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* * * * * date. We must receive requests for modification, or curtailment of its Dated: September 20, 2018. public hearings, in writing, at the habitat or range; (B) overutilization for FOR FURTHER James W. Kurth, address shown in commercial, recreational, scientific, or INFORMATION CONTACT by November 23, educational purposes; (C) disease or Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the 2018. predation; (D) the inadequacy of Director, U.S. Fish and Wildlife Service. ADDRESSES: You may submit comments existing regulatory mechanisms; or (E) other natural or manmade factors [FR Doc. 2018–21797 Filed 10–5–18; 8:45 am] by one of the following methods: (1) Electronically: Go to the Federal affecting its continued existence. We BILLING CODE 4333–15–P eRulemaking Portal: http:// have determined that habitat loss and www.regulations.gov. In the Search box, destruction, sea level rise and tidal DEPARTMENT OF THE INTERIOR enter FWS–R4–ES–2018–0057, which is flooding, incompatible land the docket number for this rulemaking. management, and increasing storm Fish and Wildlife Service Then, click the Search button. On the intensity and frequency are the primary resulting page, in the Search panel on threats to this subspecies. 50 CFR Part 17 the left side of the screen, under the Peer review. We prepared a species Document Type heading, click on the status assessment report (SSA report) for [Docket No. FWS–R4–ES–2018–0057; the eastern black rail. The SSA report 4500030113] Proposed Rule box to locate this document. You may submit a comment represents a compilation and RIN 1018–BD21 by clicking on ‘‘Comment Now!’’ assessment of the best scientific and (2) By hard copy: Submit by U.S. mail commercial information available Endangered and Threatened Wildlife or hand-delivery to: Public Comments concerning the status of the eastern and Plants; 12-Month Petition Finding Processing, Attn: FWS–R4–ES–2018– black rail, including the past, present, and Threatened Species Status for 0057, U.S. Fish and Wildlife Service, and future factors influencing the Eastern Black Rail With a Section 4(d) MS: BPHC, 5275 Leesburg Pike, Falls subspecies (Service 2018, entire). We Rule Church, VA 22041–3803. solicited independent peer review of the AGENCY: Fish and Wildlife Service, We request that you send comments SSA report by 10 individuals with Interior. only by the methods described above. expertise in rail biology and ecology and We will post all comments on http:// in species modeling; we received ACTION: Proposed rule. www.regulations.gov. This generally comments from 5 of the 10 reviewers. SUMMARY: We, the U.S. Fish and means that we will post any personal The reviewers were generally Wildlife Service (Service), announce a information you provide us (see Public supportive of our approach and made 12-month petition finding on a petition Comments, below, for more suggestions and comments that to list the eastern black rail (Laterallus information). strengthened our analysis. The SSA jamaicensis jamaicensis) as an FOR FURTHER INFORMATION CONTACT: Tom report and other materials relating to endangered or threatened species under McCoy, Field Supervisor, South this proposal can be found at http:// the Endangered Species Act of 1973 Carolina Ecological Services Field www.regulations.gov under Docket No. (Act), as amended. After review of the Office, 176 Croghan Spur Road, Suite FWS–R4–ES–2018–0057. best available scientific and commercial 200, Charleston, SC 29407; telephone Information Requested information, we find that listing the 843–727–4707; facsimile 843–300–0204. eastern black rail is warranted. Persons who use a telecommunications Public Comments Accordingly, we propose to list the device for the deaf (TDD) may call the We intend that any final action eastern black rail, a bird subspecies that Federal Relay Service at 800–877–8339. resulting from this proposed rule will be occurs in as many as 35 States, the SUPPLEMENTARY INFORMATION: based on the best scientific and District of Columbia, Puerto Rico, and commercial data available and be as several countries in the Caribbean and Executive Summary accurate and as effective as possible. Central America, as a threatened species Why we need to publish a rule. Under Therefore, we request comments or under the Act. If we finalize this rule as the Act, if we determine that a species information from other concerned proposed, it would extend the Act’s is an endangered or threatened species governmental agencies, Native protections to this subspecies and, throughout all or a significant portion of American tribes, the scientific accordingly, add this subspecies to the its range, we are required to promptly community, industry, or any other List of Endangered and Threatened publish a proposal in the Federal interested parties concerning this Wildlife. We also propose a rule under Register and make a determination on proposed rule. We particularly seek the authority of section 4(d) of the Act our proposal within 1 year. Listing a comments concerning: that provides measures that are species as an endangered or threatened (1) The eastern black rail’s biology, necessary and advisable to provide for species can only be completed by range, and population trends, including: the conservation of the eastern black issuing a rule. (a) Biological or ecological rail. We have determined that This rule proposes to list the eastern requirements of the subspecies, designation of critical habitat for the black rail (Laterallus jamaicensis including habitat requirements for eastern black rail is not prudent at this jamaicensis) as a threatened species and feeding, breeding, and sheltering; time, but we are seeking public to provide measures under section 4(d) (b) Genetics and taxonomy; comment on that determination. of the Act that are tailored to our current (c) Historical and current range, DATES: We will accept comments understanding of the conservation needs including distribution patterns; received or postmarked on or before of the eastern black rail. (d) Historical and current population December 10, 2018. Comments The basis for our action. Under the levels, and current and projected trends; submitted electronically using the Act, we may determine that a species is and Federal eRulemaking Portal (see an endangered or threatened species (e) Past and ongoing conservation ADDRESSES, below) must be received by based on any of five factors: (A) The measures for the subspecies, its habitat, 11:59 p.m. Eastern Time on the closing present or threatened destruction, or both.

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(2) Factors that may affect the Please include sufficient information assumptions, and analyses. In continued existence of the subspecies, with your submission (such as scientific accordance with our joint policy on peer which may include habitat modification journal articles or other publications) to review published in the Federal or destruction, overutilization, disease, allow us to verify any scientific or Register on July 1, 1994 (59 FR 34270), predation, the inadequacy of existing commercial information you include. we sought the expert opinions of 10 regulatory mechanisms, or other natural Please note that submissions merely appropriate and independent specialists or manmade factors. stating support for or opposition to the with expertise in eastern black rail (3) Biological, commercial trade, or action under consideration without ecology and modeling regarding the other relevant data concerning any providing supporting information, SSA report (Service 2018, entire) that threats (or lack thereof) to the eastern although noted, will not be considered supports this proposed rule. We black rail and existing regulations that in making a determination, as section received comments from 5 of the 10 may be addressing those threats. 4(b)(1)(A) of the Act directs that peer reviewers. determinations as to whether any (4) Additional information concerning Previous Federal Action the historical and current status, range, species is an endangered or threatened distribution, and population size of the species must be made ‘‘solely on the In April 2010, the Center for eastern black rail, including the basis of the best scientific and Biological Diversity (CBD) petitioned locations of any additional populations commercial data available.’’ the Service to list 404 aquatic, riparian, of this subspecies. You may submit your comments and and wetland species from the (5) The reasons why areas should or materials concerning this proposed rule southeastern United States under the should not be designated as critical by one of the methods listed in Act. The eastern black rail was among these 404 species. On September 27, habitat as provided by section 4 of the ADDRESSES. We request that you send 2011, the Service published a 90-day Act (16 U.S.C. 1531 et seq.), including comments only by the methods finding that the petition presented the possible risks or benefits of described in ADDRESSES. substantial scientific or commercial designating critical habitat, including If you submit information via http:// information indicating that listing may risks associated with publication of www.regulations.gov, your entire be warranted for 374 species, including maps designating any area on which submission—including any personal the eastern black rail (76 FR 59836). On this subspecies may be located, now or identifying information—will be posted September 13, 2012, CBD filed a in the future, as critical habitat. We on the website. If your submission is complaint against the Service for failure specifically request information on the made via a hardcopy that includes to complete a 12-month finding for the threats of taking or other human personal identifying information, you eastern black rail. On April 25, 2013, the activity, particularly by birders, on the may request at the top of your document Service entered into a settlement eastern black rail and its habitat, and the that we withhold this information from agreement with CBD to resolve the extent to which designation might public review. However, we cannot complaint; the court approved the increase those threats, as well as the guarantee that we will be able to do so. agreement on April 26, 2013. The possible benefits of critical habitat We will post all hardcopy submissions agreement specified that a 12-month designation to the eastern black rail. on http://www.regulations.gov. Comments and materials we receive, finding for the eastern black rail would (6) Whether the measures outlined in as well as supporting documentation we be delivered to the Federal Register by the proposed section 4(d) rule are used in preparing this proposed rule, September 30, 2018. This document necessary and advisable for the will be available for public inspection serves as our 12-month finding on the conservation and management of the on http://www.regulations.gov, or by April 2010 petition. eastern black rail. We particularly seek appointment, during normal business comments concerning: Background hours, at the U.S. Fish and Wildlife (a) Whether the provision related to Service, South Carolina Ecological A thorough review of the taxonomy, the prescribed burn activities should be Services Field Office (see FOR FURTHER life history, and ecology of the eastern revised to include additional spatial or INFORMATION CONTACT). black rail is presented in the SSA report temporal restrictions or deferments, or (Service 2018, entire). additional best management practices; Public Hearing Taxonomy and Species Description (b) Whether the provision related to Section 4(b)(5) of the Act provides for the haying, mowing, and mechanical a public hearing on this proposal, if The eastern black rail is a subspecies treatment activities should be revised to requested. We must receive requests of black rail, which is a member of the include additional spatial or temporal within 45 days after the date of family Rallidae (rails, gallinules, and restrictions or deferments; publication of this proposed rule in the coots) in the order Gruiformes (rails, (c) Whether the provision related to Federal Register (see DATES, above). cranes, and allies; American the grazing activities should be revised Such requests must be sent to the Ornithologists’ Union, 1998, p. 130). to include spatial or temporal address shown in FOR FURTHER The eastern black rail is one of four restrictions or deferments. We also seek INFORMATION CONTACT. We will schedule recognized subspecies of black rail. The comment on the level of grazing density a public hearing on this proposal, if California black rail (Laterallus that is compatible with eastern black requested, and announce the date, time, jamaicensis coturniculus) is the only rail occupancy; and and place of that hearing, as well as how other subspecies that occurs in North (d) Whether there are additional to obtain reasonable accommodations, America; its range does not overlap with provisions the Service may wish to in the Federal Register and local the eastern black rail Taylor and van consider for the section 4(d) rule in newspapers at least 15 days before the Perlo 1998, p. 221; Clements et al. 2016, order to conserve, recover, and manage hearing. unpaginated). The Birds of North the eastern black rail, such as America and Avibase both currently limitations on road construction and Peer Review recognize the eastern black rail as a other infrastructure or construction The purpose of peer review is to valid subspecies (Eddleman et al. 1994, activities, moist soil management, or ensure that our listing determination is unpaginated; Avibase 2003, structural marsh management activities. based on scientifically sound data, unpaginated). We have no information

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to suggest there is scientific iii, 62–63; Eddleman, Flores, and Legare approximately 90 percent of disagreement about the eastern black 1994, unpaginated). We recognize that documented breeding-season rail’s taxonomy; therefore, we accept there is latitudinal variability of these occurrence records occurred at coastal that the eastern black rail is a valid life-history events across the range of locations (Watts 2016, p. 117). Inland taxon. the eastern black rail. The subspecies’ records accounted for less than 10 The black rail is the smallest rail in lifespan is not known. percent of total occurrences, and more North America. Males and females are The nature of migration for the than 60 percent of the inland records similar in size, and adults are generally eastern black rail is poorly understood. occurred before 1950 (Watts 2016, p. pale to blackish gray, with a small Preliminary results suggest there are two 117). The eastern black rail has been blackish bill and bright red eyes. The populations of eastern black rail in the reported to occur throughout the eastern black rail is larger (mean south-central United States: A migratory Caribbean and Central America, and it mass=35 grams) but has less brightly population breeding in Colorado and has been hypothesized that some birds colored plumage than the California Kansas, and wintering in Texas; and a may migrate from the coastal United black rail (mean mass = 29 grams) non-migratory population living in States to the Caribbean in the winter; (Eddleman et al. 1994, unpaginated). Texas year-round (Butler 2017, pers. however, the subspecies’ distribution is comm.). Additionally, it is suspected The eastern black rail has four life poorly understood (Taylor and van that the northern U.S. Atlantic coast Perlo 1998, pp. 221–222). There have stages: egg, chick, juvenile, and adult; population migrates and winters on the we discuss specifics of each of these life been very few reports of eastern black southern Atlantic coast (e.g., the rails in recent years from the Caribbean stages in detail in our SSA report Carolinas and Florida) and also in the (Service 2018, pp. 8–12). Eastern black and Central America. It is not certain Caribbean and Central America whether this is due to lack of survey rail egg laying and incubation primarily (Eddleman, Flores, and Legare 1994, occur from May to August, with some effort, loss of habitat, predation, or a unpaginated; Taylor and van Perlo, combination of these. early nesting in March and April (Watts 1998, pp. 221–222). 2016, pp. 10–11; A. Moore and J. Wilson See the figure, below, for a 2018, unpublished data). The chick Distribution distribution map for the eastern black stage occurs from May through The eastern black rail occupies rail. This figure shows the current areas September. The juvenile stage begins portions of the eastern United States where black rails are found year-round when a chick has fledged and is (east of the Rocky Mountains), Mexico, and in the spring and summer. Shaded independent from the parents. Eastern Central America, and the Caribbean. countries and U.S. States are those that black rails reach the sexually mature Individuals that are presumed to be the may have detections of eastern black adult life stage the spring after hatch eastern black rail have also been rails; however, detections in these year. Adults undergo a complete reported on occasion in Brazil. In the countries or U.S. States may be few in postbreeding molt each year between United States, eastern black rails are number and the bird may not be July and September on the breeding found in both coastal and inland areas, detected regularly, i.e., it may be grounds (Pyle 2008, p. 477; Hand 2017b, but the majority of detections are from considered a vagrant or accidental p. 15). During that time, individuals coastal sites. In a recent assessment of migrant in these areas. The individual simultaneously lose all of their wing 23 States that comprise the primary area detections in Central America, the flight feathers and tail flight feathers, of the subspecies’ range within the Caribbean, and Brazil occurred from and are unable to fly for approximately contiguous United States (i.e., along the 2011 to present. 3 weeks (Flores and Eddleman 1991, pp. Atlantic and Gulf Coasts), BILLING CODE 4333–15–P

