[Federal Register Volume 87, Number 71 (Wednesday, April 13, 2022)]
[Rules and Regulations]
[Pages 21783-21812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07920]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2020-0153; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE76


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Streaked Horned Lark With Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), affirm the 
listing of the streaked horned lark (Eremophila alpestris strigata), a 
bird subspecies from Washington and Oregon, as a threatened species 
under the Endangered Species Act of 1973, as amended (Act). We also 
revise the rule issued under section 4(d) of the Act (``4(d) rule'') 
for this bird. This final rule maintains this species as a threatened 
species on the List of Endangered and Threatened Wildlife and continues 
to extend the protections of the Act to the species.

DATES: This rule is effective May 13, 2022.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-R1-ES-2020-0153 and at https://www.fws.gov/oregonfwo/. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at https://www.regulations.gov under Docket No. 
FWS-R1-ES-2020-0153.

FOR FURTHER INFORMATION CONTACT: Paul Henson, State Supervisor, U.S. 
Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 
98th Avenue, Suite 100, Portland, OR 97266; telephone 503-231-6179. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. On February 28, 2018, the Center for 
Biological Diversity filed suit against the Department of the Interior 
and the Service on the 2013 listing and 4(d) rules for the streaked 
horned lark (78 FR 61452; October 3, 2013). The plaintiff challenged 
the adequacy of our significant portion of the range analysis, and the 
4(d) rule's exception to the take prohibition for agricultural 
activities in the Willamette Valley. The court did not vacate the rules 
but remanded them to us for reconsideration. On April 13, 2021, we 
published a proposed rule (86 FR 19186) that reflected an updated 
assessment of the status of the subspecies and proposed revisions to 
the current 4(d) rule. Under the Act, we are required to make a final 
determination on our proposal within 1 year.
    What this document does. With this final rule, we affirm the 
listing of the streaked horned lark as a threatened species, and we 
revise the 4(d) rule for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the streaked horned lark 
faces threats from the ongoing loss and degradation of suitable habitat 
(Factor A), as well as land management activities and related effects, 
and recreation (Factor E), combined with the synergistic effects of 
small population size and climate change (Factor E), such that it is 
likely to become an endangered species within the foreseeable future.
    Peer review and public comment. The purpose of peer review is to 
ensure that our listing determinations and 4(d) rules are based on 
scientifically sound data, assumptions, and analyses. The Service 
prepared the Species Status Assessment for the Streaked Horned Lark 
(SSA report) (U.S. Fish and Wildlife Service 2021a, entire) and sought 
peer review on the report in accordance with our joint policy on peer 
review published in

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the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act. We solicited expert opinions of five 
appropriate specialists with expertise in ornithology and streaked 
horned lark biology and habitat, and we received three responses. These 
peer reviewers generally concurred with our methods and conclusions, 
and provided additional information, clarifications, and suggestions to 
improve the SSA report. Additionally, we sent the SSA report to six 
agency partners for review and received responses from three partners. 
We also considered all comments and information we received from the 
public during the comment period for the April 13, 2021, proposed rule 
(86 FR 19186).

Previous Federal Actions

    On October 3, 2013, we published in the Federal Register (78 FR 
61452) a final rule listing the streaked horned lark as a threatened 
species under the Act; that rule was accompanied by a 4(d) rule to 
except certain activities from the take prohibitions of the Act and our 
regulations in order to provide for the conservation of the streaked 
horned lark.
    In addition, on October 3, 2013, we published in the Federal 
Register (78 FR 61506) a final rule designating critical habitat for 
the streaked horned lark in Washington and Oregon.
    On February 28, 2018, the Center for Biological Diversity filed 
suit against the Department of the Interior and the Service on the 
listing and 4(d) rules for the streaked horned lark. The court did not 
vacate the rules but remanded the rules to us for reconsideration and 
ordered us to submit a revised proposed listing determination to the 
Federal Register no later than March 31, 2021. To facilitate 
consideration of new information, the Service conducted a new species 
status assessment (SSA) analysis informed by our SSA framework (Service 
2016a, entire).
    On April 13, 2021, we published a proposed rule (86 FR 19186) that 
reflected an updated assessment of the status of the subspecies 
(including an updated analysis of any significant portions of the 
range) based on the SSA report, and proposed revisions to the current 
4(d) rule.

Supporting Documents

    A team of Service biologists, in consultation with other species 
experts, prepared the SSA report for the streaked horned lark (U.S. 
Fish and Wildlife Service 2021a, entire). The SSA report represents a 
compilation of the best scientific and commercial data available 
concerning the status of the species, including the impacts of past, 
present, and future factors (both negative and beneficial) affecting 
the species. This final rule is based on the scientific information 
compiled in the SSA report.

Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered 
comments from the public on the April 13, 2021, proposed rule (86 FR 
19186). We made many small, nonsubstantive clarifications and 
corrections throughout the SSA report and this rule, including under 
Summary of Biological Status and Threats, below, in order to ensure 
better consistency, clarify some information, and update or add new 
references. We considered whether this additional information altered 
our analysis of the magnitude or severity of threats facing the 
species.
    We updated the SSA report (to version 2.0) and the final rule based 
on comments and additional information provided as follows:
    (a) We include updated survey information provided to the Service 
and other reports of additional occurrences we received.
    (b) We use an updated definition of suitable habitat throughout the 
final rule; wherein suitable habitat is defined as early seral stage 
communities with low-statured vegetation and substantive amounts of 
bare ground or sparsely vegetated conditions.
    (c) We update Table 3 in the SSA and present an updated Table 1 in 
this final rule.
    (d) We omit the proposed rule's Figure 1 from this final rule and 
instead present a new Table 3 where mean number of pairs are detected 
across all sites per region. Subsequent tables are renumbered to remain 
in sequence.
    (e) We add text to the exception of take in the 4(d) rule for 
habitat restoration activities (Sec.  17.41(a)(2)(iv)(E)) to clarify 
that the Service will determine whether these activities are consistent 
with this final rule on a case-by-case basis.
    (f) We update the numbers reporting acreage of agriculture in the 
Willamette Valley, and specifically the amount of land used in 
production of grass seed.
    We conclude that the information we received during the comment 
period for the proposed rule did not change our previous analysis of 
the magnitude or severity of threats facing the species or our 
determination that streaked horned lark is a threatened species.

Summary of Comments and Recommendations

    In our April 13, 2021, proposed rule (86 FR 19186), we requested 
that all interested parties submit written comments on the proposal by 
June 14, 2021. We also contacted appropriate Federal and State 
agencies, scientific experts and organizations, and other interested 
parties and invited them to comment on the proposed rule. Newspaper 
notices inviting general public comment were published in The Oregonian 
on April 18, 2021, The News Tribune on April 19, 2021, and The Olympian 
on April 19, 2021. We did not receive any requests for a public 
hearing. All substantive information provided during the comment period 
either has been incorporated directly into the final rule or is 
addressed below.

Peer Reviewer Comments

    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we sought the expert opinions of five 
appropriate specialists regarding the 2021 SSA report. The peer 
reviewers have expertise that includes familiarity with streaked horned 
lark and its habitat, biological needs, and threats. We received 
responses from three specialists, which informed the SSA report and our 
April 13, 2021, proposed rule. The purpose of peer review is to ensure 
that our listing determinations and 4(d) rules are based on 
scientifically sound data, conclusions, and analyses. We reviewed all 
peer review comments we received from the specialists for substantive 
issues and new information regarding streaked horned lark and 
incorporated into the final SSA report (Service 2021a) as appropriate.

Public Comments

    We received seven submissions during the comment period for the 
proposed rule. We reviewed all submissions for substantive comments and 
new information regarding the proposed rule. Four submissions included 
substantive comments or new information concerning the April 13, 2021, 
proposed rule and the SSA report (Service 2021a). Updated information 
received was incorporated into the final SSA report and our final rule 
as appropriate. Below, we provide a summary of the substantive comments 
raised in the public submissions we received; however, comments outside 
the scope of the proposed rule, and those without supporting 
information,

[[Page 21785]]

did not warrant an explicit response and, thus, are not presented here. 
Identical or similar comments have been consolidated.
    (1) Comment: Several commenters argued that the subspecies should 
be listed as endangered in all or a significant portion of the range 
due to small population sizes, ongoing loss of habitat, and lack of 
protection across most of its range.
    Response: The streaked horned lark has been listed since 2013 and 
since that time the Service has been coordinating with partners to 
implement recovery actions throughout the range. The subspecies 
continues to be affected by a variety of stressors including 
agriculture, airport management, military operations, dredged material 
placement, and recreation. Despite the ongoing influence of stressors, 
the subspecies is not currently in danger of extinction, because the 
species retains multiple populations in high and moderate condition 
across all representative regions and those populations occur in a 
variety of habitat types. While the subspecies has shown variable 
abundance across the range, both from location-to-location and year-to-
year, each representative region has at least 8 redundant populations. 
Negative influence factors on the subspecies have not fluctuated much 
for the last 20 years and are not of a scope or magnitude such that the 
subspecies is currently in danger of extinction.
    As noted in the Background and Summary of Biological Status and 
Threats sections, abundance of larks across the Willamette Valley 
appears relatively high, but many of these local populations cannot be 
surveyed due to lack of access. Although the current abundance of local 
populations along the Pacific Coast is lower than other areas, it has 
been low for many years, and we see no apparent declining trend in this 
regional population based on survey data from 2013 to 2019. Recent 
detections of birds at Clatsop Spit, as well as sites with restored 
habitat on private lands in the Willamette Valley, indicate that 
individuals can move between sites, and there are a few instances of 
detections at previously unoccupied locations, but recolonization 
appears low and difficult to predict.
    (2) Comment: One commenter stated we should have coordinated with 
outside entities to quantify our assessment of streaked horned larks 
and evaluate specific threats or issues.
    Response: The streaked horned lark has been listed since 2013, with 
recovery actions coordinated by the Streaked Horned Lark Recovery 
Working Group (Working Group). The Streaked Horned Lark Recovery 
Working Group consists of several entities outside of the Service, 
including state biologists from both Oregon and Washington as well as 
species experts from American Bird Conservancy, Oregon State 
University, Center for Natural Lands, and other private individuals. 
Species status assessments (SSAs) are typically led by Service 
biologists and can include biologists from other agencies (state, 
Tribes and Federal). However, regardless of membership on an SSA core 
team, we call upon species experts and technical experts from other 
agencies to help us fill information gaps or check our analytical 
approach and did so with the streaked horned lark SSA. We drafted the 
SSA internally in response to the litigation remand and provided the 
draft SSA report for peer and partner review to a variety of people for 
external coordination, including the members of the Working Group. We 
took their comments into consideration when finalizing the SSA report 
and drafting the April 13, 2021, proposed rule. We also sent notice of 
the availability of the proposed rule to the members of the Working 
Group and took their comments into consideration when finalizing the 
rule. The 60-day public comment period on the April 13, 2021, proposed 
rule (86 FR 19186) provided interested parties an opportunity to 
comment and provide information on the proposed rule.
    (3) Comment: We received comments stating the analysis of the 
current resiliency, redundancy, and representation of streaked horned 
lark in the SSA report, which provided the basis for the reaffirmed 
status determination for the subspecies, is not in alignment with 
population targets in the draft recovery plan.
    Response: Recovery plans provide important guidance to the Service, 
States, Tribes, and other partners on methods of enhancing conservation 
and minimizing threats to listed species, as well as criteria against 
which to measure progress towards recovery, but they are not regulatory 
documents and cannot substitute for the determinations and promulgation 
of regulations required under section 4(a)(1) of the Act. For this 
status determination, we analyzed the best available scientific and 
commercial data through the SSA framework to inform current and 
projected future resiliency of regional populations, and redundancy and 
representation of the subspecies. The SSA framework is currently the 
standard approach the Service is using for status assessments, and it 
may not always be in perfect alignment with a previously developed 
recovery plan.
    Recovery plans identify metrics that describe what recovery of the 
species may look like; the SSA is used to analyze the current status of 
the species and project future conditions under a suite of plausible 
scenarios to support management decisions. The streaked horned lark 
draft recovery plan is supported by two supplementary documents: A 
Species Biological Report, which served as the basis for the SSA; and a 
Recovery Implementation Strategy, which details specific near-term 
activities identified in the draft recovery plan (U.S. Fish and 
Wildlife Service. 2019b, entire). For the streaked horned lark SSA, we 
incorporated information from the draft recovery plan into our analysis 
when appropriate and consistent with the SSA framework and, in response 
to peer review on the SSA, we revised our demographic metrics for 
current condition to be more in line with population targets in the 
draft recovery plan. As described under Determination of Streaked 
Horned Lark's Status, below, our review of the best available 
scientific and commercial information (which we analyzed in the SSA 
process) indicates that the streaked horned lark meets the Act's 
definition of a threatened species.
    (4) Comment: We received several comments stating the methods of 
analysis used for interpreting changes in local and regional 
populations were flawed due to variability in survey efforts (both 
between years and between regions) and noting a lack of statistical 
analysis incorporated into our SSA and proposed rule. One commenter 
recommended we account for this variability in assessing population 
status and reference results presented in Keren and Pearson (2019). 
Another commenter stated that trends were based on data where 
conservation actions are implemented or land management activities are 
regulated through the section 7 consultation process and that this 
basis skews any apparent increase in population status over time toward 
the positive (which is not representative of the majority of the 
population that occurs on lands in the Willamette Valley, where no 
regulations protect the species from potential threats).
    Response: We incorporated information from Keren and Pearson (2019) 
where appropriate in the SSA report and in this final rule, and in our 
discussion of variability in survey efforts (both between years and 
between regions) in both documents. In this rule, to incorporate the 
best available science,

[[Page 21786]]

we update Table 1 to show corrected population estimates, add Tables 2 
and 3 to show mean number of pairs detected across all sites per 
region, and include additional information on our characterization of 
trends to reflect the variability in survey effort between regions and 
the uncertainty regarding trends (see additional explanation as 
population estimates as a function of survey effort in Tables 1-3). If 
information relating to the status of the species on private lands in 
the Willamette Valley becomes available after publication of this final 
rule, we will take that information into consideration and can reassess 
status at that time.
    (5) Comment: One commenter stated that the process for evaluating 
connectivity between local populations and habitat conditions needs to 
be better described in the SSA report to account for how these metrics 
were evaluated with regards to the current condition.
    Response: In the SSA report and this final rule, we revised our 
description of the metrics used to evaluate current condition, 
including connectivity of local populations during the breeding season 
and between years based on evidence from color-banded individuals, as 
well as general habitat conditions at sites in the Willamette Valley 
where lark populations are monitored regularly and where land 
management activities maintain suitable habitat.
    Our assessment and conclusions regarding connectivity were based on 
seasonal and intra-annual observations of larks moving between sites 
(within a breeding season, based on color-banded or tagged birds, and 
observations of birds returning to alternate breeding sites relative to 
where they were banded) (see Figure 1 for additional information).
    (6) Comment: We received comments stating that the availability of 
suitable habitat in the Willamette Valley may not be the primary driver 
of the subspecies' status and distribution, as evidenced by the 
abundance of suitable habitat where larks are not detected.
    Response: In response to this comment, we clarified our definition 
of suitable habitat throughout this final rule as early seral stage 
communities with low-statured vegetation and substantive amounts of 
bare ground or sparsely vegetated conditions. This definition is 
consistent with that of suitable habitat in the draft recovery plan, 
the SSA, and scientific literature describing preferred habitats used 
by larks. We further acknowledge that there are other factors (in 
addition to the availability of suitable habitat) that drive the status 
of larks in the Willamette Valley. These include vegetation succession, 
land usage, crop conversion, the timing and method of equipment 
operation, the loss of natural disturbance processes, and any other 
habitat perturbations during the breeding season. We updated the SSA to 
clarify that the primary driver of the subspecies' status and 
distribution is a combination of habitat availability and disturbance 
activities during the breeding season.
    (7) Comment: One commenter stated we need to better describe how 
the benefits of land management activities used to replicate or mimic 
suitable habitat conditions in the Willamette Valley outweigh the 
potential risks to breeding streaked horned larks.
    Response: Early spring conditions in recently established grass 
seed fields in the Willamette Valley attract streaked horned lark by 
providing suitable habitat (i.e., the areas between rows of grass that 
contain very little or no vegetation) for breeding. Streaked horned 
lark adults, nestling, and eggs can be negatively affected by mowing of 
these fields. Although streaked horned lark breeding can extend until 
late summer, that time period covers additional nest attempts, and the 
peak of breeding (first nest attempts) occurs in late May to mid-June 
before peak mowing (which typically occurs from mid-June to mid-July) 
in the Willamette Valley. Additional nesting attempts can occur from 
late June into August and may occur whether the first nest attempt 
failed or was successful (Pearson and Hopey 2004, p. 11). See also this 
discussion in the Summary of Biological Status and Threats section 
below.
    (8) Comment: One commenter stated that although agricultural 
practices maintain habitat for larks, the industry is declining, and 
replacement crops are not suitable for larks. They note that if 
suitable crop types are declining, it would be logically consistent 
that lark populations would decline based on loss of habitat, but the 
proposed rule describes the current condition for the Willamette Valley 
population as increasing.
    Response: As noted in our response to Comment (6), above, we 
acknowledge that there are drivers of population status other than 
grass seed production. In this rule, we present updated population 
survey numbers for the Willamette Valley population; however, there was 
variability in survey efforts and corresponding variability in mean 
number of birds detected during surveys across all regions. The 
increases at some local sites are balanced by fluctuations in lark 
detections during surveys and variability in survey effort across all 
years.
    (9) Comment: One commenter stated that the timing of agricultural 
activities in the Willamette Valley is mischaracterized in the SSA 
report and the potential effects to nesting larks are greater than 
portrayed in the SSA report.
    Response: Larks arrive on breeding sites in February (Pearson et 
al. 2016, p. 5), and the occupancy survey window extends from mid-April 
to mid-July. The nesting season (i.e. clutch initiation to fledging) 
for streaked horned larks begins in mid-April and ends in late August, 
with peaks in May and June (Pearson and Hopey 2004, p. 11; Moore 2011, 
p. 32; Wolf 2011, p. 5; Wolf and Anderson, 2014, p. 19). Harvest of 
grass seed usually commences in late June after the typical first nest 
attempt. While peak breeding occurs early in the summer, streaked 
horned larks can nest until August, and can re-nest throughout the 
summer, so they have multiple chances to breed even if a first nest 
attempt fails. Second and third breeding attempts typically occur 
during or after harvest practices have occurred. Nest success in 
general is highly variable. While there is potential for streaked 
horned lark nesting success to be impacted by grass seed harvest 
activities, the best available information does not indicate that those 
harvest activities are negatively affecting the current resiliency of 
streaked horned lark populations.
    (10) Comment: One commenter stated that prairie restoration in the 
Willamette Valley does not substantially contribute to long-term 
conservation of streaked horned larks in the Willamette Valley. The 
commenter stated that because birds that breed in these locations are 
displaced from nearby sites and nests, they are at risk of lethal 
effects from land management activities, such as mowing or pesticide 
application, that are used to maintain vegetation at the restoration 
site. Another commenter said restoration success is likely based on 
soil structure (in general, glacial outwash in Puget Lowlands compared 
to fertile organic soil in Willamette Valley) and the likelihood of 
plant growth occurring following restoration.
    Response: Larks at restoration sites throughout the subspecies' 
range are potentially affected by mowing and other land management 
activities similar to excepted activities at airports and in 
agricultural fields, but the results of prairie restoration in 
Willamette Valley indicate that restoration sites may provide short-
term benefits to larks. Activities associated with streaked horned lark 
habitat restoration (e.g.,

