikely to occur within the areas Kaput ® -D is applied. Therefore, the potential for Mexican spotted owl PCEs to be adversely affected by diphacinone is considered so unlikely as to be discountable.

 The prohibition of Kaput ® -D application in Catron, Grant, Sierra, and Socorro Counties protect important Mexican spotted owl eco logical management units and designated

critical habitat.

Based on the above, the Service anticipates that a dverse effects to Mexican spotted owls or their critical habitat are extremely unlikely to occur and are considered discountable.

5. New Mexico Ridge-Nosed Rattlesnake

The Kaput ® -D Assessment indicates that reptiles exposed to diphacinone are likely to experience direct effects, including but not lim ited to mortality. Diphacinone appears to have a different mode of action in reptiles, which is currently unknown. Morta lity does not result from anticoagulation, its mode of action in target spec ies. Effects to repr oduction have not been evaluated but cannot be precluded. Additionally , indirect effects from prey-base loss are expected because effects to potential prey species have been demonstrated. No indirect effects from habitat loss are expected because this sp ecies does not use BTPD burrows. In addition, adverse effects to designated critical habitat ma y occur because of overlap with BTPD habitat.

The New Mexico ridge-nosed rattlesnake is repo rted from Mexico, Arizona, and New Mexico. Within the action area, the New Mexico ridge-n osed rattlesnake is only found in Hidalgo County, New Mexico. New Mexico ridge-nosed rattlesnakes ar e found in steep, rocky canyons with intermittent streams and on talus slopes in the Animas Mountains. The BTPD habitat does not overlap with the New Mexico ridge-nosed rattlesnake, although occasional prairie dogs might be found in adjacent habitats where the ac tion might indirectly aff ect the species. The EPA adopted the conservation measure of ex cluding Hidalgo County from the area where53 Kaput ® -D may be applied, substantia lly reducing the potential impacts of the action to the New Mexico ridge-nosed rattlesnake. Because of the low BTPD abundance in Hidalgo County (Johnson et al. 2003), the low proba bility of interaction between the New Mexico ridge-nosed rattlesnake and BTPD, based on differing habitat use of each species, and Kaput ® -D use prohibition in the area occupied by the Mexico ridge-nosed rattlesnake, effects from the action are extremely unlikely to occur and are cons idered discountable. The Service does not anticipate adverse effects to the New Mexico ridge-nosed rattlesnake.

Designated critical habitat for the New Mexico ridge-nosed rattlesnake occurs only in Hidalgo County within the action area. There are no known BTPDs in designated critical habitat. The conservation measure of excluding Kaput ® -D application in Hidalgo County precludes effects of the action on designated critical habitat. T hus, adverse effects to New Mexico ridge-nosed rattlesnake designated critical habitat are not anticipated.

6. Preble’s Meadow Jumping Mouse

In the Rozol ® Assessment, the EPA concluded that the use of Rozol ® to control the BTPD was likely to adversely affect the Preble’s meadow jumping mouse for the reasons described below. The rationale extends to Kaput ® -D:

The range of this species overlaps with Black-tailed prairie dog habitat. Rozol ®

Prairie Dog bait application season for the control for Black-tailed prairie dogs overlaps periods during which the Preble’s meadow jumping mouse is active and not hibernating. However, Preble’s meadow jump ing mice will be hibernating during most of this time. Chlorophacinone can be applied between October 1 and March 15 or spring green-up, whichever occurs later. Pr eble’s meadow jumping mice typically enter

hibernation between late A ugust and October and come out of hibernation in May. Based on the life history information it seems reasonable that the Preble’s meadow jumping mouse could be exposed to the ch lorophacinone bait. A Preble’s meadow jumping mouse would have to eat less than one grain of Rozol ® Prairie Dog bait per day for five days to reach the LOC. It is po ssible that a Preble’s meadow jumping mouse could consume this amount of bait. The Preb le’s meadow jumping mouse is most likely
to encounter a Rozol ® application area shortly before or after hibernation at which time the mouse is engorging itself. This only in creases the likelihood t hat the bait would be

consumed

.

The Preble’s meadow jumping mouse is found in Wyoming and Colorado, in both the North

Platte River and South Platte Ri ver basins, from the eastern fla nk of the Laramie Mountains and the Laramie Plains in southeastern Wyoming sout h along the eastern flank of the Front Range in

Colorado and into the headwaters of the Ar kansas River Basin near Colorado Springs,

Colorado.

In Wyoming, the Preble’s meadow jumping m ouse is known to occur only in Albany, southern Converse, Laramie, and Platte counties. The Pr eble’s meadow jumping mouse is not thought to occur in Wyoming’s Goshen and Niobrara Coun ties to the east or eastern Laramie County54 (Keinath 2001). Occurrence of the Preble’s meadow jumping mouse and BTPD in Wyoming overlaps primarily in portions of southern Converse County and we stern Platte County (Wyoming Natural Diversity Database [WYNDD] 2011). Known distribution of the Preble’s meadow jumping mouse in Colorado includes B oulder, Douglas, El Paso, Elbert, Jefferson, Larimer, and Weld Counties. The easternm ost captures extend to western Weld County, western Elbert County, and north-c entral El Paso County. No recent captures of the Preble’s meadow jumping mouse have been documented with in its potential range in Adams, Arapahoe, Broomfield, Denver, or Morgan Counties, and it is likely that the Preble’s meadow jumping

mouse does not occur in these areas. Occurrenc e of the Preble’s meadow jumping mouse and BTPD in Colorado overlaps primarily in west -central Weld County, eastern Boulder County, parts of Jefferson County, western Elbert County, eastern Douglas County, and northern El Paso County (Colorado Division of Pa rks and Wildlife (CPW) 2011).

Less than 30 percent of the Preble’s meadow jumping mouse distribution is estimated to fall within the range of the BTPD. Within the BTPD range, the sp ecies’ colonies occupy only a small percentage of the area, just over 1 percent in Wyoming (G renier et al. 2007, WYNDD 2011) and about 3 percent in Colorado (Ode ll et al. 2008, CPW 2011). While these same percentages may not apply direct ly to areas of Preble’s mea dow jumping mouse occurrence, it is reasonable to believe that presence of the Pr eble’s meadow jumping mouse in close proximity to BTPD colonies is infrequent throughout o ccupied Preble’s meadow jumping mouse range.

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

Where both Preble’s meadow jumping mouse and the BTPD occur, habitat isolation between the Preble’s meadow jumping mouse and BTPD reduces the chance that the Preble’s meadow jumping mouse would encounter treated grain or exposed insects. T ypical habitat for the Preble’s meadow jumping mouse is comprised of well-developed plains riparian vegetation with adjacent, relatively undi sturbed grassland communities a nd a nearby water source. Welldeveloped plains riparian vegeta tion typically includes a dense co mbination of grasses, forbs, and shrubs; a taller shrub and tree canopy may be present (Bakem an 1997). Areas of highest use by the Preble’s meadow jumping mouse tend to be along creeks, and in areas with a high percent cover of shrubs (especially wetland shrubs) and grasses (Trainor et al . 2007). In contrast, BTPD colonies are typi cally in uplands, where their activities greatly reduce vegetative cover in the vicinity of their burrows. The Preble’s meadow ju mping mouse infrequently enters areas of low, sparse vegetation characteristic of prairie dog colonies. Individual prairie dog burrows in proximity to dense riparian vegeta tion are most likely to be encountered by the Preble’s meadow jumping mouse.55 The Preble’s meadow jumping mouse is a true hibernator, usually entering underground hibernacula (hibernation nests) in September or October and emerging the following May after a potential hibernation period of 7 or 8 months. The only direct overlap between the Preble’s meadow jumping mouse active season and the Kaput ® -D treatment period, as reflected in label instructions (October 1 to Marc h 15) is October, when some Preble’s meadow jumping mice remain actively foraging above ground. As part of the proposed action, Scimetrics and the EPA agreed to timing restrictions on Kaput ® -D applications, limiting its use within the known range of Preble’s meadow jumping mouse occurren ce in Wyoming and Colorado to the period November 1 to March 15. Timing restrictions will be included in County Bulletins via the

EPA’s Bulletins Live! for those coun ties included.

By November 1, all Preble’s meadow jump ing mouse individuals have likely entered hibernation, and the conservation measure agreed to above would eliminate the lik elihood of the species encountering diphacinone-t reated bait in the fall. Em ergence of the mouse from hibernation in spring has not been documented pr ior to the first week in May. Assuming that the earliest date could be May 1, emergence would follow the last Kaput ® -D application by a minimum of 46 days. The majority of individua ls are likely to emerge later in May, providing even more temporal separation between the final Kaput ® -D application and the Preble’s meadow jumping mouse active season. Further, data on the diet of the Preble’s meadow jumping mouse indicates that insects and fungus may be preferred rather than seeds when emerging from hibernation (Shenk and Sivert 1999).

In accordance with label instructions, Kaput ® -D is placed at leas t 6 inches down BTPD burrows. Our knowledge of the Preble’s meadow jumping mouse does not suggest that, while foraging, they would venture into prairie dog burrows where Kaput ® -D is placed. Spillage, improper baiting, or BTPD digging activity coul d result in some bait exposed on the ground surface. By the time Preble’s meadow jumping mouse emerge from hibernation, bait consumption by various granivores , including insects, would redu ce remaining bait availability.

The scenario of the Preble’s meadow jumping mouse emerging from hibernation in locations adjacent to BTPD colonies, foraging in t hose colonies, and encountering and consuming Kaput ® -D or exposed insects is cons idered highly unlikely to o ccur and therefore discountable.

Potential indirect effects from reduction of prey (invertebrates) were indicated for mammals in the Kaput ® -D Assessment. As stated above, the species feed s on a variety of items, including insects. However, it is unlikely to regularly fo rage in BTPD colonies, and invertebrate prey from such habitat is not known to be a significa nt food source for the Preble’s meadow jumping mouse. The potential for the Preble’s meadow jumping mouse to be adversely impacted by

reduction of the invertebrate populations within BTPD col onies appears insignificant.

In summary, occurrence of the Preble’s mea dow jumping mouse in the proximity of BTPD colonies is likely infrequent within mouse’ s range. Where it occurs, the Preble’s meadow jumping mouse would rarely venture into BTPD co lonies, creating a degree of habitat isolation between the two species. The Preble’s meadow jumping mouse hibernates November-April, throughout the period of Kaput ® -D application as modified by the agreed upon conservation56 measures (November-March 15), creating a tempor al isolation between availability of Kaput ®

- D-treated bait or affected insect s and the mouse’s active season. Therefore, the Service does not anticipate adverse effects as a result of the proposed action.

An estimated 10,200 acres of Preble’s meadow jumping mouse critical habitat in Colorado overlaps with the BTPD range, which is approx imately 35 percent of all Preble’s meadow jumping mouse designated critical habitat. Fo r the Preble’s meadow jumping mouse, primary constituent elements (PCEs) of critical habitat are:

 Riparian corridors: formed and maintain ed by normal, dynamic, geomorphological, and hydrological processes that cr eate and maintain river and stream channels, floodplains, and floodplain benches and that promote patterns of vegetatio n favorable to the Preble’s meadow jumping mouse; containing dense, ri parian vegetation consisting of grasses, forbs, or shrubs, or any combination thereo f, in areas along rivers and streams that normally provide open water through the mous e’s active season; and including specific movement corridors that provide connectiv ity between and within populations. This may include river and stream reaches with mi nimal vegetative cover or that are armored for erosion control; travel ways beneath bridges, through culverts, along canals and ditches; and other areas th at have experienced substantial human alteration or

disturbance.

 Additional adjacent floodplain and upland ha bitat with limited human disturbance (including hayed fields, grazed pasture, other agricultural lands that are not plowed or disked regularly, areas that have been rest ored after past aggregate extraction, areas supporting recreational trails, a nd urban–wildland interfaces).

While the use of Kaput ® -D to control the BTPD and subseque nt loss of prairie dog colonies is unlikely to adversely impact th e PCEs of Preble’s meadow ju mping mouse critical habitat above, it could have indirect eff ects to Preble’s meadow jumping mouse critical habitat due to

the loss of BTPD burrows and cessation of BT PD activities that would otherwise modify vegetation. The Service believes that the loss of burrows is not expected to have an adverse impact to the Preble’s meadow jumping mouse.

Burrows of other animals are not specified PCEs of Preble’s meadow jumping mouse critical

habitat. Since the Preble’s meadow jumping mouse digs its own burrows and is not known to be dependent on burrows of other animals, it is unlikely that the Preble’s meadow jumping

mouse critical habitat would be adversely affected by the loss of prairie dog burrows following Kaput ® -D application. In the BA (page 60), the EPA’s conceptual impact model lists “altered plant community composition” as a second indire ct effect on habitat resulting from BTPD

control. Reduction or eradication of BTPDs woul d likely lead to vegetation of greater height and density at sites of their former BTPD co lonies. Where BTPD colonies are abandoned within designated critical habitat or adjacent to other riparian corridors occupied by the Preble’s meadow jumping mouse, the alte red plant community could be of greater habitat value to the mouse than low, sparse vegetation typi cally found within an active BTPD colony.57 With the inclusion of the conservation measures agreed to by the EPA and Scimetrics, adverse effects to the Preble’s meadow jumping mouse are considered to be so unlikely as to be discountable. Thus, the Service concludes Kaput ® -D is not likely to adversely affect the PMJM

or its critical habitat.