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BILLING CODE 4333–15–C Conway 2015, p. 292). Eastern black 362; Legare and Eddleman 2001, pp. Habitat rails require dense vegetative cover that 173–174). However, when shrub allows movement underneath the densities become too high, the habitat Eastern black rails are found in a canopy. Plant structure is considered becomes less suitable for eastern black variety of salt, brackish, and freshwater more important than plant species rails. Soils are moist to saturated marsh habitats that can be tidally or composition in predicting habitat (occasionally dry) and interspersed with non-tidally influenced. Within these suitability for the subspecies (Flores and or adjacent to very shallow water (1 to habitats, the birds occupy relatively Eddleman 1995, pp. 357, 362). 6 centimeters) (Legare and Eddleman high elevations along heavily vegetated Occupied habitat tends to be primarily 2001, pp. 173, 175). Eastern black rails wetland gradients, with soils that are composed of fine-stemmed emergent forage on a variety of small (<1 moist or flooded to a shallow depth plants (rushes, grasses, and sedges) with centimeter (cm) (0.39 inches (in))) (Eddleman, Knopf, Meanley, Reid, and high stem densities and dense canopy aquatic and terrestrial invertebrates, Zembal 1988, p. 463; Nadeau and cover (Flores and Eddleman 1995, p. especially insects, and seeds (e.g.,

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Typha, Scirpus, Spartina spp.) by (for example, hurricanes). In general, the Coastal Plain, Mid-Atlantic Coastal gleaning or pecking at individual items more redundant and resilient a species Plain, Great Plains, and Southwest (Eddleman, Flores, and Legare 1994, is and the more representation it has, Coastal Plain) to have very low unpaginated; Ehrlich, Dobkin, and the more likely it is to sustain occupancy probabilities ranging from Wheye 1988, p. 102). populations over time, even under 0.099 to 0.25. The results also indicated changing environmental conditions. fairly high site extinction probabilities Species Needs Using these principles, we identified the with accompanying low site persistence. The eastern black rail is a wetland eastern black rail’s ecological To assess representation, we used two dependent subspecies. While it can be requirements for survival and metrics to estimate and predict found in salt, brackish, and freshwater reproduction at the individual, representative units that reflect the marshes that are tidally or non-tidally population, and subspecies levels, and subspecies’ adaptive capacity: Habitat influenced, it has a very specific niche described the beneficial and risk factors variability and latitudinal variability. habitat. It requires dense herbaceous influencing the subspecies’ viability. The eastern black rail exhibits adaptive vegetation to provide shelter and cover We delineated analysis units for the potential by using similar habitat and areas for protected nest sites; it is eastern black rail based on elements within different wetland types not found in areas with woody environmental variables (aquifer (habitat variability) within analysis vegetation. permeability, slope, mean precipitation, units, i.e., higher elevation areas within The bird requires shallow water or mean potential evapotranspiration, and wetlands with dense vegetation, moist moist soil for its nesting sites. Ideally, percent sand in soil). We used 8,281 soils, and shallow flood depths the water level is 1 to 6 cm (0.39 to 2.36 point localities from combined datasets (Eddleman, Knopf, Meanley, Reid, and in), although less than 3 cm (1.18 in) is (i.e., eBird, Center for Conservation Zembal 1988, p. 463; Nadeau and ideal for foraging and chick rearing. Biology, University of Oklahoma, and Conway 2015, p. 292). Therefore, the Water levels must be below the nests additional research partners) from 1980 subspecies shows a level of adaptive during egg laying and incubation for through 2017, to delineate the analysis capacity by using different wetland nests to be successful. Eastern black units for the eastern black rail. We types that contain the required habitat rails require elevated refugia with dense named the analysis units using standard elements. Additionally, we used the cover to survive high water events, topographic and ecological landmarks: metric of latitudinal variability to reflect because juvenile and adult black rails New England, Mid-Atlantic Coastal the eastern black rail’s wide range prefer to walk and run rather than fly Plain, Appalachians, Southeast Coastal across the contiguous United States. To and chicks are unable to fly. Eastern Plain, Southwest Coastal Plain, Central maintain existing adaptive capacity, it is black rails fly little during the breeding Lowlands, and Great Plains. Based on important to have resilient populations and wintering seasons—they prefer to available data, we have concluded that (analysis units) that exhibit habitat remain on the ground, running quickly the New England, Appalachians, and variability and latitudinal variability to through dense vegetation—and are Central Lowlands analysis units are maintain adaptive capacity. considered secretive because of this effectively extirpated. While these three To assess redundancy, we evaluated behavior. Having higher elevation areas analysis units historically did not the current distribution of eastern black with dense vegetation allows the birds support abundances of the eastern black rail analysis units through their present- to escape flood events during the rail as high as the other four analysis day spatial locations. To have high flightless molt period, and provides units, an evaluation of the current status redundancy, the eastern black rail shelter from predators. information, including the paucity of would need to have multiple resilient analysis units spread throughout its Summary of Biological Status and current records, negative survey results, range. Threats and the demonstrated range contraction throughout these areas, supports our Current Condition of Eastern Black Rail We completed a comprehensive conclusion that the eastern black rail is assessment of the biological status of the effectively extirpated from these Historically, the eastern black rail eastern black rail, and prepared a report analysis units. The remaining four ranged across the eastern, central, and of the assessment (SSA report; Service analysis units, the Mid-Atlantic Coastal southern United States; historical 2018, entire), which provides a Plain, Southeast Coastal Plain, records also exist from the Caribbean thorough account of the subspecies’ Southwest Coastal Plain, and Great and Central America. It occupied overall viability. Below, we summarize Plains, have records of current multiple areas of wetlands (including the key results and conclusions of the populations of eastern black rails. salt marshes, coastal prairies, and hay SSA report, which can be viewed under To assess resiliency, we analyzed fields) throughout the range; Docket No. FWS–R4–ES–2018–0057 at occupancy within the analysis units approximately 90 percent of http://www.regulations.gov. through the creation of a dynamic documented breeding-season To assess eastern black rail viability, occupancy model. We used data from occurrence records occurred at coastal we used the three conservation biology repeated presence/absence surveys locations and less than 10 percent were principles of resiliency, representation, across the range of the eastern black rail inland records, with more than 60 and redundancy (together, ‘‘the three to estimate the probability of presence at percent of the inland records occurring Rs,’’ (3Rs)) (Shaffer and Stein 2000, pp. a site and related the occupancy before 1950 (Watts 2016, entire). The 306–310). Briefly, resiliency refers to the probability to environmental covariates eastern black rail also occupied multiple ability of a species to withstand of interest (wettest month precipitation, areas of wetlands within each analysis environmental and demographic temperature range, annual mean unit. Within the northeastern United stochasticity (for example, wet or dry temperature, coldest month mean States, historical (1836–2010) records years); representation refers to the temperature, presence/absence of fire document the eastern black rail as ability of the species to adapt over time ants, and State identification). The present during breeding months from to long-term changes in the environment lower the occupancy probability in an Virginia to Massachusetts, with 70 (for example, climate change); and analysis unit, the less resiliency that percent of historical observations (773 redundancy refers to the ability of the analysis unit exhibits. We found the records) in Maryland, Delaware, and species to withstand catastrophic events four extant analysis units (Southeast New Jersey (Watts 2016, p. 22).

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Maryland, Delaware, and New Jersey are and there are currently few detections of Carolina shows a limited distribution, considered historical strongholds for eastern black rails across this unit. with two known occupied areas (Wiest eastern black rail in this region of the Moreover, the current detections are not 2018, pers. comm.) and an estimated 50 United States (the Northeast) as well as consistent from year to year even when to 100 breeding pairs, leaving Texas and across the subspecies’ entire breeding habitat remains suitable. For example, Florida as the current strongholds for range (Watts 2016, p. 22), due to the Indiana Department of Natural the Southeast. At the time of the 2016 total number and frequency of Resources surveys for eastern black rails coastal assessment, it was surmised that observations reported over time. at multiple sites from 2010–2016 coastal Georgia may support a breeding Virginia, New York, and Connecticut yielded one detection at a single site population of unknown size (Watts account for an additional 21 percent of previously known to support eastern 2016, pp. 93–95); however, a coastwide the historical records (235 records) from black rails (Gillett 2017, unpublished survey in 2017 at 409 survey points in the Northeast (Watts 2016, p. 22). data). Georgia yielded no detections of eastern Recent (2011–2016) records from the In the Chesapeake Bay region, the black rails (B. Watts and F. Smith 2017, Northeast are low in number (64 distribution of eastern black rail has unpublished data). In short, across the records), with almost all records contracted, and the counts of birds have Atlantic and Gulf Coasts, recent restricted to outer coastal habitats declined. A series of systematic surveys observations show poor presence inland (Watts 2016, pp. 22, 24). The for eastern black rails has been and a widespread reduction in the distribution of the recent records points conducted around the Chesapeake Bay number of sites used across coastal toward a substantial southward since the early 1990s (Watts 2016, pp. habitats (Watts 2016, p. 79). contraction in the subspecies’ range of 59, 67). Surveys estimated 140 The history of the subspecies’ approximately 450 kilometers (280 individuals in the 1990–1992 survey distribution in the interior continental miles), with vacated historical sites from period, decreasing to 24 individuals in United States is poorly known. 33 counties extending from the 2007, and only 8 individuals in 2014, a Historical literature indicates that a Newbury marshes in Massachusetts to decline of over 90 percent in less than wide range of interior States were Ocean County, New Jersey (Watts 2016, 25 years (Watts 2016, p. 59; D. Brinker, occupied by the eastern black rail, either pp. 24, 119). Further, the distribution of unpublished data). Of 328 points regularly or as vagrants (Smith-Patten the recent records has become patchy surveyed in Virginia in 2007, 15 birds and Patten 2012, entire). Eastern black along the Atlantic coast, and an were detected; a second round of rails are currently vagrants (casual or evaluation of the records within the 15 surveys in 2014 yielded two detections accidental) in Arkansas, Illinois, counties still currently occupied at 135 survey points (including all Indiana, Iowa, Michigan, Minnesota, suggests an almost full collapse of the survey points with positive occurrences Missouri, Nebraska, New Mexico, Ohio, eastern black rail population in the in the 2007 survey effort), equating to an South Dakota, and Wisconsin (Smith- Northeast (Watts 2016, p. 24). 85 percent decline over 7 years (Watts Patten and Patten 2012, entire). 2016, pp. 67, 71; Wilson et al. 2015, p. Presently, eastern black rails are reliably While the Appalachians and Central 3). located within the Arkansas River Lowlands analysis units supported less Historically, the eastern black rail was Valley of Colorado (presumed breeder in habitat for eastern black rails compared also present during breeding months at the State), and in southcentral Kansas in to the more coastal analysis units, inland and coastal locations throughout Stafford, Finney, Franklin, Barton, and interior occurrences were more common southeastern coastal States (the Riley Counties (confirmed breeder in historically. Current population Southeast), a region that included North the State) (Butler, Tibbits, and Hucks estimates for States with a large area Carolina, South Carolina, Georgia, 2014, p. 20; Smith-Patten and Patten occurring within the boundaries of the Florida, Tennessee, Mississippi, 2012, pp. 9, 17). In Colorado, the Appalachians analysis unit are Alabama, Louisiana, and Texas (Watts subspecies is encountered in spring and effectively zero (Watts 2016, p. 19). 2016, pp. 75–76). Of these States, Texas, summer at Fort Lyon Wildlife Area, Within that unit, an estimated 0 to 5 Florida, South Carolina, and North Bent’s Old Fort, Oxbow State Wildlife breeding pairs currently occur in Carolina contained 89 percent of all Area, Bristol (Prowers County), and Pennsylvania, and no breeding pairs are historical observations (734 records) John Martin Reservoir State Park thought to occur in New York or West (Watts 2016, p. 77). The other States (Smith-Patten and Patten 2012, p. 10). In Virginia (Watts 2016, p. 19). Birds (Georgia, Tennessee, Mississippi, Kansas, eastern black rails are regularly previously detected in the Appalachians Alabama, and Louisiana) either do not present during the breeding months at analysis unit were found in small have a history of supporting eastern Quivira National Wildlife Refuge (NWR) depressional wetlands within active black rails consistently or are and Cheyenne Bottoms Wildlife Area pastures; other freshwater wetlands considered to be on the peripheries of (Smith-Patten and Patten 2012, p. 17), dominated by cattails, rushes, or sedges; known breeding areas (Watts 2016, p. and at Cheyenne Bottoms Preserve and drainage ditches (Watts 2016, pp. 77). Recently, there have been 108 during wet years when habitat 48, 74). While these wetland types still records of eastern black rails during the conditions are suitable (Penner 2017, exist within the analysis unit and may breeding season, and at a coarse view, pers. comm.). In Oklahoma, occurrence support individuals or a very low- the same four southeastern States that mapping suggests that this subspecies density, scattered population (Watts substantially supported the subspecies had at a maximum a patchy historical 2016, pp. 48, 74), a substantial amount historically still support the subspecies distribution throughout the State. of this kind of habitat has been lost (Watts 2016, pp. 77, 79). However, Eastern black rail analysis units primarily due to the draining of North Carolina shows a severe decline currently have low to no resiliency in freshwater wetlands for agricultural in the number of occupied sites, with the contiguous United States (Service purposes. These estimates likely hold only four properties occupied in 2014– 2018, pp. 79–82). The Great Plains, true for the interior portions of the other 2015, down from nine in 1992–1993 Southwest Coastal Plain, and Southeast States within the Appalachians analysis (Watts 2016, p. 80). Additional surveys Coastal Plain analysis units have low unit (based on few current detections). in 2017 yielded no new occupied sites resiliency based on the dynamic Similar losses of habitat have occurred in coastal North Carolina (B. Watts and occupancy model results, which in the Central Lowlands analysis unit, F. Smith 2017, unpublished data). South indicate very low occupancy

