Proposed Rule2023-03196
Endangered and Threatened Wildlife and Plants; Establishment of a Nonessential Experimental Population of the Gray Wolf in Colorado
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Published
February 17, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to establish a nonessential experimental population (NEP) of the gray wolf (Canis lupus) in the State of Colorado, under section 10(j) of the Endangered Species Act of 1973, as amended (Act). The State of Colorado (Colorado Parks and Wildlife or CPW) requested that the Service establish an NEP in conjunction with their State-led gray wolf reintroduction effort. Establishment of this NEP would provide for allowable, legal, purposeful, and incidental taking of the gray wolf within a defined NEP area while concurrently providing for the conservation of the species. The geographic boundaries of the NEP would include the State of Colorado. The best available data indicate that reintroduction of the gray wolf into Colorado is biologically feasible and will promote the conservation of the species. We are seeking comments on this proposal and on our associated draft environmental impact statement (DEIS), prepared pursuant to the National Environmental Policy Act of 1969, as amended, which describes the potential alternatives for providing a regulatory framework for the State's reintroduction.
Full Text
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[Federal Register Volume 88, Number 33 (Friday, February 17, 2023)]
[Proposed Rules]
[Pages 10258-10280]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03196]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2022-0100; FXES11130600000-223-FF06E00000]
RIN 1018-BG79
Endangered and Threatened Wildlife and Plants; Establishment of a
Nonessential Experimental Population of the Gray Wolf in Colorado
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; availability of supplemental information.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
establish a nonessential experimental population (NEP) of the gray wolf
(Canis lupus) in the State of Colorado, under section 10(j) of the
Endangered Species Act of 1973, as amended (Act). The State of Colorado
(Colorado Parks and Wildlife or CPW) requested that the Service
establish an NEP in conjunction with their State-led gray wolf
reintroduction effort. Establishment of this NEP would provide for
allowable, legal, purposeful, and incidental taking of the gray wolf
within a defined NEP area while concurrently providing for the
conservation of the species. The geographic boundaries of the NEP would
include the State of Colorado. The best available data indicate that
reintroduction of the gray wolf into Colorado is biologically feasible
and will promote the conservation of the species. We are seeking
comments on this proposal and on our associated draft environmental
impact statement (DEIS), prepared pursuant to the National
Environmental Policy Act of 1969, as amended, which describes the
potential alternatives for providing a regulatory framework for the
State's reintroduction.
DATES: We will accept comments on this proposed rule or the DEIS that
are received or postmarked on or before April 18, 2023. Comments
submitted electronically using the Federal eRulemaking Portal (see
ADDRESSES, below) must be received by 11:59 p.m. eastern time on the
closing date.
Information Collection Requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after publication of this proposed
rule in the Federal Register. Therefore, comments should be submitted
to the Service Information Collection Clearance Officer, U.S. Fish and
Wildlife Service, (see ``Information Collection'' section below under
ADDRESSES) by April 18, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R6-ES-2022-0100,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R6-ES-2022-0100, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: This proposed rule and the
DEIS are available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R6-
ES-2022-0100 and on the Service's website at <a href="https://www.fws.gov/coloradowolf">https://www.fws.gov/coloradowolf</a>. We will also post information regarding public meetings
at this website. Hardcopies of the documents are also available for
public inspection at the address shown in FOR FURTHER INFORMATION
CONTACT. Additional supporting information that we developed for this
proposed rule will be available on the Service's website, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or both.
Information Collection Requirements: Send your comments on the
information collection request to the Service Information Collection
Clearance Officer, U.S. Fish and Wildlife Service, by email to
<a href="/cdn-cgi/l/email-protection#c980a7afa6968aa6a5a589afbebae7aea6bf"><span class="__cf_email__" data-cfemail="bdf4d3dbd2e2fed2d1d1fddbcace93dad2cb">[email protected]</span></a>; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/3W),
Falls Church, VA 22041-3803. Please reference ``OMB Control Number
1018-Gray Wolf'' in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Nicole Alt, Field Supervisor, U.S.
Fish and Wildlife Service, Colorado Ecological Services Field Office,
134 Union Boulevard, Suite 670, Lakewood, CO 80228; telephone 303-236-
4773. Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) The proposed geographic boundary of the NEP;
(2) Information pertaining to the conservation status of gray
wolves and how it relates to the proposed reintroduction and rulemaking
efforts;
(3) The adequacy of the proposed regulations for the NEP;
(4) Management flexibilities that could be added to the final rule
to address expanding gray wolf populations; and
(5) Whether to allow lethal management of gray wolves that are
[[Page 10259]]
having a significant impact to ungulate populations, similar to the
provisions in the 2005 final rule that established a northern Rocky
Mountains (NRM) gray wolf nonessential experimental population (70 FR
1286, January 6, 2005).
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Because
we will consider all comments and information we receive during the
comment period, our final determinations may differ from this proposal.
Peer Review
In accordance with our Interagency Cooperative Policy for Peer
Review in Endangered Species Act Activities, which was published on
July 1, 1994 (59 FR 34270), and the internal memorandum clarifying the
Service's interpretation and implementation of that policy (Service in
litt. 2016), we will seek the expert opinion of at least three
appropriate independent specialists regarding scientific data and
interpretations contained in this proposed rule. We will send copies of
this proposed rule to the peer reviewers immediately following
publication in the Federal Register. The purpose of such review is to
ensure that our decisions are based on scientifically sound data,
assumptions, and analysis. Accordingly, the final decision may differ
from this proposal. As noted below under Management Restrictions,
Protective Measures, and Other Special Management and Means To Identify
the Experimental Population we are considering whether to allow lethal
management in response to impacts to wild ungulate herds under specific
circumstances, and revising the NEP area if necessary. We are seeking
comments regarding both these issues.
Previous Federal Actions
Our November 3, 2020, final rule to remove the gray wolf from the
Federal List of Endangered and Threatened Wildlife in title 50 of the
Code of Federal Regulations at 50 CFR 17.11(h) provides a full summary
of our previous Federal actions for the species (85 FR 69778). Please
see that final rule for additional information and detail regarding our
previous Federal actions for the gray wolf. Although the action of
delisting gray wolves in that rule was vacated, the regulatory history
summary on pages 69779 to 69784 presents an accurate account of the
regulatory history of gray wolves under the Act. Below, we summarize
the previous Federal actions for the species that are most relevant to
this proposed action or were completed since the November 3, 2020,
final rule.
The gray wolf was originally listed as a subspecies or as regional
populations of subspecies in the lower 48 United States and Mexico.
Early listings were under legislative predecessors of the Act--the
Endangered Species Preservation Act of 1966 and the Endangered Species
Conservation Act of 1969. Later listings were under the Endangered
Species Act of 1973. In 1978, we published a rule reclassifying the
gray wolf throughout the lower 48 United States and Mexico, subsuming
the earlier listings of subspecies or regional populations of
subspecies. The 1978 reclassification was undertaken to address changes
in our understanding of gray wolf taxonomy and protect the species in
the lower 48 United States and Mexico (43 FR 9607, March 9, 1978).
Since that time, a long regulatory and legal history has resulted in
two currently listed entities of gray wolves in the United States.
These are: (1) C. lupus in Minnesota, listed as threatened, and (2) C.
lupus wherever found in 44 U.S. States (``44-State entity''), and
Mexico, listed as endangered (figure 1). In the United States, this
includes: all of Alabama, Arkansas, California, Colorado, Connecticut,
Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi,
Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North
Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island,
South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, West
Virginia, and Wisconsin; and portions of Arizona, New Mexico, Oregon,
Utah, and Washington (figure 1). On April 2, 2009, we identified the
Northern Rocky Mountains (NRM) gray wolf population as a distinct
population segment and delisted that entity (74 FR 15123). The gray
wolf is currently delisted in the NRM, which includes all of Idaho,
Montana, and Wyoming, the eastern one-third of Oregon and Washington,
and a small portion of north-central Utah (figure 1). Figure 1 does not
depict historical range; see figure 2 for historical and current
ranges.
[[Page 10260]]
[GRAPHIC] [TIFF OMITTED] TP17FE23.000
Figure 1. Current legal status of C. lupus under the Act in Minnesota,
the 44-State entity wherever found, and Mexico. The former Northern
Rocky Mountains distinct population segment (DPS) and the Mexican wolf
nonessential experimental population (NEP) are not part of the
currently listed entities. All map lines are approximations; see 50 CFR
17.84(k) for exact boundaries.
On November 3, 2020, we published the final rule to delist the two
currently listed C. lupus entities under the Act (85 FR 69778). The
rule became effective on January 4, 2021. On February 10, 2022, the
U.S. District Court for the District of Northern California vacated the
final rule, resulting in the reinstatement of the 44-State entity as
endangered and the Minnesota entity as threatened (Defenders of
Wildlife v. U.S. Fish & Wildlife Serv., No. 21-CV-00344-JSW, 2022 WL
499838 (N.D. Cal. Feb. 10, 2022)) (figure 1, above). As a result, the
gray wolf is listed as an endangered species under the Act in the State
of Colorado and all or parts of 43 additional States. The List of
Endangered and Threatened Wildlife in 50 CFR 17.11(h) does not
currently reflect this status information. However, the entries on the
List pertaining to the gray wolf will be corrected to reflect the
current status of gray wolf before any final rule to this proposed
rulemaking action is effective.
Background and Biological Information
We provide detailed background information on gray wolves in the
lower 48 United States in a separate Gray Wolf Biological Report
(Service 2020, entire) and the 2020 final rule to delist the two
currently listed C. lupus entities under the Act (85 FR 69778, November
3, 2020). Information in these documents is relevant to reintroduction
efforts for gray wolves that may be undertaken in Colorado, and it can
be found along with this rule at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in Docket
No. FWS-R6-ES-2022-0100 (see Supplemental Documents). We summarize
relevant information from these documents below.
Species Description
Gray wolves are the largest wild members of the canid (dog) family,
with adults ranging in weight from 18 to 80 kilograms (40 to 175
pounds), depending on sex and geographic locale. Gray wolves are highly
territorial, social animals that live and hunt in packs. They are well
adapted to traveling fast and far in search of food, and to catching
and eating large mammals. In North America, they are primarily
predators of medium to large mammals, including deer, elk, and other
species, and are efficient at shifting their diet to take advantage of
available food resources (Service 2020, p. 6).
Historical and Current Range
Gray wolves have a broad circumpolar range. In the lower 48 United
States, range and number of gray wolves declined significantly during
the 19th and 20th centuries primarily due to humans killing wolves
through poisoning, unregulated trapping and shooting, and government-
funded wolf extermination efforts (Service 2020, pp. 9-14). By the time
subspecies were first listed under the Act in 1974, gray wolves had
been eliminated from most of their historical range within the lower 48
United States. Outside of Alaska, wolves occurred in only two places
within the lower 48 United States. An estimated 1,000 wolves persisted
in northeastern Minnesota, and a small, isolated group of about 40
wolves occurred on Isle Royale, Michigan (Service 2020, pp. 12-14).
During the years since the species was reclassified in 1978, gray
wolves within the lower 48 United States expanded in distribution
(figure 2) and increased in number (Service 2020, p. 14). Gray wolves
within the lower 48 United States now exist primarily in two large,
stable or growing metapopulations in two separate geographic areas in
the lower 48 United States--one in the
[[Page 10261]]
western Great Lakes area of the Eastern United States and one in the
Western United States (Service 2020, p. 27). Subpopulations of gray
wolves within each of these metapopulations are well-connected as
evidenced by documented movements between States and high levels of
genetic diversity (Service 2020, p. 27). The western Great Lakes
metapopulation consists of more than 4,200 individuals broadly
distributed across the northern portions of Michigan, Minnesota, and
Wisconsin (Service 2020, p. 27). This metapopulation is also connected,
via documented dispersals, to the large and expansive population of
about 12,000-14,000 wolves in eastern Canada. As a result, gray wolves
in the Great Lakes area do not function as an isolated metapopulation
of 4,200 individuals in 3 States, but rather as part of a much larger
``Great Lakes and Eastern Canada'' metapopulation (Service 2020, pp.
27-28).
[GRAPHIC] [TIFF OMITTED] TP17FE23.001
Figure 2. Historical range and current range (as of January 2020) of
gray wolves (Canis lupus) in the lower 48 United States.
\1\ Based on Nowak (1995)
\2\ Based on State data.
\3\ U.S. portion of range only.
\4\ Northern Rocky Mountains distinct population segment (DPS) and
Mexican wolf nonessential experimental population (NEP) area
boundaries.
Gray wolves in the Western United States are distributed across the
NRM and into western Oregon, western Washington, northern California,
and most recently in northcentral Colorado (figure 2, above; Service
2020, p. 28). The Western United States metapopulation consisted of
more than 1,900 gray wolves in 2015 (at least 1,880 in the NRM and at
least 26 outside the NRM boundary), the final year of a combined
northern Rocky Mountains wolf annual report (Service 2020, p. 28,
appendix 2). Based on the most current abundance estimates of gray
wolves, Idaho estimated 1,543 gray wolves inhabited the State as of
August 2021, and Montana had an estimated 1,144 gray wolves at the end
of 2021 (Parks et al. 2022, pp. 9-10). In addition, the most recent
year-end minimum counts for 2021 indicated at least 314 gray wolves in
Wyoming, 206 wolves in Washington, 175 wolves in Oregon, and 17 in
California (California Department of Fish and Wildlife (CDFW) 2021,
entire; Oregon Department of Fish and Wildlife (ODFW) 2022, p. 4;
Washington Department of Fish and Wildlife (WDFW) et al. 2022, p. 13;
Wyoming Game and Fish Department (WGFD) et al. 2022, p. 3).