### D. SPECIES FOR WHICH CONSERVATION MEASURES WERE
ADOPTED, BUT ADVERSE EFFECT S ARE STILL ANTICIPATED

For those species for which conservation measur es did not preclude adverse effects, the full analysis of a biological opinion is necessary. Three species are anticipated to experience adverse effects, even with the conservation measures adopted by the EPA: 1) black-footed ferret, 2) gray wolf and 3) northern aplomado falcon.

1. Black-Footed Ferret

a. Status of the Species/Critical Habitat

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

The black-footed ferret was considered extinct or nearly extinct when a small population was located in Mellette County, South Dakota, in 1964 (Henderson et al . 1969). The last wild blackfooted ferret observed at the Mellette County site was in 1974 (Clark 1989). Attempts at captive breeding of a few captured animals fr om the Mellette Count y population failed, and when the last captive animal died at Patuxent Wildlife Research Center in Laurel, Maryland, in 1979, the black-footed ferret was again presumed extinct (USFWS 1988).

In 1981, a second population was discovered in Meeteetse, Wyoming (Clark et al. 1986, Lockhart et al. 2006). Following disease outbreaks at Meeteets e, all surviving wild blackfooted ferrets (totaling 18 individuals) were removed from the wild between 1985 and 1987 to initiate a captive breeding program (USFWS 1988). Seven of the black-footed ferrets captured at Meeteetse successfully reared young, leading to a lineage of continuing captive reproduction that provides black-footed ferrets to reintroduction site s today (Hutchins et al. 1996, Garelle et al. 2006).

Reintroductions began in 1991 (Table 4) a nd all extant populations, both captive and reintroduced, descend from these seven “founder” animals (Garelle et al. 2006). No wild populations of black-footed ferrets have been found since the capture of the last Meeteetse black-footed ferret, despite extensive and intensiv e range-wide searches. It is unlikely that any undiscovered wild populations remain (Lockhart et al. 2006). No known extant wild populations of black-footed ferrets exist, except those at reintroduction sites.58 (1) Ferret Reintroductions

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

have also been six black-footed ferret reintroduc tions in the United Stat es that used Section 10(a)(1)(A) recovery permits. A dditionally, there have been black -footed ferret reintroductions in Chihuahua, Mexico, and in Saskatchewan, Canada, in compliance with those countries’ statutes, for a total of 19 re introduction attempts (USFWS 20 08b, Fargey 2010). See Table 4

for the location and date of in itiation of each of the black-foot ed ferret reintroduction sites.

Table 4. Black-footed ferret rei ntroductions in North American locations, year initiated,
and associated prairie dog species.

SITE (YEAR INITIATED) PRAIRIE DOG SPECIES Shirley Basin, Wyoming (1991) White-tailed UL Bend National Wildlife Refuge , Montana (1994) Black-tailed Badlands National Park, Sout h Dakota (1994) Black-tailed Aubrey Valley, Arizona (1996) Gunnison’s Conata Basin, South Dakot a (1996) Black-tailed Ft. Belknap Indian Reservati on, Montana (1997) Black-tailed Coyote Basin, Utah (1999) White-tailed Cheyenne River Indian Reservation, South Dakota (2000) Black-tailed Bureau Land Management 40-comp lex, Montana (2001) Black-tailed Wolf Creek, Colorado (2001) White-tailed Janos, Mexico (2001) Black-tailed Rosebud Indian Reservation, Sout h Dakota (2004) Black-tailed Lower Brule Indian Reservation, South Dakota (2006) Black-tailed Wind Cave National Park, Sout h Dakota (2007) Black-tailed Espee Ranch, Arizona (2007) Gunnison’s Smoky Valley, Kansas (2007) Black-tailed Northern Cheyenne Indian Reserv ation, Montana (2008) Black-tailed Vermejo Park Ranch, New Mexico (2008) Black-tailed Grassland National Park, Ca nada (2009) Black-tailed

(2) Life History

The black-footed ferret is a medium-sized must elid typically weighing 1.4 to 2.5 pounds (lbs.) (645 to 1,125 grams) and measuring 19 to 24 inch es (479 to 600 millimeters) in total length. Upper body parts are yellowish buff, occasionally whitish; feet and tail tip are black; and a black “mask” occurs across the eyes. It is the only ferret species native to the Americas (there are no recognized subspecies). Other ferret spec ies in the genus include the Siberian polecat ( Mustela eversmanni ) and the European ferret ( Mustela putorius ) (Hillman and Clark 1980, Anderson et al. 1986). The black-footed ferret was first formally described in 1851 by J.J. Audubon and J. Bachman (Clark et al. 1986). Th e black-footed ferret is endemic to North

America. Ferrets entered North America from Siberia approximately 1 to 2 million years ago,59 spread across Beringia, and advanced southwar d through ice-free corridors to the Great Plains approximately 800,000 years ago (Wisely 2006). C ontrary to early characterizations that addressed natural history, the species was proba bly common historically , although its secretive habits (nocturnal and often underground) made it difficult to observe (Forrest et al. 1985, Anderson et al. 1986, Clark 1989).

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

believes that black-footed ferrets were historic ally endemic to the range of three prairie dog species. There are records of black-footed ferre ts from the ranges of the BTPD, white-tailed prairie dog ( Cynomys leucurus ), and Gunnison’s prairie dog ( Cynomys gunnisoni ) (Anderson et al. 1986) which collectively occupied approximately 100 million ac (40 million ha) of intermontane and prairie grasslands (Biggins et al. 1997, Clark et al. 1986 , Ernst et al. 2006). Ernst (2008, pers. comm.) estimates that in the United States, this occupied habitat existed within an estimated 562 million ac (228 million ha) of potential habitat.

Ernst (2008, pers. comm.) used a geographic in formation system data base to predict the distribution of prairie dog habita t across the United States and concluded that, historically, 85 percent of all black-footed ferrets probably occu rred in BTPD habitat, 8 percent in Gunnison’s prairie dog habitat and 7 percent in white-tailed prairie dog habita t. We conclude that most black-footed ferrets likely o ccurred in BTPD habitat.

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

The black-footed ferret’s close association with prairie dogs was an impo rtant factor in its decline. From the late 1800s to approximate ly 1960, both prairie dog habitat and numbers were dramatically reduced by the sequential and overl apping effects of habitat loss from conversion of native prairie to cropland, poisoning, and habitat modification due to disease (USFWS 2008b). The North American black-footed ferret popul ation declined precip itously as a result (Biggins 2006), and the species wa s one of the original species listed under ea rly versions of the ESA and was grandfathered in as an endange red species with passages of the ESA in 1973 (USFWS 2008b). Black-footed ferret populations in the BTPD range and other prairie dog species are known to exist toda y only in areas where black-f ooted ferret reintroductions have occurred (USFWS 2008b).60 b. Environmental Baseline

Since the 1960s, occupied BTPD acreage has increased from approximately 365,000 acres to approximately 2.4 million acres within the 10 states where Kaput ® -D is currently registered to be used as a rodenticide (USFWS 2009c). Current BTPD populations do not indicate a downward trend even though both Kaput ® -D and Rozol ® have been used under SLN labels for

BTPD control since 2006/2007 and 2004, respectively, and chlorophacinone being used as early as 1991 for BTPD control under a pocket gophe r formulation (Lee et al. 2005, USFWS 2009c).

While current information suggests that the BTPD can withstand the impact of rodenticide use, prairie dog poisoning is a high magnitude threat to the black-footed ferret (USFWS 2008b). Therefore, the conservation measure that prevents Kaput ® -D use in black-footed ferret reintroduction areas is key to maintaining the current reintr oduction sites and providing a

mechanism to accommodate future reintroduction sites.

Nineteen black-footed ferret rein troductions (Table 4) have b een undertaken in North America beginning in 1991, and most of these sites continue to have some black-footed ferrets remaining (USFWS 2008b, Fargey 2010). Thirt een reintroductions are within the range of BTPDs, and 11 of those sites are within the 10 states where Kaput ® -D is labeled for use to be used as a prairie dog rodenticide (USEPA 2012a). Despite these 19 black-footed ferret re introductions to date, insufficient time has passed at approximately one third of the sites to indicate whether the existing reintroduction sites may ev entually meet criteria for Bl ack-footed Ferret Recovery Plan objectives (USFWS 2008b).

A recent estimate of black-footed ferret popul ations at reintroduc tion sites indicates approximately 840 black-footed ferrets alive in the wild with approxima tely half of those located in the BTPD range (USFWS 2008b). Sin ce that time, plague has reduced black-footed

ferret numbers at the Conata Basin in South Dakota (Griebel 2010) while existing black-footed ferret populations are believed to have expanded in Arizona and Wyoming (Corcoran 2012, Grenier 2008). The Service believes that approx imately 800 black-footed ferrets alive in the fall of 2011 is a reasonable estimate of the speci es’ current population num bers in the wild.

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

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

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

reintroduction effort.

The Black-footed Ferret Recovery Plan identi fies recovery objectiv es for downlisting the species from endangered to threatened status. The objectives include increasing the captive population of black-footed ferrets to 200 breedin g adults and establis hing at least 1,500 free ranging breeding adult black-footed ferrets that are distributed between at least 10 populations with no fewer than 30 breeding adults in a population, and those popula tions shall have the widest possible distribution (USF WS 1988). The first objective of increasing the captive blackfooted ferret population has been surpassed. Th e second objective is approximately 25 percent

met when fall black-footed ferret numbers of approximately 800 an imals are estimated to result in 400 breeding adults by spring, and four rein troductions sites have successfully established free ranging populations and meet recovery objectives (USFWS 2008b). This indicates that

additional successful black-footed ferret reintroduction sites are needed to meet the downlisting objective. Recovery objectives for complete de listing of the black-footed ferret have not been finalized but are anticipated to include at least 3,000 free ranging breeding adult black-footed ferrets distributed between at least 30 populatio ns. The downlisting objectives indicate that there will need to be significant continued e fforts to establish free ranging black-footed ferret populations through the use of rein troductions, and complete delisti ng of the species will require considerably more reintroductions.

c. Effects of the Action

Rodenticides used to poison prairie dogs can ha ve multiple effects to black-footed ferrets via secondary exposure or by destroying the habitat where the species lives or could live. A study

in the 1980s evaluated the potential secondary poisoni ng of domestic ferrets by bchlorophacinone, the active ingredient in Rozol ® , and found that 5 of 6 ferrets were killed when each ferret was fed 4 poisoned BTPDs over 8 days. The study concluded that chlorophacinone may not be an acceptable prairi e dog toxicant based on high secondary toxicity to non-target animals (Fisher and Timm 1987). Wh ile no similar data exist for ferrets fed diphacinone-poisoned BTPDs, a preliminary study showed similar results for domestic ferrets fed diphacinone-poisoned rats (USEPA 2006). Th e Service believes that black-footed ferrets would be similarly killed as the domestic ferrets were, if they consumed prairie dogs poisoned by Kaput ® -D

. Accordingly, the EPA, Scimetrics, and the Service agreed upon conservation measures that would prevent Kaput ® -D use at current and future black-footed ferret reintroduction sites (USE PA 2012a, Scimetrics 2012). Thes e measures were intended to address the secondary poisoning of black-footed ferrets and the loss of prey base for blackfooted ferrets at reintroduction sites. The issue of black-footed ferret dispersal away from a

reintroduction site that might encounter a Kaput ® -D poisoned BTPD colony was more difficult

to address.

The key challenge with development of the blac k-footed ferret conservation measures was to ensure that Kaput ® -D use would not occur at locations wh ere the species is being reestablished while at the same time ensure that adjacent la ndowners’ ability to manage prairie dogs on their properties would not be impacted. It was concluded that bann ing rodenticide use in areas62 surrounding black-footed ferret re introduction sites (up to a c ounty in size) would increase animosity toward black-footed ferret reintroduction effort s and undermine or prevent reintroductions altogether. Acco rdingly, to avoid creating that backlash, conservation measures were developed that would restrict Kaput ® -D use at reintroducti on sites, but not impose restrictions on adjacent landowners ’ use of legal rodenticides. As indicated above, the Service does not believe that black-footed ferret surveys on properties adjacent to or in the vicinity of a

reintroduction site ar e needed prior to undertak ing otherwise legal activit ies such as rodenticide use on prairie dogs, and the cost and inconvenien ce of black-footed ferret surveys on adjacent lands would generate opposition to, and po ssibly compromise, the black-footed ferret

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

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

relocation can be done u nder existing mechanisms.