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probabilities in each modeled analysis has effectively been lost to the localized impacts, they are not the unit: 0.25 in the Southwest Coastal subspecies. Therefore, even though the primary drivers of the status of the Plain, 0.13 in the Great Plains, and eastern black rail still occurs at varying subspecies, and so we do not discuss 0.099 in the Southeast Coastal Plain. latitudes, we conclude that the them in detail in this document. We The Mid-Atlantic Coastal Plain analysis subspecies currently has reduced also reviewed the conservation efforts unit currently exhibits very low representation across its range. being undertaken for the subspecies. No resiliency for the eastern black rail. It Despite having a wide distribution, existing regulatory mechanisms supports fewer birds and has fewer the eastern black rail currently has low adequately address these threats to the occupied habitat patches than the redundancy across its range. With the eastern black rail such that it does not Southeast Coastal Plain analysis unit. loss of three analysis units in upper warrant listing under the Act (Factor D). latitudes of the range, the subspecies The remaining three analysis units, New Habitat Fragmentation and Conversion England, Appalachians, and Central has reduced ability to withstand Lowlands, currently demonstrate no catastrophic events, such as hurricanes The eastern black rail is a wetland- resiliency. These three units historically and tropical storms, which could impact dependent bird requiring dense did not support abundances of the the lower latitudinal analysis units. emergent cover and extremely shallow eastern black rail as high as the other Given the lack of habitat connectivity, water depths (less than 6 cm) over a four analysis units. There are currently and patchy and localized distribution, it portion of the wetland-upland interface insufficient detections to model these would be difficult for the subspecies to to support its resource needs. units; recent detections (2011 to recover from a catastrophic event in one Grasslands and their associated present) are fewer than 20 birds for each or more analysis units. palustrine (freshwater) and estuarine wetland habitats have experienced analysis unit. An evaluation of current Risk Factors for Eastern Black Rail status information yields that eastern significant loss and conversion since The Act directs us to determine black rails are effectively extirpated European settlement (Bryer, Maybury, whether any species is an endangered from portions of the New England, Adams, and Grossman 2000, p. 232; species or a threatened species because Appalachians, and Central Lowlands Noss, LaRoe, III, and Scott 1995, pp. 57– of any factors affecting its continued analysis units that were once occupied. 76, 80–84; Hannah, Carr, and Lankerani existence. Under section 4(a)(1) of the Lastly, resiliency is unknown for the 1995, pp. 137, 151). Approximately 50 Act, we may list a species based on (A) Central America and Caribbean portion percent (greater than 100 million acres) The present or threatened destruction, of the wetlands in the conterminous of the eastern black rail’s range. modification, or curtailment of its United States have been lost over the However, the sparsity of historical and habitat or range; (B) overutilization for past 200 years; the primary cause of this current records, including nest records, commercial, recreational, scientific, or loss was conversion for agricultural indicates that resiliency outside of the educational purposes; (C) disease or purposes (Dahl T. E. 1990, p. 9). contiguous United States is likely low. predation; (D) the inadequacy of Wetland losses for the States within the All recent sightings in Central America existing regulatory mechanisms; or (E) eastern black rail’s historical range have and the Caribbean have been of adult other natural or manmade factors been from 9 percent to 90 percent, with eastern black rails; there are no reports affecting its continued existence. a mean of 52 percent (Dahl T. E. 1990, of nests, chicks, or juveniles. We reviewed the potential risk factors p. 6). Similarly, most of the native To assess current representation, we (i.e., threats or stressors) that are grassland/prairie habitats associated evaluated both habitat variability and affecting the eastern black rail now and with eastern black rail habitat have been latitudinal variability. When into the future. In this proposed rule, we lost since European settlement considering habitat variability, we will discuss in detail only those threats (Sampson and Knopf 1994, pp. 418– determined the eastern black rail has a that we conclude are driving the status 421). level of adaptive potential by using and future viability of the species. The The eastern black rail also uses the similar habitats elements (i.e., higher primary threats to eastern black rail are: transition zone (ecotone) between elevation areas within wetlands with (1) Habitat fragmentation and emergent wetlands and upland dense vegetation, moist soils, and conversion, resulting in the loss of grasslands. These transitional areas are shallow flood depth) within different wetland habitats across the range critical to eastern black rails, as they wetland types within analysis units. (Factor A); (2) sea level rise and tidal provide refugia during high-water However, there may be unknown factors flooding (Factors A and E); (3) events caused by precipitation or tidal that influence and affect the eastern incompatible land management flooding. These habitat types have also black rail’s use of wetland habitat, as practices (i.e., fire management, grazing, experienced significant declines over not all apparently suitable wetland and haying/mowing) (Factors A and E); time (Sampson and Knopf 1994, pp. habitat is currently occupied. While the and (4) stochastic events (e.g., extreme 418–421), with many areas within the New England, Appalachians, and flooding, hurricanes) (Factor E). Human eastern black rail’s historical range Central Lowlands analysis units have disturbance, such as birders using losing over 90 percent of their prairie experienced wetland habitat loss and playback calls of black rail vocalizations habitat. Most of this loss can be fragmentation, wetland habitats (Factor B), is also a concern for the attributed to agricultural conversion continue to be present on the landscape. species. Additional stressors to the (Sampson and Knopf 1994, pp. 419– However, the eastern black rail is not species (including oil and chemical 420). Many of the freshwater wetlands being found in these three analysis spills and environmental contaminants associated with these grasslands were units. Historically, the eastern black rail (Factor E); disease, specifically West emergent and ephemeral in nature, and had a wide distribution and exhibited Nile virus (Factor C); and altered food would have supported eastern black latitudinal variability. However, as webs resulting from invasive species rails. For example, in Texas, between discussed above, three of the analysis (fire ants, feral pigs, mongoose, and the 1950s and 1990s, 235,000 acres, or units (New England, Appalachians, and exotic reptiles) introductions (Factor C)) 29 percent, of freshwater wetlands Central Lowlands) are effectively are discussed in the SSA report (Service within Gulf coastal prairie were extirpated, and, therefore, this 2018, entire). However, although these converted primarily to agriculture. This latitudinal variability (higher latitudes) additional stressors may be having value does not include the numbers of

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upland prairie acres that were also including causing wetland loss and tidal wetlands. Vegetated wetland converted (Moulton, Dahl, and Dahl (McGuire 2014, entire; Juracek 2015, habitats used by the eastern black rail 1997, entire). entire; Juracek and Eng 2017, entire; can be converted to unvegetated open Despite regulatory efforts to minimize Juracek, Eng, Carlisle, and Wolock 2017, water or mudflats through drowning of the loss of wetland habitats, losses and entire; Perkin et al. 2017, entire). vegetation or erosion from increased alterations continue to occur to habitats Human modifications to the wave energy. Locations with higher occupied by the eastern black rail. environment have led to significant subsidence rates can experience Marshes continue to face substantial changes in vegetation. Some of these increased tidal flooding sooner than impacts from dikes, impoundments, modifications include water areas with lower subsidence rates. The canals, altered freshwater inflows, withdrawals and the construction of effect of increased tidal flooding will erosion, relative sea level rise, tidal levees, drainage canals, and dams. change black rail habitat over time (i.e., barriers, tropical storm events, and other Changes to native vegetation can result marsh migration) but can have direct natural and human-induced factors in changes to the structure of the habitat impacts on black rail reproduction (Adam 2002, entire; Turner 1990, entire; (e.g., conversion from emergent to when flooding occurs during the Kennish 2001, entire; Gedan et al. 2009, scrub-shrub wetlands, wetland into breeding season. entire; Tiner 2003, p. 513). Estuarine upland habitat, or vice-versa), as well as Extensive drainage features have been emergent wetland losses are mostly the introduction of invasive plant created or modified in the United States, attributable to conversion to open water species (e.g., Phragmites australis; primarily to reduce flooding to protect through erosion (Dahl and Stedman Crain, Gedan, and Dionne 2009, p. 157). agricultural land or infrastructure. 2013, p. 37), while freshwater emergent Given the narrow habitat preferences of These include excavation of drainage wetland losses appear to be the result of the eastern black rail (i.e., very shallow ditches, channelization of rivers and development (Dahl and Stedman 2013, water and dense emergent vegetation), streams, construction of levees and p. 35). Because the rail is a wetland- small changes in the plant community berms, tidal restrictions, and diversions dependent subspecies, the loss and can easily result in habitat that is not of waterways. Extensive areas of Florida alteration of palustrine and estuarine suitable for the subspecies. were channelized in an effort to drain wetlands and associated grassland Subsidence (lowering of the earth’s wetlands in the early 1900s (Renken et habitats have a negative impact. surface) is caused by the withdrawal of al. 2005, pp. 37–56). Most, if not all, of Within the range of the eastern black liquids from below the ground’s surface, the coastal plain in Texas contains rail, land use in the United States has which relieves supporting hydraulic existing drainage features that were affected and continues to affect pressure of liquids by the long-term either created or modified to reduce groundwater and surface water compression of unconsolidated, flooding of agricultural lands and resources (Johnston 1997, entire; geologically deposited sediments, or by associated communities. These features McGuire 2014, pp. 1–2, 7, 9; Juracek and other geologic processes (Day et al. can reduce or eliminate the hydroperiod Eng 2017, pp. 1, 11–16; Barfield 2016, 2011, p. 645; Karegar, Dixon, and to sustain associated wetlands by pp. 2–4). The conversion of wetland Engelhart 2016, p. 3129; White and removing water rapidly off the habitat, largely for agricultural use, was Tremblay 1995, entire). Localized landscape (Blann, Anderson, Sands, and mentioned above. However, habitat subsidence can occur with groundwater Vondracek 2009, pp. 919–924). In conversion and land use directly and withdrawals where withdrawal rates are glaciated geographies such as the indirectly affect water resources, largely greater than the aquifer recharge rates Midwest, drain tiles and other methods tied to the interaction of groundwater (White and Tremblay 1995, pp. 794– have been used to drain wetlands to and surface water resources (Glazer and 804; Morton, Bernier, and Barras 2006, improve conditions for agricultural Likens 2012, entire; Sophocleous 2002, p. 271) or where liquids associated with production (Blann, Anderson, Sands, entire; Tiner R. W. 2003, p. 495; U.S. hydrocarbon extraction have caused the and Vondracek 2009, pp. 911–915). Geological Survey (USGS) 2016a, lowering of ground elevations (Morton, Approximately 90 percent of the salt unpaginated; Konikow L. F. 2015, Bernier, and Barras 2006, p. 263). On marshes on the northeast United States entire). the Atlantic coast, an area of rapid coast have been ditched to control Where groundwater resources are subsidence exists between Virginia and mosquitoes (Bourn and Cottam 1950, p. hydraulically connected to surface South Carolina, where the rate of 15; Crain, Gedan, and Dionne 2009, pp. water resources, these connections can subsidence has doubled due to 159–161). Ditching increases the area of either be unconfined (water table) or increased groundwater withdrawals the marsh that is inundated as well as confined (springs) aquifers. In (Karegar, Dixon, and Engelhart 2016, pp. drained (Crain, Gedan, and Dionne unconfined aquifers, locations can 3131–3132). An extreme example of 2009, p. 160; Daiber 1986, in Crain et al. support surface features such as subsidence in the United States is along 2009, p. 160). wetlands or riparian habitats where the Gulf of Mexico coast, where both Levees have been constructed in groundwater is located near the land subsurface liquid withdrawal and flood-prone areas to minimize damage surface (Haag and Lee 2010, pp. 16–19, sediment consolidation have significant to crops and local communities. Levees 21–24). Lowering of groundwater influence on coastal wetland habitats can modify the duration, intensity, and through withdrawals via wells or (Turner 1990, pp. 93–94, 96, 98; Morton, frequencies of hydroperiods associated ditches can cause wetlands to shrink or Bernier, and Barras 2006, entire; White with riparian and tidal wetlands and become dry. Withdrawals of confined and Tremblay 1995, pp. 795–804). thus change the nature and quality of aquifers can lead to the drying of Subsidence combined with sea level rise wetland habitat, including that used by springs and associated wetland habitats is referred to as relative sea level rise, marsh-dependent species (Kennish (Weber and Perry 2006, p. 1255; Metz and the Gulf of Mexico has the highest 2001, p. 734; Adam 2002, p. 46; Walker, 2011, p. 2). In the central and relative sea level rise rates in the Coleman, Roberts, and Tye 1987, pp. southcentral United States, high conterminous United States, leading to 197–198; Bryant and Chabreck 1998, p. groundwater use, largely attributed to significant losses in wetland habitats 421; Kuhn, Mendelssohn, and Reed cropland irrigation and other human (NOAA 2018, unpaginated). 1999, p. 624). They also facilitate the activities, may affect the long-term Subsidence can affect the eastern movement patterns of mesopredators sustainability of water resources, black rail and its habitat in both fresh and improve their access to wetland