Until recently, only lone wolves had been confirmed in Colorado
beginning with a dispersing individual that died as a result of a
vehicle collision in 2004. A disperser from Wyoming was first
documented in north-central Colorado during the summer of 2019 and
paired up with another wolf during the winter of 2020 (CPW 2021a,
entire). This pair produced offspring in spring 2021, becoming the
first documented reproductively active pack in Colorado in recent
history. As of September 2022, this pack contains the only known wolves
in Colorado, comprising seven individuals. This single pack does not
meet the definition of a population of gray wolves used by the Service
for previous NEP designations in the NRM (i.e., two breeding pairs
successfully raising at least two pups for 2 consecutive years; Service
1994, appendix 8). No evidence of reproduction in this pack has been
documented in 2022. In January of 2020, CPW personnel also confirmed at
least six wolves traveling together in Moffatt County in northwestern
Colorado (Service 2020, p. 9). Later that year, that group was down to
a single individual, and, at present, there is no indication that any
wolf or wolves remain in that
[[Page 10262]]
part of Colorado. As such, we do not consider any gray wolves currently
found in Colorado to constitute a population.
Life Cycle
Gray wolves are highly territorial, social animals and group
hunters, normally living in packs of 7 or less but sometimes attaining
pack sizes of 20 or more wolves (Service 2020, p. 6). Wolves of both
sexes reach sexual maturity between 1 and 3 years of age and, once
paired with a mate, may produce young annually until they are over 10
years old. Litters are born from early April into May and can range
from 1 to 11 pups but generally include 5 to 6 pups (Service 2020, p.
6). Normally a pack has a single litter annually, however, multiple
litters have been documented in approximately 25 percent of packs
annually in Yellowstone National Park (Stahler et al. 2020, p. 52).
Offspring usually remain with their parents for 10-54 months before
dispersing (reviewed by Mech and Boitani 2003, Jimenez et al. 2017).
Habitat Use
The gray wolf is highly adaptable and can successfully occupy a
wide range of habitats provided adequate prey (primarily ungulates)
exists and human-caused mortality is sufficiently regulated (Mech 2017,
pp. 312-315). Wolf packs typically occupy and defend a territory of 33
to more than 2,600 square kilometers (km\2\) (13 to more than 1,004
square miles (mi\2\)), with territories tending to be smaller at lower
latitudes (Mech and Boitani 2003, p. 163; Fuller et al. 2003, pp. 187-
188). The large variability in territory size is likely due to
differences in pack size; prey size, distribution, and availability;
lag time in population responses to changes in prey abundance; and
variation in prey vulnerability (e.g., seasonal age structure in
ungulates) (Mech and Boitani 2003, p. 163).
To identify areas of suitable wolf habitat in the conterminous
United States, researchers have used models that relate the
distribution of wolves to characteristics of the landscape. These
models have shown the presence of wolves is correlated with prey
availability and density, livestock density, road density, human
density, land ownership, habitat patch size, and forest cover
(Mladenoff et al. 1995, pp. 284-292; Mladenoff et al. 1999, pp. 41-43;
Carroll et al. 2003, entire; Carroll et al. 2006, p. 542; Oakleaf et
al. 2006, pp. 558-559; Hanley et al. 2018, pp. 6-8).
In the Western United States, habitat models have identified
suitable wolf habitat in the northern Rocky Mountains, southern Rocky
Mountains (including Colorado and Utah), the Cascade Mountains of
Washington and Oregon, and a small portion of the northern Sierra
Nevada (Bennett 1994, entire; Switalski et al. 2002, entire; Carroll et
al. 2003, entire; Carroll et al. 2006, p. 542; Larsen and Ripple 2006,
entire; Oakleaf et al. 2006, pp. 558-559; Maletzke et al. 2015, entire;
Oregon Department of Fish and Wildlife 2015, entire; Ditmer et al.
2022, entire). Large blocks of suitable habitat have been identified in
the central and southern Rocky Mountains but are currently unoccupied,
with the exception of occasional dispersing wolves and the single group
of seven wolves in north-central Colorado.
Movement Ecology
Gray wolves rarely disperse before 10 months of age, and most
commonly disperse between 1-3 years of age (Gese and Mech 1991, p.
2949; Treves et al. 2009, entire; Jimenez et al. 2017, p. 589).
Generally, by the age of 3 years, most wolves will have dispersed from
their natal pack to locate social openings in existing packs or find a
mate and form a new pack (Service 2020, p. 7). Dispersers may become
nomadic and cover large areas as lone animals, or they may locate
unoccupied habitats and members of the opposite sex to establish their
own territorial pack (Jimenez et al. 2017, p. 589). Dispersal distances
in North America typically range from 65 to 154 kilometers (km) (40 to
96 miles) (Jimenez et al. 2017, p. 585), although dispersal distances
of several hundred kilometers are occasionally reported (Jimenez et al.
2017, p. 588). The ability to disperse long distances allows
populations of gray wolves to quickly expand and recolonize vacant
habitats provided rates of human-caused mortality are not excessive
(e.g., Mech 1995, Boyd and Pletcher 1999, Treves et al. 2009, Mech
2017, Hendricks et al. 2019). However, the rate of recolonization can
be affected by the extent of intervening unoccupied habitat between the
source population and newly colonized area, as Allee effects (reduced
probability of finding a mate at low densities) are stronger at greater
distances from source populations (Hurford et al. 2006, p. 250;
Stenglein and Van Deelen 2016, entire).
Causes of Decline and Threats
Unregulated, human-caused mortality was the primary factor that
caused population declines of gray wolves across the lower 48 States
during the late 1800s and early 1900s. Although there are some places
wolves are not likely to persist long term due to high human or
livestock densities, the regulation of human-caused mortality has been
a primary factor contributing to increased wolf abundance and
distribution in the lower 48 States. Regulation of human-caused
mortality has significantly reduced the number of wolf mortalities
caused by humans and, although illegal and accidental killing of wolves
is likely to continue with or without the protections of the Act, at
current levels those mortalities have had minimal impact on the
abundance or distribution of gray wolves. The high reproductive
potential of wolves, and their innate behavior to disperse and locate
social openings or vacant suitable habitats, allows populations of gray
wolves to withstand relatively high rates of human-caused mortality
(Service 2020, pp. 8-9). See Historical and Current Range and Habitat
Use sections, above, for additional information.
Recovery Efforts to Date
Following our 1978 reclassification of the species under the Act,
our national wolf strategy focused on conservation of gray wolves in
three regions: the western Great Lakes; the NRM; and Mexican wolves in
the Southwest and Mexico. We drafted recovery plans and implemented
recovery programs for gray wolves in these three regions (Service 1987,
entire; Service 1992, entire; Service 2017, entire). The revised NRM
Wolf Recovery Plan established recovery criteria for wolves in three
recovery areas across Idaho, Montana, and Wyoming (Service 1987,
entire), while the Recovery Plan for the Eastern Timber Wolf (Service
1992, entire) addressed populations of gray wolves in the upper
Midwest. Mexican wolves have been listed separately as an endangered
subspecies of gray wolf since 2015 and are not addressed in this
proposed rule.
The currently listed entity of gray wolf, to which the proposed
Colorado NEP belongs, includes all or parts of 44 States; this listed
entity encompasses populations of gray wolves in the Great Lakes States
of Michigan and Wisconsin as well as wolves outside the delisted NRM in
the Western United States. We have not included gray wolves outside the
NRM and western Great Lakes in any recovery plan. However, as noted
above, the presence of gray wolves in California, Oregon, and
Washington, as well as the single pack in Colorado, is a result of
dispersal and recolonization from core populations in the NRM in
addition to reproduction and dispersal from resident packs in these
States and neighboring Canadian provinces.
While there are no Federal recovery plans addressing wolf recovery
in
[[Page 10263]]
western States outside Idaho, Montana, and Wyoming, the States of
California, Colorado, Oregon, Washington, and Utah have demonstrated a
commitment to wolf conservation by developing management plans or
codifying laws and regulations to protect wolves (November 3, 2020, 85
FR 69778); this includes the passage of a voter-led initiative in
Colorado calling specifically for the reintroduction of gray wolves to
the western portion of the State (Colorado Revised Statute 33-2-105.8).
At the end of 2021, 6 packs of gray wolves (totaling at least 43 wolves
and 4 breeding pairs) were documented in western Washington where
wolves are federally listed (WDFW et al. 2022, p. 16). In the western
two-thirds of Oregon, where gray wolves are federally listed, a minimum
of 31 wolves including at least 2 breeding pairs were distributed
across 3 packs and 4 additional groups of 2 to 3 wolves at the end of
2021 (ODFW 2022, p. 5). Wolves originating from Oregon have also
expanded their range into California where a minimum of 17 wolves in 3
packs were documented at the end of 2021 (CDFW 2021, entire).
In addition to gray wolves found in the western States outside of
the delisted NRM population, the Great Lakes metapopulation, consisting
of approximately 4,200 wolves, is broadly distributed across the
threatened Minnesota population and wolves in Michigan and Wisconsin
that are part of the 44-State listed entity (Service 2020, p. 27).
These States have an established history of cooperating with and
assisting in recovery efforts for gray wolves and have made a
commitment, through legislative actions, to continue these activities.
For additional information regarding State management plans in
Minnesota and states comprising the 44-State entity, see our November
3, 2020, final rule to delist the two currently listed C. lupus
entities under the Act (85 FR 69778). At present, both Minnesota and
Wisconsin are in the process of updating their State wolf management
plans.
The NRM Wolf Recovery Plan was approved in 1980 (Service 1980, p.
i) and revised in 1987 (Service 1987, p. i). The recovery goal for the
NRM was reevaluated and, when necessary, modified as new scientific
information warranted (Service 1987, p. 12; Service 1994, appendices 8
and 9; Fritts and Carbyn 1995, p. 26; Bangs 2002, p. 1; 73 FR 10514,
February 27, 2008; 74 FR 15123, April 2, 2009). The Service's resulting
recovery goal for the NRM population of gray wolves was 30 or more
breeding pairs, defined as an adult male and an adult female wolf that
have produced at least 2 pups that survived until December 31 of the
year of their birth during the previous breeding season (Service 1994),
comprising at least 300 wolves equitably distributed among Idaho,
Montana, and Wyoming for 3 consecutive years, with genetic exchange
(either natural or, if necessary, agency managed) between
subpopulations. To provide a buffer above these minimum recovery
levels, each State was to manage for at least 15 breeding pairs and 150
wolves in midwinter (77 FR 55530, September 10, 2012, pp. 55538-55539;
74 FR 15123, April 2, 2009, p. 15132). For additional information on
NRM wolf recovery goals, see 74 FR 15130-15135 (April 2, 2009) and
references therein.
Wolves in the NRM distinct population segment (DPS) have recovered
and were delisted. The NRM population achieved its numerical and
distributional recovery goals at the end of 2000 (Service et al. 2008,
table 4). The temporal portion of the recovery goal was achieved in
2002 when the numerical and distributional recovery goals were exceeded
for the third successive year (Service et al. 2008, table 4). In 2009,
we concluded that gray wolves in the NRM far exceeded recovery goals.
We also concluded that the NRM population: (1) Had at least 45
reproductively successful packs and 450 individual wolves each winter
(near the low point in the annual cycle of a wolf population); (2) was
equitably distributed within the 250,000-km\2\ (100,000-mi\2\) area
containing 3 areas of large core refugia (National Parks, wilderness
areas, large blocks of remote secure public land) and at least 170,228
km\2\ (65,725 mi\2\) of suitable wolf habitat; and (3) was genetically
diverse and had demonstrated successful genetic exchange through
natural dispersal and human-assisted migration management between all 3
core refugia (74 FR 15123, April 2, 2009). Gray wolves in the NRM
remain well above the recovery goals established for this region (see
Historical and Current Range section, above).
Reintroduction
To date, purposeful reintroduction of gray wolves to Colorado has
not occurred; current wolf occupancy in Colorado is the result of
natural wolf dispersal from the NRM population (Service 2020, pp. 15-
19, 28; see Historical and Current Range section, above). The
reintroduction of gray wolves in Idaho and Wyoming in the 1990s
contributed to achieving the recovery goals for the NRM population in
2002 (Service et al. 2008). For additional details on NRM
reintroduction efforts, please see our biological report (Service 2020,
entire) and the Release Procedures section in this document, below.
Regulatory Framework
Section 9 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the prohibitions afforded to
threatened and endangered species. Section 9 of the Act prohibits take
of endangered wildlife. ``Take'' is defined by the Act as harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt
to engage in any such conduct. Section 7 of the Act outlines the
procedures for Federal interagency cooperation to conserve federally
listed species and protect designated critical habitat. It mandates
that all Federal agencies use their existing authorities to further the
purposes of the Act by carrying out programs for the conservation of
listed species. It also requires that Federal agencies, in consultation
with the Service, ensure that any action they authorize, fund, or carry
out is not likely to jeopardize the continued existence of a listed
species or result in the destruction or adverse modification of
designated critical habitat. Section 7 of the Act does not affect
activities undertaken on private land unless they are authorized,
funded, or carried out by a Federal agency.
The 1982 amendments to the Act (16 U.S.C. 1531 et seq.) included
the addition of section 10(j), which allows for populations of listed
species planned to be reintroduced to be designated as ``experimental
populations.'' The provisions of section 10(j) were enacted to
ameliorate concerns that reintroduced populations will negatively
impact landowners and other private parties, by giving the Secretary of
the Interior greater regulatory flexibility and discretion in managing
the reintroduced species to encourage recovery in collaboration with
partners, especially private landowners. Under section 10(j) of the
Act, and our implementing regulations at 50 CFR 17.81, the Service may
designate a population of an endangered or threatened species that will
be released within its probable historical range as an experimental
population. The Service may also designate an experimental population
for an endangered or threatened species outside of the species'
probable historical range in extreme cases when the Director of the
Service finds that the primary habitat of the species within its
historical range has been unsuitably and irreversibly altered or
destroyed. Under section 10(j) of the Act, we make a
[[Page 10264]]
determination whether or not an experimental population is essential to
the continued existence of the species based on best available science.