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removing nonnative plants and planting native plants, creating open 
areas, and maintaining sparse vegetation through vegetation removal or 
suppression via controlled burns) would be very beneficial to the 
subspecies; any adverse effects to the subspecies from these activities 
would likely be only short-term or temporary, especially with respect 
to harassment or disturbance of individual larks. In the long term, the 
risk of adverse effects to both individuals and populations is expected 
to be mitigated, as these types of land management activities will 
likely benefit the subspecies by helping to preserve and enhance the 
habitat of existing local populations over time.
    (11) Comment: We received several comments stating that the success 
of most existing conservation efforts results from section 7 
consultation with Federal agencies, leaving streaked horned lark on 
private lands mostly unprotected. We received other comments stating 
that private landowners should receive protection via safe harbor 
agreements or other programs to incentivize them to promote 
conservation for the species.
    Response: It is well documented that listed species benefit from a 
higher level of protection on Federal lands when compared to privately 
owned lands, due in part to the requirement for section 7 consultation 
under the Act and other Federal programs. In contrast, protections for 
listed species on non-Federal lands rely more on section 9 take 
prohibitions and voluntary or discretionary conservation measures. 
Since we listed the streaked horned lark as threatened under the Act in 
2013, numerous conservation measures resulting from section 7 
consultation under the Act in the range of the streaked horned lark 
have helped reduce the effects of threats on the subspecies.
    Conservation of listed species in many parts of the United States 
is dependent upon working partnerships with a wide variety of entities, 
including the voluntary cooperation of non-Federal landowners. Building 
partnerships and promoting cooperation of landowners are essential to 
understanding the status of species on non-Federal lands and may be 
necessary to implement recovery actions such as reintroducing listed 
species, habitat restoration, and habitat protection. We encourage any 
landowners with a listed species such as streaked horned lark present 
on their property and who want to help conserve the species or think 
they carry out activities that may negatively impact that listed 
species to work with the Service to promote conservation. We promote 
these private sector efforts through the Department of the Interior's 
cooperative conservation philosophy (see https://www.fws.gov/services 
for more information). Once a species is listed, for private or other 
non-Federal property owners we offer voluntary safe harbor agreements 
that can contribute to the recovery of species, habitat conservation 
plans that allow activities (e.g., grazing) to proceed while minimizing 
effects to species, funding through the Partners for Fish and Wildlife 
Program to help promote conservation actions, and grants to the States 
under section 6 of the Act. We recently completed a Safe Harbor 
Agreement with a private landowner in the Willamette Valley to create 
and maintain habitat conditions that support larks and increase the 
distribution and abundance of larks in this region (U.S. Fish and 
Wildlife Service 2021b, entire).
    (12) Comment: We received several comments stating that despite the 
joint effort to evaluate voluntary lark conservation in the Willamette 
Valley (funded by the USDA's Natural Resources Conservation Service, 
the Service, the American Bird Conservancy, and other partners), there 
was no incentive for agricultural producers (who are excepted under the 
4(d) rule) to engage with the Federal government for conservation, even 
when financial incentives were available. One commenter stated that the 
assumption that the proposed 4(d) rule provides an incentive to 
landowners that results in creation or maintenance of habitat is 
erroneous and suggests producers do not make decisions based on market 
economics.
    Response: We determined that the specific provisions in the 4(d) 
rule adequately protect streaked horned lark while facilitating the 
conservation and management of the species where individuals currently 
occur and may occur in the future. There are a variety of factors that 
understandably drive the type of crop that agricultural producers 
choose to grow and why they might change to a different crop over time. 
On farms where larks utilize crops such as perennial rye grass seed 
after the first few years of planting, the 4(d) is intended to remove 
possible disincentive to farmers to continue growing this crop--and not 
change the crop to something that will exclude use by larks or to keep 
it longer in non-suitable habitat status. Section 4(d) of the Act 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for conservation of species listed 
as threatened. Section 4(d) of the Act provides the Secretary with 
broad discretion to select and promulgate appropriate regulations 
tailored to the specific conservation needs of the threatened species. 
As described below under II. Final Rule Issued Under Section 4(d) of 
the Act, the provisions of our 4(d) rule will promote conservation of 
the streaked horned lark by encouraging management of the landscape in 
ways that can meet both land management considerations and the 
conservation needs of the streaked horned lark. The prohibitions 
identified in the 4(d) rule, however, are considered necessary and 
advisable for the conservation of the streaked horned lark (see next 
comment and response).
    (13) Comment: Several commenters stated that the proposed 4(d) rule 
leaves the streaked horned lark unprotected, and that existing 
regulations are insufficient to protect extant populations. One 
commenter stated that our rationale assumes that regulating 
agricultural practices would result in producers changing their 
practices or crops to avoid said regulations, but that the rise of the 
grass seed industry occurred in the same timeframe that larks began to 
decline. The commenter described the Willamette Valley as an ecological 
sink, where birds are attracted to habitat conditions, but management 
activities compromise reproductive success and survival. Commenters 
also note that the 4(d) rule excepts the agricultural industry as a 
whole, in spite of known effects on mortality, disturbance, and habitat 
alteration (shift in crop types based on market demands), for reasons 
other than conservation of the species, leaving the majority of the 
population in unregulated land use circumstances.
    Response: With the loss of historical habitats during the last 
century, alternative breeding and wintering sites, including active 
agricultural lands, have become critical for the continued survival and 
recovery of the streaked horned lark. The largest area of potential 
habitat for streaked horned larks is the agricultural land base in the 
Willamette Valley. Larks are attracted to the wide, open landscape 
context and low vegetation structure in agricultural fields, especially 
in grass seed fields, probably because those working landscapes 
resemble the historical habitats formerly used by the subspecies when 
the historical disturbances associated with floods and fires maintained 
a mosaic of suitable habitats. In any year, some portion of the 920,000 
ac (372,311 ha) of agricultural lands in the Willamette Valley will 
contain patches of suitable streaked horned lark habitat, but the 
geographic location of those areas may

[[Page 21788]]

not be consistent from year to year, nor can we predict their 
occurrence due to variable agricultural practices (crop rotation, 
fallow fields, etc.), and we cannot predict the changing and dynamic 
locations of those areas.
    While agricultural activities also have the potential to harm or 
kill individual streaked horned larks or destroy their nests, 
maintenance of extensive agricultural lands (primarily grass seed 
farms) in the Willamette Valley is crucial to maintaining the 
population of streaked horned larks in the valley and aiding in the 
recovery of the subspecies in Oregon, and our revised 4(d) rule 
provides landowners some incentive to continue operating and 
maintaining their lands in a manner that is consistent with current 
operations which provide habitats that the birds currently rely on. As 
discussed in the response to Comment 12, we acknowledge that there are 
a number of reasons why a landowner may change their practices or 
convert their crop to a different commodity, however, and our revised 
4(d) rule will promote conservation of the streaked horned lark in that 
it recognizes and supports management of the landscape in ways that 
meet both land management considerations and the conservation needs of 
the streaked horned lark.
    Currently in the Willamette Valley, there are approximately 360,000 
ac (145,000 ha) of grass seed fields in production. In any year, some 
portion of these lands will have suitable streaked horned lark habitat, 
but the geographic location of those areas may not be consistent from 
year to year, nor can we predict their occurrence due to variable 
agricultural practices (crop rotation, fallow fields, etc.), and we 
cannot predict the changing and dynamic locations of those areas. 
Maintenance of extensive agricultural lands (primarily grass seed 
farms) is crucial to maintaining the population of streaked horned 
larks. The beneficial effects to the subspecies from maintaining these 
agricultural activities outweighs the negative effects from injuries to 
particular individual larks from these same activities. The exception 
for incidental take for certain agricultural activities on non-Federal 
lands in the revised 4(d) rule applies to the entire range of the 
subspecies, to encourage management actions that would facilitate the 
use of areas other than civilian and military airports by streaked 
horned larks within the range of the subspecies in Oregon and 
Washington.
    Because landowners are free to allow vegetation growth that results 
in the conversion of lands into habitats unsuitable for the streaked 
horned lark, conservation of the species will benefit from the support 
of agricultural practices that result in the creation and maintenance 
of habitat that is suitable for the subspecies. Excepting routine 
agricultural activities on non-Federal lands throughout the range of 
the streaked horned lark from the prohibition on take will provide an 
overall benefit to the subspecies by maintaining suitable habitat.
    (14) Comment: One commenter disagreed with our rationale for 
including restoration in the proposed 4(d) exceptions, stating the 
potentially lethal effects to larks resulting from restoration 
activities such as mowing, spraying pesticides, and tilling compromise 
the overall justification for excepting these activities. They also 
state that inclusion of prairie restoration in the proposed 4(d) rule 
eliminates opportunities for partnerships to address impacts with 
successful tools (nest protection).
    Response: We acknowledge that the effects from habitat restoration 
activities (mowing, spraying, tilling, etc.) on larks are similar to 
the effects of disturbance mechanisms that occur at airports (mowing) 
and on agricultural fields (mowing, tilling, harvesting, etc.), which 
maintain habitat for larks through semi-regular disturbance. However, 
we continue to support restoration of native habitats throughout the 
subspecies' range because these sites may provide additional temporary 
habitat for larks. Furthermore, while there are potential effects to 
larks from habitat management activities on restoration sites, if these 
activities were discontinued, plant growth and vegetation succession 
would occur, which would result in habitats no longer supporting the 
low-stature vegetation with areas of bare ground or sparsely vegetated 
ground that larks prefer. In parallel to our excepting of routine 
agricultural activities, excepting habitat restoration actions (that 
may include adverse effects to lark in the short-term), will provide an 
overall benefit by maintaining and/or adding to suitable habitat for 
the subspecies. While the loss of individuals is never welcome, the 
continuation of land management activities that create replacement 
habitat is very important for conservation of the subspecies, and the 
benefits to the subspecies as a whole appear to outweigh the associated 
cost of the loss of individuals.
    (15) Comment: Two commenters expressed concern that the 4(d) rule 
precludes actions necessary for the lark's survival and recovery, 
namely nest protection for the brief incubation period for larks 
nesting on privately owned agricultural land. The commenters did not 
provide suggestions for how such a nest protection program may be 
designed or administered on those private lands other than referencing 
application of section 9 take prohibitions. They did reference positive 
nest conservation efforts for the lark at Joint Base Lewis McChord 
(JBLM) in Washington, and for the western snowy plover (Charadrius 
alexandrinus nivosus) as examples of what they believe should be 
implemented in Oregon's private agricultural lands.
    Response: Some amount of nest mortality may occur as a consequence 
of excepted agricultural activities. The Service is sensitive to this 
concern and has taken reasonable steps to minimize the risk to nesting 
streaked horned larks while also supporting these same activities that 
maintain habitat the subspecies depends on for nesting.
    The commenters cite to lark nest protection on Federal lands at 
JBLM and to nest protection buffers applied for western snowy plover on 
Federal and state lands in Oregon, calling for similar protections for 
lark nests on private agricultural lands in Oregon. However, there are 
significant problems with this recommendation that serve to underscore 
and highlight the reasonable justifications for the 4(d) exceptions.
    First, the examples cited by the commenters involve conservation 
occurring completely on public lands: U.S. Department of Defense lands 
at JBLM for lark conservation and, for the snowy plover, lands owned by 
the U.S. Forest Service, Bureau of Land Management, and the Oregon 
Parks and Recreation Department. The requirements and opportunities for 
conservation on these Federal and state lands are significantly 
different than those for privately owned lands. Under the Act, the 
Federal agencies have a section 7 obligation to provide for the 
conservation of the streaked horned lark and western snowy plover. 
Likewise, on State Park lands, conservation of listed species is an 
explicit component of the State's land management goals, and the State 
voluntarily sought and received a section 10 permit from the Service 
for western snowy plover conservation on their park lands. These 
examples stand in sharp contrast to the conservation measures that are 
legally required of private landowners under the Act. The commenters' 
use of these examples does not recognize the important distinction 
between landownership and associated conservation obligations.
    Secondly, the commenters' recommendation that we locate, identify, 
buffer, and protect streaked

[[Page 21789]]

horned lark nests on private agricultural lands presents several 
problems. The recommendation presupposes that we know where nests are 
across this vast landscape, or that we have a reliable mechanism for 
locating and accessing them. Unfortunately, we have very little 
detailed information about where streaked horned larks are nesting 
within this expansive agricultural private landscape of grass seed 
farms in the Willamette Valley (approximately 360,000 ac (145,000 ha)). 
As explained earlier, nesting sites shift over time and space, and 
larks are likely only using a very small subset of these areas in any 
given year, making nest site prediction and detection difficult. In 
addition, we do not have legal access to the majority of this privately 
owned landscape to survey and locate nests; this greatly limits our 
ability to identify and determine if and where any lark nests may be 
impacted. In the Willamette Valley, other than surveying for larks 
along the gravel margins of public roads or other public access points, 
we are reliant on private landowners to voluntarily share information 
about the presence of larks on their land as it becomes available to 
them. It is well documented in the scientific literature that most 
private landowners will not voluntarily share such information if they 
are concerned about adverse regulatory impacts to their economic 
livelihood, cultural practices, and private property rights (Raymond 
and Olive 2008, p. 485; Brook et al. 2003, pp. 1644-47; Mir and Dick 
2012, entire). This dynamic makes conserving species on private lands 
one of the most difficult challenges of implementing the Act, both in 
Oregon and across the country (see, e.g., Epanchin-Niell and Boyd 2020, 
p. 410). Therefore, under this very specific set of circumstances 
regarding private agricultural lands (and in contrast to the 
commenters' examples regarding western snowy plovers and streaked 
horned larks on public lands), the tradeoffs contained in this section 
4(d) rule represent the best conservation approach to a very difficult 
situation.