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

black-footed ferret rein troduction sites on the Bulletins Live! database maintained by the EPA and referenced on the Kaput ® -D label which becomes part of the legal requirement for label compliance. Prior to Kaput ® -D use, applicators are required to consult this database to ensure that they are not applying Kaput ® -D at an existing black-footed ferret reintroduction site. If additional reintroductions are implemented in th e future, we will provide the information for

those sites to the EPA for inclusion in the EPA’s Bulletins Live! database to reflect the new

black-footed ferret reintroduc tion sites. The process to add areas to the Bulletins Live! database takes approximately 8 months to complete and that timeframe will be factored into the timing of adding new reintroduction sites or m odifications to that database.

The Service recognizes that if a black-footed ferret leaves a reintroduction site it could encounter prairie dog colonies where Kaput ® -D is being used and could consume poisoned prairie dogs and perish. That mo rtality must be balanced with the intent of the reintroduction, which is to establish a breeding black-footed fe rret population at the rein troduction site. The

deaths of black-footed ferrets that leave the re introduction site are not anticipated to materially

affect the reintroduction site’s ab ility to meet recovery objecti ves for the species because the sites are reliant upon the amount of black-footed ferret habitat within th eir boundaries to meet those objectives. The Service selects reintroduction sites that have the at tributes (i.e., prairie dog acreage, densities, lo cations, partnerships, etc.) to he lp meet the black-footed ferret recovery objectives of establishing widely distributed br eeding populations. The Service and our reintroduction partners have long understood that dispersi ng black-footed ferrets from a

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

reintroduction site is on e of those factors (USFWS 1988, 1994a). Accordingly, we believe that the conservation measure to restrict Kaput ® -D use at the reintroduction site, but not on adjacent properties is appropriate.

Another possible effect of Kaput ® -D use for BTPD control involve s the elimination of possible

black-footed ferret reintroducti on habitat because of Kaput ® -D use. This same concern was

discussed in the Rozol ® BO. In 2009, the Service estimated that there were approximately 2.4

million acres of BTPDs in the 10 States where Rozol ® was being used or was proposed for use as a BTPD rodenticide (USFWS 2009c). Lu ce (2006) examined opportu nities for immediate63 and near term potential reintroduc tion sites and concluded that there are over 70 potential sites within the black-footed ferret rang e, most of which are in BTPD colonies. The Service believes that rodenticide use (i ncluding the use of Kaput ® -D), while widespread in the BTPD range, in

and of itself is not the determin ate factor whether a black-footed ferret reintroduction can occur. Instead, it is the willingness of partners (private, State, Tribal and Federal) to consider a reintroduction and then commit to manage a bloc k of prairie dog habitat for black-footed ferret conservation. Most recent BTPD surveys indi cate that there are many biologically suitable and potential reintroduction sites available, but the key to achievi ng black-footed ferret

reintroductions and thus recovery is finding interested la ndowners and partners (USFWS 2009c, Lockhart et al 2006, Luce 2006). Further, our experience is that la ndowners who are strong proponents of poisoning prairie dogs are not interested in partic ipating in black-footed ferret reintroductions and, if Kaput ® -D was not available, they would likely use a different rodenticide. Therefore, th e Service believes that Kaput ® -D use on BTPDs, with the agreed upon conservation measure to restrict Kaput ® -D use on future black-f ooted ferret reintroduction sites, will not eliminate future opportun ities for reintroductions. Use of Kaput ® -D will not preclude black-footed ferret recovery.

d. Cumulative Effects

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

Future rodenticide use, along with some land conversion from grasslands or rangeland into croplands or other development, is likely to cont inue in the range of th e BTPD. With the blackfooted ferret conservation measures in place, we do not believe that these actions will preclude conservation and recovery of the black-footed fe rret because recent tre nds in BTPD occupied

habitat are stable to increasi ng over large areas of the species’ range (USFWS 2009c). While Kaput ® -D and Rozol ® use will likely increase in the future , their use may be supplanting some of the previously used prairie dog rodenticides, such as zinc phosphide. Thus, even though the Kaput ® -D SLN labeled product has been used for BTPD control in five states for approximately 5 years, and Rozol ® has been used for nearly two decades in one state and for 5 to 10 years in others (Lee et al. 2005, USEPA 201 0a, 1993), it does not appear to be altering the stable to increasing prairie dog trends found by the Service at this time (USFWS 2009c). Because the use of Kaput ® -D in black-footed ferret re introduction sites will not be allowed, the impacts to

current and future black-footed ferret reintroduc tion sites are not expect ed to be seriously impacted.

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

continue to inhabit millions of acres of habitat (USFWS 2010c, 2009c, 2008c). As noted earlier, without adequate regulat ory mechanisms, poisoning can affect current and future blackfooted ferret reintroduction site s (USFWS 2008b). While the total prairie dog acreage among the three species is much greater than is believ ed necessary to recover the black-footed ferret,64 much of the existing prairie dog acreage is not of a size or in a locati on to contribute to the black-footed ferret’s recovery. The Black-footed Ferret Recovery Plan estimated that an average of 124 acres of prairie dog colonies is needed per black- footed ferret or approximately 185,000 acres of black-footed ferret occupied prairi e dog habitat is needed to meet downlisting objectives for the species (USFWS 1988). This acreage amount can be distributed between the three species of prairie dogs that encompass the black-foot ed ferrets’ range (USFWS 1988). While complete delisting objectives for the black -footed ferret have not been finalized, it is likely that 500,000 acres of managed prairie dogs distributed between the three prairie dogs species would be sufficient to support delisting recovery objectives fo r the black-footed ferret (USFWS 1988).

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

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

e. Conclusion Regarding Jeopardy

After reviewing the current status of the black-footed ferret, the environmental baseline for the action area, the effects of the proposed action, and the cumulative effects, it is the Service’s biological opinion that the use of Kaput ® -D as a BTPD rodenticide, which includes the blackfooted ferret conservation measures , is not likely to jeopardize the continued existence of the

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

none will be affected. At this tim e, the Service believes that Kaput ® -D use on BTPDs, as modified through the agreed upon conservation meas ures will not preclude the conservation and recovery of the black-footed ferret even when combined with the use of other currently available legal rodenticides and our understanding of sylvatic plague.

In summary, this conclusi on is based on the following:

 The conservation measures adopted for the black-footed ferret into the EPA’s proposed

action will ensure that:

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

o Kaput ® -D use is prohibited in an area if an unknown wild black-footed ferret population is discovered.

o Kaput ® -D restrictions on properties adjacen t to reintroductions are minimized which lessens opposition to blac k-footed ferret reintroduction.65 o Kaput ® -D production quantities and distribution to locations within states will be provided to the Service which will allow an assessment whether the level of use could preclude recovery of the black-footed ferret.

 Sufficient prairie dog acreage exists among th e three species of prairie dogs to support current Black-footed Ferret Recovery Pl an downlisting objectives and likely future delisting objectives when thos e become finalized in the revised Recovery Plan.

2. Gray Wolf

a. Status of the Species/Critical Habitat

Gray wolves were origina lly listed as subspecies or as region al populations of subspecies in the

conterminous United States and Mexico. In 1967, we listed the eastern timber wolf (Canus lupus lycaon) in the Great Lakes region (32 FR 4001, March 11, 1967), and in 1973 we listed C.

l. irremotus in the northern Rocky Mountains (38 FR 14678, June 4, 1973). Both listings were promulgated under the Endangered Species Conser vation Act of 1969; subsequently, on January 4, 1974, these subspecies were listed under the Endangered Spec ies Act of 1973 (ESA) (39 FR 1171). We listed a third gray wo lf subspecies, the Mexican wolf (C. l. baileyi) as endangered on April 28, 1976 (41 FR 17740), in the southwestern United States and Mexico. On June 14, 1976 (41 FR 24064), we listed the Texas gray wolf subspecies (C. l. monstrabilis) as endangered in Texas and Mexico.

In 1978, we published a rule (43 FR 9607, March 9, 1978) reclassifying the gray wolf as an endangered population at the species level (C. lupus) throughout the conterminous 48 States and Mexico, except for the Minnesota gray wolf population, which was classified as threatened.

At that time, we considered the gray wolf group in Minnesota to be a listable entity under the ESA, and we considered the gray wolf group in Mexico and the 48 conterminous States other

than Minnesota to be anot her listable entity (43 FR 9607 and 9610, respectively, March 9, 1978). The separate subspecies listings thus were subsumed into the list ings for the gray wolf in Minnesota and the gray wolf in the rest of the conterminous United States and Mexico. In that 1978 rule, we also identified critical hab itat in Michigan and Minnesota and promulgated special regulations under section 4(d) of the ESA for operating a wolf management program in Minnesota. The special regulation was late r modified (50 FR 50793, December 12, 1985).

The 1978 reclassification was undertaken to “most conveniently” handle a listing that needed to be revised because of changes in our understand ing of wolf taxonomy, and in recognition of the

fact that individual wolves sometimes cross su bspecific boundaries. In addition, we sought to clarify that the gray wolf was only listed south of the Canadian border. However, the 1978 rule also stipulated that “biological subspecies would continue to be maintained and dealt with as separate entities” (43 FR 9609), and offered “the firmest assurance that [the Service] will continue to recognize valid biolog ical subspecies for purposes of its research and conservation programs” (43 FR 9610, March 9, 1978). Accordi ngly, recovery plans were developed for the wolf populations in the following regions of the United States: the northern Rocky Mountains in 1980, revised in 1987; the Great Lakes in 1978, revi sed in 1992; and the Southwest in 1982, the revision of which is now underway.66 Between 2003 and 2009 we published several rule s revising the 1978 conterminous listing for C. lupus (68 FR 15804, April 1, 2003; 72 FR 6052, Fe bruary 8, 2007; 73 FR 10514, February 27, 2008; 74 FR 15070 and 74 FR 15123, April 2, 2009). However, each of these revisions was challenged in court. As a result of court orders ( Defenders of Wildlife, et al. v. Norton, et al.

, 354 F.Supp.2d 1156 (D. Or. 2005); National Wildlife Federation, et al. v. Norton, et al. , 386 F.Supp.2d 553 (D. Vt. 2005); Defenders of Wildlife, et al. v. Hall, et al. , 565 F.Supp.2d 1160 (D. Mont. 2008); Defenders of Wildlife, et al. v. Salazar, et al. , 729 F.Supp.2d 1207 (D. Mont. 2010); Humane Society of the Un ited States v. Kempthorne , 579 F. Supp. 2d 7 (D.D.C. 2008)) and, in one case, a settlement agreement ( Humane Society of the United States v. Salazar , 1:09-

CV- 1092-PLF (D.D.C.)), by the sp ring of 2010 the listing for C. lupus in 50 CFR 17.11

remained unchanged from the reclassification that o ccurred in 1978 (except for the addition of

the three experimental populations (Yellowstone Experimental Population Area (59 FR 60252,

November 22, 1994), Central Idaho Experimental Population Area (59 FR 60266, November 22, 1994), and the Mexican Wolf Experimental Popul ation (63 FR 1752, January 12, 1998)).

For additional information on these Federal Actions and th eir associated litigation history refer

to the relevant associated rules (68 FR 15804, April 1, 2003; 72 FR 6052, February 8, 2007; 73 FR 10514, February 27, 2008; 74 FR 15070 and 74 FR 15123, April 2, 2009) or Previous

Federal Actions sections of our most recent wolf ac tions (76 FR 61782, October 5, 2011; 76 FR 81666, December 28, 2011).

On May 5, 2011, we published a final rule that implemented Section 1713 of Public Law 112– 10, reinstating our April 2, 2009, delisting rule which identified the Northern Rocky Mountain (NRM) population of gray wolf as a distinct population segment (DPS) and, with the exception of Wyoming, removed gray wolves in the DPS from the List of Endangered and Threatened Wildlife (76 FR 25590). On September 10, 2012, gray wolves in Wyoming were removed from the List of Endangered and Thr eatened Wildlife in addition to having their status as an Experimental Population removed (77 FR 55530).

On December 28, 2011, we revised the 1978 listing of the Minnesota population of gray wolves to conform to current statutory and policy requirements. We revi sed what was previously listed as the Minnesota population of the gray wolf a nd identified it as the Western Great Lakes (WGL) Distinct Population Segment (DPS) (the DPS includes all of Minnesota, Wisconsin, and Michigan and portions of the adjacent states) and removed that WGL D PS from the List of Endangered and Threatened Wildlife (76 FR 81666) . This action became effective on January 27, 2012.

As a result of the recent actions described above, the 1978 reclassification for C. lupus now encompasses all or portions of 42 States (A L, AR, CA, CO, CT, DE, FL, GA, KS, KY, LA, MA, MD, ME, MO, MS, NC, NE, NH, NJ, NV, NY, OK, PA, RI, SC, TN, VA, VT and WV, AZ, NM, TX, and portions of IA, IN, IL, ND, OH, OR, SD, UT, and WA) and Mexico.