Our regulations define an essential population as one whose loss would
be likely to appreciably reduce the likelihood of the survival of the
species in the wild. All other experimental populations are to be
classified as ``nonessential'' (50 CFR 17.80(b)).
We treat any population determined by the Secretary to be an
experimental population as if we had listed it as a threatened species
for the purposes of establishing protective regulations with respect to
that population (50 CFR 17.82). The designation as an experimental
population allows us to develop tailored ``take'' prohibitions that are
necessary and advisable to provide for the conservation of the species.
The protective regulations adopted for an experimental population will
contain applicable prohibitions, as appropriate, and exceptions for
that population, allowing us discretion in devising management programs
to provide for the conservation of the species.
Section 7(a)(2) of the Act requires that Federal agencies, in
consultation with the Service, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or adversely modify its critical habitat. For the
purposes of section 7 of the Act, we treat an NEP as a threatened
species when the population is located within a National Wildlife
Refuge or unit of the National Park Service (50 CFR 17.83; see 16
U.S.C. 1539(j)(2)(C)(i)). When NEPs are located outside of a National
Wildlife Refuge or National Park Service unit, for the purposes of
section 7, we treat the population as proposed for listing and only
sections 7(a)(1) (50 CFR 17.83) and 7(a)(4) (50 CFR 402.10) of the Act
apply (50 CFR 17.83). In these instances, NEPs provide additional
flexibility in managing the nonessential population because Federal
agencies are not required to consult with us under section 7(a)(2).
Section 7(a)(1) requires all Federal agencies to use their authorities
to carry out programs for the conservation of listed species. Section
7(a)(4) requires Federal agencies to confer (rather than consult) with
the Service on actions that are likely to jeopardize the continued
existence of a species proposed to be listed. As a result, NEPs provide
additional flexibility in managing the nonessential population.
Section 10(j)(2)(C)(ii) of the Act states that critical habitat
shall not be designated for any experimental population that is
determined to be nonessential. Accordingly, we cannot designate
critical habitat in areas where we establish an NEP.
Before authorizing the release as an experimental population of any
population (including eggs, propagules, or individuals) of an
endangered or threatened species, and before authorizing any necessary
transportation to conduct the release, the Service must find by
regulation that such release will further the conservation of the
species. In making such a finding the Service uses the best scientific
and commercial data available to consider:
(1) Any possible adverse effects on extant populations of a species
as a result of removal of individuals, eggs, or propagules for
introduction elsewhere (see Effects on Wild Populations, below);
(2) The likelihood that any such experimental population will
become established and survive in the foreseeable future (see
Likelihood of Population Establishment and Survival, below);
(3) The relative effects that establishment of an experimental
population will have on the recovery of the species (see Effects of the
NEP on Recovery Efforts, below); and
(4) The extent to which the introduced population may be affected
by existing or anticipated Federal or State actions or private
activities within or adjacent to the experimental population area (see
Likelihood of Population Establishment and Survival, below).
Furthermore, as set forth at 50 CFR 17.81(c), all regulations
designating experimental populations under section 10(j) of the Act
must provide:
(1) Appropriate means to identify the experimental population,
including, but not limited to, its actual or proposed location, actual
or anticipated migration, number of specimens released or to be
released, and other criteria appropriate to identify the experimental
population (see Proposed Experimental Population and Experimental
Population Regulation Requirements sections, below);
(2) A finding, based solely on the best scientific and commercial
data available, and the supporting factual basis, on whether the
experimental population is, or is not, essential to the continued
existence of the species in the wild (see Is the Proposed Experimental
Population Essential or Nonessential? section, below);
(3) Management restrictions, protective measures, or other special
management concerns for that population, which may include, but are not
limited to, measures to isolate and/or contain the experimental
population designated in the regulations from natural populations (see
Management Restrictions, Protective Measures, and Other Special
Management, below); and
(4) A process for periodic review and evaluation of the success or
failure of the release and the effect of the release on the
conservation and recovery of the species (see Review and Evaluation of
the Success or Failure of the NEP, below).
Under 50 CFR 17.81(d), the Service must consult with appropriate
State fish and wildlife agencies, local governmental entities, affected
Federal agencies, affected Tribes, and affected private landowners in
developing and implementing experimental population rules. To the
maximum extent practicable, section 10(j) rules represent an agreement
between the Service, the affected State and Federal agencies, affected
Tribes, and persons holding any interest in land that may be affected
by the establishment of an experimental population.
Proposed Experimental Population
We are proposing to designate this NEP at the request of CPW, to
facilitate their planned reintroduction of gray wolves to the State per
the requirements of Proposition 114 (now codified as Colorado Revised
Statute 33-2-105.8), which directs the CPW Commission to take the steps
necessary to reintroduce gray wolves to lands west of the Continental
Divide by December 23, 2023.
Proposed Reintroduction Areas and Release Sites
The proposed NEP area is the entire State of Colorado. This scale
is appropriate, given that CPW has proposed a discrete release area
(figure 3), and gray wolves have high dispersal ability (Jimenez et al.
2017, p. 582). Furthermore, gray wolves released on the west side of
the Continental Divide may move to locations beyond the western portion
of the State, including east of the Continental Divide. Within the
proposed statewide NEP designation, CPW proposes to release gray wolves
obtained from the delisted NRM population (Idaho, Montana, eastern
Oregon, eastern Washington, Wyoming) at multiple sites west of the
Continental Divide. Individual release sites will be located on private
or State lands with high habitat suitability and low wolf-livestock
conflict risk based on models developed by Ditmer et al. (2022). All
release sites will be located west of the Continental Divide
[[Page 10265]]
(Colorado Revised Statute 33-2-105.8), and north of U.S. Highway 50
(figure 3). CPW proposes to release a total of 10 to 15 wolves at a
50:50 sex ratio each year during winter for up to 3 consecutive years,
although exact numbers and sex ratios may vary due to factors
associated with capture from source populations (CPW 2021b, p. 24).
After initial releases are completed, CPW will monitor the success of
reintroduction efforts and document wolf abundance and distribution
annually to evaluate progress toward meeting State wolf recovery
objectives (CPW 2021b, p. 24).
[GRAPHIC] [TIFF OMITTED] TP17FE23.002
Figure 3. Map of the State of Colorado with county boundaries and the
general area (crosshatched) for CPW's proposed initial (1-3 years)
release site area for a nonessential experimental population (NEP) of
gray wolves.
Release Procedures
CPW officials plan to capture wild gray wolves in cooperating
States in the Western United States where wolves are federally delisted
(Montana, Idaho, Wyoming, the eastern third of Washington and Oregon,
and north-central Utah) using a combination of net gunning, helicopter
darting, or trapping. Wolf captures will be conducted in accordance
with approved protocols specific to each jurisdiction from which donor
wolves are to come. Animals will be a mix of sex and age classes, with
a sex ratio of 50:50 preferred, and ideally donor animals will be
unrelated and of dispersing age (2 years and older). Each wolf selected
for transport will be photographed, examined to evaluate condition and
to obtain biological measurements and samples, tested for diseases,
vaccinated for a wide variety of diseases, and treated for internal and
external parasites. Additionally, wolves will be fitted with either a
global positioning system (GPS) or a very high frequency (VHF) radio
transmitter as well as other markers to assist with individual
identification. Captured animals will be transported to Colorado in
large, aluminum crates (similar to those used for wolf reintroduction
in the NRM) by aircraft, ground transportation, or a mix of techniques,
with a goal of releasing captured animals as quickly as possible to
minimize time in captivity and capture-related stress. All animals will
be ``hard released'' (released shortly after transport to
reintroduction sites with no preconditioning; CPW 2021b, pp. 19-21)
during winter (November through March), with no acclimation time
between capture, transport, and release. The Final Report on Wolf
Restoration Logistics Recommendations developed by the Colorado Wolf
Restoration and Management Plan Technical Working Group (CPW 2021b,
entire) provides additional details regarding the proposed release
procedures.
Reintroduction Site Management
As noted in the Proposed Reintroduction Areas and Release Sites and
Release Procedures sections above, the CPW plans to ``hard release''
gray wolves on State or private lands within a discrete release area
(figure 3, above). Given that gray wolves released in this manner are
more likely to disperse immediately from the release site rather than
remain together at the site (CPW 2021b, entire), CPW does not plan to
implement any special management practices at individual release sites.
For additional information, please see the State of Colorado's Final
Report on Wolf Restoration Logistics Recommendations (CPW 2021b,
entire).
How will the NEP further the conservation of the species?
Under 50 CFR 17.81(b), before authorizing the release as an
experimental population, the Service must find by regulation that such
release will further the conservation of
[[Page 10266]]
the species. We explain our rationale for making our finding below. In
making such a finding, we must consider effects on donor populations,
the likelihood of establishment and survival of the experimental
population, the effects that establishment of the experimental
population will have on recovery of the species, and the extent to
which the experimental population will be affected by Federal, State,
or private activities.
Effects on Wild Populations
Our regulations at 50 CFR 17.81 require that we consider any
possible adverse effects on extant populations of a species as a result
of removal of individuals, eggs, or propagules for introduction
elsewhere. The preferred donor population for the proposed
reintroduction of gray wolves to Colorado is the delisted NRM
population, found in Idaho, Montana, eastern Oregon, eastern
Washington, and Wyoming. Gray wolves in these States are managed by
State fish and wildlife agencies and Tribes. These wolves are an
appropriate source for the Colorado reintroduction because of
similarities in habitat and preferred prey; at least one member of the
current pack in Colorado dispersed from the NRM population; and the NRM
population reached numerical, spatial, and temporal recovery goals by
the end of 2002 (Service 2020, p. 15; see the Recovery Efforts to Date
section, above). The NRM wolf population continues to demonstrate
stable to slightly increasing demographic trends with an estimated
1,543 wolves in Idaho as of August 2021 and slightly over 1,850 wolves
in California, Montana, Oregon, Washington, and Wyoming at the end of
2021 (CDFW 2021, entire; ODFW 2022, p. 4; Parks et al. 2022, pp. 9-10;
WDFW et al. 2022, p. 13; WGFD et al 2022, p. 3). Further, the NRM
population is part of a larger metapopulation of wolves that
encompasses all of Western Canada (Service 2020, p. 29). Given the
demonstrated resilience and recovery trajectory of the NRM population
and limited number of animals that will be collected, we expect
negative impacts to the donor population to be negligible.
If donor wolves from the Western United States are not available,
another possible source of gray wolves for the Colorado reintroduction
may be from the wolf population in the western Great Lake States of
Michigan, Minnesota, or Wisconsin. Wolves in Minnesota are currently
listed as threatened under the Act, while wolves in Michigan and
Wisconsin are listed as endangered. The Western Great Lakes region has
nearly 4,400 wolves (Michigan Department of Natural Resources 2022, pp.
19-21; Minnesota Department of Natural Resources 2021, unpaginated;
Wisconsin Department of Natural Resources 2022, p. 4) and are part of a
larger metapopulation of wolves that extends into central and eastern
Canada. As a result, the capture, transport, and reintroduction to
Colorado of approximately 30 to 45 gray wolves over a 2-to-3-year
period would have little to no effect on the wolf population in the
western Great Lakes States of Michigan, Minnesota, or Wisconsin.
Likelihood of Population Establishment and Survival
In our findings for designation of an NEP, we must consider if the
reintroduced population will become established and survive in the
foreseeable future. In this section of the preamble, we address the
likelihood that populations introduced into the proposed NEP will
become established and survive. In defining the experimental population
boundary, we attempted to encompass the area where the population is
likely to become established in the foreseeable future. The term
``foreseeable future'' appears in the Act in the statutory definition
of ``threatened species.'' However, the Act does not define the term
``foreseeable future.'' Similarly, our implementing regulations
governing the establishment of an NEP under section 10(j) of the Act
use the term ``foreseeable future'' (50 CFR 17.81(b)(2)) but do not
define the term. However, our implementing regulations at 50 CFR
424.11(d) set forth a framework for evaluating the foreseeable future
on a case-by-case basis. The term foreseeable future extends only so
far into the future as we can reasonably determine that both the future
threats and the species' responses to those threats are likely. In
other words, the foreseeable future is the period of time in which we
can make reliable predictions. While we use the term ``foreseeable
future'' here in a different context (to determine the likelihood of
population establishment and to establish boundaries for identification
of the experimental population), we apply a similar conceptual
framework. Analysis of the foreseeable future uses the best scientific
and commercial data available and should consider the timeframes
applicable to the relevant effects of release and management of the
species and to the species' likely responses in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
For the purposes of this proposed rule, we define the foreseeable
future for our evaluation of the likelihood of survival and
establishment as approximately 10 years, the time horizon within which
we can reasonably forecast population expansion of gray wolves in
Colorado given the results of previous reintroduction efforts of gray
wolves in the NRM. This timeframe is also similar to the timeframe for
the expansion of wolves from the NRM into portions of the currently
listed 44-State entity in California, Colorado, Oregon, and Washington
(Service 2020, p. 28).
In evaluating the likelihood of establishment and survival of this
proposed NEP in the foreseeable future, we considered the extent to
which causes of extirpation in the NEP area have been addressed,
habitat suitability and prey availability within the NEP area, and
existing scientific and technical expertise and experience with
reintroduction efforts. As discussed below, we expect that gray wolves
will become established during this time span, given the species'
adaptability and dispersal ability.