I. Final Listing Determination

Background

    A thorough review of the taxonomy, life history, and ecology of the 
streaked horned lark is presented in the SSA report (U.S. Fish and 
Wildlife Service 2021a, pp. 4-19).
    The streaked horned lark, a small songbird endemic to the Pacific 
Northwest, is one of 42 subspecies of horned lark worldwide and one of 
five breeding subspecies of horned larks in Washington and Oregon 
(Beason 1995, p. 2). Adults are pale brown, but shades of brown vary 
geographically among the subspecies. The male's face has a yellow wash 
in most subspecies. Adults have a black bib, black whisker marks, black 
``horns'' (feather tufts that can be raised or lowered), and black tail 
feathers with white margins (Beason 1995, p. 2). Adults feed mainly on 
grass and forb seeds, but feed insects to their young (Beason 1995, p. 
6). At coastal sites, streaked horned larks forage in the wrack line 
(the area where kelp, seagrass, shells, etc. are deposited at high 
tide) and in intertidal habitats (Pearson and Altman 2005, p. 8), and 
streaked horned larks in the Willamette Valley eat seeds of introduced 
weedy grasses and forbs, focusing on the seed source that is most 
abundant (Moore 2008a, p. 9).
    Streaked horned larks historically selected habitat in relatively 
flat, open areas that were maintained by flooding, fire, and sediment 
transport dynamics. The interruption of these historical processes due 
to flood control dams, fire suppression, and reduction of sediment 
transport by dams resulted in a steep decline in the extent of 
historical habitat available for the lark. Currently, streaked horned 
larks are found in open areas free from visual obstructions like 
grasslands, prairies, wetlands, beaches, dunes, and modified or 
temporarily disturbed habitats such as agricultural or grass seed 
fields, airports, dredged material placement sites, and gravel roads. 
Streaked horned larks need relatively flat landscapes with sparse 
vegetation, preferring habitats with an average of 17 percent bare 
ground for foraging and 31 percent of bare ground for nesting (Altman 
1999, p. 18). Typically, preferred habitats contain short vegetation, 
contain forbs and grasses that are less than 13 inches (in) (33 
centimeters (cm)) in height, and have few or no trees or shrubs (Altman 
1999, p. 18; Pearson and Hopey 2005, p. 27). The large, open areas used 
by populations of larks are regularly disturbed via burning, mowing, 
herbicide application, crop rotation, dredging material placement, and/
or other anthropogenic regimes.
    Habitat characteristics of agricultural lands used by streaked 
horned larks include: (1) Bare or sparsely vegetated areas within or 
adjacent to grass seed fields, pastures, or fallow fields; (2) recently 
planted (0 to 3 years) conifer farms with extensive bare ground; and 
(3) wetland mudflats or ``drown outs'' (i.e., washed out and poorly 
performing areas within grass seed or row crop fields). Currently, 
there are approximately 420,000 acres (ac) (169,968 hectares (ha)) of 
grass seed fields and 500,000 ac (202,343 ha) of other agriculture in 
Oregon. Of the 420,000 ac, approximately 360,000 ac (145,000 ha) are 
located in the Willamette Valley (Oregon Seed Council 2018, p. 1). In 
any year, some portion of these areas will have suitable streaked 
horned lark habitat, but the geographic location of those areas may not 
be consistent from year to year due to variable agricultural practices 
(fallow fields, crop rotation, etc.), and we cannot predict the 
changing and dynamic locations of those areas.
    Horned larks form breeding pairs in the spring (Beason 1995, p. 
11), and territory size is variable. Territory size can range from 1.5 
to 2.5 ac (0.61 to 1.0 ha) (Altman 1999, p. 11), and varies widely 
between sites and across years. For example, for 16 pairs of larks, 
territories ranged in size from 4.0 to 20.6 ac (1.6 to 8.3 ha) (Wolf et 
al. 2017, p. 12). Territories overlap substantially, and represent the 
semi-colonial breeding behavior of the species, where breeding 
territories are adjacent to other pairs at the same site but nests are 
not in extremely close proximity (Wolf et al. 2017, p. 12). The nesting 
season (i.e., clutch initiation to fledging) for streaked horned larks 
begins in mid-April and ends in late August, with peaks in May and 
early June (Pearson and Hopey 2004, p. 11; Moore 2011, p. 32; Wolf 
2011, p. 5; Wolf and Anderson, 2014, p. 19). After the first nesting 
attempt in April, streaked horned larks will often re-nest in late June 
or early July (Pearson and Hopey 2004, p. 11). Nests are positioned 
adjacent to vegetation or other structural elements and are lined with 
soft vegetation (Pearson and Hopey 2005, p. 23; Moore and Kotaich 2010, 
p. 18). Streaked horned lark nesting success (i.e., the proportion of 
nests that result in at least one fledged chick) is highly variable, 
which is consistent with other ground-nesting passerines (Best 1978, 
pp. 16-20; Johnson and Temple 1990, p. 6).
    The average minimum viable population (MVP) for the groups Aves and 
Passerines has been identified as 5,269 and 6,415 individuals, 
respectively. This number was determined using methodology described in 
a meta-analysis of multiple taxa (birds, fish, mammals, reptiles and 
amphibians, plants, insects, and marine invertebrates) (Anderson 2015, 
p. 2). Although we do not know what the historical abundance was for 
streaked horned lark rangewide (historical abundance estimates 
throughout the lark's range are largely anecdotal in nature), based on 
the MVPs for similar species, it was most likely larger than the 
current abundance. The draft

[[Page 21790]]

recovery plan for streaked horned lark (U.S. Fish and Wildlife Service 
2019, entire) has a rangewide population goal of 5,725 individuals. The 
most recent rangewide population estimate for streaked horned larks is 
1,170 to 1,610 individuals. This estimate is based on data compiled 
from multiple survey efforts, plus extrapolation to areas of potential 
suitable habitat not surveyed (e.g., inaccessible private lands), 
particularly in the Willamette Valley (Altman 2011, p. 213).
    The streaked horned lark currently occurs in local populations 
(defined here as scattered breeding sites or areas of habitat to which 
individuals return each year) in three regions across the range: The 
South Puget Lowlands in Washington, the Pacific Coast and Lower 
Columbia River in Washington and Oregon, and the Willamette Valley in 
Oregon.
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TR13AP22.003


[[Page 21791]]


BILLING CODE 4333-15-C
    Regional abundance estimates based on survey data from local 
populations between 2013 and 2019 are provided in Table 1. Based on 
2013 to 2019 survey data from regularly monitored sites across the 
range of the subspecies, the number, distribution, and size of streaked 
horned lark local populations appear to have increased since our 
publication of the final rule in 2013.

                   Table 1--Regional Summaries of Breeding Pairs, With Number of Local Populations, Based on Records From 2013 to 2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Regional population (with number of local populations)         2013         2014         2015         2016         2017         2018         2019
--------------------------------------------------------------------------------------------------------------------------------------------------------
South Puget Lowlands (8).....................................        75-76       97-101          119          129          139          130      121-127
Pacific Coast and Lower Columbia River (24)..................           81           89           77           85           77           86           97
Pacific Coast (5)............................................           10           12           11            9           13           13           10
Lower Columbia River (19)....................................           71           77           66           76           64           73           87
Willamette Valley (10).......................................           96           23          109          127           92          133          165
                                                              ------------------------------------------------------------------------------------------
    Rangewide total..........................................      252-253    * 209-213          305          341          308          349      383-389
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Several of the locations were not surveyed in 2014; other sites have no data available.

    We acknowledge there is a high degree of variability in annual 
survey efforts in the three regions and the resulting number of birds 
detected at each local population in any given year. Some local 
populations are regularly monitored and abundance estimates are 
regularly provided; other populations are irregularly monitored and 
survey efforts are infrequent. To account for this variability, we 
calculated the number of sites surveyed for each year per region (see 
Table 2).

                  Table 2--Annual Survey Effort for Regional Populations Between 2013 and 2019
----------------------------------------------------------------------------------------------------------------
                                                       Number of sites surveyed per year
     Regional population     -----------------------------------------------------------------------------------
                                 2013        2014        2015        2016        2017        2018        2019
----------------------------------------------------------------------------------------------------------------
South Puget Lowlands........           6           8           8           7           7           8           7
Pacific Coast and Lower               16          23          24          20          20          22          21
 Columbia River.............
Willamette Valley...........           2           1           9           7           9          11           9
----------------------------------------------------------------------------------------------------------------

    As shown in Table 2, there is annual variability in the level of 
effort in which surveys are conducted in a region each year. For 
example, survey efforts in the Willamette Valley ranged between 1 
survey at the Corvallis Airport in 2014 to 11 surveys at 5 airports, 3 
refuges, and 3 private sites in 2018. In addition, there is a high 
degree of annual variability in survey effort that occurs among the 
regional populations relative to the number of local populations in 
each region. Of particular interest is the survey effort that occurs in 
the Willamette Valley compared to the other two regions. The Willamette 
Valley is believed to support the majority of the rangewide population, 
and yet there are relatively few surveys conducted, and we believe the 
number of birds detected are a fraction of the number residing in this 
region. Conversely, in the South Puget Lowlands and Pacific Coast and 
Lower Columbia River regions, we believe the number of local 
populations surveyed detect the majority of the birds occupying these 
regions.
    To assess for relative change in regional populations over time, we 
calculated the mean number of pairs that were detected across all local 
sites in a region per year relative to survey effort (see Table 3). 
Similar to the variability in survey effort, there is variability in 
the mean number of birds detected in each region, as well as between 
regions in all years. For example, 96 pairs were detected at two local 
sites in the Willamette Valley in 2013, resulting in a mean estimate of 
48 pairs per site (see Tables 1 and 3). Comparatively, 92 pairs were 
detected at 9 local sites in the Willamette Valley in 2017 (see Tables 
1 and 2). These results show a high degree of annual variability within 
a region due to level of survey effort and between regions due to 
number of sites surveyed.

                       Table 3--Mean Number of Pairs Detected Across All Sites per Region
----------------------------------------------------------------------------------------------------------------
                                                    Year and mean number of pairs detected
     Regional population     -----------------------------------------------------------------------------------
                                 2013        2014        2015        2016        2017        2018        2019
----------------------------------------------------------------------------------------------------------------
South Puget Lowlands........        12.5        12.1        14.5        17.7        20.3        15.1        17.3
Pacific Coast and Lower              4.4         3.4         2.8         3.8         3.2         3.3         4.1
 Columbia River.............
Willamette Valley...........        48.0        26.0        12.1        18.1        10.2        12.1        18.3
----------------------------------------------------------------------------------------------------------------

    There is also high variability in the mean number of birds detected 
between regions and years. For example, more surveys were conducted in 
the Pacific Coast and Lower Columbia River region than the South Puget 
Lowlands and Willamette Valley combined, but the total number of pairs 
detected in the Pacific Coast and Lower Columbia River region was much 
lower in all years. The consistent and high degree of survey effort in 
this region is due, in part, to

[[Page 21792]]

regular monitoring by the U.S. Army Corps of Engineers (Corps) at all 
sites used for dredged material placement along the Columbia River. The 
coastal sites are not regularly monitored and surveys frequently result 
in no detections. The majority of the birds detected in the Pacific 
Coast and Lower Columbia River region are found on only a few sites 
along the Columbia River. Many of remaining sites in the Pacific Coast 
and Lower Columbia River region support less than 5 pairs. As a result, 
the high level of survey effort in this region has not corresponded 
with an increased number of birds detected.
    In reviewing the annual variability in survey efforts for each 
region across all years and the high degree of variability in mean 
abundance estimates within and between regions, we acknowledge there 
are no clear trends to indicate if the current regional and rangewide 
population is increasing or decreasing.
    The South Puget Lowlands region consists of eight local populations 
at three municipal airports and five sites at Joint Base Lewis McChord 
(JBLM). Since the streaked horned lark was listed in 2013, the five 
local populations at JBLM have increased in size and two of the 
municipal airport populations have experienced declining trends (Keren 
and Pearson 2019, p. 4). Recent analysis indicates a declining female 
population at the Olympia and Shelton airports, resulting in declining 
abundance trends at these local populations (Keren and Pearson 2019, p. 
3). Despite these declines, the overall regional population has 
stabilized to some degree based on increases of the local populations 
at JBLM which are likely the result of conservation measures 
implemented as part of section 7 consultations.
    The Pacific Coast and Lower Columbia River region currently 
consists of 24 local populations, including the new population recently 
detected at Clatsop Spit in Oregon. The region currently appears stable 
(Keren and Pearson 2019, p. 3), although local population surveys are 
inconsistent and do not occur at each site every year. Two of the sites 
on the coast of Washington (Oyhut Spit and Johns River) have no 
positive records since the 2013 listing and appear to be extirpated. 
There are few historical records of lark detections on the Washington 
and Oregon coast and those records indicate larks were only considered 
uncommon summer residents and never reported to occur in large numbers 
(Altman 2011, p. 200-202). Although the current abundance of local 
populations on the Pacific Coast is low compared to other areas, it has 
been low for many years. The physical size of the coastal sites is 
relatively small compared to the sites for other local populations (and 
therefore naturally limits the number of breeding pairs), and there is 
no consistent trend in this area based on survey data between 2013 and 
2019. Despite recent observations of individual larks at Clatsop Spit 
(i.e., not breeding pairs), the number, distribution, and size of local 
breeding populations along the Pacific Coast appears to have remained 
relatively constant.
    The Willamette Valley regional population was previously estimated 
at 900 to 1,300 individuals, based on data compiled and extrapolated 
from multiple survey efforts between 2008 and 2010 (Altman 2011, p. 
213), including estimates from the many known occupied but inaccessible 
sites on private lands in the region. The data used for the 2011 
analysis is based on detections during roadside point counts in 2008 
which detected 168 individuals, and surveys are occupied sites in 2009 
and 2010 which detected approximately 250 breeding pairs at seven sites 
(Altman 2011, p. 213). Surveys from the 10 regularly monitored, 
accessible, occupied sites in the Willamette Valley counted 165 
breeding pairs in 2019. These monitored sites include four municipal 
airports, three National Wildlife Refuges, two natural areas, and one 
survey on private land. One historical site for a local population in 
this region (Salem Municipal Airport) has had no positive records since 
2013, and appears to be extirpated. As discussed above, there is a high 
degree of variability in abundance estimates based on total survey 
effort in a given year, which is inconsistent from year to year and 
site to site (see Table 2). The Willamette Valley regional population 
appears to be well distributed and stable, but the limited surveys of 
accessible sites may not accurately reflect the trend in the whole 
region. Streaked horned larks appear to be more abundant in the 
southern end of the valley where there is more suitable habitat.
    Across the range of the subspecies, the number and distribution of 
local populations throughout the range have increased since 2013. The 
number of breeding pairs detected at regularly monitored sites 
increased from 252-253 in 2013, to 383-389 in 2019, including increases 
at JBLM and at two additional sites in the Lower Columbia River area 
(Clatsop Spit and Howard Island) and two additional sites in the 
Willamette Valley (Herbert Farms and Coyote Creek). As discussed above, 
there is variability in survey efforts and corresponding variability in 
mean number of birds detected during surveys across all regions between 
2013 and 2019. In addition, we have evidence of local population 
variability with some local populations increasing and others 
decreasing, as well as regional analysis that shows some declines in 
the Puget Lowlands and the Willamette Valley. Due to this variability 
and because a rangewide population estimate has not been reanalyzed 
since 2011, we are unable to state conclusively that the rangewide 
population has increased. However, we have regularly monitored several 
sites throughout the range since 2013 and while there is variability in 
the abundance of local populations, we believe that is no evidence to 
support that there are precipitous declines across any of the regions 
or across the range as a whole.
    The North American Breeding Bird Survey (BBS) analyzes regional 
data to provide a trend for rangewide breeding populations. In contrast 
to the data from site-specific surveys for the streaked horned lark 
from 2013-2019, the most recent BBS analysis for the region 
encompassing streaked horned larks indicates a 6.52 percent decline for 
the subspecies between 2005 and 2015 (95 percent confidence interval: -
12.66 to -2.26 percent) (Sauer et al. 2017, p. 3). The streaked horned 
lark was listed as a threatened species under the Act in 2013, only 2 
years before the last data set that was included in the most recent BBS 
analysis. When a species is listed and recovery actions begin, it may 
still be many years before the abundance recovers to the point where 
the species demonstrates a rangewide increasing population trend. 
Recovery actions require funding, staff, and time to implement. 
Documenting the subsequent species response to those actions takes 
additional time.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an ``endangered species'' as a species that 
is in danger of extinction throughout all or a significant portion of 
its range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an ``endangered species'' or a 
``threatened

[[Page 21793]]

species'' because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effects of all of 
the threats on the species as a whole. We also consider the cumulative 
effects of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent a decision by 
the Service on whether the species should be proposed for listing as an 
endangered or threatened species under the Act. It does, however, 
provide the scientific basis that informs our regulatory decisions, 
which involve the further application of standards within the Act and 
its implementing regulations and policies. The following is a summary 
of the key results and conclusions from the SSA report; the full SSA 
report can be found at Docket No. FWS-R1-ES-2020-0153 on https://www.regulations.gov.
    To assess streaked horned lark viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (for example, wet or dry, 
warm or cold years), redundancy supports the ability of the species to 
withstand catastrophic events (for example, droughts, large pollution 
events), and representation supports the ability of the species to 
adapt over time to long-term changes in the environment (for example, 
climate changes). In general, the more resilient and redundant a 
species is and the more representation it has, the more likely it is to 
sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels, and described the 
beneficial and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences in the future. Throughout 
all of these stages, we used the best available information to 
characterize viability as the ability of a species to sustain 
populations in the wild over time. We use this information to inform 
our regulatory decision.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.

Factors Influencing the Species

    In our October 3, 2013, listing rule (78 FR 61452), we found that 
the streaked horned lark was a threatened species due to loss and 
degradation of habitat from development, fire suppression, and invasive 
(native and nonnative) plants; dredge spoil deposition timing and 
placement on Columbia River islands; incompatibly timed burning and 
mowing regimes; activities associated with military training; 
conversion of large grass seed production fields to incompatible 
agricultural commodities; predation; small population effects; 
activities associated with airports; and recreation.

[[Page 21794]]

Stressors Considered but Determined Not To Be Influencing Condition

    In our SSA, we carefully analyzed these previously identified 
threats, as well as additional potential threats and conservation 
measures, to determine if they operate at a scope and magnitude as to 
influence the condition, or resiliency, of populations rather than only 
some individuals (U.S. Fish and Wildlife Service 2021a, pp. 19-38). 
Based on our assessment, disease and pesticides do not rise to the 
level of affecting the condition of local or regional populations. 
Although the 2013 listing rule stated that predation was likely to be a 
significant and ongoing threat to the subspecies (particularly in the 
South Puget Lowlands region), our SSA did not find evidence of effects 
to the subspecies from predation beyond effects to individuals in any 
local population (U.S. Fish and Wildlife Service 2021a, p. 20). 
Predation (typically by coyotes and corvids) does occur and primarily 
influences eggs, nestling, and juvenile survival; however, we did not 
find that it occurred at a level beyond regular life-history dynamics. 
We acknowledge, however, that predation combined with the effects of 
small population size may reduce the resiliency of some local 
populations, as noted below under ``Synergistic Effects.'' In 2013, a 
predator control program under the Wildlife Services Predator Damage 
Management Program of the Animal and Plant Health Inspection Service, 
U.S. Department of Agriculture (USDA), was initiated at Leadbetter 
Point and Midway Beach on the Washington coast (U.S. Fish and Wildlife 
Service 2011). Data show that western snowy plovers have shown improved 
nesting success since the program was implemented; however, monitoring 
data for streaked horned larks are inconclusive, and we cannot reliably 
determine if predator control has improved nesting success for larks at 
these sites.