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habitats (Frey and Conover 2006, pp. flooding is increasing, along the Atlantic and 3d in Crosby et al. 2016, p. 97); both 1115–1118). Navigation channels and and Gulf Coasts (Sweet et al. 2017, p. of these areas are part of the range of the their management have had extensive 23). Storm surges from tropical storms eastern black rail. impacts to tidal wetlands (e.g., in will travel farther inland. Sea level rise will reduce the Louisiana). These channels can modify Along the Texas Gulf Coast, relative availability of suitable habitat for the the vegetation community of associated sea level rise is twice as large as the eastern black rail and overwhelm wetlands and can increase the frequency global average (Reidmiller et al. 2018, p. habitat persistence. Sea level rise and its of extreme high tide or high flow events 969). Over the past 100 years, local sea effects (e.g., increased flooding and by providing a more direct connection level rise has been between 12.7 to 43.2 inundation, salt water intrusion) may to the influencing water body (Turner cm (5 to 17 in), resulting in an average affect the persistence of coastal or 1990, pp. 97–98; Kennish 2001, pp. loss of 73 hectares (180 acres) of wetland plant species that provide 734–737; Bass and Turner 1997, pp. coastline per year, and future sea level habitat for the eastern black rail (Morris, 901–902). Tidal restrictions, such as rise is projected to be higher than the Sundareshwar, Nietch, Kjerfve, and water control structures, bridges, and global average (Reidmiller et al. 2018, p. Cahoon 2002, p. 2876; Warren and culverts built for the purposes of flood 972; Runkle et al. 2017b, p. 4). In South Niering 1993, p. 96). Increased high tide protection, restricting salt water Carolina, sea level has risen by 3.3 cm flooding from sea level rise, as well as intrusion, and modification of (1.3 in) per decade, nearly double the the increase in the intensity and vegetation, have also affected coastal global average, and the number of tidal frequency of flooding events, will salt marshes. flood days has increased (Runkle et al. further impact habitat and directly All of these alterations to drainage 2017c, p. 4). Projected sea level rise for impact eastern black rails through nest affect the hydrology, sediment and South Carolina is higher than the global destruction and egg loss (Sweet et al. nutrient transport, and salinities of average, with some projections 2017, pp. 35–44). wetland habitats used by the eastern indicating sea level rise of 1.2 m (3.9 ft) black rail, which in turn affect the by 2100 (Runkle et al. 2017c, p. 4). The Land Management Practices (Fire habitat’s composition and structure. number of tidal flood days are projected Management, Haying and Mowing, and These changes can lead to instability in to increase and are large under both Grazing) the duration and intensity of high and low emissions scenarios Fire Management hydroperiods, affect associated (Runkle et al. 2017c, p. 4). Similarly, in vegetation communities, and impact the Florida, sea level rise has resulted in an Fire suppression has been detrimental ability of marsh habitats to adapt to increased number of tidal flooding days, to habitats used by the eastern black rail changing conditions. This ultimately which are projected to increase into the by allowing encroachment of woody affects the ability of the habitat to future (Runkle et al. 2017a, p. 4). plants. Without fire or alternate support populations of the eastern black Even with sea level rise, some tidal surrogate methods of disturbing woody rail, by exposing eastern black rails to wetlands may persist at slightly higher vegetation such as mowing, the amount unsuitable water regimes or converted elevations (i.e., ‘‘in place’’) for a few of preferred habitat for eastern black habitats. decades, depending on whether plant rails is expected to decrease in some primary productivity and soil accretion regions, such as coastal Texas (Grace et Sea Level Rise and Tidal Flooding (which involves multiple factors such as al. 2005, p. 39). Therefore, prescribed Representative concentration plant growth and decomposition rates, (controlled) fire can maintain habitat for pathways (RCPs) are the current set of build-up of organic matter, and this subspecies at the desired seral stage scenarios used for generating deposition of sediment) can keep pace (intermediate stages of ecological projections of climate change; for with the rate of sea level rise, thus succession). further discussion, please see the SSA avoiding ‘‘drowning’’ (Kirwan, While fire is needed for the report (Service 2018, entire). Recent Temmerman, Skeehan, Guntenspergen, maintenance of seral stages for multiple studies project global mean sea level and Fagherazzi 2016, entire). Under all rail species, the timing and frequency of rise to occur within the range of 0.35 to future projections, however, the rate of the burns, as well as the specific 0.95 meters (m) (1.14 to 3.11 feet (ft)) for sea level rise increases over time (Sweet, vegetation types targeted, can lead to RCP 4.5, and within the range of 0.5 to Horton, Kopp, LeGrande, and Romanou undesirable effects on rail habitats in 1.3 m (1.64 to 4.27 ft) for RCP 8.5, by 2017, pp. 342–345). A global analysis some cases (Eddleman et al. 1988, pp. 2100 (Sweet et al. 2017, p. 13). The found that in many locations salt marsh 464–465). Burning salt marshes during Northeast Atlantic and western Gulf of elevation change did not keep pace with drought or while the marshes are not Mexico coasts are projected to have sea level rise in the last century and flooded can result in root damage to amplified relative sea level rise greater even less so in the past two decades, valuable cover plants (Nyman and than the global average under almost all and concluded that the rate of sea level Chabreck 1995, p. 138). Controlled future sea level rise scenarios through rise in most areas will overwhelm the burning of peat, or accumulated organic 2100 (Sweet et al. 2017, p. 43). capacity of salt marshes to persist litter, when marshes are dry has Sea level rise will amplify coastal (Crosby et al. 2016, entire). Under this resulted in marsh conversion to open flooding associated with both high tide analysis, based on RCP 4.5 and RCP 8.5 water due to the loss of peat soils. floods and storm surge (Buchanan, scenarios and assuming continuation of Variations in soil type supporting the Oppenheimer, and Kopp 2017, p. 6). the average rate of current accretion, same plant species may lead to differing High tide flooding currently has a projected marsh drowning along the recovery times post-burn, and therefore negative impact on coastal ecosystems Atlantic coast at late century (2081– potentially unanticipated delays in the and annual occurrences of high tide 2100) ranges from about 75 to 90 recovery of black rail habitat (McAtee, flooding have increased five- to ten-fold percent (Crosby et al. 2016, p. 96, figure Scifres, and Drawe 1979, p. 375). since the 1960s (Reidmiller et al. 2018, 2). The accretion balance (reported Simply shifting the season of burn may p. 728). In addition, extreme coastal accretion rate minus local sea level rise) alter plant species dominance and the flood events are projected to increase in is negative for all analyzed sites in the associated structure available to the frequency and duration, and the annual Louisiana Gulf Coast and for all but one eastern black rail, as is seen with spring number of days impacted by nuisance site in the mid-Atlantic area (figures 3c fire conversion of chairmaker’s bulrush

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(Schoenoplectus americanus) to salt following year (Kane 2011, pp. 31–33). also have direct negative effects on meadow cordgrass (Spartina patens) Further, haying or mowing timed to eastern black rails by livestock (Nyman and Chabreck 1995, p. 135). avoid sensitive stages of the life cycle disturbing nesting birds or even Prescribed fire that occurs during (nesting and molt period) would be less trampling birds and nests (Eddleman, critical time periods for the subspecies detrimental to eastern black rails (Kane Knopf, Meanley, Reid, and Zembal (i.e., mating, egg-laying and incubation, 2011, p. 33). Mowing during the spring 1988, p. 463). Heavy disturbance from parental care, and flightless molt) leads or summer will disrupt reproductive grazing can also lead to a decline in to mortality of eggs, chicks, juveniles, efforts of migratory birds. Eastern black eastern black rail habitat quality. and molting birds. Fall and winter burns rails reproduce from approximately Stochastic Events (Extreme Weather are more likely to avoid reproductive mid-March through August, and Events) season impacts (Nyman and Chabreck mowing during this time period disturbs 1995, p. 138). eastern black rail adults and can Extreme weather effects, such as Fire pattern can have profound effects potentially crush eggs and chicks. As storms associated with frontal on birds. Controlled burns can result in with fire, when mowing is alternated to boundaries or tropical disturbances, can indirect rail mortality, as avian allow areas of unmown habitat at all also directly affect eastern black rail predators attracted to smoke are able to times, the site can continue to support survival and reproduction, and can capture rails escaping these fires (Grace cover-dependent wildlife. result in direct mortality. Tropical et al. 2005, p. 6). Because eastern black storms and hurricanes are projected to rails typically prefer concealment rather Grazing increase in intensity and precipitation than flight to escape threats, the birds Cattle grazing occurs on public and rates along the North Atlantic coast and may attempt to escape to areas not private lands throughout the range of Gulf Coast (Kossin et al. 2017, pp. 259– affected by fire, such as wetter areas or the eastern black rail. Because eastern 260; Bender et al. 2010, p. 458). The adjacent areas not under immediate black rails occupy drier areas in frequency of Category 4 and 5 tropical threat. Ring, expansive, or rapidly wetlands and require dense cover, these storms is predicted to increase despite moving fires are therefore not conducive birds are believed to be more an overall decrease in the number of to rail survival (Grace et al. 2005, p. 9; susceptible to grazing impacts than disturbances (Bender et al. 2010, pp. Legare, Hill, and Cole 1998, p. 114). On other rallids (Eddleman, Knopf, 457–458). Storms of increased intensity, the other hand, controlled burns Meanley, Reid, and Zembal 1988, p. which will have stronger winds, higher designed to include unburned patches 463). Based on current knowledge of storm surge, and increased flooding, of cover may positively influence grazing and eastern black rail cause significant damage to coastal eastern black rail survival. For example, occupancy, the specific timing, habitats by destroying vegetation and burning 90 percent of a 2,400-ac marsh duration, and intensity of grazing will food sources, as well as resulting in in Florida resulted in direct mortality of result in varying impacts to the eastern direct mortality of birds. For example, at least 39 eastern black rails, whereas black rail and its habitat. Light-to- Hurricane Harvey flooded San Bernard a mosaic of unburned vegetation moderate grazing may be compatible NWR in Texas with storm surge, which patches 0.1 to 2.0 ac in size facilitated with eastern black rail occupancy under was followed by runoff flooding from eastern black rail survival during a certain conditions, while intensive or extreme rainfall. This saltmarsh, 1,600-ac controlled burn (Legare, Hill, heavy grazing is likely to have negative occupied by eastern black rails, was and Cole 1998, p. 114). Prescribed fires effects on eastern black rails and the inundated for several weeks (Woodrow that include patches of unburned quality of their habitat. It may benefit 2017, pers. comm.). Increases in storm habitat scattered throughout provide black rail habitat (or at least not be frequency, coupled with sea level rise, escape cover for wildlife, including, but detrimental) when herbaceous plant may result in increased predation not limited to, eastern black rails production is stimulated (Allen-Diaz, exposure of adults and juveniles if they (Legare, Hill, and Cole 1998, p. 114). Jackson, Bartolome, Tate, and Oates emerge from their preferred habitat of Unburned strips of vegetation bordering 2004, p. 147) and the necessary dense vegetation (Takekawa et al. 2006, the inside perimeters of burn units also overhead cover is maintained. In p. 184). Observations show predation are believed helpful as escape cover Kansas, eastern black rails were upon California black rails during high from both fire and avian predators documented in habitats receiving tides when the birds had minimal (Grace et al. 2005, p. 35). Coastal rotational grazing during the nesting vegetation cover in the flooded marsh marshes that are burned in staggered season that preserved vegetation canopy (Evens and Page 1986, p. 108). rotations to create a mosaic of different cover (Kane 2011, pp. 33–34). Black Weather extremes associated with seral stages or are burned less frequently rails occur in habitats receiving light-to- climate change can have direct effects will continue to provide cover for marsh moderate grazing (i.e., Kane 2011; on the eastern black rail, leading to species, such as the eastern black rail Richmond, Tecklin, and Beissinger reduced survival of eggs, chicks, and (Block et al. 2016, p. 16). 2012; Tolliver 2017). These results adults. Indirect effects on the eastern suggest that such grazing is an option black rail are likely to occur through a Haying and Mowing for providing disturbance, which may variety of means, including long-term Haying and mowing are used promote black rail occupancy. However, degradation of both inland and coastal throughout the range of the eastern cattle grazing at high intensities may not wetland habitats. Other indirect effects black rail. Haying and mowing maintain favor black rail occupancy, as heavy may include loss of forage base of grasslands by reducing woody grazing, or overgrazing, reduces the wetland-dependent organisms. Warmer vegetation encroachment. These wetland vegetation canopy cover and drier conditions will most likely practices can have detrimental impacts (Richmond, Chen, Risk, Tecklin, and reduce overall habitat quality for the to wildlife when used too frequently or Bessinger 2010, p. 92). eastern black rail. Because eastern black at the wrong time of year. For example, In addition to the loss of vegetation rails tolerate a narrow range of water at Quivira NWR in Kansas, haying at a cover and height (Kirby, Fessin, and levels and variation within those water frequency of once or twice per year Clambey 1986, p. 496; Yeargan 2001, p. levels, drying as a result of extended resulted in no occupancy of hayed 87; Martin J. L. 2003, p. 22; Whyte and droughts may result in habitat becoming habitats by eastern black rails during the Cain 1981, p. 66), intensive grazing may unsuitable, either on a permanent or