Gray wolves that are currently listed under the ESA and relevant to this consultation include those wolves listed as endange red in CO, KS, NE, NM, wester n ND, OK, western SD, and TX and the nonessential experimental population of Mexican gray wolves (listed under section 10j67 of the ESA) which is considered a subspecies and reintroduced portions of central Arizona, central and southern New Mexico, and a minut e portion of western Texas, south of New Mexico. The nonessential experimental population of Mexican gray wolves is protected by the ESA within the parameters established fo r that reintroduction effort (USFWS 1998).

While the open rangeland habitat of the BTPD does not coincide with the typical habitats (forested landscapes) used by gray wolf populations in the United States today, the ranges of the two species overlap when individu al gray wolves disperse from their core populations. Those dispersing individuals are most relevant to this analysis. When wolves disperse from their packs and occur in other areas outside the boundaries of any nonessential experimental population area or areas where they are have been delisted, their status under the ESA changes; they take on the listing status of the gray wolf in that area. Fo r example, a wolf that moves from Wyoming (currently delisted) to Colorado woul d be considered endangered. Those wolves within Nonessential Experimental area boundaries (Arizona/New Mexico/Texas) retain ESA protections but with the management parameters established with the Se ction 10(j) rulemaking.

Currently, there is no designated critical habitat for the gray wolf; therefore, none will be

affected.

(1) Species description

Gray wolves are the largest w ild members of the dog family (C anidae). Adult gray wolves range from 18–80 kilograms (40–175 pounds) de pending upon sex and region (Mech 1974). Smaller sizes tend to be found in the southern po rtion of wolf range (the Mexican wolf is the smallest extant wolf in North America) and larg er sizes in the northern portion. Females weigh slightly less than males. Wolves reach adu lt size by 1 year of age. Wolves’ fur color is frequently a grizzled gray, but it can vary from pure white to coal black. Mexican wolves are typically a patchy black, brown to cinnamon, and cream color, with primarily light underparts (Brown 1988). Solid black or white Mexican wo lves do not exist as seen in other North American gray wolves.

(2) Life history

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

(a) Range and habitat

Within North America, gray wolves formerly rang ed from coast to coast with the exception of the mid-Atlantic states, the Southeast (areas o ccupied by the red wolf), and perhaps parts of California. They have historica lly been found in almost all hab itat types, includ ing the prairie and rangelands of the central Un ited States where, coinciding with human settlement, most populations of wolves were extir pated by the early 1900s. In th e coterminous 48 states today, they are found in the mostly forested lands of Minnesota, Wisconsin, Michigan, Montana, Idaho, and Wyoming, with the addition of th e Mexican wolf reintroduction area in New68 Mexico, Arizona and a small part of western Te xas. The Mexican wolf is endemic to the

southwestern United States and Mexico. Once thought to need wilderness areas to survive, wolves can successfully occupy a wide range of habitats, though they tend to more readily occupy heavily forested areas and landscapes with low road densities (M ladenoff et al. 1995). The BTPD habitat is generally not considered pref erred habitat by the gray wolf today; it offers little protective cover, and though individuals may traverse it quickly, th ey often do not survive

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

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

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

(b) Prey items

Wolves are predators of primarily medium and la rge mammals. They may not eat for a week or more but are capable of eating 20 pounds of meat in a single meal. Wild prey species in North America include animals such as white-tailed deer ( Odocoileus virginianus ), mule deer ( O.

hemionus ), moose ( Alces alces ), elk ( Cervus canadensis ), and other large ungulates. Wolves will also prey on mid-sized mammals such as snowshoe hare ( Lepus americanus ) and beaver ( Castor canadensis ), with small mammals, birds, and larg e invertebrates sometimes being taken (Mech 1974, Stebler 1944, Wisconsin Depa rtment of Natural Resources 1999).

(c) Social nature and territory size

Wolves are social animals, normally living in pack s of 2 to 12 wolves (but that number can vary considerably; pack sizes ranging into the 30s have been documented). The pack defends a territory that can be as large as 50 square miles or even ex tend up to 1,000 square miles in areas where prey is scarce. The pack consists of a breeding (top-ranking or alpha) pair, their pups from the current year, offspring from the prev ious year, and occasionally an unrelated wolf. Unrelated wolves are typically indivi duals dispersing from other packs.

(d) Dispersal

As indicated by the territory size described a bove, wolves often cove r large areas and may travel as far as 30 miles a day. Although they trot at approximately 5 miles per hour (mph), wolves can attain speeds as high as 40 mph. By 3 years of age, many wolves disperse from the pack that they were born into to find mates a nd to expand into new areas. The animals have extraordinary dispersing abilit y, traveling over 600 miles, so metimes over large areas of inhospitable terrain. A wolf in Sweden with a GPS collar travelled a st raight line distance of >1,092 kilometers (682 miles) with an actual travel distance of over >10,000 kilometers (6,000 miles) in just under a year (Wabakken et al. 2007). A wolf that dispersed from Gardiner, Montana, to western Colorado, where she wa s illegally killed by 1080 Compound poison in March 2009, travelled a straight line distance of 400 miles in 6 months, but daily GPS locations showed she actually walked over 3,000 miles (USFWS et al. 2011).

Considerable information on wolf dispersa l was obtained during 1993-2008, when 1,681 radiocollared wolves (858 males and 823 females) in the Northern Rocky Mountain DPS were tracked (Jimenez et al. 2 011). The large sample size distinguis hes that study; however, most of what was documented mirrored that already found by others (Fritts and Mech 1981, Boyd and69 Pletscher 1999, Mech 1987, Gese and Mech 199 1, Boyd et al. 1995). Ten percent of the Northern Rocky Mountain wolf population disp ersed annually; 297 known dispersals by 281 wolves were documented (some wolves dispersed a nd returned to their original pack up to three times). Many other dispersal events likel y occurred during the Northern Rocky Mountain dispersal study but were undetected because on ly about 30 percent of the Northern Rocky Mountain wolf population was radio- collared by 2008 and it is difficu lt to detect lone dispersing wolves. Most wolves tended to move southward, but 55 dispersals occu rred in an easterly direction. The dispersals could occur anytime du ring the year, but increases were noted in the fall with the peak occurring in January, and 58 percent ( n =153) of all dispersals occurred between October and February (i.e ., during the timeframe that Kaput ® -D may be applied) (Jimenez et al. 2011, unpublished data). Licht an d Fritts (1994) studied 10 wolf mortality

records in North Dakota and South Dakot a between 1981 and 1992 and found that nine

occurred in winter.

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

miles of unsuitable habitat in those Great Pl ains States (USFWS 2009g). This propensity to disperse and the distances that have been recorded are the factors that lead the Service to believe that gray wolves could enc ounter and be exposed to Kaput ® -D-poisoned prairie dogs.

Dispersing wolves can have a lowe r survival rate than individuals that do not l eave their packs (Jimenez et al. 2011, unpublished da ta), and those that disperse often die in proportionately higher numbers from human causes than those that do not disperse (Boyd and Pletscher 1999). Of 281 dispersing wolves in the Northern Ro cky Mountain study, 166 (59 percent) survived dispersal to pair with another di spersing wolf to form new packs or to join new packs (Jimenez et al. 2011, unpublished data). The unusually lo ng-distance dispersers typically do not find mates or survive long enough to form packs or to breed in the United States (USFWS 2009h).

Human causes of mortality among dispersing wo lves include illegal shootings, trapping, poisonings (e.g., M-44s intended for coyotes), and vehicle collisio ns. Dispersing wolves have been noted by the Service in Colorado in recent years with a likely vehicl e collision mortality of an individual in 2004 and an illegal poisoning of another wolf in 2009 (via banned substance: Compound 1080). Of the 10 wolf mo rtalities documented in North Dakota and South Dakota from 1981-1992, 8 were mistakenly shot as coyotes, 1 was beaten to death after being chased by dogs, and another was shot by a hunt er after the wolf allegedly at tacked the man’s horse as he was riding it (Licht and Fritts 1994). A wolf killed by a car near Sturgis, South Dakota, in 2006

was determined to have been from the Nort hern Rocky Mountain DPS. A wolf from the70 Western Great Lakes DPS was shot in Nebraska in 2003. A wolf (M innesota origin ) killed via a cyanide gun (M-44) intended for coyotes was doc umented in Harding County, South Dakota, in 2001. Other instances of mortality were noted in the Service’s May 5, 2011, Proposed Rule to Revise the List of Endangered and Threatened Wildlife for the Gray Wolf in the Eastern United States, Initiation of Status Reviews for the Gray Wolf and for the Eastern Wolf ( Canis lycaon ) (USFWS 2011e):

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

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

2003.

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

 Another wolf was found dead in a foothold trap that was set as part of an ongoing USDA Wildlife Service’s coyote control opera tion in southeastern Eddy County, North

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

(3) Population dynamics

Gray wolves are known to live up to 13 years in the wild and 15 years in captivity. Wolves typically breed as 2-year olds and may annua lly produce young until they are over 10 years old. Litter sizes range between 1-11 pups but genera lly include 4-6 pups (USFWS 2003). Normally a pack has a single litter annually, but producing 2 or 3 li tters in 1 year has been documented in Yellowstone National Park (USFWS et al. 2002). The breeding s eason for wolves is from late January through March.

Breeding members of wolf packs ca n be quickly replaced either fr om within or outside the pack. Pups can be reared by another pack member should their parent s die (Packard 2003, Brainerd et al. 2008, Mech 2006). Consequently, wolf popula tions can rapidly recover from severe disruptions, such as very high levels of human-caused mortalit y or disease. After severe declines, wolf populations can more than double in just 2 years if mortality is reduced; increases of nearly 100 percent per year have been documented in low-dens ity suitable habitat (Fuller et al. 2003, Service et al. 2008, 2009h). Additionally, their extraordinary dispersal ability helps explain why wolves can recolonize even distan t vacant suitable habitat relatively quickly and why their populations are resist ant to extirpation (Mech and Boitani 2003, Adams et al. 2008).

Starting with an estimated 55 individuals that naturally colonized nor thwestern Montana in 1993, the Northern Rocky Mountain population gr ew an average of 25 percent annually between 1993 and 2008, with the a ssistance of reintroduction effo rts in Wyoming and Idaho. At the end of 2009, the population estimate had grown to at least 1,706 wolves in 242 wolf packs and 115 breeding pairs (B angs 2010). In 2010, that number was slightly down to 1,651 (USFWS et al. 2011).71 The Western Great Lakes DPS today is esti mated to contain over 4,000 wolves, with the majority occurring in Minnesota. The Minnesota wolf population increased from an estimated 1,000 individuals in 1976 to 2,921 as of 2007-2008, a nd the estimated wolf range in the State has expanded by approximately 225 percent (U SFWS 2011e). Wolves were considered extirpated from Wisconsin in 1960 but began to r ecolonize in the 1970s, and an increase in the late 1980s has continued into 2011; the curr ent population estimate there is 782 wolves (USFWS 2011b, 2011g). With the exception of Isle Royale, wolves were extirpated from Michigan prior to the gray wolf listing, but wolves began to return in the late 1980s (Beyer et al. 2009), and wolf packs have continued to spr ead throughout Michigan’s Upper Peninsula. Wolves are now found in nearly every county of Michigan’s Upper Penins ula (Huntzinger et al. 2005), and 87 individuals were estimated to occur in Michigan in 2010-2011 (USFWS 2011b).

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

and initial releases. Atthe end of 2010, the wild population totaled a minimum of 50 individuals (USFWS 2012d).

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

(4) Status, trends, and distribution

The decline and near extirpation of wolves from the lower 48 st ates in the early part of the 20th century was caused by a numbe r of factors, including extreme control programs designed to eliminate the species. Factor s in the eastern timber wolfs’ decline included intensive human settlement, direct conflict with domestic lives tock, lack of understanding of the animal’s ecology and habits, and fears and superstitions regarding wolves and extreme control programs designed to eradicate it (Young and Goldman 1944, Mech 1970). These were a common thread among wolf populations in other areas of the United States as we ll. Land development (loss of habitat), impacts to prey base, poisoning, trapping, and hunting were also factors identified in the decline (USFWS 1987). Mech (1995) indicates that primarily inadequate prey density and a high level of human persecution lim it wolf distribution. In short, human-caused mortality is identified as the most significant issue to th e long-term conservation status of wolves. Managing this source of mortalit y (i.e., overutilization of wolves for commercial, recreational,

scientific and educati onal purposes and human predation) remains the primary challenge to maintaining a recovered wolf population in to the foreseeable future (USFWS 2009h).