Stressors Influencing Current and Future Condition

    The primary driver of the status of streaked horned lark has been 
the scarcity of large, open spaces with very early seral stage plant 
communities with low-statured vegetation and substantive amounts of 
bare or sparsely vegetated ground. Historically, habitat was created 
and maintained by natural ecological processes of flooding, fire, and 
coastal sediment transport dynamics, as well as prairies maintained by 
Native American burning. The loss of regular disturbance regimes that 
created these open spaces impacted the abundance and distribution of 
historical streaked horned lark populations. Although this loss of 
historical disturbance led to displacement of lark into less suitable 
alternative habitat and subsequent population declines, it is not 
considered a significant influence on the condition of current 
populations because the impact occurred decades ago and is not ongoing. 
Furthermore, our current and future condition analyses take into 
consideration the quality of habitat, so the condition ranking of any 
populations that were displaced into lower quality habitat due to loss 
of historical disturbance is reflective of that displacement.
    The primary factors currently influencing the condition of streaked 
horned lark populations are the ongoing loss and conversion of suitable 
habitat, land management activities and related effects, and 
recreation. Since we listed the streaked horned lark as threatened 
under the Act in 2013, multiple entities have implemented a series of 
regulatory and voluntary conservation measures (section 7 consultations 
due to the listing of the subspecies under the Act) to offset negative 
impacts to larks and lark habitat, reducing the overall impact of 
stressors influencing local populations. We discuss these primary 
influence factors and associated conservation actions below.

Ongoing Loss and Conversion of Suitable Habitat

    Following Euro-American settlement of the Pacific Northwest in the 
mid-19th century, fire was actively suppressed on grasslands in the 
Willamette Valley, allowing encroachment by woody vegetation into 
prairie habitat and oak woodlands (Franklin and Dyrness 1973, p. 122; 
Boyd 1986, entire; Kruckeberg 1991, p. 286; Agee 1993, p. 360; Altman 
et al. 2001, p. 262). Native and nonnative species that have encroached 
on these habitats throughout the lark's range include native Douglas 
fir (Pseudotsuga menziesii), nonnative Scotch broom (Cytisus 
scoparius), and nonnative grasses such as tall oatgrass (Arrhenatherum 
elatius) and false brome (Brachypodium sylvaticum) (Dunn and Ewing 
1997, p. v; Tveten and Fonda 1999, p. 146). This expansion of woody 
vegetation and nonnative plant species, including noxious weeds, has 
reduced the quantity and quality and overall suitability of prairie 
habitats for larks (Tveten and Fonda 1999, p. 155; Pearson and Hopey 
2005, pp. 2, 27). On JBLM alone, over 16,000 ac (6,600 ha) of prairie 
has been converted to Douglas fir forest since the mid-19th century 
(Foster and Shaff 2003, p. 284). Trees and/or other woody vegetation 
infiltrate open areas with formerly low vegetation and long sight lines 
preferred by streaked horned larks.
    The introduction of Eurasian beachgrass (Ammophila arenaria) and 
American beachgrass (Ammophila breviligulata) in the late 1800s, 
currently found in high and increasing densities in most of coastal 
Washington and Oregon, has dramatically altered the structure of dunes 
on the coast (Wiedemann and Pickart 1996, p. 289). Beachgrass creates 
areas of dense vegetation unsuitable for larks (MacLaren 2000, p. 5). 
The spread of beachgrass has reduced the available nesting habitat for 
streaked horned larks in Washington at Damon Point and at Grays Harbor 
and Leadbetter Point on Willapa National Wildlife Refuge (NWR) 
(Washington Department of Fish and Wildlife 1995, p. 19; Stinson 2005, 
p. 65; U.S. Fish and Wildlife Service 2011, p. 4-2). On the Oregon 
coast, the low abundance of streaked horned lark is attributed to the 
invasion of exotic beachgrasses and resultant dune stabilization 
(Gilligan et al. 1994, p. 205). Without management (mechanical and 
chemical) to maintain the open landscape at sites like these, invasive 
beachgrasses will continue to influence current and future local 
populations of streaked horned larks and reduce suitability of these 
habitats, particularly in the Pacific Coast and Lower Columbia River 
regions.
    Habitat restoration work on Leadbetter Point by the Service's 
Willapa NWR has successfully reduced the cover of encroaching 
beachgrasses into streaked horned lark habitat. In 2007, the area of 
open habitat measured 84 ac (34 ha). However, after mechanical and 
chemical treatment to clear beachgrass (mostly American beachgrass), 
including spreading oyster shells across 45 ac (18 ha), there is now 
121 ac (50 ha) of sparsely vegetated habitat available, increasing the 
extent of open habitat (Pearson et al. 2009b, p. 23). The main target 
of the Leadbetter Point restoration project was the federally listed 
western snowy plover, but the restoration actions also benefited 
streaked horned larks. Before the restoration project, this area had 
just 2 streaked horned lark territories (Stinson 2005, p. 63); after 
the project, an estimated 7 to 10 territories were located in and 
adjacent to the restoration area (Pearson in litt. 2012b).
    Human activity has converted native prairie and grassland habitats 
to residential and commercial development, reducing habitat 
availability for streaked horned larks throughout their range. About 96 
percent of the Willamette Valley is

[[Page 21795]]

privately owned, and it is home to almost three-fourths of Oregon's 
human population, which is anticipated to nearly double in the next 50 
years (Oregon Department of Fish and Wildlife 2016, p. 17). The 
Willamette Valley provides about half of the State's agricultural sales 
and is the location of 16 of the top 17 private-sector employers 
(manufacturing, technology, forestry, agriculture, and other services). 
In the South Puget Lowlands, prairie habitat continues to be lost, 
particularly via the removal of native vegetation and the excavation 
and conversion to non-habitat surfaces in the process of residential 
development (i.e., buildings, pavement, residential development, and 
other infrastructure) (Stinson 2005, p. 70; Watts et al. 2007, p. 736). 
The region also contains glacial outwash soils and deep layers of 
gravels underlying the prairies that are valuable for use in 
construction and road building.
    Industrial development has also reduced habitat available to 
breeding and wintering streaked horned larks. Rivergate Industrial 
Park, owned by the Port of Portland, is a large industrial site in 
north Portland near the Columbia River that was developed on a dredge 
disposal site. Rivergate has long been an important breeding site for 
streaked horned larks and a wintering site for large flocks of mixed 
lark subspecies. In 1990, the field used by streaked horned larks at 
Rivergate measured more than 650 ac (260 ha) of open sandy habitat 
(Dillon in litt. 2012). In the years since, the Port of Portland has 
constructed numerous industrial buildings on the site, subsequently 
reducing habitat availability for larks and likely displacing all 
breeding and wintering larks from the area (Port of Portland 2019, 
entire).
    As part of the section 10(a)(1)(B) permit associated with the 
development of a habitat conservation plan (HCP) under the Act, the 
Port of Portland mitigated for the loss of streaked horned lark habitat 
by securing a long-term easement on a 32-ac (13-ha) parcel at Sandy 
Island. Sandy Island is an occupied breeding site on the Columbia River 
about 30 miles (mi) (50 kilometers (km)) north of the Rivergate 
industrial site and is designated as critical habitat for the streaked 
horned lark (Port of Portland 2017, p. 4). The Port's 30-year 
commitment to manage the site and protect breeding streaked horned 
larks helps to offset impacts to the regional population from the loss 
of available habitat at the Rivergate site.
    Roughly half of all the agricultural land in Oregon, approximately 
360,000 ac (145,000 ha), is devoted to grass seed production in the 
Willamette Valley (Oregon Seed Council 2018, p. 1). Grasslands, both 
native prairies and grass seed fields, are important habitats for 
streaked horned larks in the Willamette Valley, as they are used as 
both breeding and wintering habitat (Altman 1999, p. 18; Moore and 
Kotaich 2010, p. 11; Myers and Kreager 2010, p. 9). Demand for grass 
seed and the overall acreage of grass seed harvested in Oregon has 
declined since 2005 (Oregon State University 2005 and 2019, entire). In 
2019, approximately 364,355 ac (147,450 ha) were planted for forage and 
turf grass seed crops in the Willamette Valley compared to 
approximately 484,080 ac (195,900 ha) in 2005 (Oregon State University 
2005 and 2019, entire). The reduction in grass seed production has 
resulted in growers switching to other commodities, such as wheat, 
stock for nurseries and greenhouses, grapes, blueberries, and hazelnuts 
(U.S. Department of Agriculture National Agricultural Statistics 
Service 2009, p. 3; Oregon Department of Agriculture 2011, p. 1; U.S. 
Department of Agriculture National Agricultural Statistics Service 
2017, pp. 34, 55, 101). These other crop types do not have the low-
statured vegetation and bare ground preferred by the streaked horned 
lark.
    The continued decline of the grass seed industry in the Willamette 
Valley due to the variable economics of agricultural markets will 
likely result in a continued conversion from grass seed fields to other 
agricultural types, and fewer acres of suitable habitat for streaked 
horned larks. Across the range, the conversion of streaked horned lark 
habitat into agricultural, industrial, residential, or urban 
development will continue to influence current and future streaked 
horned lark local or regional populations to some degree throughout the 
range of the species, although the Pacific Coast is less affected than 
other areas.

Land Management Activities and Related Effects

    Streaked horned larks evolved in a landscape of ephemeral habitat 
with regular historical disturbance regimes that maintained the large, 
open spaces with very early seral stage plant communities with low-
statured vegetation and substantive amounts of bare or sparsely 
vegetated ground relied upon by the subspecies. Human activity led to 
the stabilization of these historical disturbance regimes, as well as 
the unintentional creation of ``replacement'' habitat for streaked 
horned larks that mimics their preferred large, open spaces. 
Replacement habitat occurs in a variety of settings across the range of 
the streaked horned lark, including agricultural fields, at airports, 
and on dredge spoil islands. Open habitat is maintained in these areas 
by way of frequent human disturbance, including burning, mowing, 
cropping, chemical treatments (herbicide and pesticide application), or 
placement of dredged materials (Altman 1999, p. 19). Without regular 
large-scale, human-caused disturbance, the quantity of suitable habitat 
available to larks would decrease rapidly. These land management 
activities are key to providing and maintaining habitat for the 
streaked horned lark; without replacement habitat, the status of the 
subspecies would likely be much worse.
    However, when these same activities are conducted during the most 
active breeding season (mid-April to mid-June) for streaked horned 
larks, they have the potential to result in destruction of nests, 
crushing of eggs or nestlings, or flushing of fledglings or adults 
(Pearson and Hopey 2005, p. 17; Stinson 2005, p. 72). During the 
nesting seasons from 2002 to 2004, monitoring at Gray Army Airfield, 
McChord Airfield, and Olympia Airport in the South Puget Lowlands 
region documented nest failure at 8 percent of nests due to mowing over 
nests, forcing young to fledge early (Pearson and Hopey 2005, p. 18). 
Additionally, although dredge deposits can mimic sandy beach habitat 
typically used by larks, they have also been documented to destroy 
breeding sites and active nests when deposition occurs during the 
nesting season (Pearson in litt. 2012a; Pearson et al. 2008a, p. 21; 
MacLaren 2000, p. 3; Pearson and Altman 2005, p. 10). In 2013 and 2014, 
the U.S. Army Corps of Engineers collaborated with the Service and 
initiated a strategic multi-year dredging program for the lower 
Columbia River. The placement of dredge spoils was coordinated to 
minimize impacts to streaked horned larks by prioritizing placement of 
material on unsuitable lark habitat during the breeding season and 
where placement on suitable lark habitat was necessary it occurred 
outside of the breeding season. Over time, the placement of dredged 
materials reinitiated habitat succession and the development of 
suitable lark habitat, supporting long-term availability of suitable 
lark habitat throughout the lower Columbia River with minimal impacts 
to larks.
    In the Willamette Valley, some habitats in agricultural areas are 
consistently maintained and therefore available throughout the year 
(e.g., on the margins of gravel roads), while other patches of suitable 
habitat shift as areas

[[Page 21796]]

such as large fields are mowed, harvested, sprayed, or burned. In 2017, 
the Willamette Valley NWR entered into a 4-year programmatic section 7 
consultation with the Service for its farming and pesticide use program 
(U.S. Fish and Wildlife Service 2016b, entire). This programmatic 
consultation documents the National Wildlife Refuge System's commitment 
to adapting its farming activities to improve the status of the 
streaked horned lark on the William L. Finley, Ankeny, and Baskett 
Slough units of the Willamette Valley NWR complex. Conservation 
measures include ensuring that farming activities minimize disturbance 
to larks, and that pesticides used in agricultural fields have a low 
risk of adverse effects to larks and their food sources.

Vegetation Management Activities at Airports

    Airports implement hazardous wildlife management programs that 
include vegetation management around roads and runways, to discourage 
the presence of wildlife near the runways and thereby promote human 
safety for flights. Streaked horned lark are very attracted to the 
wide, open spaces created by vegetation management, and several 
airports in the range are now sites for local populations of the 
subspecies. In the South Puget Lowlands, the streaked horned lark might 
have been extirpated if not for mowing at airports to maintain large 
areas of short grass (Stinson 2005, p. 70). Five of the eight streaked 
horned lark nesting sites in the South Puget Lowlands are located on or 
adjacent to airports and military airfields (Rogers 2000, p. 37; 
Pearson and Hopey 2005, p. 15). At least five breeding sites are found 
at airports in the Willamette Valley, including the largest known local 
population at Corvallis Municipal Airport (Moore 2008b, pp. 14-17). The 
Corvallis Municipal Airport implements some conservation measures to 
reduce impacts to larks during airshow and other events at the airport, 
as well as conservation measures associated with construction 
activities as described and implemented as part of a programmatic 
section 7 consultation with the Federal Aviation Administration (U.S. 
Fish and Wildlife Service 2020, entire). The Port of Olympia's Updated 
Master Plan includes recommendations to minimize impacts to larks at 
the Olympia airport by avoiding mowing during the breeding season; 
however, mowing still occurs during the breeding season (Port of 
Olympia/Olympia Regional Airport 2013, pp. 10-11) and the local 
population at the airport has fluctuated (both increased and decreased) 
in surveys from 2013 to 2019 (Wolf et al. 2020, p. 16). The overall 
count of 30 breeding pairs in 2013 at the Port decreased to 21 pairs in 
2018, but then increased to 27 pairs in 2019.
    In 2017, the JBLM finalized a programmatic section 7 consultation 
with the Service that covered multiple activities affecting streaked 
horned lark, including mowing (U.S. Fish and Wildlife Service 2017, 
entire), which is allowed during the breeding season only under 
emergency circumstances (Wolf et al. 2017, p. 34). The programmatic 
consultation also covered military training activities, requiring JBLM 
to schedule training events as late in the breeding season as possible 
and restricting the use of vehicles or structures within active nest 
buffers during these events (U.S. Fish and Wildlife Service 2017, p. 
26). As part of the consultation, the JBLM proposed to carry out new 
conservation measures that have resulted in a significant reduction in 
adverse effects to larks from mowing and military training activities, 
as well as additional activities to restore prairie habitats. 
Additional conservation measures implemented as part of the 
consultation include an intensive monitoring and research program which 
informs long-term management goals for the base. As a result of this 
consultation, the breeding population of larks on JBLM increased from 
fewer than 100 pairs when the streaked horned lark was listed in 2013 
(Wolf and Anderson 2014, p. 12), to over 120 pairs in 2019 (Wolf et al. 
2020, p. 6). Similar conservation measures are not implemented at the 
municipal airports in the Puget Lowlands region or at the airports in 
the Willamette Valley region to reduce effects to streaked horned larks 
from operations and maintenance activities, including mowing.

Aircraft Strikes

    Individual larks in these local populations near runways are at 
increased risk of aircraft strikes and collisions. Horned lark strikes 
are frequently reported at military and civilian airports throughout 
the country, but because of the bird's small size, few strikes result 
in significant damage to aircraft (Dolbeer et al. 2011, p. 48; Air 
Force Safety Center 2012, p. 2). Juvenile males seem to be struck most 
often, perhaps because they are trying to establish new territories in 
unoccupied but risky areas on runway margins (Wolf et al. 2017, p. 31). 
With respect to streaked horned larks in particular, in the 5-year 
period from 2013 to 2017, McChord Airfield had seven confirmed strikes, 
and Gray Army Airfield recorded one confirmed streaked horned lark 
strike (Wolf in litt. 2018). Since January 2017, 16 adults have been 
killed by strikes on JBLM, including 10 adults and 2 juveniles killed 
by strikes at McChord Airfield in 2020 (Wolf in litt. 2020).
    The increased number of strikes in 2020 were a direct result of 
construction activities that redirected aircraft traffic to the 
northern half of the runway where lark density is highest and lark 
abundance was relatively high; this led to a higher than normal 
mortality rate from aircraft strikes. Aside from the 12 strikes in 
2020, JBLM recorded a total of 12 strikes in the 7 years between 2013 
and 2019, for a rate of 1.7 strikes per year. While aircraft strikes do 
occur in several local populations at airports throughout the range of 
the species (particularly in the South Puget Lowlands), the rate 
appears relatively low and the vegetation management conducted by these 
airports also maintains replacement habitat that supports breeding 
pairs (Pearson et al. 2008a, p. 13; Camfield et al. 2011, p. 10; FAA 
2020, entire).