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temporary basis (Watts 2016, p. 120). valuable location information for disturbance and harassment of the Extreme drought or flooding conditions eastern black rails that might have subspecies. may also decrease bird fitness or otherwise gone undetected and have Synergistic Effects reproductive success by reducing the made these records publicly available availability of the invertebrate prey base (see eBird’s black rail account; eBird It is likely that several of these (Davidson L. M. 1992a, p. 129; Hands, 2017, unpaginated). stressors are acting synergistically or Drobney, and Ryan 1989, p. 5). Lower While amateur and professional additively on the subspecies. The rates of successful reproduction and birding have made important combination of multiple stressors may recruitment lead to further overall contributions to our understanding of be more harmful than a single stressor declines in population abundance and rare species like the eastern black rail, acting alone. For the eastern black rail, resiliency to withstand stochastic events some birders may be more likely to a combination of stressors result in such as extreme weather events. The pursue a sighting of a rare bird, as they habitat loss, reduced survival, reduced vulnerability of the eastern black rail to may perceive the benefits of observing productivity, and other negative impacts the effects of climate change depends on the bird to outweigh the impacts to the on the subspecies. Sea level rise, the degree to which the subspecies is bird (Bireline 2005, pp. 55–57). As a coupled with increased tidal flooding, susceptible to, and unable to cope with, result, methods may be employed to results in the loss of the high marsh adverse environmental changes due to increase the likelihood of observing a habitat required by the subspecies. Land long-term weather trends and more rare bird, including the use of vocalized management activities, such as extreme weather events. calls or audio recordings, as is the case prescribed burning, that occur in these for eastern black rails, or approaching habitats will further exacerbate impacts, Human Disturbance birds in order to get a sighting (Beans especially if conducted during sensitive Human disturbance can stress and Niles 2003, p. 96; Bireline 2005, p. life-history periods (nesting, brood- wildlife, resulting in changes in 55). These methods have the potential to rearing, or flightless molt). If these distribution, behavior, demography, and disturb nesting birds or trample nests or combined stressors occur too often population size (Gill 2007, p. 10). eggs, and may lead to increased within and across generations, they will Activities such as birding, birdwatching, predation (Beans and Niles 2003, p. 96). limit the ability of the subspecies to and hiking, have been shown to disturb With the prevalence of smartphones, maintain occupancy at habitat sites, breeding and nesting birds. Disturbance the use of playback calls has increased which would become lost or unsuitable may result in nest abandonment, as recordings of birds are readily for the subspecies and limit its ability to increased predation, and decreased available on the internet, and birding colonize other previously occupied sites reproductive success, and in behavioral websites and geographic site managers or new sites. For example, tidal marshes changes in non-breeding birds. Singing (State, Federal, or nongovernmental in Dorchester County, Maryland, in the activity of male birds declines in sites organizations) often provide guidance Chesapeake Bay (specifically the areas that experience human intrusion, on the use of playback calls (Sibley of Blackwater NWR and Elliott Island) although the response varies among 2001, unpaginated). The American served as a former stronghold for the species and level of intrusion Birding Association’s Code of Birding eastern black rail. These marshes have (Gutzwiller et al. 1994, p. 35). At the Ethics encourages limited use of and continue to experience marsh Tishomingo NWR in Oklahoma, recordings and other methods of erosion from sea level rise, prolonged recreational disturbances of migratory attracting birds, and recommends that flooding, a lack of a sufficient sediment waterbirds accounted for 87 percent of birders never use such methods in supply, and land subsidence, as well as all disturbances (followed by natural heavily birded areas or for attracting any habitat destruction from nutria (now disturbances (10 percent) and unknown species that is endangered, threatened, eradicated) and establishment of the disturbances (3 percent)) (Schummer of special concern, or rare in the local invasive common reed (Phragmites and Eddleman 2003, p. 789). area (American Birding Association australis). On Elliott Island, high Many birders strive to add rare birds 2018, unpaginated). While most birders decadal counts of eastern black rails to their ‘‘life list,’’ a list of every bird likely follow these ethical guidelines, have declined from the hundreds in the species identified within a birder’s using playback calls of eastern black rail 1950s to the single digits in recent years lifetime. Locations of rare birds are often vocalizations in attempts to elicit (one eastern black rail detected from posted online on local birding forums or responses from the birds and potentially 2012–2015, and zero in 2016) (Watts eBird, leading to an increased number of lure them into view is commonly done 2016, p. 61). people visiting the location in an outside of formal eastern black rail attempt to see or hear the bird. Due to surveys (see comments for eastern black Regulations and Conservation Efforts its rarity, the eastern black rail is highly rail detections on eBird; eBird 2017, Federal Protections sought after by birders (Beans and Niles unpaginated). Due to the rarity of the 2003, p. 96). Devoted birders may go out eastern black rail, a few cases of The Migratory Bird Treaty Act of 1918 of their way to add an eastern black rail trespassing are known from people (MBTA; 16 U.S.C. 703 et seq.) provides to their life list (McClain 2016, looking for the bird. Trespassing has specific protection for the eastern black unpaginated). The efforts of birders to been documented on private lands and rail, which is a migratory bird under the locate and identify rare birds, such as in areas on public lands specifically statute. The MBTA makes it illegal, the eastern black rail, can have both closed to the public to protect nesting unless permitted by Federal regulation, positive and negative impacts on the eastern black rails (Hand 2017, pers. ‘‘by any means or in any manner, to bird and its habitat. Birders play an comm.; Roth 2018, pers. comm.). pursue, hunt, take, capture, kill, attempt especially important role in contributing Trespassing may not only disturb the to take, capture, or kill, possess, offer for to citizen science efforts, such as the bird, but can also result in trampling of sale, sell, offer to barter, barter, offer to eBird online database, and have helped the bird’s habitat, as well as of eggs and purchase, purchase, deliver for further our understanding of species’ nests. Some State resource managers shipment, ship, export, import, cause to distributions and avian migration and researchers have expressed concern be shipped, exported, or imported, ecology in crucial ways (Sullivan et al. that releasing locations of eastern black deliver for transportation, transport or 2014, entire). Birders have provided rail detections may increase human cause to be transported, carry or cause

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to be carried, or receive for shipment, formerly listed as endangered in protection of nongame, threatened, or transportation, carriage, or export, any Connecticut, but was considered endangered species. migratory bird, [or] any part, nest, or egg extirpated during the last listing review Black rail is listed as a ‘‘species in of any such bird . . . ’’ (16 U.S.C. based on extant data and was need of conservation’’ in Kansas, which 703(a)). Through issuance of permits for subsequently delisted. Protections are requires conservation measures to scientific collecting of migratory birds, afforded to wildlife listed as either attempt to keep the species from the Service ensures that best practices endangered or threatened by a State, but becoming a State-listed endangered or are implemented for the careful capture those protections vary by State. threatened species (Kansas Department and handling of eastern black rails Although we have no information as to of Wildlife, Parks and Tourism 2018, during banding operations and other the effectiveness of these State unpaginated). Black rail also is listed as research activities. However, the regulations as they pertain to the a species of ‘‘special concern’’ in North December 22, 2017, Solicitor’s Opinion, conservation of the eastern black rail, Carolina and requires monitoring (North Opinion M–37050, concludes that one benefit of being State-listed is to Carolina Wildlife Resources Commission 2014, p. 6). The species is consistent with the text, history, and bring heightened public awareness of identified as a ‘‘species of greatest purpose of the MBTA, the statute’s the bird’s existence. prohibitions on pursuing, hunting, conservation need’’ in 19 State wildlife taking, capturing, killing, or attempting In Delaware, the importation, action plans as of 2015 (U.S. Geological to do the same apply only to direct and transportation, possession, or sale of any Survey (USGS) 2017, unpaginated). affirmative actions that have as their endangered species or parts of However, no specific conservation purpose the taking or killing of endangered species is prohibited, except measures for black rail are associated migratory birds, their nests, or their under license or permit (title 7 of the with these listings, and most are eggs. Therefore, take of an eastern black Delaware Code, sections 601–605). unlikely to address habitat alteration or rail, its chicks, or its eggs that is Illinois also prohibits the possession, sea level rise. incidental to another lawful activity take, transport, selling, and purchasing, Other Conservation Efforts does not violate the MBTA. or giving, of a listed species, and allows Furthermore, the MBTA does not incidental taking only upon approval of The Atlantic Coast Joint Venture address the major stressors affecting the a conservation plan (Illinois Compiled (ACJV) recently decided to focus efforts eastern black rail, which include habitat Statutes, chapter 520, sections 10/1–10/ on coastal marsh habitat and adopted alteration and sea level rise. Given that 11). Indiana prohibits any form of three flagship species, one being the only intentional take is prohibited possession of listed species, including eastern black rail, to direct conservation under the MBTA and the habitat-based taking, transporting, purchasing, or attention in this habitat. As part of this stressors to the black rail are not selling, except by permit (title 14 of the initiative, the ACJV Black Rail Working regulated, this law does not provide Indiana Code, article 22, chapter 34, Group has drafted population goals for sufficient substantive protections to the sections 1–16 (I.C. 14–22–34–1 through the eastern black rail and is developing habitat delivery options within the eastern black rail. 16)). Listed species may be removed, Atlantic Flyway. In addition, the ACJV Section 404 of the Clean Water Act captured, or destroyed only if the is coordinating the development of a (CWA; 33 U.S.C. 1251 et seq.) and species is causing property damage or is ‘‘saltmarsh conservation business plan.’’ section 10 of the Rivers and Harbors a danger to human health (I.C. 14–22– The business plan will identify stressors Appropriation Act of 1899 (33 U.S.C. 34–16). Similar prohibitions on the to Atlantic and Gulf Coast tidal marshes 403) are intended to protect possession of a listed species in any jurisdictional wetlands from excavation and the efforts needed to conserve these form, except by permit or license, are in habitats to maintain wildlife and filling activities. The U.S. Army effect in Maryland (Code of Maryland, Corps of Engineers, in conjunction with populations. The business plan is Natural Resources, section 10–2A–01– expected to be completed in late 2018. the U.S. Environmental Protection 09), New Jersey (title 23 of the New Agency, administers permits that The Gulf Coast Joint Venture (GCJV) Jersey Statutes, sections 2A–1 to 2A– require avoidance, minimization and has had the eastern black rail listed as 15), New York (New York’s compensation for projects affecting a priority species since 2007 (Gulf Coast Environmental Conservation Law, wetlands. Projects that cannot avoid Joint Venture 2005). As a priority article 11, title 5, section 11–0535; title impacts to wetlands must compensate species, the black rail is provided for their impacts through a restoration 6 of the New York Codes, Rules and consideration during the review of enhancement or preservation action for Regulations, chapter I, part 182, sections North American Wetland Conservation the equivalent functional loss. 182.1–182.16), and Virginia (Code of grant applications (Vermillion 2018, Mitigation banks are often used, in Virginia, title 29.1, section 29.1, sections pers. comm.). Although detailed which actions at a specific location 563–570 (29.1–563–570)). Violations of planning for the eastern black rail is not compensate for impacts in a these statutes typically are considered yet complete, the subspecies is considerably wider service area. misdemeanor, generally resulting in considered in coastal marsh habitat However, the wetland types affected are fines or forfeiture of the species or parts delivery efforts discussed by GCJV not always the same types that are of the species and the equipment used Initiative Teams. Eastern black rails are restored or enhanced, and there is to take the species. Some States also believed to benefit from a plethora of considerable uncertainty that current have provisions for nongame wildlife coastal marsh habitat delivery efforts of mitigation practices would support the and habitat preservation programs (e.g., GCJV partners, including projects presence of black rails. title 7 of the Delaware Code, sections authorized under the North American 201–204; Code of Maryland, Natural Wetland Conservation Act (16 U.S.C. State Protections Resources, section 1–705). For example, 4401 et seq.), the Coastal Wetlands The black rail is listed as endangered in Maryland, the State Chesapeake Bay Planning, Protection and Restoration under State law by seven States within and Endangered Species Fund (Code of Act (16 U.S.C. 3951 et seq.), and the the subspecies’ range: Delaware, Illinois, Maryland, Natural Resources, section 1– Service’s Coastal Program, as well as Indiana, Maryland, New Jersey, New 705) provides funds to promote the management actions on State and York, and Virginia. The species was conservation, propagation, and habitat Federal refuges and wildlife

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management areas. Eastern black rails from the National Land Cover Database Southwest Coastal Plain, and Southeast will benefit when projects conserve, (NLCD 2011) to derive an annual rate of Coastal Plain analysis units generally enhance, or restore suitable wetland change in each region, and we used exhibited a consistent downward trend habitat and when management National Oceanic and Atmospheric in the proportion of sites remaining practices, such as the timing of Administration (NOAA) climate change occupied after the first approximately prescribed burns and brush-clearing and sea level rise projections to estimate 25 years for all scenarios. Given that activities, are compatible with the life probable coastal marsh habitat loss most of the predicted declines in eastern history of the subspecies. rates; storm surge was not modeled black rail occupancy were driven by In November 2016, the Texas Parks directly (Sweet et al., 2017, p. entire; habitat loss rates, and future projections and Wildlife Department, in partnership Parris, et al., 2012, p. entire). In the of habitat loss are expected to continue with the Texas Comptroller’s Office, Great Plains analysis unit, we used and be exacerbated by sea level rise or initiated the Texas Black Rail Working ground water loss rates, instead of sea groundwater loss, resiliency of the four Group (Shackelford 2018, pers. comm.). level rise data, to represent permanent remaining analysis units is expected to The main purpose of the group is to habitat loss in the region. The overall decline further. We expect all eastern provide a forum for collaboration groundwater depletion rate was based black rail analysis units to have no between researchers and stakeholders to on the average over 108 years (1900– resiliency by 2068, as all are likely to be share information about what is known 2008) (Konikow L.F., 2013, p. entire). extirpated by that time. We have no about the species, identify information Our five scenarios reflected differing reason to expect the resiliency of eastern needs, and support conservation actions levels of sea level rise and land black rail outside the contiguous United (see discussion under Critical Habitat, management, and the combined effects States to improve in such a manner that below). of both. These future scenarios forecast will substantially contribute to its site occupancy for the eastern black rail Future Scenarios viability within the contiguous U.S. out to 2100, with time steps at 2043 and portion of the subspecies’ range. As discussed above, we define 2068 (25 and 50 years from present, Limited historical and current data, viability as the ability of a species to respectively). Each scenario evaluates sustain populations in the wild over the response of the eastern black rail to including nest records, indicate that time. To help address uncertainty changes in three primary risks we resiliency outside of the contiguous associated with the degree and extent of identified for the subspecies: habitat United States will continue to be low potential future stressors and their loss, sea level rise, and land into the future, or decline if habitat loss impacts on the eastern black rail’s management (grazing, fire, and haying). or other threats continue to impact these needs, we applied the 3Rs using five The trends of urban development and areas. plausible future scenarios. We devised agricultural development remain the We evaluated representation by these five scenarios by identifying same, i.e., follow the current trend, for analyzing the latitudinal variability and information on the primary stressors all five scenarios. We ran 5,000 habitat variability of the eastern black anticipated to affect the subspecies into replicates of the model for each rail. Under our future scenarios, the the future: habitat loss, sea level rise, scenario. For a detailed discussion of Great Plains analysis unit is projected to groundwater loss, and incompatible the projection model methodology and be extinct within the next 15 to 25 land management practices. These the five scenarios, please refer to the years, which will result in the loss of scenarios represent a realistic range of SSA report (Service 2018, entire). that higher latitudinal representative plausible future scenarios for the eastern The model predicted declines in all unit for the subspecies. In addition, the black rail. analysis units across all five plausible three remaining analysis units (Mid- We used the results of our occupancy future scenarios. Specifically, they Atlantic Coastal Plain, Southwest model to create a dynamic site- predicted a high probability of complete Coastal Plain, and Southeast Coastal occupancy, projection model that extinction for all four analysis units Plain) are predicted to decline and reach allowed us to explore future conditions under all five scenarios by 2068. The extinction within the next 50 years. under these scenarios for the Mid- model predicted that, depending on the Thus, the subspecies’ representation Atlantic, Great Plains, Southeast Coastal scenario, the Southeast Coastal Plain will continue to decline. Plain, and Southwest Coastal Plain and Mid-Atlantic Coastal Plain analysis The eastern black rail will have very analysis units. We did not project future units would reach complete extinction limited redundancy in the future. The scenarios for the New England, between 35 and 50 years from the Great Plains analysis unit will likely be Appalachian, or Central Lowlands present; the Great Plains analysis unit extirpated in 15 to 25 years, leading to analysis units because, as discussed would reach complete extinction further reduction in redundancy and earlier in this document, we consider between 15 to 25 years from the present; resulting in only coastal populations of these analysis units to be currently and the Southwest Coastal Plain effectively extirpated and do not analysis unit would reach complete the eastern black rail remaining. Having anticipate that this will change in the extinction between 45 to 50 years from only coastal analysis units remaining future. Our projection model the present. Most predicted occupancy (and with even lower resiliency than at incorporated functions to account for declines were driven by habitat loss present) will further limit the ability of changes in habitat condition (positive rates that were input into each scenario. the eastern black rail to withstand and negative) and habitat loss over time. The model results exhibited little catastrophic events, such flooding from The habitat loss function was a simple sensitivity to changes in the habitat hurricanes and tropical storms. reduction in the total number of quality components in the simulations Please refer to the SSA report (Service possible eastern black rail sites at each for the range of values that we explored. 2018, entire) for a more detailed time step in the simulation by a For a detailed discussion of the model discussion of our evaluation of the randomly drawn percentage that was results for the five scenarios, please biological status of the eastern black specified under different scenarios to refer to the SSA report (Service 2018, rail, the influences that may affect its represent habitat loss due to entire). continued existence, and the modeling development or sea level rise. We used Under our future scenarios, the Mid- efforts undertaken to further inform our the change in ‘‘developed’’ land cover Atlantic Coastal Plain, Great Plains, analysis.