In both the Northern Rocky Mountain and Wester n Great Lakes DPSs today, wolf numbers are trending upward but at slower ra tes than has been documented in the recent past. Available72 habitat appears to be reaching carrying capacity. The total population in the Northern Rocky Mountain DPS today is about fi ve times higher than the minimum population recovery goal and three times higher than the minimum breedi ng pair recovery goal (USFWS 2009h); the population has exceeded numeric and distributiona l recovery goals for about a decade. The Northern Rocky Mountain wolf population occupies nearly 100 percent of the recovery areas recommended in the 1987 recovery plan (USFWS 1987) and nearly 100 percent of the primary analysis areas (the areas where suitable habita t was predicted to exis t and the wolf population would live) analyzed for wolf reintroduction in central Idaho and the greater Yellowstone area (USFWS 1994b). As mentioned above, wolves in the Northern Rocky Mountain DPS have

been delisted.

Relatively slow growth to stable populations in Minnesota, Wisc onsin, and Michigan in recent years is indicative that available habitat is being filled in the Western Great Lakes DPS. Wolves in the Western Great Lakes DPS greatly exceed the recovery crit eria (USFWS 1992) for 1) a secure wolf population in Minnesota, and 2) a second po pulation outside Minnesota and Isle Royale consisting of 100 wolves for 5 succe ssive years. Based on the criteria set by the Eastern Wolf Recovery Team in 1992 and r eaffirmed in 1997 and 1998 (USFWS 2011e), the proposed DPS contains sufficien t wolf numbers and distributi on to ensure their long-term survival within the DPS, and this po pulation has been delisted (USFWS 2011b).

As mentioned above, the Mexican gray wolf population in New Mexi co and Arizona has struggled to remain viable, and numbers rema in very low. The nonessential experimental population is currently not self-sustaining. A captive breeding program ha s been the source of

Mexican wolves for reintroduction efforts to da te. Currently, dispersi ng Mexican wolves are stringently managed. Individuals known to be from the reintr oduced population are not allowed to establish territories outside the recovery area boundaries; they are captured and may be returned to the recovery area, put into the captive population, or otherwise managed according to existing provisions (USFWS1998). Mexico ha s recently initiated reintroductions of the Mexican wolf; in 2011, officials re leased five captive-bred Mexi can wolves into the San Luis Mountains in Sonora just south of the Unite d States-Mexico border (Bryan 2011). As of February 2012, four of the five released animals were confirmed dead due to poison (Albuquerque Journal 2012). Despite the initial setback, Mexico continues to plan additional releases. If wolves from Mexico disperse in to the United States, they will be considered endangered under the ESA, unless they establish themselves within the boundaries of the United States Mexican wolf experimental area, wh ere they would be subject to the existing management provisions (USFWS 1998).

The number of dispersing wolves from recovered wolf populations may currently be at its peak due to high wolf recovery numbers. As states take over wolf management, they will likely seek to achieve lower, but still viable, wolf populati on levels; thus, the number of dispersing wolves may decrease under state management plans. Howeve r, the Service believes there will still be some dispersing wolves from existin g populations into areas where Kaput ® -D may be applied for prairie dog control. Areas within the BTPD range where the wolf remains protected are the locations where exposure to Kaput ® -D may occur that results in take of gray wolves.73 (5) Analysis of the species likely to be affected

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

wolves that enter the United States from Mexi co. Wolves in nonessential experimental populations receive protections of the ESA per th eir specific rulemaking parameters. Wolves

that occur in areas that have b een delisted that enter into th e action area (specifically CO, KS, NE, NM, western ND, OK, western SD and TX) excluding the Mexican wolf nonessential experimental population area w ould be considered as an endangered species.

As mentioned previously under th e “Conservation Measures” secti on, in order to provide some protections for the Mexican gray wolf, the EP A and Scimetrics agreed to preclude Kaput ® -D use from Catron, Grant, Hidalgo, and Sierra Countie s of New Mexico which are part of the Blue Range Wolf Recovery Area. Prairie dogs occur in these counties but ar e primarily Gunnison’s prairie dog; the BTPD is not common in these areas (Johnson et al. 2003), and prohibiting Kaput ® -D use on BTPDs will further reduce possible impacts to those reintroduction efforts. Dispersing wolves from the Mexican gray wolf reintroduced popul ation are few, and individuals are typically translocat ed or killed. Thus, while Kaput ® -D use may still occur within the greater nonessentia l experimental population area boundary, key areas of the

reintroduction area wi ll not have Kaput ® -D use. This conservation measure is anticipated to

reduce the risk of adve rse effects from Kaput ® -D use to the Mexican gray wolf.

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

b. Environmental Baseline

(1) Status of the species within the action area

Gray wolves are not uniformly protected unde r the ESA throughout the range of the BTPD. Some wolf populations have been delisted. The exact number of dispersing wolves that may occur in the range of the BTPD where Kaput ® -D is authorized for use cannot be determined with certainty. The Service doe s not know of wolf populations in the range of the BTPD except

for the reintroduction efforts in southwestern New Mexico. The Se rvice recognizes that dispersing wolves can occur throughout the BTPD range and could be exposed to Kaput ® -D

use.

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

Throughout the range of the wolf , generally three factors domin ate wolf population dynamics: food, people, and source populations (Fuller et al. 2003). Among t hose three factors and within74 the BTPD range, people likely have the greatest influence on dispersi ng wolves. Traveling

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

instead kill wolves in accordance with establishe d wolf depredation plans. While these factors affecting dispersing wolves are not expected to influence the existing healthy wolf populations from which they came, in the dispersal areas , wolves may not survive long due to humancaused mortality. Dispersing wolves are likely to encounter many forms of threats when they leave their core areas, and high wolf mortality ra tes in the BTPD range are likely irrespective if Kaput ® -D is being used. We currently have no documented Kaput ® -D-related mortalities of gray wolves.

c. Effects of the Action

(1) Factors to be considered

Based upon the exposure and effects sections of EPA’s Rozol ® Assessment and its Kaput ® -D Assessment, diphacinone exposure to the gray wo lf is expected as the wolf range overlaps BTPD and gray wolf prey items may include animals poisoned by Kaput ® -D, including small mammals, birds and large invertebrates. The EPA de termined that mortality to the gray wolf is likely as a result of mammals consuming c ontaminated carcasses. Though growth and reproductive effects were not assessed for di phacinone-exposed mammals, these effects cannot be cannot be precluded. The EPA’s Rozol ® Assessment also describes potential indirect effects due to the loss of prey base from the use of anticoagulant rodentic ides. The Service agrees that Kaput ® -D use on BTPDs could adversel y affect dispersing wolves.

(2) Analyses for the effects of the action

The effects to dispersing gray wolves in the ac tion area are most likely to occur as a result of secondary poisoning via consumption of Kaput ® -D-poisoned live animals or carcasses. It is suspected that wolves would consume dead or dying prairie dogs if they are encountered above ground and may also excavate and consume prai rie dogs that are buried or die underground. The frequency at which a disper sing wolf might encounter a Kaput ® -D-poisoned area is unknown and would depend on a variety of fact ors such as the prevalence of Kaput ® -D use in the area, the type of habitat traveled by the wo lf, the distance traversed, and the availability of other prey items.

Although there are no previous reports of gray wolf exposure to diphacinone rodenticides, other canines (including kit foxes and coyotes) have been diagnosed with diphacinone poisoning. In addition, an American badger, was found dead in association with Rozol ®
applications in BTPD colonies (Ruder et al. 2011). Although these anim als are smaller than a75 wolf, they are all opportunistic predators and s cavengers like wolves. If multiple dead and dying prairie dogs and other non-target small mamma ls were available for consumption, a wolf would likely take advantage of that situation. E ffects of diphacinone exposu re to the gray wolf when individuals do encounter a Kaput ® -D-poisoned prairie dog col ony would likely be similar to those seen in domestic dogs suffering from an ticoagulant rodenticide toxicosis which include shortness of breath, hemoptysis (i.e., the spit ting up of blood from the lungs), pallor (i.e., reduced amount of oxyhaemoglobin in skin), and lethargy (Sheafor and Couto 1999, Murray and Tseng 2008).

A wolf that encounters a Kaput ® -D-poisoned BTPD colony could receive a lethal dose from consuming poisoned prairie dogs. The extent of ef fects and severity of response by a gray wolf to consumption of Kaput ® -D-poisoned animals would depend in part on the amount of Kaput ®

- D ingested over time because most animals experience greater adverse effects from multiple doses of diphacinone. Repeat exposure could oc cur if a dispersing wolf remains near a Kaput ®

- D-poisoned prairie dog colony and obtains multiple meals from it. Receiving a lethal dose may take more than one poisoned prairie dog. Sub-leth al effects may occur if a wolf leaves a prairie dog town before consuming a lethal dose or if timing is such that it does not find enough Kaput ® -D-poisoned animals to consume. However, little information is available regarding sub-lethal effects, and Kaput ® -D is known to be an effective an ticoagulant. It seems likely that death would be the likely result for a gray wolf that ingests Kaput ® -D, either directly through hemorrhaging or sub-lethal impairment of beha vior (e.g., breeding, feedin g and sheltering), that eventually leads to its demise.

It is the Service’s opinion that indirect effects to the gray wolf due to the loss of prey base from use of Kaput ® -D are not cause for concern regarding e ffects to wolves because prairie dogs are not known to be a significant dietary item for the gray wolf which normally does not inhabit BTPD areas. Dispersing indi viduals are anticipat ed to come upon BTPD colonies only opportunistically as they travel.

(3) Species’ Response to the Action

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

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

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

in counties within the core re introduction area, the ongoing intens ive management (capture and return of dispersing wolves to reintroduction ar ea) that inhibits disp ersal of Mexican gray wolves, relative lack of preference by wolves for the open country typical of BTPD colonies,76 and risk posed to wolves that occur in such ha bitats where they are hi ghly visible and vulnerable to more direct forms of human mortality (i .e., shooting). However, within the 15-year timeframe for which this BO is applicable, it is possible for reintroduced Mexican gray wolves

to enter the United States via Mexico’s reintrod uction efforts, and Mexican gray wolves in New Mexico may expand their populations beyond the current 10(j) boundaries. If Kaput ® -D use is determined to result in wolf mortality beyond th e low levels anticipated herein, such mortality could impede recovery of the Mexican gray wo lf (USFWS 1982). With the exception of the Mexican gray wolf population, indivi dual gray wolves lost to Kaput ® -D poisoning are not anticipated to incur population le vel effects to the species. In the absence of human-induced mortalities and presence of ade quate prey, gray wolves are a resilient species demonstrating relatively fast recovery rates af ter population declines. However, due to the diminished status of the Mexican gray wolf population, take of any wolves in New Mexico due to Kaput ® -D is of

increased concern and could affect the abil ity of wolves to ex pand their populations.

d. Cumulative Effects

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

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

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

e. Conclusion Regarding Jeopardy

After reviewing the current status of the gray wolf, the environmental baseline for the action area, the effects of the proposed use of Kaput ® -D to control BTPDs in 10 western states, and the cumulative effects, it is the Service’s biologi cal opinion that the acti on, as proposed, is not likely to jeopardize the continued existence of the gray wolf. Currently, there is no designated critical habitat for the gray wolf; therefore, none will be affected. Our conclusion was based primarily on the following factors:

 Gray wolves dispersing into the action area are a very small portion of existing gray wolf populations, and such individuals are t ypically precluded from establishing packs and territories due partly to high mortality rates.77  Dispersing wolves in the BTPD range are not c onsidered critical to the recovery of wolf populations in the United St ates and, cumulatively, gr ay wolf populations have continued to increase despite lo sses of dispersing individuals.

 The BTPD colonies are not t ypical habitat for the gray wo lf, dispersing individuals are not anticipated to remain in such areas for l ong, and lack of cover for gray wolves within

BTPD habitat often results in increased vulne rability to other mortality factors such as shooting.

 Gray wolf populations in the Northern Ro cky Mountain and Western Great Lakes DPSs are considered recovered by the Service and have been delisted.

 The conservation measure by the EPA to precl ude Catron, Grant, Hidalgo, and Sierra Counties in New Mexico from Kaput ® -D use is protective of the Mexican gray wolf. Impediments to recovery may be possible in the future if Mexi can wolf populations expand into new areas and Kaput ® -D-related mortalities are determined to exceed currently anticipated levels for the Mexican gray wolf, but a low number of Mexican gray wolves are expected to be a ffected by the acti on at this time.