Dredge Material Deposition on the Columbia River

    The streaked horned lark uses islands in the Lower Columbia River 
for both breeding and wintering habitat. The river channel is regularly 
dredged by the U.S. Army Corps of Engineers (Corps), and dredge 
deposits can both benefit and harm streaked horned larks, depending on 
the location and timing of deposition. In 2014, the Corps entered into 
a programmatic section 7 consultation with the Service for the Corps' 
navigation channel dredging and dredge materials placement program in 
the Lower Columbia River (U.S. Fish and Wildlife Service 2014, entire). 
In this consultation, the Corps committed to planning for the placement 
of dredge material to minimize adverse effects to the lark on the 
Corps' network of placement sites and to maintain enough habitat in 
suitable condition to maintain the current regional population of 
breeding larks and allow for additional population growth. The 5-year 
program has been successful; from 2014 to 2019, numbers in the Lower 
Columbia River increased from an estimate of 77 pairs to 87 pairs, with 
the increases occurring at dredge deposition sites (Center for Natural 
Lands Management 2019, pp. 3-4). The original 5-year consultation was 
extended through 2022. The Corps is currently working on a 20-year 
dredge material management plan, which will build on the success of the 
previous consultation.

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Military Training and Associated Activities

    Military training activities at the 13th Division Prairie at JBLM, 
including bombardment with explosive ordnance and hot downdraft from 
aircraft, as well as civilian events, have caused nest failure and 
abandonment at JBLM's Gray Army and McChord Airfields (Stinson 2005, 
pp. 71-72). JBLM is also used for helicopter operations (paratrooper 
practices, touch-and-go landings, and load drop and retrievals) and 
troop training activities. Artillery training, off-road use of 
vehicles, and troop maneuvers at the 13th and 91st Division Prairies 
have been conducted in areas used by streaked horned larks during the 
nesting season, contributing to nest failure and low nest success. In 
addition to military training activities, McChord Airfield hosts an 
international military training event known as the Air Mobility Rodeo, 
which is held in odd-numbered years. In even-numbered years, McChord 
Airfield hosts a public air show known as the Air Expo; this event 
incorporates simulated bombing and fire-bombing, including explosives 
and pyrotechnics launched from an area adjacent to one of JBLM's most 
densely populated streaked horned lark nesting sites. The Expo and 
Rodeo can affect the streaked horned lark through disturbance from 
aircraft; temporary infrastructure; and spectator-related nest 
abandonment, nest failure, and adverse effects to fledglings (Pearson 
et al. 2005, p. 18; Stinson 2005, p. 27).

Recreation

    Recreation at coastal sites can cause the degradation of streaked 
horned lark habitat, as well as disturbance to adults and juveniles, 
and direct mortality to eggs, nestlings, and fledglings. Activities 
such as the annual spring razor clam digs, dog walking, beachcombing, 
off-road vehicle use, camping, fishing, and horseback riding in coastal 
habitats may directly or indirectly increase predation (primarily by 
corvids), resulting in nest abandonment and nest failure for streaked 
horned larks (Pearson and Hopey 2005, pp. 19, 26, 29). Streaked horned 
larks nest in the same areas as western snowy plovers along the 
Washington coast, and it is highly likely that recreation has caused 
nest failures for larks at sites that have documented nest failure for 
plovers; both species are ground nesters and, therefore, similarly at 
risk of effects of recreation. During western snowy plover surveys 
conducted between 2006 and 2010 at coastal sites in Washington, human-
caused nest failures of between 1 and 2 nests per year were reported in 
4 of the 5 years (2 in both 2006 and 2008, 1 in both 2009 and 2010) 
(Pearson et al. 2007, p. 16; Pearson et al. 2008b, p. 17; Pearson et 
al. 2009a, p. 18; Pearson et al. 2010, p. 16), and one of 16 monitored 
nests at Midway Beach on the Washington coast was crushed by a horse in 
2004 (Pearson and Hopey 2005, pp. 18-19).
    In 2002, JBLM began restricting recreational activity at the 13th 
Division Prairie to protect lark nesting sites; JBLM prohibited model 
airplane flying, dog walking, and vehicle traffic in the area used by 
streaked horned larks (Pearson and Hopey 2005, p. 29). JBLM continues 
to restrict recreational activities during the lark breeding season at 
the 13th Division Prairie, although enforcement, especially on 
weekends, is intermittent (Wolf et al. 2016, p. 43). In addition, the 
2017 programmatic section 7 consultation JBLM entered into with the 
Service (U.S. Fish and Wildlife Service 2017, entire) included numerous 
positive conservation measures for the streaked horned lark, including 
prairie habitat restoration, monitoring and research program, and 
limits on military activities as well as recreational activities.

Summary of Threats

    Table 4, below, summarizes the scope and magnitude of factors 
influencing the viability of streaked horned lark.
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TR13AP22.004

BILLING CODE 4333-15-C

Climate Change

    The effects of climate change have already been observed in the 
Pacific Northwest. Temperatures have risen 1.5 to 2 degrees Fahrenheit 
([deg]F) (0.83 to 1.1 degrees Celsius ([deg]C)) over the past century, 
and the past three decades have been warmer than any other historical 
period (Frankson et al. 2017a, p. 1; Frankson et al. 2017b, p. 1). 
Climate change is widely expected to affect wildlife and their habitats 
in the Pacific Northwest by increasing summer temperatures, reducing 
soil moisture, increasing wildfires, reducing mountain snowpack, and 
causing more extreme weather events (Bachelet et al. 2011, p. 414). 
Climate change may increase the frequency and severity of stochastic 
weather events, which may have severe negative effects on small local 
populations throughout the range of the streaked horned lark. During 
the breeding season, small local populations of larks are distributed 
across the range; in the winter, however, streaked horned larks 
congregate mainly in the Willamette Valley and on islands in the Lower 
Columbia River. Such concentration exposes the wintering populations to 
potentially disastrous stochastic events such as ice storms or 
flooding, which could kill individuals, destroy limited habitat and 
food availability, or skew sex ratios. Severe winter weather could 
potentially impact one or more regional populations when birds 
congregate as larger flocks (Pearson and Altman 2005, p. 13).
    Despite the climate projections for the region, the effects of 
climate change specific to prairie ecosystems are not anticipated to 
decrease the resiliency of regional streaked horned lark populations in 
the South Puget Lowlands, Lower Columbia River, and Willamette Valley 
regions. The grasslands and prairies of Washington and Oregon span a 
wide geographic and climatic range, encompassing a rich variety of soil 
types, vegetation cover, elevations, and weather patterns. The rich 
diversity of all of these factors will likely provide substantial 
buffering to streaked horned lark habitat from the effects of changing 
weather and climate (Bachelet et al. 2011, p. 412). It is

[[Page 21799]]

possible that increased summer droughts may affect less drought-
tolerant trees and other forest species adjacent to prairies, possibly 
resulting in prairie expansion that could benefit the streaked horned 
lark (Bachelet et al. 2011, p. 417). Prairie and grassland ecosystems 
are well adapted to warm and dry conditions--periodic soil drought and 
future increases in temperature and drought for the region ``are 
unlikely to disadvantage (and may benefit) these systems'' (Washington 
Department of Fish and Wildlife 2015, pp. 5-31).
    The outlook for streaked horned larks along the Pacific Coast is 
less encouraging due to the effects of climate change. Sea-level rise, 
increased coastal erosion, and more severe weather events will cause 
significant effects to lark habitats on the coast. Projected sea-level 
rise could increase erosion or landward shift of dunes; similarly, 
increased severe weather events with greater wave and wind action from 
storms could magnify disturbance of dune habitats (Washington 
Department of Fish and Wildlife 2015, pp. 5-31) and imperil nesting 
larks. Given these stressors, we expect that climate change may limit 
the resiliency of some local populations on the coast primarily by 
amplifying the negative effects from habitat loss due to the spread of 
invasive species, such as Eurasian beachgrass, where not managed. A 
conservation measure that may help reduce effects from climate change 
in one area of the coast in the range of the streaked horned lark is 
the Shoalwater Bay Shoreline Erosion Control Project (U.S. Fish and 
Wildlife Service 2018, entire), which is a long-term commitment by the 
Corps and the Shoalwater Bay Tribe to protect the reservation from 
coastal erosion. It has created and is maintaining habitat for both 
western snowy plovers and streaked horned larks, and provides secure 
nesting area on the coast for both species.
Small Population Size
    Most species' populations fluctuate naturally, responding to 
various factors such as weather events, disease, and predation. These 
factors have a relatively minor impact on a species with large, stable 
local populations and a wide and continuous distribution. However, 
populations that are small, isolated by habitat loss or fragmentation, 
or impacted by other factors are more vulnerable to extirpation by 
natural, randomly occurring events (such as predation or stochastic 
weather events), and to genetic effects that plague small populations, 
collectively known as small population effects (Purvis et al. 2000, p. 
3). These effects can include genetic drift, founder effects (over 
time, an increasing percentage of the population inheriting a narrow 
range of traits), and genetic bottlenecks leading to increasingly lower 
genetic diversity, with consequent negative effects on adaptive 
capacity and reproductive success (Keller and Waller 2002, p. 235).
    Various effects of small population size, including low 
reproductive success, loss of genetic diversity, and male skewed sex-
ratio, have been noted in the range of the streaked horned lark, 
particularly at some local populations in the South Puget Lowlands 
region and the Lower Columbia River (Anderson 2010, p. 15; Camfield et 
al. 2010, p. 277; Drovetski et al. 2005, p. 881; Keren and Pearson 
2019, Figures 1 and 2; Drovetski et al. 2005, p. 881; Wolf et al. 2017, 
p. 27). Any local population of streaked horned larks with very low 
abundance that does not interbreed with other local populations will be 
at more risk in the future due to small population effects.

Current Condition

    To maintain adequate resiliency, populations of streaked horned 
larks need large open spaces with suitable habitat structure--
specifically, low-stature vegetation and scattered patches of bare 
ground--and an appropriate disturbance regime sufficient to maintain 
habitat and support increased numbers of breeding birds. The size of 
populations with high resiliency varies among regions, depending on the 
extent and quality of available habitat. Needs of the streaked horned 
lark in relation to degree of estimated population resiliency are 
summarized below in Table 4; to evaluate current condition, we assigned 
each condition category a number as shown.

                  Table 5--Matrix for Evaluating Current Condition of the Streaked Horned Lark
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Demographic and habitat           High condition [larr]----------------------------------------------------------
 parameters                                ------------------------------------------[rarr] Low condition
----------------------------------------------------------------------------------------------------------------
Abundance:
    South Puget Lowlands........  Regular surveys     Regular surveys     Regular surveys     Extirpated: Larks
                                   detect >=20         detect 10-20        detect <=10         no longer occupy
                                   breeding pairs      breeding pairs      breeding pairs      site or region
                                   (3).                (2).                (1).                (0).
    Pacific Coast and Lower       Regular surveys     Regular surveys     Regular surveys
     Columbia River.               detect >=15         detect 7-15         detect <=7
                                   breeding pairs on   breeding pairs on   breeding pairs on
                                   coast (3).          coast (2).          coast (1).
                                  Regular surveys     Regular surveys     Regular surveys
                                   detect >=20         detect 10-20        detect <=10
                                   breeding pairs on   breeding pairs on   breeding pairs on
                                   river (3).          river (2).          river (1).
    Willamette Valley...........  Regular surveys     Regular surveys     Regular surveys
                                   detect >=25         detect 15-25        detect <=15
                                   breeding pairs      breeding pairs      breeding pairs
                                   (3).                (2).                (1).
----------------------------------------------------------------------------------------------------------------
Population Trend................  Increasing          Stable populations     Declining or insufficient data to
                                   population trend    (1).                          assess trends (0).
                                   (2).
----------------------------------------------------------------------------------------------------------------
Connectivity....................    Movement between local populations/
                                                regions (1).
                                  No movement between local populations/
                                                regions (0).
----------------------------------------------------------------------------------------------------------------
Habitat.........................  Large, open areas   Open areas with     Small patches of    Extirpated:
                                   with low-stature    low-stature         suitable grasses    Habitat to
                                   grasses, 17         grasses, some       surrounded by       support larks no
                                   percent bare        shrubs and trees    dense vegetation    longer exists at
                                   ground (3).         (2).                and trees (1).      a site (0).

[[Page 21800]]

 
Beneficial Disturbance Regime...  Regular             Semi-regular        Infrequent          Extirpated:
                                   disturbance         disturbance,        disturbance,        Disturbance does
                                   occurs to           habitat is          habitat may be      not occur to
                                   maintain habitat    available but not   temporarily         maintain habitat
                                   for nesting, no     ideal for           unavailable; high   for larks; high
                                   adverse effects     nesting, some       adverse effects     adverse effects
                                   during breeding     adverse effects     during breeding     during breeding
                                   season (3).         during breeding     season (1).         season (0).
                                                       season (2).
----------------------------------------------------------------------------------------------------------------

    Parameters that are in high condition support adequate population 
resiliency, whereas parameters that are in low condition reduce 
resiliency and increase the risk from stochastic events. Each of the 
five parameters were given equal weight, and the resulting resiliency 
scores were averaged to come up with an overall condition score for 
each local population unit as follows: High (>=1.7), Moderate (1.6 to 
1.1), Low (1.0 to 0.2), and Extirpated (<=0.1). The overall condition 
score thresholds were based on the difference between the highest and 
lowest possible actual scores (2.4 and 0.2, respectively) for extant 
populations. If survey data showed a site had no detections of streaked 
horned larks, then the entire site is categorized as extirpated, 
regardless of the condition category assigned to the habitat or 
disturbance factors (e.g., Oyhut Spit and Johns River Island in the 
Pacific Coast region).
    The resulting current condition rankings of extant local population 
resiliency varied between high to low condition. Some local populations 
ranked high (those that scored 1.7 or greater) as a result of abundant 
populations and high-quality habitat; other populations ranked lower 
(those that scored 1.0 or less) in part because of a combination of low 
abundance, declining population trends between 2013 and 2019, poor 
quality habitat, and effects of land management activities.
    The current range is a reduction compared to the historical range, 
where larks were detected on coastal and shoreline habitats as far 
north as British Columbia and the San Juan Islands in northwest 
Washington and in prairie habitats as far south as the Umpqua and Rogue 
Valleys in southwest Oregon. While the overall number of occupied sites 
represent a reduction from its historical range, of the 42 extant local 
populations across the three representational regions, there are 8 in 
high condition, 15 in moderate condition, and 19 in low condition 
(Table 6). Three sites that were occupied in years prior to the 2013 
listing are currently considered extirpated.
BILLING CODE 4333-15-P

[[Page 21801]]

[GRAPHIC] [TIFF OMITTED] TR13AP22.005

BILLING CODE 4333-15-C
    In general, the local populations with low condition have low 
abundance that has declined since 2013 and occur in locations that have 
less habitat