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Determination subspecies’ habitat. For example, the generations, they limit the ability of the We have carefully assessed the best impacts of Hurricane Harvey on the subspecies to maintain occupancy at scientific and commercial information Texas coastal populations of eastern habitat sites and also limit its ability to available regarding the past, present, black rail likely caused direct mortality colonize other previously occupied sites and future threats to the eastern black as well as short-term habitat loss, as the or new sites. It is likely that several of these rail. We propose to list the species as a hurricane occurred during the flightless stressors are acting synergistically on threatened species throughout its range molt period and resulted in the habitat the subspecies. Sea level changes, given the threats acting upon the being flooded for a long period of time. together with increasing peak tide subspecies currently and into the future. Human disturbance (Factor B) to the When viewing historical occurrences eastern black rail occurs throughout the events and higher peak flood events, on the State level compared to what is bird’s range and is driven by the bird’s wetland subsidence, past wetland filling known of present distribution, the range rarity and interest by the birding and wetland draining, and incompatible land management (e.g., prescribed fire contraction (from Massachusetts to New community to add this bird to and grazing), all limit the ability of the Jersey) and site abandonment (patchy individual life lists. As we consider the future risk factors eastern black rail to persist in place or coastal distribution) noted by Watts to the eastern black rail, we recognize to shift to newly lightly flooded, ‘‘just- (2016, entire) appear to be occurring that a complex interaction of factors right’’ areas as existing habitats are throughout the eastern United States. have synergistic effects on the impacted. These interacting threats all Over the past 10 to 20 years, reports subspecies as a whole. In coastal areas, conspire to limit the ability of this indicate that populations have declined sea level rise, as well as increasing subspecies to maintain and expand by 75 percent or greater. North of South storm frequency and intensity and populations now and in the foreseeable Carolina, occupancy has declined by 64 increased flood events (which are both future. percent and the number of birds associated with high tides and storms), Our estimates of future resiliency, detected has declined by 89 percent, will have both direct and indirect effects redundancy, and representation for the equating to a 9.2 percent annual rate of on the subspecies. Extensive patches of eastern black rail are further reduced decline (Watts 2016, p. 1). In relative high marsh required for breeding are from the current condition, consistent terms, regional strongholds still exist for projected to be lost or converted to low with this analysis of future threats. this subspecies; however, the best marsh as a result of sea level rise. Currently, three analysis units are available scientific data suggest that the Demand for groundwater is increasing, effectively extirpated, and four analysis remaining strongholds support a which will reduce soil moisture and units that continue to support relatively small total population size: an surface water, and thus negatively populations of the eastern black rail all estimated 1,299 individuals on the impact wetland habitat. We expect to have low levels of resiliency. Given the upper Texas coast within protected see localized subsidence, which can projected future decreases in resiliency areas prior to Hurricane Harvey, and an occur when groundwater withdrawal for these four analysis units, the eastern estimated 355 to 815 breeding pairs on rates are greater than the aquifer black rail will become more vulnerable the Atlantic Coast from New Jersey to recharge rates. Also, warmer and drier to extirpation from ongoing threats, Florida (including the Gulf Coast of conditions (associated with projected consequently resulting in concurrent Florida). There are no current drought increases) will reduce overall losses in representation and population estimates from the interior habitat quality for the eastern black rail. redundancy. The range of plausible States (Colorado, Kansas, or Oklahoma), Further, incompatible land management future scenarios of the eastern black rail although there are consistent (such as fire application and grazing) all predict extirpation for all four populations of eastern black rails at will continue to negatively impact the analysis units by mid-century (2068) Quivira NWR in Kansas and at least four subspecies throughout its range, with the Great Plain analysis unit sites in Colorado where the subspecies especially if done during the breeding blinking out within 15 to 25 years is encountered in the spring and season or flightless molt period. (depending on the scenario). In short, summer. We have no information to These stressors contribute to the our analysis of the subspecies’ current indicate that the eastern black rail is subspecies’ occupancy at sites and thus and future conditions show that the present in large numbers in the its population numbers. Some stressors population and habitat factors used to Caribbean or Central America. have already resulted in permanent or determine the resiliency, representation, Based on our review of the available long-term habitat loss, such the and redundancy for the subspecies will science, we identified the current historical conversion of habitat to continue to decline so that it is likely to threats to eastern black rail. Habitat loss agriculture, while other factors may become in danger of extinction and degradation (Factor A) as a result of only affect sites temporarily, such as a throughout its range within the sea level rise along the coast and ground fire or annually reduced precipitation. foreseeable future. and surface water withdrawals are Even local but too frequent intermittent The term foreseeable future extends having a negative impact on the eastern stressors, such as unusual high tides or only so far as the Services can black rail now and will continue to prescribed fire, can cause reproductive reasonably rely on predictions about the impact this subspecies into the future. failure or adult mortality, respectively, future in making determinations about Incompatible land management and thus reduce eastern black rail the future conservation status of the techniques (Factor E), such as the occupancy at a site and the ability of a species. Those predictions can be in the application of prescribed fire, haying, site to allow for successful reproduction form of extrapolation of population or mowing, and grazing, have negative of individuals to recolonize available threat trends, analysis of how threats impacts on the bird and its habitat, sites elsewhere. While these will affect the status of the species, or especially when conducted at sensitive intermittent stressors allow for assessment of future events that will times, such as the breeding season or recolonization at sites, recolonization is have a significant new impact on the the flightless molt period. Stochastic based on productivity at other sites species. The foreseeable future events (Factor E), such as flood events within a generational timescale for the described here, uses the best available and hurricanes, can have significant subspecies. If these stressors, combined, data and takes into account impacts on populations and the occur too often within and across considerations such as the species’ life

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history characteristics, threat projection become endangered throughout all of its information, we propose to list the timeframes, and environmental range within the foreseeable future. The eastern black rail as a threatened species variability, which may affect the eastern black rail meets the definition of in accordance with sections 3(20) and reliability of projections. We also threatened because it is facing threats 4(a)(1) of the Act. considered the time frames applicable to across its range that have led to reduced Available Conservation Measures the relevant threats and to the species’ resiliency, redundancy, and likely responses to those threats in view representation. Although the eastern Conservation measures provided to of its life history characteristics. The black rail is not in danger of extinction species listed as endangered or foreseeable future for a particular status throughout its range at present, we threatened species under the Act determination extends only so far as expect the subspecies to continue to include recognition, recovery actions, predictions about the future are reliable. decline into the future. We did not find requirements for Federal protection, and In cases where the available data that it is currently in danger of prohibitions against certain practices. allow for quantitative modelling or extinction throughout its range. Recognition through listing results in projections, the time horizon for such Although the eastern black rail has public awareness, and conservation by analyses does not necessarily dictate experienced reductions in its numbers Federal, State, Tribal, and local what constitutes the ‘‘foreseeable and seen a range contraction, this agencies; private organizations; and future’’ or set the specific threshold for subspecies is still relatively widespread. individuals. The Act encourages determining when a species may be in It continues to maintain a level of cooperation with the States and other danger of extinction. Rather, the representation in four analysis units, countries and calls for recovery actions foreseeable future can only extend as far which demonstrates continued to be carried out for listed species. The as the Service can reasonably explain latitudinal variability across its range. protection required by Federal agencies reliance on the available data to These four analysis units are spread and the prohibitions against certain formulate a reliable prediction and throughout most of the subspecies’ activities are discussed, in part, below. avoid reliance on assumption, range, providing for some level of The primary purpose of the Act is the speculation, or preconception. redundancy. Although the resiliency in conservation of endangered and Regardless of the type of data available the four currently occupied analysis threatened species and the ecosystems underlying the Service’s analysis, the units is low, Florida and Texas remain upon which they depend. The ultimate key to any analysis is a clear articulation strongholds for the subspecies in the goal of such conservation efforts is the of the facts, the rationale, and Southeast and Southwest. The current recovery of these listed species, so that conclusions regarding foreseeability. condition of the subspecies still they no longer need the protective We identify the foreseeable future for provides for resiliency, redundancy, and measures of the Act. Subsection 4(f) of the eastern black rail to be 25 to 50 years representation such that it is not at risk the Act calls for the Service to develop from the present. We consider 25 to 50 of extinction now throughout its range. and implement recovery plans for the years ‘‘foreseeable’’ in this case because Under the Act and our implementing conservation of endangered and this timeframe includes projections regulations, a species may warrant threatened species. The recovery from our modeling efforts and takes into listing if it is endangered or threatened planning process involves the account the threats acting upon the throughout all or a significant portion of identification of actions that are eastern black rail and its habitat and its range. Because we have determined necessary to halt or reverse the species’ how we consider the eastern black rail that the eastern black rail is likely to decline by addressing the threats to its will respond to these threats in the become an endangered species within survival and recovery. The goal of this future. For all five plausible scenarios, the foreseeable future throughout its process is to restore listed species to a all analysis units exhibited a consistent range, we find it unnecessary to proceed point where they are secure, self- downward trend in the proportion of to an evaluation of potentially sustaining, and functioning components sites remaining occupied after the first significant portions of the range. Where of their ecosystems. 25 years (by 2043), with extirpation for the best available information allows the Recovery planning includes the all analysis units by 2068. The Great Services to determine a status for the development of a recovery outline Plains analysis unit is predicted to be species rangewide, that determination shortly after a species is listed and extirpated by 2043. Given that future should be given conclusive weight preparation of a draft and final recovery projections of habitat loss are expected because a rangewide determination of plan. The recovery outline guides the to continue and be exacerbated by sea status more accurately reflects the immediate implementation of urgent level rise and tidal flooding, resiliency species’ degree of imperilment and recovery actions and describes the of the four remaining analysis units is better promotes the purposes of the process to be used to develop a recovery expected to decline further over the next statute. Under this reading, we should plan. Revisions of the plan may be done 25 to 50 years. first consider whether listing is to address continuing or new threats to Under the Act, the term ‘‘species’’ appropriate based on a rangewide the species, as new substantive includes any subspecies of fish or analysis and proceed to conduct a information becomes available. The wildlife or plants, and any distinct ‘‘significant portion of its range’’ recovery plan also identifies recovery population segment of any species of analysis if, and only if, a species does criteria for review of when a species vertebrate fish or wildlife which not qualify for listing as either may be ready for reclassification from interbreeds when mature. The Act endangered or threatened according to endangered to threatened defines an endangered species as any the ‘‘all’’ language. We note that the (‘‘downlisting’’) or removal from the species that is ‘‘in danger of extinction court in Desert Survivors v. Department Lists of Endangered and Threatened throughout all or a significant portion of of the Interior, No. 16–cv–01165–JCS, Wildlife and Plants (‘‘delisting’’), and its range’’ and a threatened species as 2018 WL 4053447 (N.D. Cal. Aug. 24, methods for monitoring recovery any species that ‘‘is likely to become an 2018), did not address this issue, and progress. Recovery plans also establish endangered species within the our conclusion is therefore consistent a framework for agencies to coordinate foreseeable future throughout all or a with the opinion in that case. their recovery efforts and provide significant portion of its range.’’ We find Therefore, on the basis of the best estimates of the cost of implementing that the eastern black rail is likely to available scientific and commercial recovery tasks. Recovery teams

