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Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations We have not used this information Jorgensen 2009, entire; Farnsworth et al. 2017, entire to discount or diminish the importance of natural riverine habitats to the tern or the ecosystem, but rather as supporting evidence of the resiliency of the Interior least tern relative to its ability to adapt to and exploit some anthropogenic changes to its habitats. Natural and anthropogenic habitats in both the Platte and Missouri Rivers continue to be important components of the greater Interior least tern metapopulation.
3 Comment: In their critique of the use of Farnsworth et al. 2017, entire and Jorgensen 2009, entire, one peer reviewer and a nongovernmental organization stated that the Service did not consider the role of metapopulation dynamics in the use of anthropogenic habitats by Interior least terns in the Platte River. They noted that off-river anthropogenic habitats such as sand and gravel mines may not be sustainable and evolving mining practices may reduce the amount and quality of such habitats in the future.
Our Response: Under Habitat Criteria and elsewhere in the proposed delisting rule 84 FR 56977; October 24, 2019
and this final rule, the Service discusses the role and importance of metapopulation dynamics in the current and future distribution and resilience of the Interior least tern. We find the information presented in the referenced studies is important to understanding the role of past and future habitat conditions in the Platte and Missouri Rivers to the metapopulation dynamics of the Interior least tern.
Metapopulation dynamics allow species to exploit habitats that may change rapidly in abundance and/or quality and aid the re-establishment of extirpated populations. Both natural and anthropogenic least tern nesting habitats can be transitional in availability or quality. Some breeding colonies or subpopulation segments have declined or relocated due to localized stressors e.g., predation, disturbance, regional stressors e.g., droughts, floods, habitat changes e.g., vegetation encroachment, reservoir management, mine closures, or their cumulative effects Kirsch and Sidle 1999, p. 475; Service 2013, pp. 1327.
Resulting variations in tern colony locations, sizes, or subpopulation densities are a characteristic of metapopulation dynamics, and such declines have been offset by increases in other colonies or population segments Lott and Sheppard 2017a, pp. 5052.
While future changes in mining practices within the Platte River drainage may affect their use by Interior
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least terns, metapopulation dynamics allow the birds to find and use other suitable habitats within or outside of the drainage for nesting.
4 Comment: One peer reviewer and a nongovernmental organization commented that the Service failed to reference or acknowledge changes to the Migratory Bird Treaty Act MBTA
directed by the M-Opinion and encouraged the Service to evaluate the consequences relative to the Interior least tern.
Our Response: After the publication of our October 24, 2019, proposed delisting rule, the Service published a proposed rule to adopt a regulation that defines the scope of the MBTA as it applies to conduct resulting in the injury or death of migratory birds protected by the MBTA 85 FR 5915;
February 3, 2020. This proposed regulation, if made final, will define the scope of the MBTAs prohibitions to reach only actions directed at migratory birds, their nests, or their eggs, and take that is incidental to otherwise lawful activities would no longer be prohibited. This position is consistent with the Solicitors Opinion M37050, The Migratory Bird Treaty Act Does Not Prohibit Incidental Take, issued December 22, 2017. We have reviewed this information and have evaluated the potential effects of these proposed changes on the Interior least tern. Our analysis is presented above under Existing Regulatory Mechanisms. In summary, incidental take is not currently a primary threat to the rangewide status of the Interior least tern, but there is the potential that with removal of the protections of the Act and these proposed regulatory changes defining the scope of the MBTA, incidental take may increase in some nesting areas. However, as described above, should the proposed changes be adopted, BMPs and SOPs to avoid incidental take of the tern will continue to be implemented across more than 90
percent of the species range e.g., USACE 2013, entire; 2016, entire; 2017, entire; see Habitat Criteria, above.
Therefore, the adoption of proposed regulatory changes to limit the scope of the take provisions of the MBTA are not likely to affect management commitments currently in place, which are expected to continue following delisting of the Interior least tern.
5 Comment: Both peer reviewers, along with the States of Oklahoma and Colorado, a nongovernmental conservation agency, and several other public commenters stated that the duration of PDM plan is inadequate and recommended modifying the duration to include monitoring every third year for
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a period of 15 years. They noted that the Interior least tern may have a lifespan of 15 to 20 years; therefore, limiting PDM
to 5 years may not be sufficient to track population fluctuations after delisting.
Our Response: Following delisting, the Act requires us to effectively implement a monitoring system for a minimum of 5 years in cooperation with the States that are within the range of the Interior least tern. To fulfill the PDM
requirement, we developed a draft PDM
plan for the Interior least tern and coordinated review of the plan with the State agencies, USACE Districts and Divisions, other Federal agencies, and various nongovernmental organizations.
We acknowledge that sustaining PDM
efforts can be challenging and subject to competing priorities for available resources. Nonetheless, we designed the draft PDM plan that was realistic given limited resources. However, given the comments we received on the duration of the draft PDM plan, we will continue to work with our conservation partners to ensure development and implementation of an effective, final PDM plan, with an appropriate duration, for the Interior least tern.
While section 4g1 of the Act requires us to implement a system in cooperation with the States to effectively monitor the status of any species that have been recovered and removed from the Lists, it does not require the development of a formal PDM plan prior to removing the species from the List, or at any point. The Service and States have wide latitude in implementation of this provision. In the absence of a final PDM plan, monitoring, with surveys continuing in 2021, is expected to continue for more than 80 percent of the Interior least tern population due to management commitments by the USACE and the States. However, we generally desire to follow a written planning document to provide for the effective implementation of section 4g, and we intend to do so here. We will notify the public of the final PDM plan on our website, https
www.fws.gov/mississippiES/, after coordination with our partners and when it becomes available.
6 Comment: One peer reviewer expressed concern that the potential of increased frequency and duration of flooding due to climate change was not addressed in the PDM plan. This peer reviewer also believes that there should be a mechanism in the plan for the Service to intervene if there are continued or recurrent flooding events.
Our Response: The purpose of PDM is to track the post-delisting status of the Interior least tern to ensure that it remains secure from risk of extinction
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