3. Northern Aplomado Falcon

a. Status of the Species/Critical Habitat

The northern aplomado falcon is one of three subs pecies of the aplomado falcon and is the only

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

The decline of the northern aplomado falcon wa s caused by widespread shrub encroachment resulting from control of range fires and in tense overgrazing (USFWS 1986, Burnham et al. 2002), and large-scale agricultural development in grassland habitats used by the northern aplomado falcon (Heady 1994, Keddy-Hector 20 00). Pesticide exposure was likely a significant cause of the subspecies’ extirpation fro m the United States with the initiation of widespread use of organochlorine pesticides, such as DDT (dichlorodiphenyltrichloroethane) and DDE (dichlorodiphenyldichloroethylene), af ter World War II which coincided with the northern aplomado falcon’s disappearance (U SFWS 1986). Northern aplomado falcons in Mexico in the 1950s were heavily contaminated with DDT residue, and these levels caused a 25 percent decrease in eggshell thickness (Kiff et al. 1980). Such high residue levels can often result in reproductive failure from egg br eakage (USFWS 1990). Use of organophosphate insecticides may also threaten northern aplomado falcons because insects and small, insectivorous birds are the speci es’ preferred prey items (Ke ddy-Hector 2000). Collection of northern aplomado falcons and their eggs may have also been detr imental to the subspecies in some localities. However, populations of birds of prey are generally resilient to localized collection pressure (USFWS 1990).78 Little is known about the migratory behavior or seasonal movement s of northern aplomado falcons (USFWS 1990). Nesting chronology is so mewhat variable with egg-laying recorded from January to September, although eggs are us ually laid during the mont hs of March to May. Northern aplomado falcons do not build their ow n nests, but use nest sites constructed by corvids such as Chihuahuan ravens ( Corvus cryptoleucus ) or by large raptors. Thus, northern aplomado falcons are dependent on nesting activities of other stic k nest-building birds and their habitat requirements. Nest sites are found in structures such as multi-stemmed yuccas ( Yucca torreyi and Yucca elata ) and large mesquite trees ( Prosopis spp.) as well as other trees.

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

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

sinuatus ), suggesting a preference for medium-si zed songbirds (USFWS 2002a). Documented invertebrate prey includes gra sshoppers, beetles, dragonflies, cicadas, crickets, butterflies, moths, wasps, and bees (USFWS 1990). Di fferences in prey abundance and nest site availability can cause differences in home ra nge size. Based on seve ral studies, the Service estimates the northern aplomado falcon home range size to be approximately 34 square km2 (8,401 acres) (USFWS 1990, 2002a). For manageme nt purposes, this area can be described by

a circle with a radius of 3.2 km (2 mi) around a particular hab itat feature (e.g., a nest site).

Northern aplomado falcon habitat is variable throughout its range and includes palm and oak savannahs, various desert grassland associati ons, and open pine woodlands. Within these variations, the essential ha bitat elements appear to be open terra in with scattered trees, relatively low ground cover, an abundance of insects and sm all to medium-sized birds, and a supply of nest sites (USFWS 1990). In Mexico, reported habitat includes palm and oak savannas, open tropical deciduous woodlands, wooded fringes of ex tensive marshes, various desert grassland associations, and upland pine pa rklands (USFWS 1990). The hist orical range of the northern aplomado falcon in Texas, New Mexico and Ar izona occurs within the Chihuahuan Desert which is comprised of three basic community types: desert scrub, de sert grasslands, and woodlands. The species’ historical range also occu rs in the coastal prairi es of southern Texas.

Northern aplomado falcons are primarily associated with open grasslands that include scattered mesquite and/or yuccas, although small patches of scrub and woodlands may be used (USFWS 2006a). Existing data suggest that the ecologi cal status of Chihuahua n Desert grasslands79 currently occupied by northern ap lomado falcons is high seral to potential natural community or climax with significant basal cover of grass species. Montoya et al. (1997) reported the occupied nesting habitat as having basal ground cover ranging from 29 to 70 percent with a mean of 46 percent. Woody plant density ranged from 5 to 56 plan ts per acre with a mean of 31 plants per acre. Dominant woody plant species, comprising 74 percent of this community, were Mormon tea ( Ephedra viridis ), soaptree yucca ( Yucca elata ), sacahuista ( Nolina microcarpa ), mesquite, senecio ( Senecio spp.), creosotebush ( Larrea tridentata ), and baccharis ( Baccharis spp.). Site-specific habitat assessments should be conducted to further define whether the site of a given project or activ ity occurs within suitable habitat for this species.

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

the United States in 1972 and in Mexico in 2000. Present threats to the northern aplomado falcon including long-term drought and continue d replacement of grassland communities with shrubs in Chihuahuan Desert grasslands. Additio nally, large-scale conversion of grasslands to agriculture and the increased pr esence of the great-horned owl, which preys upon the northern aplomado falcon, may be limiting recovery of th is subspecies (Macías-Duarte et al. 2004, USFWS 2006b). In contrast to these current threats, northern aplomado falcons appear to be relatively tolerant of human presen ce. They have been observed to tolerate approach to within 100 m (328 ft) of their nests by researchers, have nested within 100 m (328 ft) of highways in eastern Mexico (Keddy-Hector 2000), and are frequently found nes ting in association with wellmanaged livestock grazing operations in Mexico and Texas (Burnham et al. 2002). Burnham et al. (2002) concluded that northern aplomado falcons would be able to coexist with most current land-use practices in the United States on the br oad scale. A recovery plan for the northern aplomado falcon was finalized by the Service in 1990 (USFWS 1990). The objective of the Aplomado Falcon Recovery Plan is to ensure that the northern aplomado falcon is no longer threatened by habitat loss, pesticide contamin ation, or human persecution. Implementation of the steps outlined in the Aploma do Falcon Recovery Plan could l ead to downlisting the northern aplomado falcon from endange red to threatened by 2030.

To address reestablishment of northern aplomado falcons in the United States, reintroduction of nestling northern aplomado falcons was identifie d by the Aplomado Falcon Recovery Plan as a recommended methodology. To further aid reesta blishment, reintroducti on sites are carefully selected to optimize habitat suitability. Northe rn aplomado falcon reintroductions have been ongoing in southern Texas since 1985 on National Wildlife Refuges and private land under Safe Harbor Agreements. Consequent ly, by 2005, reintroductions had result ed in at least 44 pairs of northern aplomado falcons in southern Texas a nd adjacent Tamaulipas, Mexico, where no pairs had been recorded since 1942 (Jenny et al. 2004). The first nesting pair of northern aplomado falcons in south Texas subsequent to releas es did not occur until 1995; however, by 2005, the Texas pairs had successfully fledged more than 244 young (Juergens and Heinrich 2005). In 2008, The Peregrine Fund found that 31 out of 38 te rritories surveyed in southern Texas were occupied (The Peregrine Fund 2009). There are like ly more breeding pairs present in this area than what has been documented, considering areas of habitat that are inaccessible for surveys.80 Reintroduction of captive-bred no rthern aplomado falcons began in west Texas in 2002. The Peregrine Fund reported up to 10 breeding pair s were found in west Texas in 2009, including pairs that successfully re produced (Heinrich 2010).

Reintroduction of captive-bred no rthern aplomado falcons began in New Mexico with the

release of 11 birds in 2006 on the privately-owned Armenda ris Ranch near Truth or Consequences. In 2007, a pair of northern aplomado falcons from this first year of reintroductions produced two fledglings on the ranc h. In 2007, a total of 41 birds were released in New Mexico on private, State, Bureau of Land Management, and Department of Defense lands. Releases are planned to continue th rough 2015 with up to 150 northern aplomado falcons released in New Mexico each year.

To date, 686 young falcons have been released in west Texas and 305 falcons in southern New Mexico in unfragmented native grasslands on private, State, and federally-managed areas. Northern aplomado falcons in New Mexico and Arizona are included in a nonessential experimental population designation under Sectio n 10(j) of the ESA (USFWS 2006a). When nonessential experimental populations are located outside a Nationa l Wildlife Refuge or unit of National Parks, they are treated as proposed for listing and only two provisions of Section 7 apply: Section 7(a)(1) and Section 7(a)(4). Sect ion 7(a)(4) requires Federa l agencies to confer, rather than consult, with the Service on actio ns that are likely to jeopardize the continued existence of a proposed species. The results of a conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activities. Northern aplomado falcons have been reintroduced in Texas on pr ivate lands using Safe Harbor Agreements, and their regulatory status under the ESA is endange red. Therefore, Secti on 7(a)(2) consultation by Federal agencies applies to aplomado falcons in Texas.

Currently, there are approximately 36 aplomado falcon pairs in the United States, which

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

b. Environmental Baseline

Formal surveys and reliable sightings submitted to the Service show that a small number of northern aplomado falcons have be en sighted in the United States during every decade since the 1960s (USFWS 2006a). In addition, a resident pa ir of northern aplomado falcons in Luna County, New Mexico, bred successfully in 2002, fledging three young. These were the first known northern aplomado falcons produced in ei ther New Mexico or Arizona since the subspecies' extirpation as a breeding species in the 1950s. Another pair was reported near this site in 2002, but no nest was locat ed and only one of the pair wa s present 2 days later (Meyer and Williams 2005). The 2002 nest represented th e first successful reproduction by naturally occurring northern aplomado falcons in the Unite d States in 50 years. Meyers and Williams (2005) reported at least eight individual northern aplomado fa lcons in Luna County between81 2000 and 2004. The species occurred historically in Hidalgo County, and there have been five reports of northern aplomado falcons in or ne ar the Animas Valley from the 1990s through the early 2000s (Meyer and Williams 2005).

(1) Status of the species within the action area

The action area for this consulta tion includes the historic range of the BTPD in the United States and counties adjacent to that range. The northern aplo mado falcon is currently found in

Texas and New Mexico as well as Guatemala and Mexico. Therefore, the portion of the action area of concern for the northern aplomado fa lcon includes only New Mexico and Texas where the range of this species coinci des with the proposed use of Kaput ® -D to control BTPDs in the

United States.

Northern aplomado falcons in New Mexico were designated a 10(j) nonessential experimental population to encourage landowners to support th e reintroduction of northern aplomado falcons

in the state. Several landow ners have supported reintroduction and manage the introduction areas to promote northern aplomado falcons. U nder the 10(j) rule, northern aplomado falcons

do not have incidental take restri ctions on private lands. In Texa s, private landowners that have allowed releases of northern aplomado falcons on their property are party to a Safe Harbor Agreement (USFWS 1996 and 2000a) that covers the entire area within 30 miles of each release site. Under the Safe Harbor Agreement program , participating landowners are permitted to take northern aplomado falcons incidental to future lawful land-use actions (such as prairie dog control), provided that the landowner maintain s any established base line responsibilities (USFWS 2000b). All northern aplomado falcon release sites and all recorded nests and northern aplomado falcon pairs within the acti on area in Texas occur on lands covered by the Safe Harbor Agreement (Montoya 2011, personal communication).

(2) Factors affecting species environment with in the action area

The loss of or physical degradation of conditio ns in occupied habitat or in potential reintroduction sites would compro mise the reintroduction program and recovery of the northern aplomado falcon. While the nonessential experime ntal population in New Mexico and Arizona is not necessary for the continued survival of th e species, it provides the be nefit of an additional population in the event of a catastro phic loss of populations in Texas.

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

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

(a) Land use

Land use activities affect the distribution, de nsity, and species composition of the native vegetation communities on the landscape. Land clea ring (including for facilities, roads, trails and utility corridors) eliminates the vegetation, li vestock grazing reduces the biomass of desired species and promotes others (that may have di ffering densities on the ground as well), ground or surface water depletion eliminates riparian a nd marsh vegetation communities, and erosion can eliminate plants along the paths of gullies.82 (b) Livestock grazing

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

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

(c) Road construction, maintenance, and use

Construction and maintenance of access roads has a significant effect on the landscape. Roads and trails provide for foot or vehicle access to th e landscape for a variety of purposes that often have other effects on soils, water featur es, vegetation communities, and wildlife.

(d) Communications towers and power lines

Although the effect of communication towers an d power lines on the northern aplomado falcon is not well documented, these structures can have an adverse effect on bi rd species in general, and raptors in particular, due to collision or electrocution. Although bird s can collide with any part of a communication tower, causing injury or death, they are most likely to collide with unmarked guy wires, which can be difficult to s ee. Northern aplomado falcons may also collide with power lines, especially if the power lines are unmarked. Power lines that are uninsulated may electrocute northern aplomado fa lcons if they try to use them to perch on or collide with them. Northern aplomado falcons may be particular ly vulnerable to collision with such objects as they tend to “engage in high-speed, low-level, reckless pursuits of sw ift avian prey” (KeddyHector 2000).

(e) Organochlorine and organopho sphate pesticide contamination

In the past, organochlorine com pounds (DDE/DDT) were heavily us ed in pesticide applications in the agricultural areas surrounding northern aplo mado falcon habitat in south Texas. It is unclear to what degree residual chemicals may s till be present in the species’ prey base, although some evidence indicates th at this may be a lingering threat (Mora et al. 1997, KeddyHector 2000). In addition, or ganophosphate insecticides may threaten the species through adverse effects on its primary prey base of insect s and small insectivorous birds, particularly in agricultural areas of south Texas.83 c. Effects of the Action

In its Kaput ® -D Assessment, the EPA concluded th at secondary exposure of birds to diphacinone can be sufficient to result in seve re effects, including mortality. Though avian reproduction studies are lacking, risks cannot be precluded.

