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Federal Register / Vol. 86, No. 8 / Wednesday, January 13, 2021 / Rules and Regulations It concluded, therefore, in the absence of protection under the Act, the MBTA
and other existing regulatory mechanisms were inadequate to prevent deterioration to habitats of the Interior least tern due to channel engineering.
As noted previously, however, the effects of channel engineering on the species may have been more beneficial than detrimental, at least in some portions of the range see Habitat Loss and Curtailment of Range, above.
The protection, restoration, conservation, and management of ecological resources within the Interior least terns range have been broadly enhanced through Executive Orders and Federal regulations since the species was listed. These include provisions emphasizing the protection and restoration of ecosystem function and quality in compliance with existing Federal environmental statutes and regulations e.g., under the National Environmental Policy Act NEPA; 42
U.S.C. 4321 et seq., Clean Water Act CWA, and MBTA and endorsing Federal efforts to advance environmental goals. Water resources authorizations have also enhanced opportunities for USACE and other Federal agency involvement in studies and projects to specifically address objectives related to the restoration of ecological resources e.g., section 1135
of the Water Resources Development Act of 1986, as amended, 33 U.S.C. 2201
et seq. since the Interior least tern was listed.
Executive Order E.O. 13186
Responsibilities of Federal Agencies to Protect Migratory Birds; 66 FR 3853, January 17, 2001 requires all Federal agencies to use their authorities and conduct their actions to promote the conservation of migratory bird populations. Actions authorized by E.O.
13186 include: 1 Avoiding and minimizing adverse impacts to migratory birds; 2 habitat restoration and enhancement, and preventing pollution or detrimental alteration of migratory bird environments; 3
designing habitat and population conservation principles, measures, and practices into agency plans and planning processes; 4 promoting research and information exchange, including inventorying and monitoring;
and 5 ensuring full consideration under NEPA of migratory birds such as the Interior least tern. These concepts have been incorporated by the USACE
into its Environmental Operating Principles Bridges et al. 2018, entire;
USACE 2019, entire, and are being implemented within the jurisdictional waters inhabited by the Interior least tern. In the absence of the Acts
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protections, E.O. 13186 and USACE
operating principles and programs will continue to provide for protection and management of the Interior least tern and its habitats see Habitat Criteria, above.
The Civil Works Ecosystem Restoration Policy of 1999 CWERP
USACE ER 11652501 identifies ecosystem restoration as one of the primary missions of the USACE Civil Works program. This policy requires a comprehensive examination of the problems contributing to ecosystem degradation, and the development of alternative means for their solution, with the intent of partially or fully reestablishing the attributes of a naturalistic, functioning, and selfregulating system.
Implementation of actions authorized under E.O. 13186 and CWERP are discretionary, and contingent upon opportunity and annual appropriations and other budgetary constraints.
However, many Federal action agencies now have an extensive history of managing and restoring Interior least tern habitats some more than two decades in compliance with nondiscretionary requirements of section 7a2 of the Act in the Missouri, Red, Arkansas, and middle Mississippi Rivers, as well as discretionary components of section 7a1 of the Act, E.O. 13186, and CWERP in the Lower Mississippi River. As a result, many conservation measures have become standard operating practices see Recovery Criteria, above.
Interior least terns are listed as endangered in 16 of the 18 States where they occur: Arkansas, Colorado, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Mexico, South Dakota, Tennessee, and Texas. Many of the States noted above actively manage Interior least terns, including seasonal posting to prevent disturbance of nesting areas e.g., Kentucky, Kansas;
facilitating cooperative partnerships to protect and manage the bird e.g., Nebraska, Indiana; developing State management plans for the Interior least tern e.g., South Dakota; Aron 2005, entire; conducting site-specific research e.g., Mississippi; and participating in multi-agency planning, management, and monitoring programs e.g., Missouri River Recovery Implementation Committee.
The removal of the species from Federal protection might prompt some States to remove the Interior least tern from their endangered species lists.
Regardless of Federal status, most State laws protect native wildlife including the Interior least tern from take and
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require State permits, in addition to Federal permits, to collect, harm, or harass migratory bird species, such as the Interior least tern.
Activities that may adversely affect the Interior least tern and/or its habitats will also continue to be subject to numerous regulatory mechanisms, including the MBTA, CWA, Fish and Wildlife Coordination Act FWCA; 16
U.S.C. 661 et seq., and NEPA. Federal actions to conserve and enhance Interior least tern habitats are now authorized by Executive Orders and Federal regulations enacted since the Interior least tern was listed in 1985.
Additionally, post-delisting habitat management commitments by USACE
encompass about 80 percent of the Interior least tern population see Recovery Criteria, above. Therefore, we conclude that the existing regulatory mechanisms are adequate to protect the Interior least tern and address stressors to this species absent protections under the Act.
Effects of Climate Change The distributions of many terrestrial organisms, including birds, are shifting in latitude or elevation in response to climate warming Chen et al. 2011, pp.
10241025. Although population declines, apparently in response to climate change effects, have been reported for long distance migrant bird species in both Europe and North America, the negative effects of climate change at one life or migratory stage may be compensated at another stage, e.g., by increased survival or reproduction on winter or breeding grounds Knudson et al. 2011, p. 9.
The ability of migratory birds to cope with rapid climate change effects depends upon the rate of their adaptive response to the changes Knudson et al.
2011, p. 12. Phenotypic plasticity i.e., the ability to shift dates of migration, breeding, fledgling, etc. may allow rapid adaptation to climate change effects in some species Charmantier et al. 2008, entire. While there is little information available on Interior least tern phenology life cycle events and how they are influenced by climate variation, their adaptations to habitats controlled by stochastic events, along with high mobility and use of anthropogenic habitats, indicate that they will be resilient to predicted effects of climate changes.
Most climate change models predict increased extreme weather events i.e., floods and droughts throughout the Interior least terns breeding range Lubchenco and Karl 2012, pp. 3336.
In the absence of clear knowledge of Interior least tern wintering
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