Addressing Causes of Extirpation Within the Experimental Population
Area
Investigating the causes for the extirpation of gray wolves is
necessary to understand whether we are sufficiently addressing threats
to the species in the proposed NEP so that reintroduction efforts are
likely to be successful. The International Union for the Conservation
of Nature's Guidelines for Reintroduction and Other Conservation
Translocations (2013, p. 4) identifies several criteria to consider
prior to undertaking a reintroduction, including ``strong evidence that
the threat(s) that caused any previous extinction have been correctly
identified and removed or sufficiently reduced.'' Wolves depend on
abundant prey (primarily ungulates) and can successfully colonize and
occupy a wide range of habitats as long as human-caused mortality is
adequately managed (Mech 2017, pp. 312-315). Historical wolf declines
in Colorado resulted from purposeful efforts to eradicate the species
by State and Federal authorities, primarily due to conflicts with
domestic livestock production (Service 2020, pp. 9-14; see Habitat Use
and Causes of Decline and Threats sections, above, for additional
information). In 2004, CPW created a Wolf Management Working Group,
largely in response to dispersal of wolves from the NRM population to
[[Page 10267]]
Colorado and other western States. The working group developed a series
of recommendations for wolf management in Colorado, including
recognition of the ecological value of wolves and an intent to accept
their presence in Colorado (Colorado Wolf Management Working Group
2004, p. 3). The recommendations of the Wolf Management Working Group
were formally adopted by the Colorado Wildlife Commission in 2005 and
were reaffirmed by the Colorado Parks and Wildlife Commission in 2016
(85 FR 69778, November 3, 2020; p. 69837).
Gray wolves are currently classified as an endangered species by
the State of Colorado and can be taken only in self-defense. The State
of Colorado expanded its conservation efforts for gray wolves through
the passage of Proposition 114 (now codified as Colorado Revised
Statute 33-2-105.8), which directs the CPW Commission to take the steps
necessary to reintroduce gray wolves to lands west of the Continental
Divide by December 23, 2023. Colorado Revised Statute 33-2-105.8 calls
for the development and implementation of a Colorado Wolf Restoration
and Management Plan, which is expected by late 2023. The plan follows a
phased approach whereby the conservation status of gray wolves is
linked with numerical and temporal population targets (CPW 2022a, p.
2). For additional information, please see CPW 2022a (entire).
Purposeful eradication is no longer a tool used for wolf management.
Based on the elimination of purposeful eradication, and the fact that
gray wolves are protected under State and Federal laws, we do not
anticipate the original cause of wolf extirpation from Colorado to be
repeated.
Habitat Suitability/Prey Availability
Excluding occasional dispersing wolves and a single group of at
least seven wolves presently in north-central Colorado, large blocks of
gray wolf habitat in the central and southern Rocky Mountains are not
currently occupied by gray wolves. Models developed to assess habitat
suitability and the probability of wolf occupancy indicate that
Colorado contains adequate habitat to support a population of gray
wolves, although the number of wolves that the State could support
varies among the models. One model estimated that the State could
support between 407 and 814 wolves based on prey and habitat
availability (Bennett 1994, pp. 112, 275-280).
Carroll et al. (2003, entire) examined multiple models to evaluate
suitable wolf habitat, occupancy, and the probability of wolf
persistence given various landscape changes and potential increases in
human density in the southern Rocky Mountains, which included portions
of southeastern Wyoming, Colorado, and northern New Mexico. Using a
resource selection function (RSF) model developed for wolves in the
Greater Yellowstone Ecosystem and projecting it to Colorado, Carroll et
al. (2003, pp. 541-542) identified potential wolf habitat across north-
central and northwest Colorado and the southwestern part of the State.
RSF model predictions indicate that Colorado could support an estimated
1,305 wolves with nearly 87 percent of wolves occupying public lands in
the State. Carroll et al. (2003, entire) also used a dynamic model that
incorporated population viability analysis to evaluate occupancy of
gray wolves and persistence based on current conditions as well as
potential changes resulting from increased road and human densities in
the future. The dynamic model based on current conditions predicted
similar distribution and wolf population estimates as the RSF model;
however, as predicted, as road and human densities increased in
Colorado, the availability of suitable habitat and the estimated number
of wolves that habitat could support declined (Carroll et al. 2003, pp.
541-543).
An analysis similar to that of Carroll et al. (2003, entire) was
conducted for the entirety of the Western United States and indicated
that high-quality wolf habitat exists in Colorado and Utah, but that
wolves recolonizing Colorado and Oregon would be most vulnerable to
landscape changes because these areas lack, and are greater distances
from, large core refugia (Carroll et al. 2006, pp. 33-36). The authors
proposed that habitat improvements, primarily in the form of road
removal or closures, could mitigate these effects (Carroll et al. 2006,
p. 36). Switalski et al. (2002, pp. 12-13) and Carroll et al. (2003, p.
545) also cautioned that model predictions may be inaccurate because
they did not account for the presence of livestock and the potential
use of lethal removal to mitigate conflicts, which may affect the
likelihood of establishment of gray wolves as well as their year-to-
year survival and distribution on the landscape.
Wolves can successfully occupy a wide range of habitats provided
adequate prey exists (Mech 2017). Wolves in the Western United States
rely on habitats containing large prey such as mule deer, elk, and
moose (Smith et al. 2010, entire). CPW manages wild ungulate
populations, such as elk and mule deer, using herd management plans,
which establish population objective minimums and maximums for each
ungulate herd in the State (CPW 2020, entire). The herd management
plans consider both biological and social factors when setting herd
objective ranges (CPW 2020, entire). Similar to mule deer populations
in other western States, mule deer in Colorado have declined due to a
multitude of factors since the 1970s to a statewide population estimate
of 433,100 animals in 2018, which was well below the minimum statewide
population objective of 500,450 (CPW 2020, entire). In 2018, of 54 mule
deer herds in the State, 23 were below their population objective
minimum with the western part of the State being the most affected. In
contrast, elk populations in Colorado were stable in 2018 with a winter
population estimate of 287,000 elk (CPW 2020, entire). Although 22 of
42 elk herds are above the maximum population objective, the ratio of
calves per 100 cows (a measure of overall herd fitness) has declined in
some southwestern herd units, and research has been initiated to
determine potential causes. Moose are not native to Colorado, so to
create hunting and wildlife viewing opportunities, CPW transplanted
moose to the State beginning in 1978 and has since transplanted moose
on four other occasions through 2010. In 2018, the moose population was
estimated at 3,200 animals and continues to increase as moose expand
into new areas of the State.
In summary, while deer and elk numbers are down from their peak
populations in some parts of Colorado, they still number in the
hundreds of thousands of individuals, and the State is actively
managing populations to meet objectives (CPW 2020, entire). In
addition, as of the latest estimates, elk numbers exceed their
population objectives in 22 of 42 herds (CPW 2020, p. 9). Introduced
moose provide an additional potential food resource for wolves in some
parts of the State. Therefore, wolf habitat and prey are suitable and
abundant within the proposed NEP area and would support population
establishment and survival.
Reintroduction Expertise/Experience/Track Record
Conservation efforts to reintroduce gray wolves to the NRM began in
1995, with the reintroduction of wolves to portions of Idaho and
Wyoming. Following their release, wolves rapidly increased in abundance
and distribution in the region due to natural reproduction and the
availability of
[[Page 10268]]
high-quality, suitable wolf habitat in the NRM. Between 1995 and 2008,
populations of gray wolves in the NRM increased an average of 24
percent annually, reaching 1,655 wolves by the end of 2008 (Service et
al. 2016, table 6b), while total mortality averaged approximately 16
percent annually between 1999 and 2008 (Service et al. 2000-2009,
entire). Wolf numbers and distribution in Idaho, Montana, and Wyoming
stabilized after 2008 as suitable habitat became increasingly saturated
(74 FR 15123, April 2, 2009; p. 15160).
Between 2009 and 2015, Idaho, Montana, and Wyoming began to manage
wolves with the objective of reversing or stabilizing population growth
while continuing to maintain populations well above Federal recovery
targets for the NRM population (depending upon the Federal status of
wolves at that time; see 85 FR 69778, November 3, 2020; pp. 69779-
69782). During this time period, States began to use public harvest as
a management tool to achieve State-specific management objectives. As a
result, during those years when legal harvest occurred, total wolf
mortality in the NRM increased to an average of 29 percent of the
minimum known population (Service et al. 2010-2016, entire), while
population growth declined to an average of approximately 1 percent
annually (Service et al. 2010-2016, entire). Although this mortality
rate was significantly higher than mortality rates during the previous
decade, the NRM population demonstrated an ability to sustain itself,
consistent with scientific information demonstrating that the species'
reproductive and dispersal capacity can compensate for a range of
mortality rates (Service 2020, pp. 8-9). As of 2015, the final year of
a combined NRM wolf count at the end of federally required post-
delisting monitoring in Idaho and Montana, wolves in the NRM remained
well above minimum recovery levels with a minimum known population of
1,704 wolves distributed across Idaho, Montana, and Wyoming. An
additional 177 wolves were documented in the NRM portions of Oregon and
Washington at the end of 2015. Wolves in the NRM continue to remain
above minimum recovery levels, demonstrating availability of technical
expertise to successfully reintroduce gray wolf populations. For more
information regarding the success of reintroduction efforts in the NRM,
please see the Recovery Efforts to Date section, above.
Based on our demonstrated ability to reintroduce and successfully
establish wolves to the NRM that reached recovery goals, the
availability of habitat suitability and prey availability in the
proposed reintroduction area (see Habitat Suitability/Prey Availability
section, above), the demonstrated resiliency of gray wolves in the
United States, and the ongoing development of a comprehensive Gray Wolf
Restoration and Management plan in Colorado, the best available
scientific data indicate that the reintroduction of gray wolves into
suitable habitat in Colorado supports the likely success of
establishment and survival of the reintroduced population, and the
proposed experimental population has a high likelihood of becoming
established within the foreseeable future.
Effects of the NEP on Recovery Efforts
We are proposing to designate an experimental population of gray
wolf in Colorado to support CPW's planned effort to reintroduce gray
wolves to the State of Colorado, and to further the conservation of the
currently listed 44-State entity. CPW developed a draft Gray Wolf
Restoration and Management Plan for the reintroduction and management
of gray wolves in the State, with the goal of restoring the species to
Colorado in a phased approach to the point where it no longer needs
protection under State statute (CPW 2022a, entire). This management
plan focuses on the primary threat to gray wolves, which is human-
caused mortality (e.g., Fuller et al. 2003, Mech 2017). We anticipate
the State's plan will be finalized in the spring of 2023.
As noted in the Recovery Efforts to Date section, above,
populations of gray wolves in the 44-State listed entity number more
than 4,500 individuals and occupy portions of California, Michigan,
Minnesota, Oregon, and Washington (Service 2020, pp. 27-28). Although
gray wolves are present in Colorado, they do not currently meet our
definition of a population. Reintroduction efforts in Colorado will
provide additional redundancy for the 44-State listed entity.
Redundancy is the ability for the species to withstand catastrophic
events, for which adaptation is unlikely, and is associated with the
number and distribution of populations. Representation is the ability
of a species to adapt to changes in the environment and is associated
with its ecological, genetic, behavioral, and morphological diversity.
If successful, the reintroduction in the NEP would improve redundancy
by increasing the number of populations at the southern extent of the
currently occupied range and representation by increasing the
ecological diversity of the habitats occupied by the listed entity. For
these reasons, reintroduction efforts undertaken by CPW would increase
the redundancy and representation, and hence viability, of the
currently listed 44-State entity (e.g., Smith et al. 2018).
Previous NEP designations have conserved and recovered gray wolves
in other regions of the United States, particularly in the NRM.
Additional management flexibility, relative to the mandatory
prohibitions covering nonessential experimental species under the Act,
is expected to help address local, State, and Tribal concerns about
wolf-related conflicts in Colorado, similar to those experienced in
other NRM States. Addressing these concerns proactively may result in
greater human acceptance of gray wolves and other species of concern.
Based on past modeling efforts, it has been estimated that Colorado
could biologically support approximately 400 to 1,200 wolves (Bennett
1994, pp. 112, 275-280; Carroll et al. 2006, p. 33), but due to social
constraints that could limit the distribution of wolves in the state
(Ditmer et al. 2022, p. 12), the total number of wolves Colorado could
support may be slightly lower. Nonetheless, this action will contribute
to the conservation of the listed entity by increasing redundancy and
representation.
Actions and Activities in Colorado That May Affect Introduced Gray
Wolves
A large proportion of Colorado is composed of publicly owned
Federal lands (approximately 36 percent; Congressional Research Service
2020). Public lands include National Forests, National Parks, National
Monuments, and National Wildlife Refuges, which comprise approximately
63 percent of all public lands in Colorado. In addition, the Bureau of
Land Management manages approximately 35 percent of public land in
Colorado, much of which is located in the western portion of the State
where reintroduction efforts for gray wolves will take place (figure
3). Although much of this public land is largely unavailable and/or
unsuitable for intensive development and contains an abundance of wild
ungulates, livestock grazing does occur on public lands in Colorado,
which may increase the potential for mortality of gray wolves from
lethal control of chronically depredating packs. However, in both
Minnesota and the northern Rocky Mountains, lethal control of
depredating wolves has had little effect on wolf distribution and
abundance (Service 2020 p. 22; 85 FR 69778, November 3, 2020; p.
69842).
[[Page 10269]]
Humans sparsely inhabit most of the NEP area containing suitable
habitat for gray wolves. However, the NEP area contains human
infrastructure and activities that pose some risk to success of the
NEP. Risks include wolves killed as a result of mistaken identity,
accidental capture during animal damage control activities, and high-
speed vehicular traffic. Human-caused mortality includes both
controllable and uncontrollable sources of mortality. Controllable
sources of mortality are discretionary, can be limited by the managing
agency, and include permitted take, sport hunting, and direct agency
control. Sources of mortality that will be difficult to limit, or may
be uncontrollable, occur regardless of population size and include
things such as natural mortalities, illegal take, and accidental deaths
(e.g., vehicle collisions, capture-related mortalities) (85 FR 69778,
November 3, 2020). The biggest risks likely include illegal take of
wolves and individuals hit by motor vehicles. Accidental mortality
caused by vehicle collisions are uncontrollable, but are not
anticipated to be a significant cause of mortality. However, if
population levels and controllable sources of mortality are adequately
regulated, the life-history characteristics of wolf populations provide
natural resiliency to high levels of human-caused mortality (85 FR
69778, November 3, 2020). In conjunction with previous reintroduction
efforts, implementation of this proposed rule, if finalized would
reflect continuing success in recovering gray wolves through
longstanding cooperative and complementary programs by a number of
Federal, State, and Tribal agencies. In particular, the stakeholder
engagement process developed by CPW in support of its Gray Wolf
Restoration and Management Plan development is broadly based and
includes a diverse array of stakeholders in the State, which has helped
to address potential adverse effects to gray wolves through Federal,
State, or private actions. Therefore, Federal, State, or private
actions and activities in Colorado that are ongoing and expected to
continue are not likely to have significant adverse effects on gray
wolves within the proposed NEP area.