[[Page 21802]]

availability and therefore limited capacity to support high numbers of 
birds. In addition, certain land management activities at these 
locations, such as construction and development or sand-borrow 
activities on the Columbia River, would not support long-term 
resiliency even if population abundance stabilized and increased. Use 
of these sites is opportunistic based on habitat availability, and most 
of these sites are not anticipated to meaningfully contribute to 
subspecies viability or support high numbers of birds.
    The South Puget Lowlands region has an overall increasing 
population trend (based on the 2013-2019 survey data). The region 
contains four local populations with high condition, one local 
population with moderate condition, and three local populations with 
low condition. Those local populations with low condition have small, 
declining populations and occur in areas where management activities 
have negative impacts on adult and juvenile birds, currently limiting 
resiliency. The populations at the JBLM airfields and 13th Division 
increased between 2013 and 2019, and movement between sites and habitat 
quality in these areas supports high resiliency. The Shelton Airport 
has a declining population trend. The Olympia Airport has good 
connectivity, and its condition is moderate, but the condition of the 
Shelton and Tacoma airports are low due to loss of habitat and/or size 
limitations.
    The Pacific Coast and Lower Columbia River region has an overall 
stable population trend (based on the 2013-2019 survey data). It has 2 
local populations in high condition (including Sandy Island, which is 
managed for the conservation of streaked horned lark), 9 local 
populations in moderate condition, 13 local populations with low 
condition, and 2 locations that have no breeding pairs and are assumed 
extirpated (Oyhut Spit and Johns River Island). While Leadbetter Point 
is managed to improve habitat quality for larks and reduce corvid 
predation, the local population has fluctuated in the last several 
years (between 6 in some years and 11 in other years) and abundance is 
inconsistent from year to year with no clear trend toward either an 
increasing or decreasing population that is demonstrated by the data. 
With more data from more survey years, as well as a more recent 
metapopulation analysis, we may be able to know more about the general 
trend of the data over time. A number of coastal sites and several 
Columbia River sites have low resiliency due to low abundance, small 
patches of high-quality habitat that currently limit potential 
abundance, limited connectivity, and/or management activities that are 
not optimal for successful breeding. While the Pacific Coast area 
currently has low numbers of breeding pairs, recent detections at 
Clatsop Spit (a previously unoccupied site) indicate the species could 
recolonize areas with suitable habitat. Streaked horned larks, however, 
have not recolonized new sites in the South Puget Lowlands despite 20 
years of prairie restoration and intensive monitoring, suggesting 
recolonization is site-specific and difficult to predict.
    The number of breeding pairs in the Willamette Valley region 
appears to have increased for 10 local populations (based on the 2013-
2019 survey data), and the region supports two local populations in 
high condition, five in moderate condition, and three in low condition. 
One historical location at Salem Airport had no breeding pairs in 
surveys from 2013-2019 and is assumed extirpated. The three sites with 
low resiliency are municipal airports where abundance has declined 
since 2013, or where survey effort is inconsistent and abundance 
estimates are variable between years. The survey results reported in 
Table 1, above, may represent a small portion of the total number of 
streaked horned larks in the Willamette Valley due to lack of access on 
private lands, and there is no information to infer the condition of 
these potential populations.
    Overall, we consider the streaked horned lark to have moderate-to-
low redundancy based on few highly resilient populations throughout the 
range, low incidence of movement between local populations, and fewer 
incidences of movement between regions. The current redundancy of larks 
is characterized by 42 local populations across the range of the 
subspecies, of which 8 are considered to have high resiliency (4 in the 
South Puget Lowlands, 2 in the Pacific Coast and Lower Columbia River, 
and 2 in the Willamette Valley region). The draft recovery plan for 
streaked horned lark (U.S. Fish and Wildlife Service 2019, entire) 
provides a preliminary description of potential adequate redundancy and 
representation for the subspecies. The plan recommends that 38 
resilient sites be managed for long-term conservation: 8 sites in the 
South Puget Lowlands; 3 sites along the Pacific Coast and 6 sites in 
the Lower Columbia River; and 21 sites in the Willamette Valley. The 
rangewide distribution of 42 local populations confers some measure of 
protection against catastrophic events, particularly in the Willamette 
Valley, where relatively large numbers of birds move about in response 
to changing habitat conditions. Recent detections of birds at sites 
previously unoccupied (i.e., Clatsop Spit) suggest individuals are 
actively moving between sites, adapting to new areas, and potentially 
recolonizing areas with suitable habitat. However, incidences of 
movement and colonization of new areas occurs infrequently, reducing 
overall redundancy for larks.
    The streaked horned lark has been extirpated from the northernmost 
extent of its historical range in the northern Georgia Basin and north 
Puget Lowlands and from the Rogue and Umpqua Valleys in the south. 
These losses from the northernmost (i.e., cooler and wetter) and 
southernmost (i.e., warmer and drier) extremes of the lark's known 
historical range demonstrate a substantial loss of ecological 
diversity. Within their current range, larks are found on native 
prairies; military and civilian airfields; coastal beaches, dunes, and 
sandy islands; restored native prairies; agricultural areas; road 
margins; and industrial sites. Occupied sites differ markedly within 
and among regions, which suggest that larks experience a broad range of 
ecological diversity. The South Puget Lowlands and Willamette Valley 
regional populations occur mainly in prairie, wetland, airport and road 
margins, and agricultural habitats; the Pacific Coast and Lower 
Columbia River regional population occurs primarily on coastal dune, 
shorelines, and sandy islands in the Columbia River. There are at least 
two local populations with high resiliency in each region, suggesting 
relatively good representation across the habitats within the species 
current range. Additional local populations in high and moderate 
condition throughout the range would benefit the overall level of 
redundancy and representation for the subspecies.

Future Condition

    The main factors influencing the future viability of the streaked 
horned lark include ongoing and sustained habitat loss, continued land 
management activities and related effects, recreation, and the 
synergistic effects of climate change and small population size. When 
we assessed the future condition of the local populations in response 
to projected land use changes and climate conditions, we used the same 
habitat and population metrics that we applied in our current condition 
assessment. We forecasted the condition of local populations over time 
under three scenarios and used this

[[Page 21803]]

information to forecast the viability of the streaked horned lark over 
the next 30 years. We chose 30 years because it is within the range of 
the available hydrological and climate change model forecasts, 
encompasses approximately five generations of streaked horned lark, and 
represents a biologically meaningful timeframe (time period long enough 
to encompass multiple generations so that species' responses can be 
predicted). We evaluated land use trends by looking at data on the 
quantity and type of agricultural crops in production throughout Oregon 
every 5 years from the USDA's National Agricultural Statistics Service. 
In Oregon, where larks largely occur on private agricultural lands, we 
evaluated trends in land use and crop type over the past 20 years to 
inform future trends (U.S. Department of Agriculture National 
Agricultural Statistics Service 2007 and 2017b, Tables 26, and 31-34). 
Specifically, we used these data to evaluate trends in the overall 
quantity of grass and other seed farms, and we compared the changes to 
trends in the quantity of crop types that do not provide suitable 
habitat for larks, such as hazelnut orchards, blueberry farms, and wine 
grapes for viticulture.
    To assess effects to the streaked horned lark from climate change, 
we relied on projections to mid-century from the U.S. Geological 
Survey, Land Change Science Program National Climate Change Viewer 
(Alder and Hostetler 2013, entire). The Coupled Model Intercomparison 
Project 5 provides a range of variability in climate projections for 
the time period 2025 to 2049. We used the combined range of the 
projection from two model scenarios, representative concentration 
pathways (RCP) 4.5 and RCP 8.5, to evaluate a range of potential future 
conditions. RCP 4.5 predicts that greenhouse gas emissions stabilize by 
the end of the century; RCP 8.5 predicts emissions continue to rise 
unchecked through the end of the century.
    For this analysis, we evaluated possible future conditions using 
these climate scenarios and the resulting impacts on species and 
habitat through the year 2050. Climate change is not expected to 
decrease the resiliency of any local populations in the prairie 
ecosystem because prairie and grassland ecosystems are well adapted to 
warm and dry conditions like the periodic soil drought and future 
increases in temperature and drought forecasted for those areas. 
Despite the projected changes affecting wildlife in the Pacific 
Northwest overall, the effects of climate change specific to prairie 
ecosystems are not anticipated to decrease the resiliency of regional 
populations in the South Puget Lowlands, Pacific Coast and Lower 
Columbia River, and Willamette Valley regions. The grasslands and 
prairies of Washington and Oregon span a wide geographic and climatic 
range, encompassing a rich variety of soil types, vegetation cover, 
elevations, and weather patterns. This heterogeneity will likely buffer 
the effects of changing weather and climate (Bachelet et al. 2011, p. 
412). It is possible that increased summer droughts may affect less 
drought-tolerant trees and other forest species adjacent to prairies, 
possibly resulting in prairie expansion (Bachelet et al. 2011, p. 417). 
Prairie and grassland ecosystems are well-adapted to warm and dry 
conditions and periodic soil drought, and future increases in 
temperature and drought for the region, ``are unlikely to disadvantage 
(and may benefit) these systems'' (Washington Department of Fish and 
Wildlife 2015, p. 5-31).
    With respect to coastal populations, the current primary threat to 
habitat for the subspecies is the spread of invasive beachgrass, 
particularly Eurasian beachgrass, because it anchors dune habitats and 
thereby prevents natural, dynamic processes that form suitable habitat 
for the lark from occurring. The cumulative impact of projected sea-
level rise, increased coastal erosion, and more severe weather events 
will limit the potential creation of suitable habitat in the remaining 
natural areas not affected by beachgrass. These synergistic threats may 
limit the resiliency of some local populations on the coast.
    The degree to which some factors affecting larks will change in the 
future is uncertain. For this reason, we forecasted what the streaked 
horned lark may experience in terms of resiliency, redundancy, and 
representation under three plausible future scenarios over the next 30 
years:
    <bullet> Scenario 1--Status Quo: The adverse effects of habitat 
loss, climate change, and management activities and related effects at 
existing sites are consistent with current levels (including current 
levels of conservation); recreation increases, and act on current 
population sizes.
    <bullet> Scenario 2--Improved Conditions: The adverse effects of 
habitat loss and climate change are reduced compared to current 
conditions; management actions continue at existing sites with 
additional conservation measures implemented to protect larks, 
including conservation of additional sites; recreation increases, and 
act on larger populations with reduced impact to overall population 
status.
    <bullet> Scenario 3--Degraded Conditions: The adverse effects of 
habitat loss and climate change are increased; management activities 
continue at existing sites with no additional or reduced voluntary or 
regulatory conservation measures due to funding restrictions; 
recreation increases, and acts on smaller population sizes with 
increased impact to overall population status.
    Based on the increase in abundance we have seen as a result of 
conservation measures for streaked horned lark (particularly at JBLM 
and on the Columbia River), we project that under Scenario 2/Improved 
Conditions populations would be larger, and, therefore, the overall 
combined impacts from both recreation and improved management 
activities and related effects would be limited. Under Scenario 3/
Degraded Conditions however, populations would be smaller, and, 
therefore, the overall combined impacts from both recreation and 
management activities and related effects would increase.
    Changes in the number and size of extant populations in response to 
assumed habitat conditions and changes in management activities at 
individual sites would result in changes to redundancy and 
representation for the subspecies. Under the status quo scenario, one 
population in the South Puget Lowlands drops from high to moderate 
condition, four local populations in the Pacific Coast and Lower 
Columbia River region drop from moderate to low condition, and all five 
moderate populations in the Willamette Valley drop to low condition. 
Even though the rate of change of the influence factors was not 
different than current levels under this scenario, the synergistic 
effects of small population size would amplify the effect of negative 
influence factors in some local populations over time. Under this 
scenario, the subspecies would continue to occupy roughly an equal 
number of habitat types and distribution of 42 local populations across 
the range, but some small, isolated populations may be at risk of 
eventual extirpation without intentional habitat management or 
conservation measures.
    Under the improved conditions scenario, careful management and 
conservation actions are implemented to increase the quantity, quality, 
and distribution of suitable habitats for streaked horned larks. One 
local population in the South Puget Lowlands and three in the Pacific 
Coast and Lower Columbia River region improve from moderate to high 
condition, and one population in each of the South Puget

[[Page 21804]]

Lowlands and Willamette Valley regions move from low to moderate. As 
local populations become more resilient under this scenario, the 
species' ability to move between sites in response to changing 
environmental conditions and re-establish breeding populations would 
increase overall redundancy, buffering against adverse effects of 
catastrophic events. With respect to ecological representation, it is 
unlikely that birds would occupy new or different habitat types 
relative to current patterns of occupancy in the Pacific Coast and 
Lower Columbia River region under this scenario, due to the limited 
availability of alternative habitats that provide the structural 
habitat features preferred by larks. In the South Puget Lowlands and 
Willamette Valley regions, the number of local populations in high 
condition would increase; however, it is unlikely that larks would 
disperse into the north Puget Lowlands region, or south into the Umpqua 
and Rogue Valley areas without substantial recovery efforts to support 
habitat development in these areas.
    Under the degraded conditions scenario, further habitat loss and 
increased instability would lead to reduced condition in many local 
populations with only one local population remaining in high condition 
in the range of the subspecies (Rice Island). Eighteen local 
populations would decrease in condition across the range of the 
streaked horned lark, leaving 10 moderate condition and 30 low 
condition populations distributed across the three regions. Under this 
scenario, Shelton Airport would become extirpated, reducing redundancy. 
Many other local populations would decrease in resiliency and be at 
higher risk of extirpation, putting the subspecies at risk of further 
reduction in redundancy. If local populations become less resilient, 
larks would be less able to move between sites in response to changing 
environmental conditions or re-establish local populations following a 
catastrophic event. Furthermore, the loss of local populations would 
decrease the species' representation and overall ability to adapt to 
changing environmental conditions.
    Because the streaked horned lark is dependent on land management 
activities that create and maintain suitable replacement habitat 
throughout the species' range, the future viability of the species 
relies upon the continuation of these actions. The synergistic effects 
of both small population size and the effects of climate change will 
likely amplify the negative effects of influence factors and reduce 
resiliency of some local populations, particularly along the Pacific 
Coast, the South Puget Lowlands, and the Lower Columbia River.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.
    We considered all potential influence factors resulting from 
habitat fragmentation degradation and loss; land management activities 
and related effects; recreation; and aircraft strikes. We analyzed 
their level of effect in the various regional populations as noted in 
Table 4. The small size of these local populations may amplify the 
effects of stressors influencing individuals, but small population size 
does not influence populations on its own. The impact of the stressors 
summarized in Table 4 and the conservation measures implemented to 
minimize or mitigate impacts to larks and lark habitat is factored into 
our resiliency, redundancy, and representation (3R) assessment of 
populations for our current condition analysis. We anticipate habitat 
loss, changes in land use and agricultural practices, recreation on the 
Pacific Coast and Lower Columbia River, and aircraft strikes will 
continue to influence the condition of the streaked horned lark in the 
future to a degree that may affect the resiliency of populations. The 
projected future impact of these stressors is factored into the 3R 
assessment of populations in our future condition analysis.

Determination of Streaked Horned Lark's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines ``endangered species'' as a species 
in danger of extinction throughout all or a significant portion of its 
range, and ``threatened species'' as a species likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act requires that we determine 
whether a species meets the definition of ``endangered species'' or 
``threatened species'' because of any of the following five factors: 
(A) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (B) overutilization for commercial, 
recreational, scientific, or educational purposes; (C) disease or 
predation; (D) the inadequacy of existing regulatory mechanisms; or (E) 
other natural or manmade factors affecting its continued existence.

Status Throughout All of Its Range

    We evaluated threats to the streaked horned lark and assessed the 
cumulative effects of the threats under the Act's section 4(a)(1) 
factors. The primary driver of the status of streaked horned lark has 
been the scarcity of large, open spaces with very early seral stage 
plant communities with low-statured vegetation and substantive amounts 
of bare or sparsely vegetated ground. Historically, these open spaces 
were primarily created by natural disturbance regimes such as seasonal 
flooding of river systems, but the construction of dams and subsequent 
flood control negatively impacted creation of this open space habitat 
and thereby the abundance and distribution of historical lark 
populations. The loss of streaked horned lark habitat due to large-
scale water management occurred decades ago and is not ongoing. The 
best available information indicates that overutilization (Factor B), 
predation or disease (Factor C), pesticides (Factor E), or loss of 
historical disturbance regimes (Factor A) are not current or imminent 
threats to the viability of the subspecies. The streaked horned lark 
has been affected through loss of preferred habitats (Factor A) as a 
result of successional changes in plant species composition and 
encroachment of woody vegetation; invasion of beach grasses; conversion 
of suitable habitat into unsuitable habitat through changes in land 
use; and changes in agricultural practices from crops that mimic 
preferred habitats (i.e., grass seed farms) to crops that diminish 
habitat suitability (i.e., hazelnut orchards and blueberry farms). The 
streaked horned lark is also affected by land management activities and 
related effects (Factor A), as well as other human activities (Factor 
E), including agricultural activities, airport

[[Page 21805]]

management activities and related airstrikes, military training and 
related activities, the placement of dredged materials, and recreation.
    Despite the ongoing influence of these factors, the subspecies is 
not currently in danger of extinction, because the species retains 
multiple populations in high and moderate condition across all 
representative regions, those populations occur in a variety of habitat 
types, and no threat at its existing or imminent level could plausibly 
change that state of affairs. Each representative region has at least 8 
redundant populations. Survey data from some regularly monitored sites 
across the range of the subspecies show an increase from 252-253 
breeding pairs in 2013 at the time of listing to 383-389 breeding pairs 
in 2019. The subspecies has shown relative stability for the last 7 
years based on survey data from known populations, with 42 populations 
across the range. Of the 42 populations, 23 are considered to be in 
high or moderate condition. The Pacific Coast and Lower Columbia River 
and the Willamette Valley region each have two populations that are in 
high condition; the South Puget Lowlands has four populations in high 
condition. Across the range, 15 local populations are considered in 
moderate condition. Negative influence factors on the subspecies have 
not fluctuated much for the last 20 years and are not of a scope or 
magnitude, either currently or imminently, such that the subspecies is 
currently in danger of extinction. Local populations in South Puget 
Lowlands and Lower Columbia River populations have benefited from 
conservation efforts implemented as part of section 7 consultations 
under the Act.
    Abundance of larks across the Willamette Valley appears relatively 
high, but many of these local populations cannot be surveyed due to 
lack of access. Although the current abundance of local populations 
along the Pacific Coast is lower than other areas, it has been low for 
many years, and we see no apparent declining trend in this regional 
population based on survey data from 2013 to 2019. Recent detections of 
birds at Clatsop Spit, as well as sites with restored habitat on 
private lands in the Willamette Valley, indicate that individuals can 
move between sites, and there are a few instances of detections at 
previously unoccupied locations, but recolonization appears very low 
and difficult to predict.
    In the foreseeable future, however, there is potential for a 
decline in resiliency of local populations across the range. The loss 
of preferred habitat will continue from plant succession and 
encroachment of woody vegetation, invasion of beach grasses, changes in 
land use, and changes in beneficial agricultural practices. The regular 
large-scale, human-caused disturbance (burning, mowing, cropping, 
chemical treatments, or placement of dredged materials) that now 
creates and maintains replacement habitat for the streaked horned lark 
will continue, as will the related effects of these activities that can 
negatively impact individual larks (nest destruction, mortality, 
disturbance, and aircraft strikes). Recreation will also continue. Any 
negative effects from these factors will likely be amplified in some 
local populations due to the synergistic effects related to small 
population size and the increased effects of climate change in the 
range over the next 30 years, particularly along the Pacific Coast, the 
South Puget Lowlands, and the Lower Columbia River. As climate change 
and small population size increase in influence, the realized benefit 
of these replacement habitats to the subspecies may decrease.
    Additionally, any future changes in the maintenance of these 
landscapes will affect the resiliency of larks in the area. Agriculture 
remains the primary influence on land use in the Willamette Valley, and 
the resilience of larks in that area is tied to practices that can 
change given market demands. This uncertainty regarding future land use 
and anthropogenic effects to habitat increases the potential risk of 
extinction in the foreseeable future. Numerous conservation measures 
resulting from section 7 consultation under the Act in the range of the 
streaked horned lark have helped reduce effects of threats on the 
subspecies, but the continued effects of habitat loss (Factor A), land 
management activities and related effects, and recreation, in 
combination with small population size and the effects of climate 
change (Factor E), are expected to continue to affect the viability of 
the subspecies over the next 30 years.
    Thus, after assessing the best available information, we conclude 
that the streaked horned lark is not currently in danger of extinction 
but is likely to become in danger of extinction within the foreseeable 
future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological 
Diversity), vacated the aspect of the Final Policy on Interpretation of 
the Phrase ``Significant Portion of Its Range'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (Final Policy; 79 FR 37578, July 1, 2014) that provided that 
the Service does not undertake an analysis of significant portions of a 
species' range if the species warrants listing as threatened throughout 
all of its range. Therefore, we proceed to evaluating whether the 
species is endangered in a significant portion of its range--that is, 
whether there is any portion of the species' range for which both (1) 
the portion is significant and (2) the species is in danger of 
extinction in that portion. Depending on the case, it might be more 
efficient for us to address the ``significance'' question or the 
``status'' question first. We can choose to address either question 
first. Regardless of which question we address first, if we reach a 
negative answer with respect to the first question that we address, we 
do not need to evaluate the other question for that portion of the 
species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of extinction now (i.e., 
endangered). In undertaking this analysis for the streaked horned lark, 
we choose to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species is endangered. The statutory difference between an 
endangered species and a threatened species is the time horizon in 
which the species becomes in danger of extinction; an endangered 
species is in danger of extinction now while a threatened species is 
not in danger of extinction now but is likely to become so in the 
foreseeable future. Thus, for streaked horned larks, we considered 
whether the threats are geographically concentrated in any portion of 
the species' range such that the threats presently affect enough 
individuals in an area to influence the resiliency of a population.
    We examined the following influence factors: Loss of preferred 
habitats as a result of successional changes in plant species 
composition and encroachment of woody vegetation; invasion of beach 
grasses; conversion of suitable habitat into unsuitable habitat through 
changes