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(composed of species experts, Federal actions with respect to any species that addition, it is unlawful to import; and State agencies, nongovernmental is proposed or listed as an endangered export; deliver, receive, carry, transport, organizations, and stakeholders) are or threatened species and with respect or ship in interstate or foreign often established to develop recovery to its critical habitat, if any is commerce in the course of commercial plans. When completed, the recovery designated. Regulations implementing activity; or sell or offer for sale in outline, draft recovery plan, and the this interagency cooperation provision interstate or foreign commerce final recovery plan will be available on of the Act are codified at 50 CFR part endangered wildlife. It is also illegal to our website (http://www.fws.gov/ 402. Section 7(a)(4) of the Act requires possess, sell, deliver, carry, transport, or endangered), or from our South Carolina Federal agencies to confer with the ship any such wildlife that has been Ecological Services Field Office (see FOR Service on any action that is likely to taken illegally. To the extent the section FURTHER INFORMATION CONTACT). jeopardize the continued existence of a 9(a)(1) prohibitions apply only to Implementation of recovery actions species proposed for listing or result in endangered species, this proposed rule generally requires the participation of a destruction or adverse modification of would apply those same prohibitions to broad range of partners, including other proposed critical habitat. If a species is the eastern black rail. Federal agencies, States, Tribes, listed subsequently, section 7(a)(2) of Instead of generally applying the same nongovernmental organizations, the Act requires Federal agencies to prohibitions to threatened wildlife that businesses, and private landowners. ensure that activities they authorize, apply to endangered wildlife, in Examples of recovery actions include fund, or carry out are not likely to accordance with section 4(d) of the Act, habitat restoration (e.g., restoration of jeopardize the continued existence of the Service may instead develop a native vegetation), research, captive the species or destroy or adversely protective regulation (‘‘4(d) rule’’) that is propagation and reintroduction, and modify its critical habitat. If a Federal specific to the conservation needs of any outreach and education. The recovery of action may affect a listed species or its threatened species. Such a regulation many listed species cannot be critical habitat, the responsible Federal would contain all of the protections accomplished solely on Federal lands agency must enter into consultation applicable to that species (50 CFR because their range may occur primarily with the Service. 17.31(c)); this may include some of the or solely on non-Federal lands. To Federal agency actions within the general prohibitions and exceptions set achieve recovery of these species eastern black rail’s habitat that may forth at 50 CFR 17.31 and 17.32, but requires cooperative conservation efforts require conference or consultation or would also include species-specific on private, State, and Tribal lands. both as described in the preceding protections that may be more or less If this species is listed, funding for paragraph include management and any restrictive than the general provisions at recovery actions will be available from other landscape-altering activities on 50 CFR 17.31. a variety of sources, including Federal Federal lands administered by the U.S. For the eastern black rail, the Service budgets, State programs, and cost share Fish and Wildlife Service and National has developed a proposed 4(d) rule that grants for non-Federal landowners, the Park Service; issuance of section 404 is tailored to the specific threats and academic community, and Clean Water Act (33 U.S.C. 1251 et seq.) conservation needs of this subspecies. nongovernmental organizations. In permits by the U.S. Army Corps of The proposed 4(d) rule contains specific addition, pursuant to section 6 of the Engineers; and construction and prohibitions and exceptions to those Act, the U.S. States and territories of maintenance of roads or highways by prohibitions. It would not remove or Alabama, Arkansas, Colorado, the Federal Highway Administration. alter in any way the consultation Connecticut, Delaware, Florida, Georgia, requirements under section 7 of the Act. Illinois, Indiana, Iowa, Kansas, Provisions of Section 4(d) of the Act Kentucky, Louisiana, Maryland, The Act and its implementing Proposed 4(d) Rule for the Eastern Black Massachusetts, Mississippi, Missouri, regulations set forth a series of general Rail Nebraska, New Hampshire, New Jersey, prohibitions and exceptions that apply Under this proposed 4(d) rule, the New York, North Carolina, Ohio, to threatened wildlife. Under section following activities would be prohibited Oklahoma, Pennsylvania, Puerto Rico, 4(d) of the Act, the Secretary of the unless otherwise noted: Rhode Island, South Carolina, Interior has the discretion to issue such Fire Management Activities Tennessee, Texas, Virginia, U.S. Virgin regulations as he deems necessary and Islands, and West Virginia would be advisable to provide for the Prescribed fire can be used to re- eligible for Federal funds to implement conservation of threatened species. The initiate succession and seral sequencing management actions that promote the Secretary also has the discretion to on public and private lands, which is protection or recovery of the eastern prohibit, by regulation with respect to important to ensure suitable habitat for black rail. Information on our grant any threatened species of fish or the eastern black rail. However, the programs that are available to aid wildlife, any act prohibited under application of prescribed fire should species recovery can be found at: http:// section 9(a)(1) of the Act. avoid burning during the nesting, brood www.fws.gov/grants. The regulations at 50 CFR 17.31(a) rearing, and flightless molt periods Although the eastern black rail is only provide that the prohibitions set forth (mid-March through September 30) proposed for listing under the Act at for endangered wildlife at 50 CFR 17.21 where eastern black rails are present. this time, please let us know if you are also apply to threatened wildlife, except Prescribed fire that takes place during interested in participating in recovery as discussed below. The regulations at critical time periods for the subspecies efforts for this subspecies. Additionally, 50 CFR 17.21, which codify the (i.e., mating, egg-laying, and incubation; we invite you to submit any new prohibitions in section 9(a)(1) of the parental care; and flightless molt) will information on this subspecies Act, make it illegal for any person lead to mortality of eggs, chicks, whenever it becomes available and any subject to the jurisdiction of the United juveniles, and molting birds. We information you may have for recovery States to take (which includes harass, recognize that there is latitudinal planning purposes (see FOR FURTHER harm, pursue, hunt, shoot, wound, kill, variability of these life-history events INFORMATION CONTACT). trap, capture, or collect; or to attempt across the range of the eastern black rail. Section 7(a) of the Act requires any of these) endangered wildlife within For example, in Texas, eastern black Federal agencies to evaluate their the United States or on the high seas. In rails begin to nest in March, whereas in

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Kansas and Colorado, nesting begins practices are used to enhance eastern where birds occur, for example wetland around May 1. Therefore, the timing of black rail habitat, when done at the areas, so that these areas may be prohibitions would coincide with when wrong time, they can impact avoided. the eastern black rail is using the habitat recruitment and survival. This provision of the proposed 4(d) for breeding and nesting, and with the Haying, mowing, and mechanical rule for haying, mowing, and flightless molt period. treatment activities in emergent mechanical treatment activities in We realize that prohibiting prescribed wetlands should be avoided during the emergent wetlands would promote fire during the months these activities nesting, brood rearing, and flightless conservation of the eastern black rail by take place may conflict with land molt periods (mid-March through prohibiting activities that would reduce management goals, for example, the use September 30) where eastern black rail survival and limit recruitment during of prescribed fire to control shrub or tree are present. We define emergent the period when breeding and flightless encroachment and improve habitat wetlands as areas where ‘‘emergent molt takes place. suitability for species such as the plants—i.e., erect, rooted, herbaceous Grazing Activities eastern black rail. However, prescribed hydrophytes, excluding mosses and fire during this period will reduce lichens—are the tallest life form with at Based on current knowledge of survival of eggs, chicks, juveniles, and least 30 percent areal coverage. This grazing and eastern black rail adults and will reduce recruitment of vegetation is present for most of the occupancy, the specific timing, individuals into the next generation. growing season in most years. These duration, and intensity of grazing will Opportunities to reach management wetlands are usually dominated by result in varying impacts to the eastern goals still remain available during a perennial plants’’ (Federal Geographic black rail and its habitat. Light-to- significant period of the year. Data Committee 2013, p. 33). For more moderate grazing may be compatible For prescribed fires outside of the information on emergent wetlands, with eastern black rail occupancy under nesting, brood rearing, and flightless please visit the Service’s National certain conditions, while intensive or molt period, best management practices Wetlands Inventory website: https:// heavy grazing is likely to have negative (BMPs) can minimize the take of eastern www.fws.gov/wetlands/. effects on eastern black rails and the black rails. Therefore, we propose to Haying, mowing, and mechanical quality of their habitat. Grazing allow prescribed burns that follow treatment activities in emergent densities should allow for the identified BMPs; this would not wetlands that take place during critical maintenance of the dense vegetative adversely affect the likelihood of time periods for the subspecies (i.e., cover required by the eastern black rail. survival of the eastern black rail in mating, egg-laying, and incubation; Intensive or heavy grazing should be occupied areas that are burned. BMPs parental care; and flightless molt) will avoided during the nesting, brood include: lead to disturbance of nesting birds; rearing, and flightless molt periods • The application of prescribed fire destruction of nests; and mortality of (mid-March through September 30) in should avoid perimeter fires, ring fires, eggs, chicks, juveniles, and adults. As emergent wetlands where eastern black or fires that have long, unbroken discussed above, we recognize that there rail are present. Intensive or heavy boundaries that prevent species is latitudinal variability of these life- grazing that takes place during critical dependent on dense cover from history events across the range of the time periods for the subspecies (i.e., escaping a fire. eastern black rail. Therefore, the timing mating, egg-laying and incubation; • Prescribed fire should be employed of prohibitions would coincide with parental care; and flightless molt) will to move slowly across a tract. Fast fires when the eastern black rail is using the lead to disturbance of nesting birds, as can cause significant mortality for habitat for breeding and nesting, and well as possible destruction of nests and eastern black rails. with the flightless molt period. mortality of eggs and chicks due to • Prescribed fire should be applied in We recognize mowing or mechanical trampling. As discussed above, we a patchy manner or with small patches treatment activities may need to be used recognize that there is latitudinal to allow eastern black rails a place of for maintenance requirements to ensure variability of these life-history events refuge. Patches can be small but safety and operational needs for existing across the range of the eastern black rail. numerous enough to support multiple infrastructure, and understand that Therefore, the timing of prohibitions eastern black rails. these maintenance activities may need would coincide with when the eastern This provision of the proposed 4(d) to take place during the nesting, black rail is using the habitat for rule for fire management activities brooding, or post-breeding molt period. breeding or nesting, and with the would promote conservation of the These include maintenance of existing flightless molt period. We propose to eastern black rail by encouraging fire breaks, roads, transmission limit this prohibition to public lands, continued management of the landscape corridors rights-of-way, and fence lines. given our knowledge of where grazing in ways that meet management needs These activities are an exception to this activities and the presence of eastern while simultaneously ensuring the prohibition. black rails overlap. continued survival of the eastern black We do not propose to prohibit Although we are not proposing to rail and providing suitable habitat. mowing, haying, or mechanical treat prohibit year-round light to moderate activities outside of the nesting, brood grazing, or intensive grazing outside of Haying, Mowing, and Other Mechanical rearing, and flightless molt time periods. the nesting season, we do recommend Treatment Activities However, we encourage land managers that land managers follow voluntary Haying and mowing can maintain to employ voluntary BMPs outside of BMPs to provide for additional grasslands by reducing woody these time periods. BMPs for haying, conservation of the eastern black rail vegetation encroachment and also for mowing, and mechanical treatment and its habitat. BMPs to avoid negative the production of forage for livestock. activities include avoidance of emergent impacts to the eastern black rail from Mechanical treatment activities include wetlands; providing untreated (i.e., grazing activities include the use of disking (using a disk harrow or other unmown or avoided) areas that provide fences to exclude grazing from emergent tool) and brush clearing (using a variety refugia for species dependent on dense wetland areas during the breeding and of tools that may be attached to a tractor cover, such as the eastern black rail; and flightless molt periods, and rotational or a stand-alone device). While these using temporary markers to identify grazing practices so that a mosaic