Experimental Population Regulation Requirements
Our regulations at 50 CFR 17.81(c) include a list of what we should
provide in regulations designating experimental populations under
section 10(j) of the Act. We explain what our proposed regulations
include and provide our rationale for those regulations, below.
Means To Identify the Experimental Population
Our regulations require that we provide appropriate means to
identify the experimental population, which may include geographic
locations, number of individuals to be released, anticipated movements,
and other information or criteria. The proposed Colorado NEP area
encompasses the entire State. As discussed below, we conclude that
after initial releases, any gray wolves found in Colorado will, with a
high degree of likelihood, have originated from and be members of the
NEP. However, we recognize that absent identifying tags or collars, it
may be very difficult for members of the public to easily determine the
origin of any individual gray wolf. Therefore, we propose to use
geographic location to identify members of the NEP. As such, any wolf
within the State of Colorado will be considered part of the NEP
regardless of its origin. Similarly, any wolf outside of the State will
take on the status of that location. For example, a wolf moving from
Wyoming into Colorado will take on the NEP status, whereas a wolf
moving from Colorado into Wyoming will take on a not-listed status, or
endangered status if it moves into any other adjacent State.
Although a single pack of wolves occurred in Colorado as of October
2022, this single pack does not constitute a population (see Historical
and Current Range section, above). While an adult female wolf dispersed
from Wyoming to Colorado in 2019 to form half of the first
reproductively active pack in the State in recent history, the origins
of her mate are unknown. It is likely the male dispersed from the
Greater Yellowstone area (approximately 480 kilometers (300 miles)
north and east of their current location), but his exact origin is
uncertain (CPW 2021a, entire). The mean dispersal distance of male
wolves in the NRM is 98.1 km (60 miles) (Jimenez et al. 2017, p. 585).
The nearest known pack in Wyoming is more than 200 km (124 miles) from
the Colorado border, which is more than two times the average dispersal
distance for gray wolves. In addition, gray wolves in most of Wyoming,
outside of the wolf trophy game management area, are considered
predators and can legally be killed with no limit on such take. Wolf
packs are unlikely to persist in portions of Wyoming where they are
designated as predatory animals (85 FR 69778, November 3, 2020).
Despite these challenges, it is possible that gray wolves
dispersing from the NRM population could successfully enter the NEP.
However, these movements would likely be infrequent given the NEP's
distance from existing populations, given the difficulty of dispersal
across most of Wyoming, and the normal dispersal distances for gray
wolves. Additionally, the small numbers of individuals likely to occupy
the NEP following the release and the sizable distances between
populations makes any potential interaction between individuals or a
merging of populations highly unlikely. Further, even if gray wolves
from the NRM or other populations were to disperse into the NEP, the
presence of one or a few individual dispersing gray wolves would not
constitute a population, as described above. Therefore, gray wolves
reintroduced into Colorado will be wholly geographically separate from
the delisted portion of the NRM population as well as the remainder of
the currently listed 44-State entity. Based on this geographic
separation, we conclude that any gray wolves found in Colorado after
the initial release will, with a high degree of likelihood, be members
of the NEP; therefore, we conclude that geographic location is an
appropriate means to identify members of the NEP.
As noted in the Release Procedures section, above, CPW plans to fit
individual animals reintroduced to the proposed Colorado NEP with GPS
collars or a mix of GPS and VHF collars, with GPS preferred in the
early stages of the reintroduction effort. Reintroduced wolves fitted
with radio telemetry collars and other identifiable marks prior to
release will enable CPW to determine if animals within Colorado are
members of the reintroduced NEP, and not extant wolves from other
populations (e.g., the delisted NRM population). However, as
reintroduced wolves begin to reproduce and disperse from Colorado
packs, wolf abundance and distribution will increase in Colorado and
the ability to capture and mark a high proportion of the population
will decline. Given the challenges associated with marking a high
number of wolves as the population increases and the distance from
known packs in Wyoming and other populations of gray wolves, we will
consider all gray wolves found in the State of Colorado to be members
of the NEP.
Although CPW and the Service determined that there is no existing
population of wolves in the proposed NEP area that would preclude
reintroduction and establishment of an experimental population in the
State (see definition of wolf population in Historical and Current
Range section, above), both agencies will continue to
[[Page 10270]]
monitor for the presence of any naturally recolonizing wolves. If a
naturally recolonizing population of wolves is discovered in the
proposed Colorado NEP area prior to release, the Service will exclude
that geographic area where the natural recolonizing wolves occur from
the NEP area to ensure the reintroduced wolves are wholly separate
geographically from non-experimental wolves. Any naturally recolonizing
population of wolves would be considered endangered under the Act.
Is the Proposed Experimental Population Essential or Nonessential?
When we establish experimental populations under section 10(j) of
the Act, we must determine whether or not that population is essential
to the continued existence of the species. This determination is based
solely on the best scientific and commercial data available. Our
regulations (50 CFR 17.80(b)) state that an experimental population is
considered essential if its loss would be likely to appreciably reduce
the likelihood of survival of that species in the wild. We are
proposing to designate the population of gray wolves in Colorado as
nonessential for the following reason.
Populations of gray wolves within the 44-State listed entity
include the Great Lakes metapopulation and growing populations in
California, Oregon, and Washington. Multiple large, growing or stable
metapopulations of gray wolves inhabiting separate and ecologically
diverse areas ensure that the survival of the listed species does not
rely on any single population. Therefore, the loss of the Colorado NEP
would not be likely to appreciably reduce the likelihood of survival of
the species in the wild, and we find that the Colorado NEP is not
essential to the continued existence of the species.
Management Restrictions, Protective Measures, and Other Special
Management
We have included management measures to address potential conflicts
between wolves and humans and wolves and domestic animals. Management
of the nonessential experimental population would allow reintroduced
wolves to be hazed, killed, or relocated by the Service or our
designated agent(s) for domestic animal depredations. Under special
conditions, the public could harass or kill wolves attacking livestock
(defined below). We have also requested input on whether to allow
lethal management of gray wolves that are having a significant impact
to ungulate populations. If allowed for the purpose of ungulate
management, authorization for removal of wolves would require a
science-based determination that an unacceptable impact to a wild
ungulate herd has occurred and that removal of gray wolves would not
impede wolf conservation.
As the lead agency for reintroduction efforts for gray wolves in
Colorado, CPW will coordinate with the Service on releases, monitoring,
and other tasks as needed to ensure successful reintroduction of the
species to the State. Definitions pertaining to special management
provisions are listed below:
Designated agent--Federal, State, or Tribal agencies authorized or
directed by the Service may conduct gray wolf management consistent
with this rule.
The State of Colorado and Tribes within the State with wolf
management plans also may become designated agents by submitting a
request to the Service to establish an MOA under this proposed rule.
Once accepted by the Service, the MOA may allow the State of Colorado
or Tribes within the State to assume lead authority for wolf
conservation and management within their respective jurisdictions and
to implement the portions of their State or Tribal wolf management
plans that are consistent with this proposed rule. The Service
oversight (aside from Service law enforcement investigations) under an
MOA is limited to monitoring compliance with this proposed rule,
issuing written authorizations for wolf take on reservations without
wolf management plans, and an annual review of the State or Tribal
program to ensure consistency with this proposed rule. Under either a
cooperative agreement or an MOA, no management outside the provisions
of this proposed rule is allowed unless additional public comment is
solicited and this rule is modified accordingly.
Domestic animals--Animals that have been selectively bred over many
generations to enhance specific traits for their use by humans,
including for use as pets. This includes livestock (as defined below)
and dogs.
Incidental take: Experimental population rules contain specific
prohibitions and exceptions regarding the taking of individual animals
under the Act. These rules are compatible with most routine human
activities in the proposed NEP area (e.g., resource monitoring,
invasive species management, and research; see How Will the NEP Further
the Conservation of the Species? above). Section 3(19) of the Act
defines ``take'' as ``to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or to attempt to engage in any such
conduct.'' ``Incidental take'' is further defined as take that is
incidental to, and not the purpose of, the carrying out of an otherwise
lawful activity. If we adopt this section 10(j) rule as proposed,
management of the NEP would allow employees of the Service and
designated agents acting on our behalf to intentionally take gray
wolves under certain circumstances. See table 1 below for additional
details on incidental take of gray wolves within the proposed NEP area.
Intentional harassment--The deliberate and pre-planned harassment
of wolves, including by less-than-lethal munitions that are designed to
cause physical discomfort and temporary physical injury but not death.
Interagency consultation--For purposes of section 7(a)(2) of the
Act, section 10(j) of the Act and our regulations (at 50 CFR 17.83)
provide that nonessential experimental populations are treated as
species proposed for listing under the Act except on National Park
Service and National Wildlife Refuge System lands, where they are
treated as threatened species for the purposes of section 7(a)(2) of
the Act. We intend to address our section 7(a)(2) consultation
obligations for gray wolves within units of the National Wildlife
Refuge system in Colorado through a programmatic intra-Service
consultation prior to finalizing this proposed rule and will coordinate
with the National Park Service to address section 7(a)(2) obligations
on any National Park Service units in Colorado.
In the act of attacking--The actual biting, wounding, grasping, or
killing of livestock or dogs, or chasing, molesting, or harassing by
wolves that would indicate to a reasonable person that such biting,
wounding, grasping, or killing of livestock or dogs is likely to occur
at any moment.
Landowner--An owner or lessee of private land, or their immediate
family members, or the owner's employees, contractors, or volunteers
who are currently employed to actively work on that private land. In
addition, the owners (or their employees or contractors) of livestock
that are currently and legally grazed on that private land and other
leaseholders on that private land (such as outfitters or guides who
lease hunting rights from private landowners), are considered
landowners on that private land for the purposes of this regulation.
Private land, under this proposed rule, also includes all non-Federal
land and land within Tribal reservations. Individuals legally
[[Page 10271]]
using Tribal lands in the State of Colorado with wolf management plans
are considered landowners for the purposes of this proposed rule.
Livestock--Cattle, sheep, pigs, horses, mules, goats, domestic
bison, and herding and guarding animals (alpacas, llamas, donkeys, and
certain breeds of dogs commonly used for herding or guarding
livestock). Livestock excludes dogs that are not being used for
livestock guarding or herding.
Livestock Producer--A person that is actively engaged in farming/
ranching and that receives a substantial amount of total income from
the production of livestock.
Non-injurious--Does not cause either temporary or permanent
physical damage or death.
Opportunistic harassment--Harassment without the conduct of prior
purposeful actions to attract, track, wait for, or search out the wolf.
Private land--All land other than that under Federal Government
ownership and administration and including Tribal reservations.
Problem wolves--Wolves that we or our designated agents confirm to
have attacked any other domestic animals twice within a calendar year
are considered problem wolves for purposes of agency wolf control
actions.
Public land--Federal land such as that administered by the National
Park Service, U.S. Fish and Wildlife Service, Bureau of Land
Management, USDA Forest Service, Bureau of Reclamation, Department of
Defense, or other agencies with the Federal Government.
Public land permittee--A person or that person's employee who has
an active, valid Federal land-use permit to use specific Federal lands
to graze livestock or operate as an outfitter or guiding business that
uses livestock. This definition does not include private individuals or
organizations who have Federal permits for other activities on public
land such as collecting firewood, mushrooms, antlers, Christmas trees,
or logging, mining, oil or gas development, or other uses that do not
require livestock. In recognition of the special and unique authorities
of Tribes and their relationship with the U.S. Government, for the
purposes of this proposed rule, the definition includes Tribal members
who legally graze their livestock on ceded public lands under
recognized Tribal treaty rights.
Remove--Place in captivity, relocate to another location, or kill.
Research--Scientific studies resulting in data that will lend to
enhancement of the survival of gray wolves.
Rule-- ``This rule'' in the regulatory text refers to the proposed
NEP regulations.
Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or
other evidence of physical damage caused by a wolf bite.
Table 1--Allowable Forms of Take for Gray Wolves in the Proposed
Colorado NEP Area
------------------------------------------------------------------------
Description of provision in the
Take provision proposed experimental population
rule
------------------------------------------------------------------------
Take in defense of human life..... Any person may take a wolf in
defense of the individual's life or
the life of another person. The
unauthorized taking of a wolf
without demonstration of an
immediate and direct threat to
human life may be referred to the
appropriate authorities for
prosecution.
Agency take of wolves determined The Service, or our designated
to be a threat to human life and agents, may promptly remove (that
safety. is, place in captivity or kill) any
wolf determined by the Service or
designated agent to be a threat to
human life or safety.
Opportunistic harassment.......... Anyone may conduct opportunistic
harassment of any gray wolf in a
non-injurious manner at any time.
Opportunistic harassment must be
reported to the Service or our
designated agent within 7 days.
Intentional harassment............ After the Service, or our designated
agent, has confirmed wolf activity
on private land, on a public land
grazing allotment, or on a Tribal
reservation, the Service or our
designated agent may issue written
take authorization valid for not
longer than 1 year to any landowner
or public land permittee to
intentionally harass wolves in a
nonlethal, injurious manner. The
harassment must occur in the area
and under the conditions as
specifically identified in the
written take authorization.