While there is no avian reproductive study to he lp estimate risk, external bleeding, fatigue, internal hemorrhaging, and increased blood coag ulation has been repo rted in studies of secondary exposure to birds (see section on “Ind andione Mode of Action and Toxicity” above). Additionally, diphacinone is a first generation rodenticide, and consecutive intake over multiple days tends to reduce the amount that results in lethal dose. Thus, BTPD s and non-target species such as mice can accumulate a “super dose” prio r to expiring or becoming intoxicated and predated upon by birds such as the northern aplomado falcon. Howe ver, due to its relatively small size, the northern aplomado falcon is not likel y to take prey as large as a BTPD, and the northern aplomado falcon is not known to scavenge.

As described in the “General Background” secti on above, raptors such as the northern aplomado falcon may be especially sensitive to diphacinone . Toxicity tests with diphacinone indicate that some raptors are 20-30 times more sensitive than the two test species, northern bobwhite quail and mallard duck, required by the EPA for pestic ide registration (Rattner et al. 2010a, 2011, 2012). Therefore, acute and sub- acute risks to the northern ap lomado falcon are likely higher than assessed than indicated by the EPA’s quantitative risk assessment.

If individual northern aplomado fa lcons were to enter a BTPD colony, exposure to diphacinone via consumption of primary consumers of Kaput ® -D bait may occur. The falcons are not known to consume carrion, but diphacinon e poisoning of this species is possible via consumption of live mammals and birds that have fed on Kaput ® -D bait. As mentioned previously, the evidence

of Rozol ® exposure to horned larks and a meadowla rk from a field application of Rozol ® (Vyas

et al. in press ) indicate that predation of songbirds that have consumed bait is a likely route of exposure to northern aplomado falcons. In additi on to small birds, which the falcon may prey on preferentially in the winter when other food is lacking, th e food habits of the northern aplomado falcon consist of small reptiles, lizards, mice, other r odents, grasshoppers and other insect species. In eastern Mexico, small birds accounted for 97 percent of total prey biomass, but insects represented 65 per cent of prey individuals (Hector 1985). In one study, 82 bird species were found in prey remains suggesti ng a preference for medi um-sized songbirds, although birds over 500 g have b een recorded (USFWS 2002a).

Following treatment with Kaput ® -D, northern aplomado falcons ma y experience repeated doses of diphacinone-exposed prey. For example, in BTPD colonies treated with Rozol ® , dead and dying primary consumers (i.e., BTPDs, other sm all mammals, and birds) were visible in colonies 9 days after treatment and were st ill present when the study ended at day 29 posttreatment (Vyas 2010a). Additi onally, Vyas (2010a) suggested that raptors may preferentially feed at prairie dog colonies treated with Rozol ® compared to untreated colonies (Vyas 2010a). This suggestion would likely hold true fo r prairie dog colonies treated with Kaput ® -D. This effect has been observed in pred ators previously. Ke strels preferentially catch prey displaying aberrant behavior following pesticide e xposure compared to healthy prey (Hunt et al. 1992).84 The northern aplomado falcon may also be attracted to Kaput ® -D-treated prairie dog colonies if they provide a source of easy meals of either rodents or birds species.

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

Because raptors may be highly sensitive to Kaput ® -D, non-target exposure is also likely to reduce the availability of large raptor nests that northern aplo mado falcons require for nesting. As described above, northern aplomado falcons do not build their own nests but use nests constructed by corvids or large raptors. Thes e large predators can successfully predate or scavenge prairie dogs that have eaten diphacino ne-contaminated bait. When these predators are killed by exposure to diphacinone, the number of stick nests availabl e to northern aplomado falcons for nesting is also reduced. This ma y cause northern aplomado falcons to expend more time, energy, and risk to locate su itable nesting substrate, or th ey may find no suitable nests and forego breeding altogether.

Actual exposure is expected to be minimal due to the low density of BTPD colonies within the northern aplomado falcon’s range. In addition, in areas where the northern aplomado falcon has been reintroduced in Texas, landowners have signed cooperative agreements with the Service and The Peregrine Fund to maintain northern aplomado falcon habitat at or above baseline levels and are responsible to notify these organi zations before performing land use practices that may adversely affect the norther n aplomado falcon. For these reas ons, we expect the frequency of northern aplomado falcons encountering Kaput ® -D-treated BTPD colonies to be low, and few northern aplomado falcons would experience sub-lethal effects or mortality from consuming diphacinone-exposed prey.

However, we also anticipate th at detection of diphacinone-poi soned northern aplomado falcons will be rare. The birds are highl y mobile; debilitated, dying, or dead falcons, particularly when they move away from Kaput ® -D-poisoned prairie dog colonies, are likely to go unreported. For comparison, Rozol ® , a similar grain bait rodenticide, has been used for BTPD control in Texas since 2006 under a SLN label. During that tim e, there have been no reports of incidents involving Rozol ® and the northern aplomado falcon; howev er, we recognize the vastness of the area involved and the difficulty in locating r odenticide-affected raptors such as northern aplomado falcon.

d. Cumulative Effects

Cumulative effects include the effects of future St ate, tribal, local or pr ivate actions that are reasonably certain to occur in the action area consid ered in this BO. Future Federal actions that are unrelated to the proposed act ion are not considered in this section because they require separate consultation pursuant to Section 7 of the ESA.85 Human activities may affect the northern aploma do falcon and result in direct and indirect mortality, habitat loss, or reduction of habita t suitability. Anthropogenic uses of northern aplomado falcon habitat include ungulate graz ing, recreation, fuels reduction treatments, resource extraction (e.g., timber, oil and gas) , and development (e.g., roads and power lines). These activities can potentially reduce the qua lity of northern aplomado falcon nesting, roosting, and foraging habitat, and may cause disturbance during the breeding season.

e. Conclusion Regarding Jeopardy

After reviewing the current status of the north ern aplomado falcon, the environmental baseline for the action area, the eff ects from the use of Kaput ® -D, and the cumulative effects, it is the Service’s biological opinion that the use of Kaput ® -D, as proposed, is not likely to jeopardize the continued existence of the northern aplo mado falcon. No critical habitat has been designated for this species; th erefore, none will be affected.

The reasons for this determination are:

 The northern aplomado falcon may prey on non-target organisms that feed on Kaput ® -D grain bait, but it is unlikely th at this would occur regularly or predictably. Because the aplomado falcon does not feed upon dead anim als, exposure to individuals would only occur from moribund animals on the surface. Moribund animals are expected to be a small proportion of diphacinone-poisoned animals available on the surface.

 In areas where the northern aplomado fa lcon has been reestablished in Texas, landowners have signed cooperative agreemen ts with the Service and The Peregrine Fund to maintain northern aplomado falcon habi tat at or above baseline levels, and are responsible to notify these entities before performing la nd use practices that may adversely affect the northern aplomado falcon.

 As BTPD colonies are not known to be hi ghly important habitat for northern aplomado falcon foraging, it is not anticipated that Kaput ® -D use as proposed in this action will preclude recovery of this species even when combined with other potential anthropogenic threats. In addition, coope rative agreements with landowners in

reintroduction areas allo ws for the monitoring and potenti al avoidance of take within

reintroduction areas.

 Most breeding aplomado falcons are outside the action area of this project in south Texas. This greater proportion is expected to persist for th e duration of this project due to higher prey availability in the coastal region. Therefore, the survival of the northern aplomado falcon is not anticipat ed to be jeopardized by Kaput ® -D use in New Mexico

and west Texas.

 Reintroduction of captive bred nor thern aplomado falcons is exp ected to continue within the range of the species during some years of this project.86 INCIDENTAL TAKE STATEMENT

I. INTRODUCTION

Section 9 of the ESA and Federa l regulation pursuant to Section 4(d) of the ESA prohibit the take of endangered and threatened species , respectively, without special exemption. Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct. Harm is further defined by the Serv ice to include significant habitat modification or degradation that result s in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.

Harass is defined by the Service as in tentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to , breeding, feeding or sheltering. Incidental take is defined

as take that is incidental t o, and not the purpose of, the carryin g out of an otherwise lawful activity. Under the terms of Secti on 7(b)(4) and Section 7(o)(2), ta king that is incidental to and not intended as part of the agency action is not considered to be pr ohibited taking under the ESA, provided that such taking is in complian ce with the terms and c onditions of the ITS.

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

For northern aplomado falcons in New Mexico, the prohibitions agains t taking this species

found in Section 9 of the ESA have been modified by the nonessential experimental designation. The results of this conference are advisory in nature and do not restrict agencies from carrying out, funding, or authorizing activiti es. However, the Service advises EPA to consider implementing the conservation meas ures for northern aplomado falcons in New

Mexico.

Under the Safe Harbor Agreement program, for northern aplomado falcons participating landowners are permitted to take aplomado falcons incidental to future lawful land-use actions (such as prairie dog control), provided that th e landowner maintains any established baseline responsibilities (Service 2000b).

This ITS exempts take of black-footed ferrets , gray wolves, and northern aplomado falcons protected by the ESA that may be incurred by the proposed action, pr ovided the October 25, 2012, Kaput ® -D label, with modifications specified herein, is followed.87 Noncompliance with the Kaput ® -D label that results in take of gray wolves is not covered by this ITS; end users who do not comply with labe l requirements are not a fforded take coverage and are subject to prosecuti on under Section 9 of the ESA.

II. AMOUNT OR EXTENT OF TAKE ANTICIPATED

We anticipate that incidental take may result from the use of Kaput ® -D in the 10 states identified on the product label (A ppendix A) within and/or adjacent to the range of the BTPD in

those states. It should be noted that the amount or extent of incidental ta ke anticipated from the use of Kaput ® -D is not additive to the amount or extent of incidental take anticipated in the ITS

for Rozol ® . Both product labels specifically state that only one antico agulant rodenticide (diphacinone or chlorophacinone) can be used in a given treatment year (i.e., from October 1 to March 15). Therefore, the incidental take from Kaput ® -D, when added to that quantified for

Rozol ® , should not exceed the amount or extent of inci dental take anticipated in this ITS.

A. Black-footed ferret

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

current black-footed ferret reintroduction site s (12 sites in the 10 states) and future

reintroduction areas to redu ce the level of impact to the black-footed ferret . This information is

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

Incidental take of black-footed fe rrets is anticipated in the form of mortality when individuals disperse from a reintroduction area and encounter a BTPD colony that has been poisoned with Kaput ® -D within the previous 2 months, or if the black-footed ferret is residing on a colony when Kaput ® -D is applied. While black-footed ferrets can leave reintro duction sites, those departures are unlikely to be documented, and th e Service is unable to accurately predict the

number of black-footed ferre ts that may encounter Kaput ® -D-poisoned BTPD colonies. Most

black-footed ferrets that leave a reintroduction area are likely to die because of natural causes (predation/starvation) or other activities (vehicle collisions) unrelated to Kaput ® -D. Further,

due to black-footed ferrets’ nocturnal behavi or and tendency to spend much of their time underground in prairie dog burrows, it is un likely that many, if any, black-footed ferret mortalities due to Kaput ® -D will be reported to further inform this issue. Therefore, while dispersing black-footed ferrets may die from consuming Kaput ® -D-poisoned prairie dogs, this number is not anticipated to be large and will rarely be detected.

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

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

available and if the landowner wants the black- footed ferrets removed from their property. Requests to relocate black-footed ferrets that have left a re introduction area are very rare.88 The Service anticipates that incidental take of dispersing black-footed ferrets that leave a

reintroduction area and encount er a Rozol® or a Kaput ® -D-poisoned BTPD colony will result in

two or fewer black-footed ferret mortalities per year because the number of dispersing

individuals is not believed to be high and most dispersing black- footed ferrets are expected to

die of natural causes or other forms of incident al take. Black-footed fe rrets that are captured alive from an area proposed for Kaput ® -D use and relocated to suitable habitat where Kaput ® -D will not be applied will not be counted against th e lethal take of two black-footed ferrets per calendar year. The relocation of live black-footed ferrets from proposed Kaput ® -D use areas, while considered incidental take, is exempt ed under each reintroduction sites’ existing management plan and through a Service issued permit to the recovery partners at that site. That permit authorizes activities including black-footed ferret relocation, if need ed, at each of the

reintroduction sites through coordination with the Black-foot ed Ferret Recovery Coordinator. Therefore, this Kaput ® -D ITS is not intended to cover relo cation activities becau se such actions have been already been exempted under the ESA, or will be exempted by another means in the

future. Black-footed ferret mortalities from those relocation efforts are not anticipated.

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

reintroduction sites. Cu rrent information does not indicate that Kaput ® -D use is limiting potential black-footed fe rret reintroduction sites.