[[Page 21806]]

in land use; changes in agricultural practices from crops that mimic 
preferred habitats to crops that diminish habitat suitability; land 
management activities and related effects, including airport management 
activities, military training, and the placement of dredged materials; 
recreation; and, the cumulative effects associated with climate change 
and small population size. While the influence of these factors varies 
somewhat across the range, there is no portion of the range where there 
is currently a concentration of threats relative to other areas in the 
range. The available information does not indicate that the effects of 
climate change, such as sea level rise, are currently decreasing the 
resiliency of streaked horned lark populations. In the future, the 
synergistic effects of climate change and small population size are 
likely to compound the negative effects of dune stabilization from 
beach grass invasion. This will likely limit the availability and 
distribution of habitat for streaked horned larks along the Pacific 
Coast, which could influence the resiliency of these local populations 
over the next 30 years such that they may be at risk of future 
extirpation. We have similar concerns that the synergistic effects of 
climate change and small populations size will also influence the 
future resiliency of local populations in the Columbia River and South 
Puget Lowlands. Overall, potential future reductions in resiliency of 
local populations across the range of the subspecies will limit 
redundancy and representation, and therefore could affect the future 
viability of the streaked horned lark.
    Although the current abundance of local populations along the 
Pacific Coast is low compared to other areas, it has been low for many 
years. The size of those coastal sites is relatively small compared to 
other local populations and therefore naturally limits the number of 
breeding pairs, and we see no apparent declining trend in this regional 
population based on survey data between 2013 and 2019. Based on our 
review of the best available information, the population in the Pacific 
Coast region is not currently at risk of extirpation. As noted above, 
these populations are at risk of extirpation in the future.
    The concentrated wintering populations of streaked horned lark in 
the Willamette Valley and on islands in the Columbia River could be 
exposed to stochastic events such as ice storms or severe flooding that 
could kill individuals, destroy limited habitat and food availability, 
or skew sex ratios. Severe winter weather could potentially impact one 
or more regional populations when birds congregate as larger flocks. 
However, available information does not indicate that winter storms are 
currently a threat that decreases the resiliency of streaked horned 
lark populations in these regions, and climate change projections 
specific to prairie ecosystems do not indicate a greater future threat 
from winter storms to streaked horned lark populations in these 
regions. The time horizon for the species' response to these ongoing 
and synergistic threats is not more immediate in any portions of the 
species' range.
    Because there are no portions of the species' range where the 
species has a different status from its rangewide status, no portion of 
the species' range provides a basis for determining that the species is 
in danger of extinction in a significant portion of its range. 
Therefore, we determine that the streaked horned lark is not in danger 
of extinction now in any portion of its range, but that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This does not conflict with the courts' 
holdings in Desert Survivors v. U.S. Department of the Interior, 321 F. 
Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 2017), because, 
in reaching this conclusion, we did not need to consider whether any 
portions are significant and, therefore, did not apply the aspects of 
the Final Policy's definition of ``significant'' that those court 
decisions held were invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the streaked horned lark meets the 
definition of a threatened species. Therefore, we affirm the current 
listing of the streaked horned lark as a threatened species in 
accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Recovery teams (composed of 
species experts, Federal and State agencies, nongovernmental 
organizations, and stakeholders) are often established to develop 
recovery plans. A notice announcing availability of the draft recovery 
plan for streaked horned lark was published in the Federal Register on 
October 30, 2019 (84 FR 58170); the draft plan is available on our 
website (https://www.fws.gov/endangered), or from our Oregon Fish and 
Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of

[[Page 21807]]

native vegetation), research, captive propagation and reintroduction, 
and outreach and education. The recovery of many listed species cannot 
be accomplished solely on Federal lands because their range may occur 
primarily or solely on non-Federal lands. To achieve recovery of these 
species requires cooperative conservation efforts on private, State, 
and Tribal lands.
    Funding for recovery actions is available from a variety of 
sources, including Federal and State funding, including cost-share 
grants for non-Federal landowners, the academic community, and 
nongovernmental organizations. In addition, pursuant to section 6 of 
the Act, the States of Oregon and Washington are eligible for Federal 
funds to implement management actions that promote the protection or 
recovery of the streaked horned lark. Information on our grant programs 
that are available to aid species recovery can be found at: https://www.fws.gov/grants.
    Please let us know if you are interested in participating in 
recovery efforts for this species. Additionally, we invite you to 
submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a)(2) of the Act requires Federal agencies to evaluate 
their actions with respect to any species that is proposed or listed as 
an endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(2) of the Act requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of the species or destroy 
or adversely modify its critical habitat. If a Federal action may 
affect a listed species or its critical habitat, the responsible 
Federal agency must enter into consultation with the Service.
    Federal agency actions within the streaked horned lark's habitat 
that may require consultation include management and any other 
landscape-altering activities on Federal lands administered by the 
Service; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et 
seq.) permits by the Corps; and road construction by the Federal 
Highway Administration in cooperation with the Service at Baskett 
Slough NWR.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of the species. The 
discussion below regarding protective regulations under section 4(d) of 
the Act complies with our policy.

II. Final Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean the use of all methods and 
procedures which are necessary to bring any endangered or threatened 
species to the point at which the measures provided pursuant to the Act 
are no longer necessary. Additionally, the second sentence of section 
4(d) of the Act states that the Secretary may by regulation prohibit 
with respect to any threatened species any act prohibited under section 
9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the 
case of plants. Thus, the combination of the two sentences of section 
4(d) provides the Secretary with a wide latitude of discretion to 
select and promulgate appropriate regulations tailored to the specific 
conservation needs of a threatened species. The second sentence grants 
particularly broad discretion to the Secretary when adopting some or 
all of the prohibitions under section 9 for any particular threatened 
species.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or included a 
limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 
2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental 
Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 
5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not 
address all of the threats that a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    On October 3, 2013, we issued a rule under the authority of section 
4(d) of the Act to provide for the conservation of the streaked horned 
lark (78 FR 61452) (see 50 CFR 17.41(a)). That rule applies all of the 
prohibitions of section 9 of the Act to the streaked horned lark, with 
the following exceptions for incidental take: (1) Certain activities on 
airports on non-Federal lands; (2) certain agricultural activities on 
non-Federal land in the range of the subspecies in Oregon and (3) 
certain noxious weed control activities on non-Federal lands.
    The provisions of this revised 4(d) rule will promote conservation 
of the streaked horned lark by encouraging management of the landscape 
in ways that meet the conservation needs of the subspecies. The 
provisions of this revised 4(d) rule are one of many tools that we will 
use to promote the conservation of the streaked horned lark. For these 
reasons, we find the revised 4(d) rule as a whole is necessary and 
advisable to provide for conservation of the streaked horned lark.

Provisions of the Revised 4(d) Rule

    The provisions of the revised 4(d) rule for the streaked horned 
lark are discussed in more detail below, but we note here that the 
substantive differences between the current 4(d) rule for the streaked 
horned lark at 50 CFR 17.41(a) and this revised 4(d) rule are limited 
to the following: The exception for incidental take for certain 
agricultural activities on non-Federal lands applies throughout the 
range of the subspecies in Oregon and Washington, rather than only the 
Willamette Valley of Oregon; and the inclusion of an additional 
exception to the take prohibition for incidental take associated with 
habitat restoration activities that benefit streaked horned lark.
    The primary driver of the status of streaked horned lark has been 
the scarcity of large, open spaces with very early seral stage plant 
communities with low-statured vegetation and substantive amounts of 
bare or sparsely vegetated

[[Page 21808]]

ground. Such areas occur sporadically within the larger agricultural 
landscape, depending on local soil and topographic conditions. 
Therefore, this revised 4(d) rule is designed to support the 
continuation of activities taking place in the range of the subspecies 
that lead to these features, and to encourage the development of these 
features in new areas in the range of the subspecies in the future. The 
revised 4(d) rule provides for the conservation of the streaked horned 
lark by prohibiting take, except as otherwise authorized, permitted, or 
incidental to the following activities: Wildlife hazard management at 
airports and accidental strikes by aircraft, normal agricultural 
practices in Oregon and Washington, noxious weed control on non-Federal 
lands, and habitat restoration activities beneficial to streaked horned 
lark. All take not included in those exceptions (for example, take of 
lark that is intentional and not incidental to the excepted activities, 
remains prohibited) will continue to be prohibited in order to support 
existing populations of the streaked horned lark.
    Some management actions taken at airports are generally beneficial 
to streaked horned larks and have led to the creation of replacement 
habitat the subspecies relies upon. Streaked horned larks breed 
successfully and maintain populations at airports in the South Puget 
Sound and Willamette Valley. Airports maintain safe conditions for 
aviation, in part by routinely implementing programs to minimize the 
presence of hazardous wildlife on airfields. These activities 
unintentionally create suitable habitat for streaked horned larks. 
Activities involved in wildlife hazard management at airports that 
benefit streaked horned lark include hazing of hazardous wildlife 
(geese and other large birds and mammals) and modification and 
management of forage, water, and shelter to be less attractive to these 
hazardous wildlife, including vegetation management to maintain desired 
grass height on or adjacent to airports through mowing, discing, 
herbicide use, or burning.
    As with other land management activities, vegetation management 
during the nesting season has the potential to destroy streaked horned 
lark nests and young. However, despite concerns over potential adverse 
effects of vegetation management during the breeding season at 
airports, this activity is very important to the maintenance of the 
low-statured vegetation required by nesting and wintering larks in the 
area. We believe that the beneficial effects of these actions outweigh 
the negative effects that occur from these actions during the nesting 
season. Therefore, excepting hazardous wildlife management from the 
Act's prohibitions of take, when conducted by airport staff or 
employees contracted by the airport to perform hazardous wildlife 
management activities, furthers the conservation of the subspecies by 
helping to prevent the spread of those noxious weeds that may render 
existing habitat unsuitable for the streaked horned lark.
    The listing of the streaked horned lark imposes a requirement on 
airport managers where the subspecies occurs to consider the effects of 
their management activities on this subspecies when actions are funded 
or approved by the Federal Aviation Administration. Excepting hazardous 
wildlife management and accidental aircraft strikes from prohibitions 
on take eliminates the incentive for airports to reduce or eliminate 
replacement habitat that supports populations of streaked horned larks 
from the airfields, and therefore provides for the conservation of the 
species by allowing current beneficial management activities to 
continue. Accidental aircraft strikes are an unavoidable consequence of 
the vegetation management that also maintains habitat that supports 
breeding pairs. While aircraft strikes do occur in several local 
populations at airports throughout the range of the species 
(particularly in the South Puget Lowlands), the rate appears relatively 
low. Additionally, the potential take of streaked horned lark 
associated with the routine management, repair, and maintenance of 
roads and runways is minimal. Therefore, in order to support activities 
involved in wildlife hazard management that maintain habitat features 
beneficial to streaked horned lark, incidental take associated with 
wildlife hazard management activities, as well as aircraft strikes and 
routine maintenance of existing roads and runways at airports, is 
excepted from the prohibition on take. We recommend that airport 
operators follow the guidance provided in Federal Aviation 
Administration advisory circular 150/5200-33C, ``Hazardous Wildlife 
Attractants on or near Airports'' (FAA 2020, entire), and all other 
applicable related guidance.
    In Oregon's Willamette Valley, large expanses of burned prairie or 
the scour plains of the Willamette and Columbia Rivers likely provided 
suitable habitat for streaked horned larks in the past. With the loss 
of these historical habitats during the last century, alternative 
breeding and wintering sites, including active agricultural lands, have 
become critical for the continued survival and recovery of the streaked 
horned lark. One of the largest areas of potential habitat for streaked 
horned larks is the agricultural land base in the Willamette Valley. 
Larks are attracted to the wide, open landscapes and low vegetation 
structure in agricultural fields, especially in grass seed fields, 
probably because those working landscapes resemble the historical 
habitats formerly used by the subspecies when the historical 
disturbances associated with floods and fires maintained a mosaic of 
suitable habitats. Habitat characteristics of agricultural lands used 
by streaked horned larks include: (1) Bare or sparsely vegetated areas 
within or adjacent to grass seed fields, pastures, or fallow fields; 
(2) recently planted (0 to 3 years) conifer farms with extensive bare 
ground; and (3) wetland mudflats or ``drown outs'' (i.e., washed out 
and poorly performing areas within grass seed or row crop fields).
    Currently in the Willamette Valley, there are approximately 360,000 
ac (145,000 ha) of grass seed fields in production. In any year, some 
portion of these lands will have suitable streaked horned lark habitat, 
but the geographic location of those areas is not consistent from year 
to year, nor can we predict their occurrence due to variable 
agricultural practices (crop rotation, fallow fields, etc.), and we 
cannot predict the changing and dynamic locations of those areas.
    These conditions make conservation of streaked horned larks a 
significant challenge on these large, intensively managed and privately 
owned agricultural landscapes. On the one hand, agricultural activities 
can harm or kill individual streaked horned larks or destroy their 
nests in some localized fields. However, maintenance and continued 
farming of these private agricultural lands (primarily grass seed 
farms) in the Willamette Valley creates and provides suitable habitat 
conditions throughout the Valley, and is therefore crucial to 
maintaining the overall population of streaked horned larks in the 
Valley and aiding in the recovery of the subspecies in Oregon. Streaked 
horned lark conservation in the Willamette Valley is challenging due to 
these conflicting factors: (1) Enabling and supporting the ongoing 
agricultural practices that maintain favorable habitat conditions on 
private lands; and, (2) minimizing the potential for impacting some 
nesting birds when these farming practices (e.g., grass seed harvest) 
occur on those lands.
    Achieving net conservation of listed species on privately-owned 
working lands (i.e., farmland, rangeland, tree