Intentional harassment must be
reported to the Service or a
designated agent within 7 days.
Taking wolves ``in the act of Consistent with State or Tribal
attacking'' livestock on PRIVATE requirements, any landowner may
land. take (injure or kill) a gray wolf
in the act of attacking (wounding,
harassing, molesting, or killing)
livestock or dogs (working or pet)
on their private land. Any wolf
taken in the act must be reported
to the Service or our designated
agent within 24 hours. The carcass
and surrounding area must not be
disturbed in order to preserve
physical evidence that the
livestock or dogs were recently
attacked by a wolf or wolves. The
Service or our designated agent
must be able to confirm that the
livestock or dog were wounded,
harassed, molested, or killed by a
wolf or wolves. The taking of any
wolf without such evidence may be
referred to the appropriate
authorities for prosecution.
Taking wolves ``in the act of Consistent with State or Tribal
attacking'' livestock on PUBLIC requirements, any livestock
land. producer and public land permittee
who is legally using public land
under a valid Federal land-use
permit may take a gray wolf in the
act of attacking their livestock on
the person's allotment or other
area authorized for their use
without prior written
authorization. The Service or our
designated agent must be able to
confirm that the livestock or dogs
were wounded, harassed, molested,
or killed by a wolf or wolves. The
carcass of any wolf taken and the
area surrounding it should not be
disturbed to preserve physical
evidence that the take was
conducted according to this
proposed rule. Any person legally
present on public land may
immediately take a wolf that is in
the act of attacking the
individual's stock animal or dog,
provided conditions noted in taking
of wolves in the act on private
land are met. Any take or method of
take on public land must be
consistent with the rules and
regulations on those public lands.
Any lethal or injurious take must
be reported to the Service or a
designated agent within 24 hours.
[[Page 10272]]
Additional taking by private At the Service's or our designated
citizens on their PRIVATE LAND. agents' direction, the Service or
designated agent may issue a
``shoot on-sight'' written take
authorization of limited duration
(45 days or less) to a landowner or
their employees to take up to a
specified (by the Service or our
designated agent) number of wolves
on their private land if: (1) The
landowner has had at least one
depredation by wolves on livestock
that has been confirmed by the
Service or our designated agent
within the last 30 days; and (2)
the Service or our designated agent
has determined that problem wolves
are routinely present on the
private land and present a
significant risk to the health and
safety of livestock; and (3) the
Service or our designated agent has
authorized lethal removal of wolves
from that same private land. These
authorizations may be terminated at
any time once threats have been
resolved or minimized. Any lethal
or injurious take must be reported
to the Service or a designated
agent within 24 hours.
Additional taking by grazing At the Service's or our designated
permittees on PUBLIC LAND. agents' direction, the Service or
designated agent may issue a
``shoot on-sight'' written take
authorization of limited duration
(45 days or less) to a public land
grazing permittee to take up to a
specified (by the Service or our
designated agent) number of wolves
on that permittee's active
livestock grazing allotment if: (1)
The grazing allotment has had at
least one depredation by wolves on
livestock that has been confirmed
by the Service or our designated
agent within the last 30 days; and
(2) the Service or our designated
agent has determined that problem
wolves are routinely present on
that allotment and present a
significant risk to the health and
safety of livestock; and (3) the
Service or our designated agent has
authorized lethal removal of wolves
from that same allotment. These
authorizations may be terminated at
any time once threats have been
resolved or minimized. Any take or
method of take on public land must
be consistent with the rules and
regulations on those public lands.
Any lethal or injurious take must
be reported to the Service or a
designated agent within 24 hours.
Agency take of wolves that The Service or our designated agent
repeatedly depredate livestock. may carry out harassment, nonlethal
control measures, relocation,
placement in captivity, or lethal
control of problem wolves. The
Service or our designated agent
will consider: (1) Evidence of
wounded livestock, dogs, or other
domestic animals, or remains of
livestock, dogs, or domestic
animals that show that the injury
or death was caused by wolves, or
evidence that wolves were in the
act of attacking livestock, dogs,
or domestic animals; (2) the
likelihood that additional wolf-
caused losses or attacks may occur
if no control action is taken; (3)
evidence of unusual attractants or
artificial or intentional feeding
of wolves; and (4) evidence that
animal husbandry practices
recommended in approved allotment
plans and annual operating plans
were followed.
Incidental take................... Any person may take a gray wolf if
the take is incidental to an
otherwise lawful activity, if
reasonable due care was practiced
to avoid such taking, and such
taking was reported within 24
hours. (The Service may allow
additional time if access is
limited.) Shooting a wolf as a
result of mistaking it for another
species is not considered
accidental and may be referred to
the appropriate authorities for
prosecution.
Permits for recovery actions that Permits are available and required,
include take of gray wolves. except as otherwise allowed by this
proposed rule, for scientific
purposes, enhancement of
propagation or survival,
educational purposes, or other
purposes consistent with the Act
(50 CFR 17.32).
Additional taking provisions for Any Service employee or our
agency employees and our designated agent may take a gray
designated agent. wolf from the NEP: (1) For take
related to the release, tracking,
monitoring, recapture, and
management for the NEP; (2) to aid
or euthanize sick, injured, or
orphaned wolves or transfer to a
licensed veterinarian for care; (3)
to dispose of a dead specimen; (4)
to salvage a dead specimen that may
be used for scientific study; (5)
to aid in law enforcement
investigations involving wolves
(collection of specimens for
necropsy, etc.); or (6) to remove
wolves with abnormal physical or
behavioral characteristics, as
determined by the Service or our
designated agent, from passing on
or teaching those traits to other
wolves.
------------------------------------------------------------------------
Review and Evaluation of the Success or Failure of the NEP
CPW plans to use radio transmitters, remote cameras, surveys of
roads and trails to document wolf sign, and other monitoring techniques
to document wolf reproductive success, abundance, and distribution in
Colorado post-release. This information will be summarized in an annual
report by CPW that describes wolf conservation and management
activities that occurred in Colorado each calendar or biological year
to evaluate progress toward achieving the State of Colorado's
downlisting and recovery criteria. The annual report will be due
annually to the Service by June 30th and posted on CPW's website. The
annual report may include, but not be limited to: post-release wolf
movements and behavior; wolf minimum counts or abundance estimates;
reproductive success and recruitment; territory use and distribution;
cause-specific wolf mortalities; and a summary of wolf conflicts and
associated management activities to minimize wolf conflict risk. For
additional details, please see CPW 2021b (entire) and the Release
Procedures section, above.
The Service will evaluate Colorado's wolf reintroduction and
management program in an annual summary report. Additionally, 5 years
after the last reintroductions are completed, the
[[Page 10273]]
Service will evaluate whether the wolf population is meeting the
State's recovery goals and conservation of the species. During this
evaluation, we will assess the reintroduction program and coordinate
with CPW if it is determined that modifications to reintroduction
protocols are necessary. Five years after the reintroductions is a
reasonable timeline for this evaluation because it would mirror the
minimum post-delisting monitoring period used to evaluate the success
of management programs after species have achieved recovery. It would
also provide a suitable period to evaluate wolf population growth and
abundance in order to assess progress toward achieving the State of
Colorado's recovery goals, while concurrently minimizing wolf-related
conflicts in the State. If modifications to wolf monitoring and
management activities are needed, the Service will coordinate closely
with CPW to ensure progress toward achieving recovery goals while
concurrently minimizing wolf-related conflicts in Colorado.
Other Considerations
Above, we considered potential effects of the release on wild
populations of the delisted NRM potential donor populations. Although
not required under our regulations, we also considered potential
effects of the release on the Mexican wolf. The number of gray wolves
in Colorado could continue to grow and expand, which could increase the
likelihood that gray wolves in Colorado disperse far enough south to
encounter Mexican wolves. The timing and extent of any potential future
contact are uncertain and difficult to project, but if contact were to
occur, interbreeding could be a concern for the Mexican wolf, depending
on its state of recovery at the time. If gray wolves come to occupy
Mexican wolf recovery areas, these physically larger wolves are likely
to dominate smaller Mexican wolves and quickly occupy breeding
positions, as will their hybrid offspring. Hybrid population(s) thus
derived will not contribute towards recovery because they will
significantly threaten integrity of the listed entity (Odell et al.
2018, entire). However, potential inbreeding would be unlikely to have
significant effects on the gray wolf, given the narrow geographic range
in which such contact would likely occur relative to the species'
overall range.
Findings
Based on the best scientific and commercial data available (in
accordance with 50 CFR 17.81), we find that releasing gray wolves into
the State of Colorado with the regulatory provisions in this proposed
rulemaking will further the conservation of the species in the
currently listed 44-State entity. The NEP status is appropriate for the
introduced population; the potential loss of the experimental
population would not appreciably reduce the likelihood of the survival
of the species in the 44-State listed entity since more than 4,600
wolves are distributed across at least 6 different States in the
Western United States and the western Great Lakes.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O.) 12866 provides that the Office of
Information and Regulatory Affairs (OIRA) in the Office of Management
and Budget will review all significant rules. OIRA has determined that
this proposed rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the Nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996; 5 U.S.C.
601 et seq.), whenever a Federal agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare, and make
available for public comment, a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies that the rule will not have a significant economic
impact on a substantial number of small entities. SBREFA amended the
Regulatory Flexibility Act to require Federal agencies to provide a
statement of the factual basis for certifying that a rule will not have
a significant economic impact on a substantial number of small
entities. We certify that, if finalized, this proposed rule would not
have a significant economic effect on a substantial number of small
entities. The following discussion explains our rationale.
This proposed rule is modeled after previous NEP designations in
Idaho, Montana, and Wyoming that contributed to the recovery of gray
wolves while allowing for the control and management of wolves that
caused conflicts and economic impacts on livestock producers. The
majority of gray wolves in the Western United States are part of the
NRM population, which is no longer protected under the Act. Despite
increased incidences of human-caused mortality in the NRM population
after delisting, this population is stable to increasing, and wolves
from this population have readily dispersed to other States, including
Colorado (Service 2020, pp. 14-19; 85 FR 69778, November 3, 2020).
The State of Colorado has recognized the utility of NEP
designations in reintroducing gray wolves while addressing the concerns
of local, State, and Tribal governments, as well as private entities,
and engaged in an extensive stakeholder outreach process to develop a
State management plan with broad-based support (CPW 2022b). This
process, which involved a Stakeholder Advisory Group comprising a
diverse array of stakeholders such as agricultural producers, hunting
guides, wolf conservation advocates, and other interests and a
Technical Working Group comprising gray wolf experts, assisted in the
formulation of an impact-based management matrix and the overall
Colorado Gray Wolf Management and Restoration Plan.
The reduced restrictions on taking problem wolves (see definition
above under Management Restrictions, Protective Measures, and Other
Special Management) in this proposed rule, relative to endangered
species that receive the full protections of sections 7 and 9 of the
Act, will make the management of wolves easier and more effective, thus
reducing the economic losses that result from depredation of wolves on
livestock and guard animals and dogs. Furthermore, a State program to
compensate livestock producers who experience livestock losses caused
by wolves is being developed and will be implemented upon CPW
Commission
[[Page 10274]]
approval. As a point of reference, compensation for livestock losses in
Montana in 2021 totaled $103,815.95 (Parks et al. 2022, p. 19), and
compensation in Wyoming for the same period totaled $208,124.00 (WGFD
et al. 2022, pp. 23-24). The potential effect on livestock producers in
western States is very small, but more flexible wolf management will
provide benefits to stakeholders and livestock producers by providing
options to protect assets.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.):
(1) This proposed rule would not ``significantly or uniquely''
affect small governments. We have determined and certify pursuant to
the Unfunded Mandates Reform Act, that, if adopted, this rulemaking
would not impose a cost of $100 million or more in any given year on
local or State governments or private entities. A small government
agency plan is not required. Small governments would not be affected
because the proposed NEP designation would not place additional
requirements on any city, county, or other local municipalities.
(2) This proposed rule would not produce a Federal mandate of $100
million or greater in any year (i.e., it is not a ``significant
regulatory action'' under the Unfunded Mandates Reform Act). This
proposed NEP designation for gray wolves in Colorado would not impose
any additional management or protection requirements on the States or
other entities.
Takings (E.O. 12630)
In accordance with Executive Order 12630, this proposed rule will
not have significant implications concerning taking of private property
by the Federal Government. This proposed rule will substantially
advance a legitimate government interest (conservation of a listed
species) and will not present a bar to all reasonable and expected
beneficial use of private property. Because of the regulatory
flexibility provided by NEP designations under section 10(j) of the
Act, we believe that the increased flexibility in this proposed rule
and State or Tribal lead wolf management will reduce regulatory
restrictions on private lands and will result in minor positive
economic effects for a small percentage of livestock producers.
Federalism (E.O. 13132)
In accordance with Executive Order 13132, this proposed rule will
not have significant federalism effects. This proposed rule will not
have substantial direct effects on the States, on the relationship
between the States and the Federal Government, or on the distribution
of power and responsibilities among the various levels of government.
CPW requested that we undertake this rulemaking to support the
conservation of wolves in the 44-State entity and in Colorado and to
provide increased take authority to resolve wolf conflicts, which we
believe will assist with conservation of the species. No intrusion on
State policy or administration is expected; roles or responsibilities
of Federal or State governments will not change; and fiscal capacity
will not be substantially affected. This proposed rule operates to
maintain the existing relationship between the States and the Federal
Government and is being undertaken at the request of CPW. We have
endeavored to cooperate with CPW and other State agencies in the
preparation of this proposed rule. Therefore, this proposed rule does
not have significant federalism effects or implications to warrant the
preparation of a federalism assessment pursuant to the provisions of
Executive Order 13132.
Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988 (February 7, 1996, 61 FR
4729), the Office of the Solicitor has determined that this proposed
rule would not unduly burden the judicial system and would meet the
requirements of sections (3)(a) and (3)(b)(2) of the Order.