B. Gray wolf

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

This is considered a conservative number as a dditional dispersers have likely occurred and have gone undetected. Other forms of mortality can affect these wo lves before any exposure to Kaput ® -D occurs. However, if wolves ingest pois oned prey, evidence suggests that the wolves are likely to die. The exact number of wolves that may encounter a Kaput ® -D-poisoned prairie dog town with dead and dying prey is not determ inable; however, we conclude that the number would be low. The Service anticipates that one ESA-protected gray wolf every 3 years could be incidentally taken as a result of the registration of Rozol® and this proposed action. Due to the long-distance dispersal capabilities of gray wolves, this incident al take could conceivably occur in Kaput ® -D -poisoned prairie dog towns throughout th e action area, but the risk is likely greatest in those states within proximity to the source populati ons of the recovered Northern Rocky Mountain and Western Great Lakes DPSs (e.g., eastern North Dakota, eastern South Dakota, Nebraska, and Colorado). Due to the low number of gray wolves in the Mexican gray wolf population, we anticipate incide ntal take of gray wolves from the Mexican gray wolf to be lower. We anticipate that only one gray wolf from the Mexican gray wolf population will be incidentally taken over the course of the 15-year term of this biological opinion.

C. Northern aplomado falcon

Incidental ake of the northern aplomado falcon is e xpected in the form of mortality or sub-lethal effects such as changes in beha vior when they consume prey fr om a BTPD colony that has been poisoned with Kaput ® -D. The Service is unlikely to know wh en that might occur nor be able to89 accurately predict the number of northern aplomado falcons that may encounter BTPD colonies or non-target prey that have been exposed to Kaput ® -D. It is unlikely that northern aplomado falcons will be found; therefore, it is unlik ely that many, if any, northern aplomado falcon mortalities due to Kaput ® -D will be reported to further info rm the EPA and the Service on this

issue.

We anticipate that northern aplomado falcons in Texas that encounter Rozol® or Kaput ® -Dexposed BTPD colonies or non-target prey will re sult in one or fewer mortalities over 5 years. We further anticipate that one or fewer northern aplomado falcons in Texas over 5 years will be

harassed to a level that results in incidental take through a redu ction in available nest sites caused by Rozol® or Kaput ® -D mortality to large raptors a nd ravens. However, since this incidental take is unlikely to be easily detected, 2 falcon mortalities or injuries attributable to Rozol® or Kaput ® -D use will be considered to be repr esentative of the total amount of take exempted for each 5 years of this 15-year project.

III. EFFECT OF TAKE

A. Black-footed ferret

The Service has determined that two mortalities per year of disp ersing black-footed ferrets due to Kaput ® -D use is not likely to jeop ardize the continued existence of the species or materially affect black-footed ferret recovery because indi viduals dispersing from reintroduction sites are not known to regularly return and contribute further to ferret re covery. It is acknowledged that if a Kaput ® -D-caused black-footed ferret mortality that is reported, there could be multiple black-footed ferret mortalities not found or repor ted. Because the anticipated mortalities are likely to be dispersing black-footed ferrets that are unlikely to c ontribute to the success of the reintroduction site, su ch losses are not anticipated to compro mise the survival and recovery of

the black-footed ferret.

B. Gray wolf

The Service determines that the level of anticipat ed incidental take is not likely to result in jeopardy to the species. Few gray wolves are anti cipated to disperse into the action area from established populations. The BTPD habitat is generally not prefe rred habitat for this species.

Incidental take is antic ipated to be relatively low and not anticipated to have any populationlevel effects to recovered source populations of gray wolves that disperse into the action area. The low number of Mexican wolves (one over 15- year timeframe) that may be incidentally taken is not currently a thr eat to its recovery. Kaput ® -D use on BTPD towns and any resulting incidental take of gray wolves will likely not substantially change the mortality rates of longdistance dispersing wolves, as th ese individuals are al ready at high risk of encountering other

known factors of wolf mortality during th eir travels. Kaput ® -D poisoning is likely a compensatory form of mortality (w hereby any individuals lost to Kaput ® -D poisoning would have been likely to succumb to another fo rm of mortality in the absence of Kaput ® -D) not resulting in an overall increase in total mortality of gray wolves.90 C. Northern aplomado falcon

The Service has determined that two northern ap lomado falcons, in the form of one mortality and one harassment per 5 years in the 15-year timeframe, due to Kaput ® -D use are not likely to jeopardize the continued existen ce of the northern aplomado falcon. This amount of incidental take is not likely to neither resu lt in population level e ffects to the species nor reduce its chances for recovery. This is due to the fact that th e core of the northern aplomado falcon population is expected to persist at current or greater levels in southern Texas, outside the action area of this project. In addition, reintroduc tion of captive bred northern aplomado falcons is expected to continue within the range of the species during some years of this project.

IV. REASONABLE AND PRUDENT MEASURES

Pursuant to 50 CFR 402.14 (I) (ii) , reasonable and prudent meas ures (RPMs) are those the Service considers necessary to minimize the imp act of the incidental taking. Impacts of the proposed action largely will be minimized by compliance with the conservation measures incorporated into the proposed action, as de scribed in Section IV A. Consequently, no reasonable and prudent measures are necessary.

V. TERMS AND CONDITIONS

In order to be exempt from the prohibitions of section 9 of ESA, the EPA must comply with the following terms and conditions which implem ent the reasonable and prudent measures

described above. These terms and conditions ar e nondiscretionary. As mentioned above, the

Service considers the conservation measures inco rporated into the proposed action as described

to be sufficient to minimize incidental take of black-footed ferrets, gray wolves, and northern aplomado falcons. Therefore, no terms and conditi ons are necessary other than those discussed under Monitoring and Reporting Requirements below.

Monitoring and Reporting Requirements

When incidental take is anticipated, provisi ons for monitoring activities of the action are required to determine actual effects on federally listed species. Mon itoring and reporting is

essential for the Service to assess the action effect s, track incidental take levels, and refine the BO, RPMs, and terms and conditions. Thus, the EPA shall provide a written annual report to the Service each year this biological opinion is in effect. The report shall be submitted to the Service by May 15 of each year . The report shall include:

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

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

 The number and circumstances surrounding any fe derally listed species killed or injured as a result of Kaput ® -D poisoning;91  A discussion of progress in implementing th e conservation measures contained in this BO, including:

o Any problems encountered in implementing them;

o Recommendations for modifying the stipul ations to enhance the conservation of the covered species;

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

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

o Any other pertinent information.

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

for the conservation of the black-footed ferret, gray wolf, and aplomado falcon.

Disposition of dead or inju red federally listed species

Upon locating dead, injured, or sick federally listed species, the an imals shall be left in place, photographed if possible, and immediately report ed to one of the Service Law Enforcement numbers provided on the label, or a local Se rvice Law Enforcement Agent, along with any information related to Kaput ® -D use in the area where the anim als were found. The date, time, location, and any other relevant details shall be conveyed. Specimens (collected by authorized individuals) shall be kept cool or frozen to facilita te later examination for Kaput ® -D poisoning. Sick or injured animals shall be picked up a nd transported by authorized individuals to a permitted local wildlife rehabilitation or veterinary f acility for treatment. Care must be taken in handling sick or injured animals to ensure effective treatment.

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

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

.

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

Mobile: 720-626-5260.

For gray wolves located in Oklahoma, New Mexi co, or Texas (potentially Mexican gray wolves from a reintroduced population) the Mexican Wolf Recovery Coordinator must be notified as soon as possible and informed of any Kaput ® -D use, if known. Contact: U.S. Fish and Wildlife Service, New Mexico Ecological Services Fi eld Office, 2105 Osuna Ro ad NE, Albuquerque, NM 87113, Office Phone: (505) 761- 4748, Office Fax: (505) 346-2542.92 The Service’s Northern Aplomado Falcon Coordinato r must also be notified of sick, injured, or dead northern aplomado falcons within 24 hours by calling (505) 346-2525 at the New Mexico Ecological Services Field Office, 2105 Osuna Road NE, Albuquerque, NM 87113; Fax: (505)

346-2542.

The Service believes that no more than two black-f ooted ferrets per year; one wolf every 3 years with only one being from the Mexican wolf popul ation; and two northern aplomado falcons for each 5-year period within this 15-year project will be incidentally taken as a result of the proposed action. The Service expects that th e conservation measures that have been incorporated into the proposed action will minimi ze the impact of incidental take that might

otherwise result in the absence of those measures. If, during the course of the action, this level of incidental take is exceeded, such incide ntal take represents new information requiring

reinitiation of consultation and review of the conservation meas ures incorporated into the

action. The EPA must immediatel y provide an explanation of the causes of the taking and review with the Service the need for possible m odification of the conservation measures or the

addition of RPMs.

VI. CONSERVATION RECOMMENDATIONS

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

 A voluntary reporting form shall be devel oped and made available at training or

education sessions and on the inte rnet in association with Kaput ® -D information that

identifies the time and date of return vi sits, which wildlife species were located, disposition of wildlife found (i.e., whether the prairie dogs were removed from the colony, if Kaput ® -D was found on the surface and other information that can be used to assess the routes of exposure to nontarget wi ldlife). Completed forms shall be sent directly to the Service.

 The EPA should work in coordination with th e Service to evaluate methods to prevent secondary poisoning of federally listed species by performing a field study that allows for an evaluation of efficacy of the newly im plemented line-transect animal search and removal protocol as well as other feasib le methods to prevent secondary poisoning. Although other research entities may be acceptable, the Service recommends the EPA contact a university to devel op a graduate-level research study with the objective of determining appropriate search methodol ogy/protocols to reduce the above-ground availability of Kaput ® -D -poisoned BTPDs and non-target animals.93  The EPA should become a member of the Bl ack-footed Ferret Recovery Implementation Team due to its congressionally delegated re sponsibilities for re gulating rodenticides and recovering federally threatened and e ndangered species. Prairie dog rodenticide registrations under FIFRA are significant actions that can adversely affect black-footed ferrets and other listed species. The EP A participation on th e Black-footed Ferret Recovery Implementation Team would provide an avenue for the agency to understand

the ramifications of rodenticide use on black-footed ferret habitat along with an opportunity to work with rec overy partners to ensure EPA actions avoid working at cross purposes with black- footed ferret recovery.

 The EPA should monitor the registered rodentic ides used on the three species of prairie dogs in the black-footed ferrets’ range and repo rt the amounts of prairie dog rodenticides sold, used, and the expected prairie dog acreage poisoned pe r state per year.

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

 The EPA should implement the incorporated conservation measures throughout the nonessential experimental range of the north ern aplomado falcon in New Mexico where Kaput ® -D may be used.

 The EPA should coordinate w ith the New Mexico Ecologica l Services Field Office to assist in recovery efforts for the northern aplomado falcon by contributing to research, monitoring, and/or falcon reintroductions.

 The EPA should initiate or require studies to evaluate secondary toxicity of the EPA registered prairie dog rodenticides to nor thern aplomado falcons, other raptors, and

ravens.

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

VII. REINITIATION NOTICE

This concludes formal consultation on the action outlined in the EPA’s October 25, 2012, request for formal consultation regarding federa lly listed species and critical habitat impacts relative to the registratio n and application of Kaput ® -D to control BTPDs in 10 western States. As provided in 50 CFR § 402.16, reinitiation of formal consultation is required where discretionary Federal agency involvement or cont rol over the action has been retained (or is authorized by law) and if: 1) the amount or extent of incidental take is exceeded (or incidental take occurs of species for which the Service cu rrently does not anticipate adverse effects from the proposed action); 2) new information reveals effects of the agency action that may impact listed species or critical habitat in a manner or ex tent not considered in this BO (for example, this BO does not cover Kaput ® -D use on any other prairie d og species; thus, expansion of Kaput ® -D use to prairie dog species other than th e BTPD would necessitate reinitiation of94 formal consultation; change s to the October 25, 2012, Kaput ® -D label altering th e application of the product may also represent new information not considered herein); 3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in this BO; 4) future information indicates that Kaput ® -D use by itself or in combination with other factors is precl uding black-footed ferret recovery, then the EPAand the Service shall reinitiate consultation to determine appropriate measures to allow blackfooted ferret recovery to proceed; or 5) a new species is listed or critical habitat is designated that may be affected by the action. In instances wh ere the amount or extent of incidental take is exceeded, any activities causing such ta ke must cease pending reinitiation.95 

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### Personal Communications

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

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

Rozol.

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

Pavelka, G. 2008. Email exchange between Gr egory A. Pavelka, Wildlife Biologist, U.S. Army Corps of Engineers, Yankton, South Dakota , and Carol Aron, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Ecological Services, North Dakota Field Office, Bismarck, North Dakota. December 8, 2008. Inquiry regarding the distance that piping plovers will nest from water on Missouri River Reservoirs.

Someson, R. 2012. Email between Russell A. So meson, Natural Resource Specialist, Lake Oahe Project, U.S. Army Corps of Engin eers, Pierre, South Dakota, and Carol Aron, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service, Ecological Services, North Dakota Field Office, Bismarck, North Dakota. Confirmation of 2011 verbal exchange regarding lack of piping plover use of black-tailed prairie dog colonies.116 

### APPENDIX A

October 25, 2012 Label for Kaput ® -D Prairie Dog Bait117118119