[[Page 21809]]

farms, etc.) is one of the most difficult challenges in implementation 
of the Act (Baur et al. 2009, p. 3; Ciuzio et al. 2013, entire; Henson 
et al. 2018, p. 863). Under certain circumstances and for highly 
visible species, the prohibitions of the Act under section 9 can 
discourage local impacts to listed species where individuals of such 
species are known to occur, and harmful activities can be effectively 
investigated and addressed. However, using the regulatory functions of 
section 9 of the Act to achieve effective conservation on private lands 
is often limited due to a variety of reasons, such as the following: 
The species is not currently known to be present in otherwise suitable 
or historic habitat; access to such lands is restricted by the 
landowner; restoration or maintenance of a species' habitat requires 
the voluntary support or participation of the landowner; and 
conservation measures may conflict with a landowner's traditional 
economic use of their land. As a result, listed species are often 
viewed as a legal or economic liability by landowners, resulting in 
disincentives to conservation on these lands (Raymond and Olive 2008, 
p. 485; Brook et al. 2003, pp. 1644-47; Mir and Dick 2012, entire). 
This problem is especially acute where public lands are lacking and the 
species is dependent on private lands for its conservation (Eichenwald 
et al., p. 443), as is largely the case for the streaked horned lark.
    These factors are part of the conservation challenge for this 
subspecies in the Willamette Valley, and we find that the beneficial 
effects from maintaining these agricultural practices to facilitate 
suitable habitat outweigh the negative effects from injuries to 
individual birds from these same activities.
    Although we are unaware of any current breeding populations of 
streaked horned larks on agricultural lands in Washington, use of these 
habitats by streaked horned larks would aid in recovery of the 
subspecies in Washington as in Oregon and is therefore encouraged. The 
exception for incidental take for certain agricultural activities on 
non-Federal lands in the revised 4(d) rule applies to the entire range 
of the subspecies, to encourage management actions that would 
facilitate the use of areas other than civilian and military airports 
by streaked horned larks within the range of the subspecies in Oregon 
and Washington.
    Because landowners are free to allow vegetation growth that results 
in the conversion of lands into habitats unsuitable for the streaked 
horned lark, conservation of the species will benefit from the support 
of agricultural practices that result in the creation and maintenance 
of habitat that is suitable for the subspecies. In general, private 
landowners, out of concern for being subjected to regulation associated 
with the Act, may alter land management practices or restrict 
conservation activities to discourage attracting listed species to 
their lands (Brook et al. 2003, pp 1644-1648; Mir and Dick 2012, p. 
192; Cuizio et al. 2013, p. 271). In case of the streaked horned lark, 
given the importance of human-created habitat through ordinary 
agricultural management activities, this risk aversion would be 
detrimental to the conservation of the species. With this revised 4(d) 
rule, we remove the negative incentive for private landowners in Oregon 
to discontinue activities resulting in suitable habitat for larks based 
on such concerns, and we provide positive incentives for them to 
voluntarily report and conserve species on their property. 
Additionally, the rule reduces the liability concerns of private 
landowners in Washington who may be considering the implementation of 
agricultural practices that result in the creation and maintenance of 
habitat that is suitable for the lark, something we seek to encourage.
    The primary crop type that results in habitat features preferred by 
lark is grass seed, and the typical harvest (combining) period for 
grass seed fields occurs in late June or early July, after the most 
active part of the breeding season for larks is done. Because the 
timing of ground disturbance for grass seed farms is after the primary 
part of the nesting season is over, it does not put the reproductive 
success of the subspecies at great risk, and the benefits of 
encouraging the continuation of the inadvertent creation of lark 
habitat through normal grass seed farming practices outweigh the 
benefit of restricting the timing of this exception to take. Excepting 
routine agricultural activities on non-Federal lands throughout the 
range of the streaked horned lark from the prohibition on take will 
provide an overall benefit to the subspecies by maintaining suitable 
habitat and removing incentives to decrease that suitable habitat to 
avoid liability under the Act. This exception to the prohibition on 
take for agricultural activities is rangewide in Oregon and Washington, 
and we find that the definition of ``normal farming practices'' in both 
the 2013 4(d) rule and this revised 4(d) rule is consistent with 
relevant Oregon and Washington State laws (Oregon Revised Statutes 
(ORS), chapter 30, section 30.930, and Revised Code of Washington 
(RCW), title 7, chapter 7.48, section 7.48.310, respectively).
    Streaked horned larks nest, forage, and winter on extensive areas 
of bare ground with low-statured vegetation. These areas include native 
prairies, coastal dunes, fallow and active agricultural fields, wetland 
mudflats, sparsely vegetated edges of grass fields, recently planted 
conifer farms with extensive bare ground, moderately to heavily grazed 
pastures, gravel roads or gravel shoulders of lightly traveled roads, 
airports, and dredge deposition sites in the Lower Columbia River. The 
suppression and loss of ecological disturbance regimes such as fire and 
flooding across vast portions of the landscape have resulted in altered 
vegetation structure and facilitated invasion by nonnative grasses and 
woody vegetation, including noxious weeds, rendering habitat unsuitable 
for streaked horned larks. By their nature, noxious weeds grow 
aggressively and multiply quickly, negatively affecting all types of 
habitats, including those used by larks. Some species of noxious weeds 
spread across long distances through wind, water, and animals, as well 
as via humans and vehicles, thereby affecting habitats far away from 
the source plants.
    Because noxious weed control maintains the low-statured vegetation 
and the open landscape that streaked horned lark relies upon, this 
activity is essential to the retention of suitable nesting, wintering, 
and foraging habitat. As with other land management activities, noxious 
weed control during the nesting season has the potential to destroy 
streaked horned lark nests and young. On the other hand, streaked 
horned larks can benefit from weeds, as they eat the seeds of weedy 
forbs and grasses. However, the benefit provided to nesting and 
wintering larks from the eradication (or removal) of noxious weeds 
wherever they may occur outweighs any potential benefit from weeds or 
concerns over timing of control. Therefore, excepting the routine 
mechanical or chemical management of noxious weeds from the prohibition 
of take furthers the conservation of the subspecies by helping to 
prevent the spread of those noxious weeds that may render habitat 
unsuitable for the streaked horned lark. It also encourages landowners 
to manage their lands in ways that meet their property management needs 
and also help to prevent degradation or loss of suitable habitat for 
the streaked horned lark. Noxious weed control targets those species 
included on County, State, and Federal noxious weed lists (see the

[[Page 21810]]

Federal list at https://www.aphis.usda.gov/plant_health/plant_pest_info/weeds/downloads/weedlist.pdf; Washington State counties 
each have a noxious weed control website, and selected Oregon State 
counties maintain noxious weed lists).
    Finally, activities associated with streaked horned lark habitat 
restoration (e.g., removing nonnative plants and planting native 
plants, creating open areas, and maintaining sparse vegetation through 
vegetation removal or suppression via controlled burns) will be very 
beneficial to the subspecies; any adverse effects to the subspecies 
from these activities will likely be only short-term or temporary, 
especially with respect to harassment or disturbance of individual 
lark. In the long term, the risk of adverse effects to both individuals 
and populations is expected to be mitigated as these types of 
activities will likely benefit the subspecies by helping to preserve 
and enhance the habitat of existing local populations over time. 
Reasonable care for habitat management may include, but will not be 
limited to, procuring and implementing technical assistance from a 
qualified biologist on habitat management activities, and best efforts 
to minimize streaked horned lark exposure to hazards (e.g., predation, 
habituation to feeding, entanglement, etc.). Therefore, we include in 
the 4(d) rule an exception to the prohibition on take for any habitat 
restoration actions that would create or enhance streaked horned lark 
habitat, provided that reasonable care is taken to minimize such take.
    We acknowledge that all of these activities excepted from 
incidental take in this rule have the potential to result in 
destruction of nests, crushing of eggs or nestlings, or flushing of 
fledglings or adults when conducted during the active breeding season 
for streaked horned larks. The 2013 listing rule (78 FR 61452; October 
3, 2013) included dredge spoil deposition timing and placement on 
Columbia River islands; incompatibly timed burning and mowing regimes; 
activities associated with military training; and activities associated 
with airports as threats to the subspecies. Despite these threats noted 
at the time of listing, the Service determined that timing restrictions 
on these activities were not appropriate, stating in the rule: ``Our 
purpose in promulgating a special rule to exempt take associated with 
activities that inadvertently create habitat for the streaked horned 
lark is to allow landowners to continue those activities without 
additional regulation. We believe that imposing a timing restriction 
would likely reduce the utility of the special rule for land managers, 
and could have the unintended side effect of causing landowners to 
discontinue their habitat creation activities'' (78 FR 61452, October 
3, 2013, p. 78 FR 61464). No timing restrictions were included in the 
4(d) rule in 2013, and these land management activities have continued 
across the range since 2013. Survey data from regularly monitored sites 
throughout the range of the subspecies now show an increase from 252-
253 breeding pairs in 2013, to 383-389 breeding pairs in 2019, despite 
the lack of timing restrictions on land management activities. While 
the loss of individuals is never welcome, the continuation of land 
management activities that create replacement habitat is very important 
to the conservation of the subspecies, and the benefits to the 
subspecies as a whole appear to outweigh the associated cost of the 
loss of individuals. This revised 4(d) rule provides for the 
conservation of the subspecies by including provisions that support the 
continuation of land management activities that create replacement 
habitat.
    As discussed above under Summary of Biological Status and Threats, 
multiple factors are affecting the status of the streaked horned lark. 
A range of activities have the potential to affect the streaked horned 
lark, including the management of hazardous wildlife at airports and 
associated airstrikes, routine agricultural activities, and the routine 
removal or other management of noxious weeds. Prohibiting take of 
streaked horned lark rangewide under section 9 of the Act will help 
preserve the subspecies' remaining populations, slow their rate of 
decline, and allow for the maintenance of suitable habitat for the 
species. However, these same activities also benefit streaked horned 
lark through the creation of the very habitat features (large open 
spaces with very early seral stage plant communities with low-statured 
vegetation and substantive amounts of bare or sparsely vegetated 
ground) that streaked horned larks prefer; without these replacement 
habitats throughout the range, the status of the subspecies would 
likely be much worse. Therefore, while we are extending the take 
prohibition for the streaked horned lark, we are excepting from this 
prohibition take that is incidental to the management of hazardous 
wildlife at airports, accidental airstrikes by aircraft, routine 
agricultural activities, the routine removal or other management of 
noxious weeds, and habitat restoration activities for streaked horned 
lark. As discussed above, we believe that that these exceptions will 
provide for the conservation of the species by supporting the 
maintenance and creation of habitat features that the streaked horned 
lark relies upon.
    The Service is fully aware of, and sensitive to, the potential for 
some individual birds to be harmed in the application of these land 
management practices. We encourage land managers who, in the course of 
carrying out these excepted activities, observe streaked horned larks 
nesting in the area of activity to temporarily suspend operations in 
those areas and to contact the local Service field office or their 
local State fish and wildlife agency for technical assistance. Possible 
measures that land managers and the agencies could then consider 
include temporarily avoiding these areas until fledging has occurred, 
hazing birds away from active farm or airport safety areas to avoid 
direct mortality, and seeking direct participation in Federal or state 
conservation reserve-type incentive programs to manage newly identified 
areas for longer term lark conservation.
    When considering all reasonable measures and likely outcomes, we 
believe this approach will result in the best net conservation benefit 
for the subspecies. As discussed above, the vast majority of these 
lands are privately owned. Supporting landowners' ongoing activities 
that create or maintain lark habitat, while also encouraging the 
voluntary conservation of the species on these private lands, is likely 
to result in more net positive conservation outcomes at the population 
level when compared to an approach that does not include this section 
4(d) take exception. An approach that relies primarily on section 9 
take prohibitions and enforcement, for the reasons cited earlier and 
documented in the scientific literature regarding conservation of 
species on private lands, would likely result in the following: The 
loss of suitable habitat on agricultural lands; an increase in 
landowners actively managing their lands to not attract streaked horned 
larks; and, an overall reluctance of private landowners to report lark 
occurrence or support lark conservation. Therefore, we believe the 4(d) 
rule best promotes the recovery of the species when compared to all 
alternative approaches. These approaches are becoming increasingly 
necessary when attempting to conserve species on private lands 
(Epanchin-Neill and Boyd 2020, p. 415).
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,

[[Page 21811]]

wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally. Regulating 
take will help preserve the species' remaining populations, slow their 
rate of decline, and decrease synergistic, negative effects from other 
threats.
    We may issue permits to carry out otherwise prohibited activities 
involving threatened wildlife under certain circumstances. Regulations 
governing permits for threatened species are codified at 50 CFR 17.32. 
With regard to threatened wildlife, we may issue a permit for the 
following purposes: For scientific purposes, to enhance propagation or 
survival, for economic hardship, for zoological exhibition, for 
educational purposes, for incidental taking, or for special purposes 
consistent with the purposes of the Act. There are also certain 
statutory exemptions from the prohibitions, which are found in sections 
9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Service in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Service shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
will be able to conduct activities designed to conserve streaked horned 
lark that may result in otherwise prohibited take without additional 
authorization.
    As a subspecies of the horned lark (Eremophila alpestris), the 
streaked horned lark is protected by the Migratory Bird Treaty Act 
(MBTA; 16 U.S.C. 703 et seq.). The MBTA makes it unlawful, at any time, 
by any means or in any manner, to pursue, hunt, take, capture, kill, 
attempt to take, capture, or kill, possess, offer for sale, sell, offer 
to barter, barter, offer to purchase, purchase, deliver for shipment, 
ship, export, import, cause to be shipped, exported, or imported, 
deliver for transportation, transport or cause to be transported, carry 
or cause to be carried, or receive for shipment, transportation, 
carriage, or export, any migratory bird, or any part, nest, or egg of 
any such bird included in the terms of four specific conventions 
between the United States and certain foreign countries (16 U.S.C. 
703). See 50 CFR 10.13 for the list of migratory birds protected by the 
MBTA.
    Like the previous 4(d) rule for the subspecies, this revised 4(d) 
rule adopts existing requirements under the MBTA as appropriate 
regulatory provisions for the streaked horned lark. Accordingly, under 
the revised 4(d) rule, take is not prohibited if the activity is 
authorized or exempted under the MBTA, such as activities under a 
migratory bird rehabilitation permit necessary to aid a sick, injured, 
or orphaned bird. Thus, if a permit is issued for activities resulting 
in take of streaked horned larks under the MBTA, it will not be 
necessary to have an additional permit under the Act.
    Nothing in this revised 4(d) rule will change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or the ability of 
the Service to enter into partnerships for the management and 
protection of the streaked horned lark. However, interagency 
cooperation may be further streamlined through planned programmatic 
consultations for the species between Federal agencies and the Service, 
where appropriate.

III. Required Determinations

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (42 U.S.C. 4321 et seq.) in connection with regulations adopted 
pursuant to section 4(a) of the Act. We published a notice outlining 
our reasons for this determination in the Federal Register on October 
25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We do not expect any effects on Tribes 
as a result of the promulgation of this rule.

References Cited

    A complete list of references cited in this rule is available on 
the internet at http://www.regulations.gov and upon request from the 
Oregon Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the 
Service's Species Assessment Team and the Oregon Fish and Wildlife 
Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


0
2. Amend Sec.  17.41 by revising paragraph (a) to read as follows:


Sec.  17.41  Special rules--birds.

    (a) Streaked horned lark (Eremophila alpestris strigata).
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to streaked horned

[[Page 21812]]

lark. Except as provided under paragraph (a)(2) of this section and 
Sec. Sec.  17.4 and 17.5, it is unlawful for any person subject to the 
jurisdiction of the United States to commit, to attempt to commit, to 
solicit another to commit, or cause to be committed, any of the 
following acts in regard to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife, and (c)(6) and (7) for endangered migratory birds.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Take incidental to an otherwise lawful activity caused by:
    (A) The management of hazardous wildlife at airport facilities by 
airport staff or employees contracted by the airport to perform 
hazardous wildlife management activities. Hazardous wildlife is defined 
by the Federal Aviation Administration as species of wildlife, 
including feral animals and domesticated animals not under control, 
that are associated with aircraft strike problems, are capable of 
causing structural damage to airport facilities, or act as attractants 
to other wildlife that pose a strike hazard. Routine management 
activities include, but are not limited to, the following:
    (1) Hazing of hazardous wildlife;
    (2) Habitat modification and management of sources of forage, 
water, and shelter to reduce the attractiveness of the area around the 
airport for hazardous wildlife. This exception for habitat modification 
and management includes control and management of vegetation (grass, 
weeds, shrubs, and trees) through mowing, discing, herbicide 
application, or burning; and
    (3) Routine management, repair, and maintenance of roads and 
runways (does not include upgrades or construction of new roads or 
runways).
    (B) Accidental aircraft strikes at airports on non-Federal lands.
    (C) Agricultural (farming) practices implemented on farms in 
accordance with State laws on non-Federal lands in Washington and 
Oregon.
    (1) For the purposes of this rule, farm means any facility, 
including land, buildings, watercourses and appurtenances, used in the 
commercial production of crops, nursery stock, livestock, poultry, 
livestock products, poultry products, vermiculture products, or the 
propagation and raising of nursery stock.
    (2) For the purposes of this rule, an agricultural (farming) 
practice means a mode of operation on a farm that is or may be used on 
a farm of a similar nature; is a generally accepted, reasonable, and 
prudent method for the operation of the farm to obtain a profit in 
money; is or may become a generally accepted, reasonable, and prudent 
method in conjunction with farm use; complies with applicable State 
laws; and is done in a reasonable and prudent manner. Common 
agricultural (farming) practices include, but are not limited to, the 
following activities:
    (i) Planting, harvesting, rotation, mowing, tilling, discing, 
burning, and herbicide application to crops;
    (ii) Normal transportation activities, and repair and maintenance 
of unimproved farm roads (this exception does not include improvement 
or construction of new roads) and graveled margins of rural roads;
    (iii) Livestock grazing according to normally acceptable and 
established levels;
    (iv) Hazing of geese or predators; and
    (v) Maintenance of irrigation and drainage systems.
    (D) Removal or other management of noxious weeds. Routine removal 
or other management of noxious weeds are limited to the following, and 
must be conducted in such a way that impacts to non-target plants are 
avoided to the maximum extent practicable:
    (1) Mowing;
    (2) Herbicide and fungicide application;
    (3) Fumigation; and
    (4) Burning.
    (E) Habitat restoration actions. Habitat restoration and 
enhancement activities for the conservation of streaked horned lark may 
include activities consistent with formal approved conservation plans 
or strategies, such as Federal, Tribal, or State plans that include 
streaked horned lark conservation prescriptions or compliance, which 
the Service has determined (on a case-by-case basis) would be 
consistent with this rule.
    (v) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) through (d)(4).
* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-07920 Filed 4-12-22; 8:45 am]
BILLING CODE 4333-15-P