Paperwork Reduction Act
This proposed rule contains existing and new collections of
information that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. We will ask OMB to review and
approve the new information collection requirements contained in this
rulemaking related to the establishment of an NEP of the gray wolf
(Canis lupus) in the State of Colorado, under section 10(j) of the ESA.
OMB has previously approved the information collection requirements
associated with permitting requirements associated with native
endangered and threatened species, and experimental populations, and
assigned OMB Control Number 1018-0094, ``Federal Fish and Wildlife
Permit Applications and Reports--Native Endangered and Threatened
Species; 50 CFR parts 10, 13, and 17'' (expires January 31, 2024).
Experimental populations established under section 10(j) of the
Act, as amended, require information collection and reporting to the
Service. We will collect information on the gray wolf NEP to help
further the recovery of the species and to assess the success of the
reintroduced populations. There are no forms associated with this
information collection. The respondents notify us when an incident
occurs, so there is no set frequency for collecting the information.
Other Federal agencies provide us with the vast majority of the
information on experimental populations under cooperative agreements
for the conduct of the recovery programs. However, the public also
provides some information to us. The proposed new information
collection requirements identified below require approval by OMB:
1. Appointment of designated agent--A designated agent is an
employee of a Federal, State, or Tribal agency that is authorized or
directed by the Service to conduct gray wolf management. A prospective
designated agent submits a letter to the Service requesting designated
agent status. The letter includes a proposal for the work to be
completed and resume of qualifications for the work they wish to
perform. The Service will then respond to the requester with a letter
authorizing them to complete the work.
2. Request for written take authorization--After receiving
confirmation of wolf activity on private land, on a public land grazing
allotment, or on a Tribal reservation, we or the designated agent may
issue written take authorization valid for not longer than 1 year, with
appropriate conditions, to any landowner or public land permittee to
intentionally harass wolves. The harassment must occur in the area and
under the conditions as specifically identified in the written take
authorization.
3. Request for ``shoot-on-sight'' written take authorization--The
Service or designated agent may issue a ``shoot-on-sight'' written take
authorization of limited duration (45 days or fewer) to a landowner or
their employees, or to a public land grazing permittee, to take up to a
specified (by the Service or our designated agent) number of wolves.
4. Reporting requirements--Except as otherwise specified in this
proposed rule or in an authorization, any take of a gray wolf must be
reported to the Service or our designated agent as follows (additional
reasonable time will be allowed if access to the site is limited):
[[Page 10275]]
a. Lethal take must be reported within 24 hours.
b. Opportunistic or intentional harassment must be reported within
7 days.
c. Gray wolves taken into captivity for care or to be euthanized
must be reported to the Service within 24 hours, or as soon as
reasonably appropriate.
5. Annual report--To evaluate progress toward achieving State
downlisting and delisting criteria, the Service will summarize
monitoring information in an annual report by Colorado Parks and
Wildlife. The report, due by June 30 of each year, will describe wolf
conservation and management activities that occurred in Colorado each
calendar or biological year. The annual report may include, but not be
limited to:
<bullet> post-release wolf movements and behavior;
<bullet> wolf minimum counts or abundance estimates;
<bullet> reproductive success and recruitment;
<bullet> territory use and distribution;
<bullet> cause-specific wolf mortalities; and
<bullet> a summary of wolf conflicts and associated management
activities to minimize wolf conflict risk.
6. Recovery or reporting of dead individuals and specimen
collection from experimental populations--This type of information is
for the purpose of documenting incidental or authorized scientific
collection. Specimens are to be retained or disposed of only in
accordance with directions from the Service. Most of the contacts with
the public deal primarily with the reporting of sightings of
experimental population animals, or the inadvertent discovery of an
injured or dead individual.
We will use the information described above to assess the
effectiveness of control activities and develop means to reduce
problems with livestock where depredation is a problem. Service
recovery specialists use the information to determine the success of
reintroductions in relation to established recovery plan goals for the
threatened and endangered species involved.
Title of Collection: Endangered and Threatened Wildlife,
Experimental Populations--Colorado Gray Wolf (50 CFR 17.84).
OMB Control Number: 1018-New.
Form Numbers: None.
Type of Review: New.
Respondents/Affected Public: Individuals; private sector; and
State/local/Tribal governments.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: Annually for annual report and on occasion
for other requirements.
Total Estimated Annual Nonhour Burden Cost: None.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of
Requirement annual annual Total annual Average completion time Total annual
respondents responses each responses burden hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
Appointment of Designated Agent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individuals.................................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
Private Sector................................. 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
State/Local/Tribal Gov't....................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Request for Written Take Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individuals.................................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
Private Sector................................. 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
State/Local/Tribal Gov't....................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Request for ``Shoot-on-Sight'' Written Take Authorization
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individuals.................................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
Private Sector................................. 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
State/Local/Tribal Gov't....................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting Requirement--Lethal Take
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individuals.................................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
Private Sector................................. 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
State/Local/Tribal Gov't....................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting Requirement--Opportunistic or Intentional Harassment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individuals.................................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
Private Sector................................. 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
[[Page 10276]]
State/Local/Tribal Gov't....................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Reporting Requirement--Captivity for Care or to be Euthanized
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individuals.................................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
Private Sector................................. 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
State/Local/Tribal Gov't....................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Report
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individuals.................................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
Private Sector................................. 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
State/Local/Tribal Gov't....................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notification--Recovery or Reporting of Dead Specimen and Specimen Collection
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individuals.................................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
Private Sector................................. 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
State/Local/Tribal Gov't....................... 1 1 1 30 min (reporting)..................... 1
30 min (recordkeeping).................
--------------------------------------------------------------------------------------------------------
Totals:.................................... 24 .............. 24 ....................................... 24
--------------------------------------------------------------------------------------------------------------------------------------------------------
Send your written comments and suggestions on this information
collection by the date indicated in DATES to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
by email to <a href="/cdn-cgi/l/email-protection#0940676f66564a666565496f7e7a276e667f"><span class="__cf_email__" data-cfemail="92dbfcf4fdcdd1fdfefed2f4e5e1bcf5fde4">[email protected]</span></a>. Please reference OMB Control Number
1018-Gray Wolf in the subject line of your comments.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relatives with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments; 65 FR 67249, November 9,
2000), and the Department of the Interior's manual at 512 DM 2, we have
considered possible effects of this proposed this rule on federally
recognized Indian Tribes. We notified the Native American Tribes within
and adjacent to the NEP about this proposed rule. We invited the two
Colorado Tribes to serve as cooperating agencies in the development of
the draft environmental impact statement (DEIS) and offered government-
to-government consultation. We communicated with Indian Tribes in
Colorado, eastern Utah, and portions of northern Arizona and northern
New Mexico through written contact, including informational mailings
from the Service and email notifications to attend video and
teleconference informational sessions and public hearings and to
comment on the DEIS and proposed rule. We invited all Tribes in
Colorado areas surrounding the NEP in Utah, Arizona, and New Mexico to
request government-to-government consultation under Secretarial Order
3206. We held an informational webinar for all Tribes, to discuss our
proposed rule. If future activities resulting from this proposed rule
may affect Tribal resources, the Service will communicate and consult
on a government-to-government basis with any affected Native American
Tribes in order to find a mutually agreeable solution.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
In compliance with all provisions of the National Environmental
Policy Act of 1969 (NEPA), we are in the process of analyzing the
impacts of this proposed rule. On July 21, 2022, we published a
document in the Federal Register that announced our intent to prepare
an environmental impact statement (EIS) to evaluate the potential
environmental impacts of issuing a proposed rule as requested by the
State of Colorado for its reintroduction and management of the gray
wolf (87 FR 43489). We accepted comments until August 22, 2022. We have
now completed a draft EIS (DEIS), which is available for public review
and comment as described above in DATES and ADDRESSES. The DEIS
evaluates options for a regulatory framework, including a rule
consistent with section 10(j) of the Act, for the reintroduction and
management of gray wolves in part of the species' historical range in
Colorado. The DEIS analyzes potential environmental impacts that may
result from two action alternatives and the no-action alternative and
includes relevant and reasonable measures that could avoid or mitigate
potential impacts.
Based on any new information resulting from public comment received
on the DEIS or on this proposed rule, we will determine if there are
any significant impacts or effects that would be caused by implementing
this proposed rule. All appropriate NEPA analysis will be finalized
before this proposed rule is finalized.
[[Page 10277]]
Energy Supply, Distribution, or Use (E.O. 13211)
Executive Order 13211 requires agencies to prepare statements of
energy effects when undertaking certain actions. This proposed rule is
not expected to significantly affect energy supplies, distribution, and
use. Therefore, this action is not a significant energy action, and no
statement of energy effects is required.
Clarity of This Regulation (E.O. 12866)
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the proposed rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and upon request from
the Colorado Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Colorado Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. Amend Sec. 17.84 by adding paragraph (a) to read as follows:
Sec. 17.84 Special rules--vertebrates.
(a) Wolf, gray (Canis lupus). (1) The regulations in this paragraph
(a) set forth the provisions of a rule to establish an experimental
population of gray wolves. The Service finds that establishment of an
experimental population of gray wolves as described in this paragraph
(a) will further the conservation of the species.
(2) Determinations. The gray wolves identified in paragraph (a)(3)
of this section constitute a nonessential experimental population (NEP)
under Sec. 17.81(c)(2). These wolves will be managed in accordance
with the provisions of this rule in the boundaries of the NEP area
within the State of Colorado or any Tribal reservation found in the
State that has a wolf management plan, as further provided in this
rule. Furthermore, the State of Colorado or any Tribe within the State
that has a wolf management plan consistent with this rule can request
the Service to assume the lead authority for wolf management under this
rule within the borders of the NEP area in the State or reservation as
set forth in paragraph (a)(10) of this section.
(3) Designated area. The site for this experimental population is
within the historical range of the species. The Colorado NEP area
encompasses the entire State of Colorado. All wolves found in the wild
within the boundary of the Colorado NEP area are considered
nonessential experimental animals. Any wolf that is outside the
Colorado NEP area, with the exception of wolves in the States of Idaho,
Minnesota, Montana, Wyoming, and portions of the States of Oregon,
Washington, and Utah, is considered endangered. Any wolf originating
from the Colorado NEP area and dispersing beyond its borders may be
managed by the wolf management regulations established for that area or
may be returned to the Colorado NEP area.
(4) Definitions. Key terms used in this rule have the following
meanings:
Designated agent--An employee of a Federal, State, or Tribal agency
that is authorized or directed by the Service to conduct gray wolf
management consistent with this rule.
Domestic animals--Animals that have been selectively bred over many
generations to enhance specific traits for their use by humans,
including for use as pets. This term includes livestock and dogs.
Intentional harassment--The deliberate and pre-planned harassment
of wolves, including by less-than-lethal munitions that are designed to
cause physical discomfort and temporary physical injury but not death.
In the act of attacking--The actual biting, wounding, grasping, or
killing of livestock or dogs or chasing, molesting, or harassing by
wolves that would indicate to a reasonable person that such biting,
wounding, grasping, or killing of livestock or dogs is likely to occur
at any moment.
Landowner--Any of the following entities:
(i) An owner or lessee of private land, or their immediate family
members, or the owner's employees, contractors, or volunteers who are
currently employed to actively work on that private land.
(ii) The owners, or their employees or contractors, of livestock
that are currently and legally grazed on private land and herding and
guarding animals (such as alpacas, llamas, or donkeys) and other
leaseholders on private land, such as outfitters or guides who lease
hunting rights from private landowners.
(iii) Individuals legally using Tribal lands in the State of
Colorado with wolf management plans.
Livestock--Cattle, sheep, pigs, horses, mules, goats, domestic
bison, and herding and guarding animals (alpacas, llamas, donkeys, and
certain breeds of dogs commonly used for herding or guarding
livestock). Livestock excludes dogs that are not being used for
livestock guarding or herding.
Livestock Producer--A person that is actively engaged in farming/
ranching and that receives a substantial amount of total income from
the production of livestock.
Non-injurious--Does not cause either temporary or permanent
physical damage or death.
Opportunistic harassment--Harassment without the conduct of prior
purposeful actions to attract, track, wait for, or search out the wolf.
Private land--All land other than that under Federal Government
ownership and administration and including Tribal reservations.
Problem wolves--Wolves that we or our designated agent confirm to
have attacked any other domestic animals on private land twice within a
calendar year.
Public land--Federal land such as that administered by the Service,
[[Page 10278]]
National Park Service, Bureau of Land Management, Bureau of
Reclamation, U.S. Department of Agriculture's Forest Service,
Department of Defense, or other agencies within the Federal Government.
Public land permittee--A person or that person's employee who has
an active, valid Federal land-use permit to use specific Federal lands
to graze livestock or operate an outfitter or guiding business that
uses livestock and Tribal members who legally graze their livestock on
ceded public lands under recognized Tribal treaty rights. This term
does not include private individuals or organizations who have Federal
permits for other activities on public land such as collecting
firewood, mushrooms, antlers, or Christmas trees, logging, mining, oil
or gas development, or other uses that do not require livestock.
Remove--Place in captivity, relocate to another location, or kill.
Research--Scientific studies resulting in data that will lend to
enhancement of the survival of the gray wolf.
Rule--The regulations in this paragraph (a).
Wounded--Exhibiting scraped or torn hide or flesh, bleeding, or
other evidence of physical damage caused by a wolf bite.
(5) Allowable forms of take of gray wolves. Take of gray wolves in
the experimental population is allowed without a permit only in these
specific circumstances: opportunistic harassment; intentional
harassment; take in defense of human life; take to protect human
safety; take by designated agents to remove problem wolves; incidental
take; take under any previously authorized permits issued by the
Service; take per authorizations for employees of designated agents;
take for research purposes; and take to protect livestock animals and
dogs. Consistent with the requirements of the State or Tribe, take is
allowed on private land. Take on public land is allowed as specified in
paragraph (a)(5)(iv)(A) of this section. Other than as expressly
provided by the regulations in this rule, all other forms of take are
considered a violation of section 9 of the Act. Any wolf or wolf part
taken legally must be turned over to the Service unless otherwise
specified in this rule. Any take of wolves must be reported as set
forth in paragraph (a)(6) of this section.