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pattern of cover density is present Conservation, as defined at section 3 sources of information as the basis for across fenced tracts of land. of the Act, means to use and the use of recommendations to designate critical This provision of the proposed 4(d) all methods and procedures that are habitat. rule for grazing activities would necessary to bring an endangered or Prudency Determination promote conservation of the eastern threatened species to the point at which black rail by encouraging land managers the measures provided pursuant to the Section 4(a)(3) of the Act, as to continue managing the landscape in Act are no longer necessary. Such amended, and implementing regulations ways that meet their needs while methods and procedures include, but (50 CFR 424.12), require that, to the simultaneously providing suitable are not limited to, all activities maximum extent prudent and habitat for the eastern black rail. associated with scientific resources determinable, the Secretary designate management such as research, census, critical habitat at the time the species is Other Forms of Take law enforcement, habitat acquisition determined to be endangered or Protecting the eastern black rail from and maintenance, propagation, live threatened. Our regulations (50 CFR direct forms of take, such as physical trapping, and transplantation, and, in 424.12(a)(1)) state that the designation injury or killing, whether incidental or the extraordinary case where population of critical habitat is not prudent when intentional, will help preserve and pressures within a given ecosystem one or both of the following situations recover the remaining populations of cannot be otherwise relieved, may exist: (1) The species is threatened by the subspecies. Protecting the eastern include regulated taking. taking or other human activity, and black rail from indirect forms of take, Critical habitat receives protection identification of critical habitat can be such as harm that results from habitat under section 7 of the Act through the expected to increase the degree of threat degradation, will likewise help preserve requirement that Federal agencies to the species, or (2) such designation of the subspecies’ populations and also ensure, in consultation with the Service, critical habitat would not be beneficial decrease synergistic, negative effects that any action they authorize, fund, or to the species. from other stressors impeding recovery carry out is not likely to result in the Increased Degree of Threat to the of the subspecies. We propose to extend destruction or adverse modification of Eastern Black Rail the Act’s section 9(a)(1)(A), 9(a)(1)(D), critical habitat. The designation of Designation of critical habitat requires 9(a)(1)(E), and 9(a)(1)(F) prohibitions to critical habitat does not affect land the publication of maps and a narrative the eastern black rail throughout its ownership or establish a refuge, description of specific critical habitat range. wilderness, reserve, preserve, or other areas in the Federal Register. We are We may issue permits to carry out conservation area. Such designation concerned that designation of critical otherwise prohibited activities does not allow the government or public habitat would more widely announce involving threatened wildlife under to access private lands. Such the exact location of eastern black rails certain circumstances. Regulations designation does not require (and highly suitable habitat) to governing permits are codified at 50 implementation of restoration, recovery, overzealous birders and further facilitate CFR 17.32. With regard to threatened or enhancement measures by non- disturbance. As discussed above, the wildlife, a permit may be issued for the Federal landowners. Where a landowner requests Federal agency funding or eastern black rail is highly sought after following purposes: for scientific by the birding community due to its purposes, to enhance propagation or authorization for an action that may affect a listed species or critical habitat, rarity. We anticipate that listing the survival, for economic hardship, for eastern black rail under the Act will zoological exhibition, for educational the consultation requirements of section 7(a)(2) of the Act would apply, but even further interest in this bird and increase purposes, for incidental taking, or for the likelihood that eastern black rails special purposes consistent with the in the event of a destruction or adverse modification finding, the obligation of will be sought out for birders’ ‘‘life lists’’ purposes of the Act. There are also and general birding trips. certain statutory exemptions from the the Federal action agency and the landowner is not to restore or recover Eastern black rails are unique in they prohibitions, which are found in are extremely secretive; they walk or sections 9 and 10 of the Act. the species, but to implement reasonable and prudent alternatives to run under dense vegetation and are Critical Habitat avoid destruction or adverse rarely seen in flight. They are generally detected by employing playback calls. Background modification of critical habitat. Section 4 of the Act requires that we As the eastern black rail is difficult to Critical habitat is defined in section 3 designate critical habitat on the basis of see, birders generally record an eastern of the Act as: the best scientific data available. black rail on their life list by (1) The specific areas within the Further, our Policy on Information documenting the bird’s call. Because the geographical area occupied by the Standards Under the Endangered eastern black rail is highly sought after, species, at the time it is listed in Species Act (published in the Federal birders will play calls repeatedly to accordance with the Act, on which are Register on July 1, 1994 (59 FR 34271)), garner a response and sometimes to lure found those physical or biological the Information Quality Act (section 515 a bird in an attempt to see the features: of the Treasury and General individual. The constant playing of a (a) Essential to the conservation of the Government Appropriations Act for call to the bird for days, if not weeks, species, and Fiscal Year 2001 (Pub. L. 106–554; H.R. at a time is a form of harassment to the (b) Which may require special 5658)), and our associated Information bird. The use of playback calls has been management considerations or Quality Guidelines, provide criteria, documented to alter the behavior of protection; and establish procedures, and provide eastern black rails, resulting in a threats (2) Specific areas outside the guidance to ensure that our decisions display that includes spreading the geographical area occupied by the are based on the best scientific data wings and charging the tape recorder species at the time it is listed, upon a available. They require our biologists, to (Taylor and Van Perlo 1998, p. 223; determination that such areas are the extent consistent with the Act and Eddleman, Flores, and Legare 1994, essential for the conservation of the with the use of the best scientific data unpaginated). The American Birding species. available, to use primary and original Association Code of Birding Ethics

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states that birders should limit the use black rail call (eBird 2018, Benefits to the Subspecies From Critical of recordings and other methods of unpaginated). On June 8, a birder noted Habitat Designation attracting birds, and never use such that about 30 people heard the eastern methods for attracting listed or rare black rail (eBird 2018, unpaginated). Under our regulations at 50 CFR species; however, the singular method The 2010 record is the only eastern 424.12(a)(1)(i), this finding that used to detect eastern black rails is by black rail occurrence recorded in eBird designating critical habitat is likely to playback calls (as opposed to passive for this specific coordinate location and increase the threat of disturbance to the listening) and a listing designation is demonstrates the great interest an subspecies provides a sufficient basis unlikely to abate this disturbance. eastern black rail generates among the for making a not-prudent finding. As The eastern black rail is highly birding community. demonstrated by the use of the word vulnerable to disturbance, especially To minimize harmful disturbances, ‘‘or’’ in 50 CFR 424(a) between during the brooding and nesting season. eBird identifies a list of birds it subsections (1)(i) and (1)(ii), the Birders attempting to see or hear the considers ‘‘sensitive species.’’ This list regulations do not require that we also bird by using vocalized calls or is developed in collaboration with determine that designating critical recordings has the potential to disturb partners to identify birds for which habitat would not be beneficial to the nesting birds and to trample nests or demonstrable harm, such as targeted subspecies. eggs, and may lead to increased capture, targeted hunting, or targeted predation (Beans and Niles 2003, p. 96). disturbance of nests or individual birds Summary We believe that the threat of disturbance from birders or photographers, may Based on the above discussion, we will be exacerbated by the publication occur from publicly posting location preliminarily conclude that the of maps and descriptions outlining the records. In most cases, these birds designation of critical habitat is not specific locations of this secretive bird identified as ‘‘sensitive species’’ are prudent, in accordance with 50 CFR in the Federal Register and local species that have been listed by a local 424.12(a)(1), because the eastern black newspapers. entity or that appear on the rail and its habitat face a threat by Identification and publication of International Union for Conservation of overzealous birders, and designation critical habitat may also increase the Nature (IUCN) Red List. These birds can reasonably be expected to increase likelihood of inadvertent or purposeful have a customized display in eBird that habitat destruction. As discussed above, omits checklist details, such as date and the degree of these threats to the trespassing has been documented on location, among other restrictions. subspecies and its habitat by making private lands and in areas on public While researchers have access to this location information more readily lands specifically closed to the public to information, the general public is not available. However, we seek public protect nesting eastern black rails (Roth able to view more specific information comment on threats of taking or other 2018, pers. comm.; Hand 2017, pers. on the record. Although the eastern human activity, including the impacts comm.). Trespassing may not only black rail is not currently on eBird’s of birders to the eastern black rail and disturb the bird, but can also result in ‘‘sensitive species’’ list, given the its habitat, and the extent to which trampling of the bird’s habitat, as well increased risk of harassment to the designation might increase those as eggs and nests. State resource eastern black rail from posting location threats. managers and researchers are concerned data, we will request that it be added if Required Determinations that releasing locations of eastern black we list the subspecies. rail detections may increase human We acknowledge that general location Clarity of the Rule disturbance and harassment to the information is provided within this subspecies. Trespassing on private land proposed rule, and more-specific We are required by Executive Orders is also a concern, as it likely results in location information can be found 12866 and 12988 and by the increased harassment to the rails and to through other sources. However, we Presidential Memorandum of June 1, the private landowners who are maintain that designation of critical 1998, to write all rules in plain providing habitat to the rails (Hand habitat would more widely publicize language. This means that each rule we 2017, pers. comm.). We recognize with the potential locations of the eastern publish must: the advent of eBird that locations of rare black rail and its habitat, and lead to an (1) Be logically organized; birds, including the eastern black rail, increased threat of disturbance to the (2) Use the active voice to address are widely distributed and readily bird from birders. We believe that readers directly; available if those location data are identification and advertisement of posted to this website. Given the eastern critical habitat may exacerbate the threat (3) Use clear language rather than black rail’s rarity and near grail-like of disturbance, thus making sensitive jargon; status in the birding community, when areas more vulnerable to purposeful (4) Be divided into short sections and a location has been published on eBird, harmful impacts from humans. Certain sentences; and birders often flock to the site in large life stages, including eggs, chicks, numbers in an attempt to see or hear the nesting/brooding adults, and adults (5) Use lists and tables wherever bird. For example, in June 2010, an experiencing the flightless molt period, possible. eastern black rail was detected at the are particularly vulnerable. If you feel that we have not met these Parker River NWR in Massachusetts, Identification and publication of requirements, send us comments by one and the detection was posted on eBird detailed critical habitat information and of the methods listed in ADDRESSES. To (eBird 2018, unpaginated). On June 2, a maps would likely increase exposure of better help us revise the rule, your birder posted on eBird that he sensitive habitats and increase the comments should be as specific as assembled with a group of 34 birders to likelihood and severity of threats to both possible. For example, you should tell hear the one or two eastern black rails the subspecies and its habitat. us the numbers of the sections or at the site (eBird 2018, unpaginated). On Identification and publication of critical paragraphs that are unclearly written, June 4, another birder posted that he habitat may lead to increased attention which sections or sentences are too waited more than 2 hours with about 50 to the subspecies, or increased attempts long, the sections where you feel lists or other individuals to hear the eastern to observe or hear it. tables would be useful, etc.

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National Environmental Policy Act (42 accordance with Secretarial Order 3206 List of Subjects in 50 CFR Part 17 U.S.C. 4321 et seq.) of June 5, 1997 (American Indian Tribal Endangered and threatened species, Rights, Federal-Tribal Trust We have determined that Exports, Imports, Reporting and Responsibilities, and the Endangered environmental assessments and recordkeeping requirements, Species Act), we readily acknowledge environmental impact statements, as Transportation. our responsibilities to work directly defined under the authority of the with tribes in developing programs for Proposed Regulation Promulgation National Environmental Policy Act, healthy ecosystems, to acknowledge that Accordingly, we propose to amend need not be prepared in connection tribal lands are not subject to the same part 17, subchapter B of chapter I, title with listing a species as an endangered controls as Federal public lands, to 50 of the Code of Federal Regulations, or threatened species under the remain sensitive to Indian culture, and Endangered Species Act. We published to make information available to tribes. as set forth below: a notice outlining our reasons for this Although we have no records of the determination in the Federal Register PART 17—ENDANGERED AND eastern black rail occurring on tribal THREATENED WILDLIFE AND PLANTS on October 25, 1983 (48 FR 49244). lands, the range of the eastern black rail Government-to-Government overlaps with tribal lands. ■ 1. The authority citation for part 17 Relationship With Tribes References Cited continues to read as follows: In accordance with the President’s A complete list of references cited in Authority: 16 U.S.C. 1361–1407; 1531– memorandum of April 29, 1994 this proposed rule is available on the 1544; and 4201–4245, unless otherwise (Government-to-Government Relations internet at http://www.regulations.gov noted. with Native American Tribal and upon request from the South ■ 2. Amend § 17.11(h) by adding an Governments; 59 FR 22951), Executive Carolina Ecological Services Field entry for ‘‘Rail, eastern black’’ to the List Order 13175 (Consultation and Office (see FOR FURTHER INFORMATION of Endangered and Threatened Wildlife Coordination With Indian Tribal CONTACT). in alphabetical order under BIRDS to Governments), and the Department of read as set forth below: the Interior’s manual at 512 DM 2, we Authors readily acknowledge our responsibility The primary authors of this proposed § 17.11 Endangered and threatened to communicate meaningfully with rule are the staff members of the Species wildlife. recognized Federal Tribes on a Assessment Team, U.S. Fish and * * * * * government-to-government basis. In Wildlife Service. (h) * * *

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

*******

BIRDS

*******

Rail, eastern black ...... Laterallus jamaicensis Wherever found ...... T ...... [Federal Register citation when published as a jamaicensis. final rule]; 50 CFR 17.41(f).4d

*******

■ 3. Amend § 17.41 by adding a Examples of best management practices (A) Occurs during the nesting, paragraph (f) to read as follows: include employing slow burn fires, brooding, or post-breeding flightless limiting the block of land burned to molt period; § 17.41 Special rules—birds. ensure suitable dense cover habitat (B) Involves intensive or high-density * * * * * remains for the eastern black rail, grazing that occurs on suitable occupied (f) Eastern black rail (Laterallus employing patch or refugia techniques eastern black rail habitat; and jamaicensis jamaicensis). (1) (C) Does not support the maintenance Prohibitions. The following activities to allow for eastern black rails to survive of appropriate dense vegetation cover are prohibited: or escape fire, and avoiding the use of (i) Purposeful take of an eastern black ring fires or perimeter fires. for the eastern black rail. (v) Possession and other acts with rail, including capture, handling, or (iii) Mowing, haying, and mechanical unlawfully taken eastern black rails. It other activities. treatment activities in emergent is unlawful to possess, sell, deliver, (ii) Prescribed burn activities that wetlands that result in the incidental result in the incidental take of eastern carry, transport, or ship, by any means take of eastern black rails when the whatsoever, any eastern black rail that black rails when the activity occurs: activity occurs during the nesting, (A) During the nesting, brooding, or was taken in violation of section brooding, or post-breeding flightless post-breeding flightless molt period; or 9(a)(1)(B) and 9(a)(1)(C) of the Act or (B) Outside of the nesting, brooding, molt period, except in accordance with State laws. or post-breeding flightless molt period, paragraph (f)(2)(iii) of this section. (vi) Import and export of the eastern unless best management practices that (iv) Grazing activities on public lands black rail. minimize effects of the prescribed burn that result in the incidental take of (vii) Delivery, receipt, carry for on the eastern black rail are employed. eastern black rails when the activity: transport, or shipment in interstate or

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foreign commerce, by any means black rail pursuant to the terms of a infrastructure may include existing fire whatsoever, and in the course of a cooperative agreement with the Service breaks, roads, transmission corridor commercial activity, of any eastern in accordance with section 6(c) of the rights-of-way, and fence lines. black rail. Act, who is designated by his agency for * * * * * (viii) Sale or offer for sale in interstate such purposes, may, when acting in the or foreign commerce of any eastern course of his official duties, take eastern Dated: September 20, 2018. black rail. black rails. James W. Kurth, (2) Exceptions from prohibitions. (i) (iii) Mowing or mechanical treatment Deputy Director, U.S. Fish and Wildlife All of the provisions of § 17.32 apply to activities in emergent wetlands that: Service, Exercising the Authority of the the eastern black rail. (A) Occur during the nesting, Director, U.S. Fish and Wildlife Service. (ii) Any employee or agent of the brooding, or post-breeding flightless [FR Doc. 2018–21799 Filed 10–5–18; 8:45 am] Service, of the National Marine molt period; and Fisheries Service, or of a State (B) Are maintenance requirements to BILLING CODE 4333–15–P conservation agency that is operating a ensure safety and operational needs for conservation program for the eastern existing infrastructure. Existing

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