(i) Opportunistic harassment. Anyone may conduct opportunistic
harassment of any gray wolf in a non-injurious manner at any time.
Opportunistic harassment must be reported to the Service or a
designated agent within 7 days as set forth in paragraph (a)(6) of this
section.
(ii) Intentional harassment. After we or a designated agent have
confirmed wolf activity on private land, on a public land grazing
allotment, or on a Tribal reservation, we or the designated agent may
issue written take authorization valid for not longer than 1 year, with
appropriate conditions, to any landowner or public land permittee to
intentionally harass wolves. The harassment must occur in the area and
under the conditions as specifically identified in the written take
authorization. Intentional harassment must be reported to the Service
or a designated agent(s) within 7 days as set forth in paragraph (a)(6)
of this section.
(iii) Take by landowners on their private land. Landowners may take
wolves on their private land in the following two additional
circumstances:
(A) Consistent with State or Tribal requirements, any landowner may
take a gray wolf in the act of attacking livestock or dogs (working or
pet) on their private land, provided that there is no evidence of
intentional baiting, feeding, or deliberate attractants of wolves. To
preserve physical evidence that the livestock or dogs were recently
attacked by a wolf or wolves, the carcass and surrounding area must not
be disturbed. The Service or designated agent must be able to confirm
that the livestock or dogs were wounded, harassed, molested, or killed
by wolves. The take of any wolf without such evidence of a direct and
immediate threat may be referred to the appropriate authorities for
prosecution.
(B) The Service or designated agent may issue a ``shoot-on-sight''
written take authorization of limited duration (45 days or fewer) to a
landowner or their employees to take up to a specified (by the Service
or our designated agent) number of wolves on their private land if:
(1) The landowner has had at least one depredation by wolves on
livestock that has been confirmed by the Service or our designated
agent within the last 30 days; and
(2) The Service or our designated agent has determined that problem
wolves routinely occur on the private land and present a significant
risk to the health and safety of livestock; and
(3) The Service or our designated agent has authorized lethal
removal of wolves from those same private lands.
(4) These authorizations may be terminated at any time once threats
have been resolved or minimized.
(iv) Take on public land. Consistent with State or Tribal
requirements, any livestock producer and public land permittee (see
definitions in paragraph (a)(4) of this section) who is legally using
public land under a valid Federal land-use permit may take a gray wolf
in the act of attacking livestock or dogs on the person's allotment or
other area authorized for the person's use without prior written
authorization.
(A) The Service or designated agent must be able to confirm that
the livestock or dog were wounded, harassed, molested, or killed by a
wolf or wolves. The carcass of any wolf taken and the area surrounding
it should not be disturbed to preserve physical evidence that the take
was conducted according to this rule. Any person legally present on
public land may immediately take a wolf that is in the act of attacking
the individual's stock animal or dog, provided conditions described in
paragraph (a)(5)(iii)(A) of this section for private land (i.e., ``in
the act of attacking'') are met. Any take or method of take on public
land must be consistent with the laws and regulations on those public
lands.
(B) The Service or our designated agent may issue a ``shoot-on-
sight'' written take authorization of limited duration (45 days or
fewer) to a public land grazing permittee to take up to a specified (by
the Service or our designated agent) number of wolves on that
permittee's active livestock grazing allotment if all of the following
situations occur:
(1) The grazing allotment has had at least one depredation by
wolves on livestock that has been confirmed by the Service or our
designated agent within the last 30 days; and
(2) The Service or our designated agent has determined that problem
wolves routinely occur on that allotment and present a significant risk
to the health and safety of livestock; and
(3) The Service or our designated agent has authorized lethal
removal of wolves from that same allotment.
(4) These authorizations may be terminated at any time once threats
have been resolved or minimized.
(5) Any take or method of take on public land must be consistent
with the rules and regulations on those public lands.
(v) Agency take of wolves that repeatedly depredate livestock. The
Service or our designated agent may carry out harassment, nonlethal
control measures, relocation, placement in captivity, or lethal control
of problem wolves. The Service or our designated agent will consider:
(A) Evidence of wounded livestock, dogs, or other domestic animals,
or remains of livestock, dogs, or domestic animals that show that the
injury or
[[Page 10279]]
death was caused by wolves, or evidence that wolves were in the act of
attacking livestock, dogs, or domestic animals;
(B) The likelihood that additional wolf-caused losses or attacks
may occur if no control action is taken;
(C) Any evidence of unusual attractants or artificial or
intentional feeding of wolves; and
(D) Evidence that animal husbandry practices recommended in
approved allotment plans and annual operating plans were followed.
(vi) Take in defense of human life. Any person may take a gray wolf
in defense of the individual's life or the life of another person. The
taking of a wolf without an immediate and direct threat to human life
may be referred to the appropriate authorities for prosecution.
(vii) Take to protect human safety. The Service or our designated
agent may promptly remove any wolf that we or our designated agent
determines to be a threat to human life or safety.
(viii) Incidental take. Take of a gray wolf is allowed if the take
is accidental and/or incidental to an otherwise lawful activity and if
reasonable due care was practiced to avoid such take and such take is
reported within 24 hours as set forth at paragraph (a)(6) of this
section. We may refer incidental take that does not meet these
provisions to the appropriate authorities for prosecution. Shooters
have the responsibility to identify their target before shooting.
Shooting a wolf as a result of mistaking it for another species is not
considered accidental and may be referred to the appropriate
authorities for prosecution.
(ix) Take under permits. Any person with a valid permit issued by
the Service under 50 CFR 17.32, or our designated agent, may take
wolves in the wild, pursuant to terms of the permit.
(x) Additional take authorization for agency employees. When acting
in the course of official duties, any employee of the Service or a
designated agent may take a wolf when necessary in regard to the
release, tracking, monitoring, recapture, and management of the NEP or
to:
(A) Aid or euthanize a sick, injured, or orphaned wolf and transfer
it to a licensed veterinarian for care;
(B) Dispose of a dead specimen;
(C) Salvage a dead specimen that may be used for scientific study;
(D) Aid in law enforcement investigations involving wolves
(collection of specimens for necropsy, etc.); or
(E) Remove wolves with abnormal physical or behavioral
characteristics, as determined by the Service or our designated agent,
from passing on or teaching those traits to other wolves.
(F) Such take must be reported to the Service as set forth in
paragraph (a)(6) of this section, and specimens are to be retained or
disposed of only in accordance with directions from the Service.
(xi) Take for research purposes. Permits are available and
required, except as otherwise allowed by this rule, for scientific
purposes, enhancement of propagation or survival, educational purposes,
or other purposes consistent with the Act (50 CFR 17.32). Scientific
studies should be reasonably expected to result in data that will lead
to development of sound management of the gray wolf and to enhancement
of its survival as a species.
(6) Reporting requirements. Except as otherwise specified in this
rule or in an authorization, any take of a gray wolf must be reported
to the Service or our designated agent as follows: Lethal take must be
reported within 24 hours, and opportunistic or intentional harassment
must be reported within 7 days. We will allow additional reasonable
time if access to the site is limited.
(i) Report any take of wolves, including opportunistic harassment
or intentional harassment, to U.S. Fish and Wildlife Service, Colorado
Ecological Services Field Office Supervisor (134 Union Boulevard, Suite
670, Lakewood, Colorado 80225, <a href="/cdn-cgi/l/email-protection#db98b4b7b4a9babfb49e889bbdaca8f5bcb4ad"><span class="__cf_email__" data-cfemail="74371b181b0615101b3127341203075a131b02">[email protected]</span></a>), or a Service-
designated agent of another Federal, State, or Tribal agency.
(ii) Unless otherwise specified in this paragraph (a) any wolf or
wolf part taken legally must be turned over to the Service, which will
determine the disposition of any live or dead wolves.
(7) Prohibitions. Take of any gray wolf in the NEP is prohibited,
except as provided in paragraphs (a)(5) and (8) of this section.
Specifically, the following actions are prohibited by this rule:
(i) No person shall possess, sell, deliver, carry, transport, ship,
import, or export by any means whatsoever, any wolf or part thereof
from the experimental population taken in violation of the regulations
in this paragraph (a) or in violation of applicable State or Tribal
fish and wildlife laws or regulations or the Act.
(ii) It is unlawful for any person to attempt to commit, solicit
another to commit, or cause to be committed any offense defined in this
paragraph (a).
(8) Monitoring. Gray wolves in the NEP area will be monitored by
radio telemetry or other standard wolf population monitoring techniques
as appropriate. Any animal that is sick, injured, or otherwise in need
of special care may be captured by authorized personnel of the Service
or our designated agent and given appropriate care. Such an animal will
be released back into its respective area as soon as possible, unless
physical or behavioral problems make it necessary to return the animal
to captivity or euthanize it. If a gray wolf is taken into captivity
for care or is euthanized, it must be reported to the Service within 24
hours or as soon as reasonably appropriate.
(9) Review and evaluation of the success or failure of the NEP.
Radio transmitters, remote cameras, surveys of roads and trails to
document wolf sign, and other monitoring techniques will be used to
document wolf reproductive success, abundance, and distribution in
Colorado post-release.
(i) To evaluate progress toward achieving State downlisting and
delisting criteria, the Service will summarize this information in an
annual report by CPW, submitted by June 30 of each year, that describes
wolf conservation and management activities that occurred in Colorado
each calendar or biological year. The annual report may include, but
not be limited to: post-release wolf movements and behavior; wolf
minimum counts or abundance estimates; reproductive success and
recruitment; territory use and distribution; cause-specific wolf
mortalities; and a summary of wolf conflicts and associated management
activities to minimize wolf conflict risk.
(ii) To assess the reintroduction program, the Service will
evaluate Colorado's wolf reintroduction and management program in a
summary report each year that wolf reintroductions occur in the State
and for a minimum of 5 years after reintroductions are complete. If the
Service determines that modifications to reintroduction protocols and
wolf monitoring and management activities are needed, the Service will
coordinate closely with the State to ensure progress toward achieving
recovery goals while concurrently minimizing wolf-related conflicts in
Colorado.
(10) Memorandum of Agreement (MOA). The State of Colorado or any
Tribe within the State, subject to the terms of this rule, may request
an MOA from the Service to take over lead management responsibility and
authority to implement this rule by managing the nonessential
experimental gray wolves in the State or on that Tribal reservation,
and implement all parts of their State or Tribal plan that are
consistent with this rule, provided that the State or Tribe has a wolf
management plan approved by the Service.
[[Page 10280]]
(i) The State or Tribal request for wolf management under an MOA
must demonstrate:
(A) That authority and management capability reside in the State or
Tribe to conserve the gray wolf throughout the geographical range of
the experimental population within the State of Colorado or within the
Tribal reservation;
(B) That the State or Tribe has an acceptable conservation program
for the gray wolf, throughout the NEP area within the State or Tribal
reservation, including the requisite authority and capacity to carry
out that conservation program;
(C) Exactly what parts of the State or Tribal plan the State or
Tribe intends to implement within the framework of this rule; and
(D) That the State or Tribal management progress will be reported
to the Service on at least an annual basis so the Service can determine
if State or Tribal management was conducted in full compliance with
this rule.
(ii) The Service will approve such a request upon a finding that
the applicable criteria are met and that approval is not likely to
jeopardize the continued existence of the gray wolf in the NEP.
(iii) If the Service approves the request, the Service will enter
into an MOA with the State of Colorado or appropriate Tribal
representative.
(iv) An MOA for State or Tribal management as provided in this rule
may allow the State of Colorado or any Tribe within the State to become
designated agents and lead management of the nonessential experimental
gray wolf population within the borders of their jurisdictions in
accordance with the State's or Tribe's wolf management plan, except
that:
(A) The MOA may not provide for any form of management inconsistent
with the protection provided to the species under this rule, without
further opportunity for appropriate public comment and review and
amendment of this rule.
(B) The MOA cannot vest the State of Colorado or any Tribe within
the State with any authority over matters concerning section 4 of the
Act (determining whether a species warrants listing).
(C) In the absence of a Tribal wolf management plan or cooperative
agreement, the MOA cannot vest the State of Colorado with the authority
to issue written authorizations for wolf take on reservations. The
Service will retain the authority to issue these written authorizations
until a Tribal wolf management plan is developed.
(D) The MOA for State or Tribal wolf management must provide for
joint law enforcement responsibilities to ensure that the Service also
has the authority to enforce the State or Tribal management program
prohibitions on take.
(E) The MOA may not authorize wolf take beyond that stated in the
rule but may be more restrictive.
(v) The authority for the MOA will be the Act, the Fish and
Wildlife Act of 1956 (16 U.S.C. 742a-742j), and the Fish and Wildlife
Coordination Act (16 U.S.C. 661-667e), and any applicable treaty.
(vi) In order for the MOA to remain in effect, the Service must
find, on an annual basis, that the management under the MOA is not
jeopardizing the continued existence of the gray wolf in the NEP. The
Service or State or Tribe may terminate the MOA upon 90 days' notice
if:
(A) Management under the MOA is likely to jeopardize the continued
existence of the gray wolf in the NEP;
(B) The State or Tribe has failed materially to comply with this
rule, the MOA, or any relevant provision of the State or Tribal wolf
management plan;
(C) The Service determines that biological circumstances within the
range of the gray wolf indicate that delisting the species is
warranted; or
(D) The States or Tribes determine that they no longer want the
wolf management authority vested in them by the Service in the MOA.
* * * * *
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-03196 Filed 2-16-23; 8:45 am]
BILLING CODE 4333-15-P
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</html>Indexed from Federal Register on February 17, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.