Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To Reclassify the Delta Smelt (Hypomesus transpacificus) From Threatened to Endangered, 39639-39643 [E8-15747]
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(c) If more than one individual should
qualify for payment—
(1) Under the Act, at 42 U.S.C.
3796(a)(4)(1), payment shall be made to
each of them in equal shares, except
that, if the designation itself should
manifest a different distribution,
payment shall be made to each of them
in shares in accordance with such
distribution; or
(2) Under the Act, at 42 U.S.C.
3796(a)(4)(2), payment shall be made to
each of them in equal shares.
§ 32.29
[Amended]
13. Amend § 32.41 by adding ‘‘, and
of claims remanded (or matters referred)
under § 32.54(c)’’ before the final
period.
14. Amend § 32.42 as follows:
a. In the introductory text of
paragraph (a), remove ‘‘Unless’’ and add
in its place ‘‘Subject to paragraph (c) of
this section, and unless’’.
b. Add a paragraph (c) to read as
follows:
§ 32.42 Time for filing request for
determination.
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*
(c) The timely filing of a motion for
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deemed to constitute a timely filing,
under paragraph (a) of this section, of a
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§ 32.43
[Amended]
15. Amend § 32.43(b) by adding ‘‘(or
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§ 32.45
[Amended]
16. Amend § 32.45(a) by removing
‘‘At’’ and adding in its place ‘‘Except
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17. Amend § 32.54 by adding
paragraph (c) to read as follows:
§ 32.54
Director determination.
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(c) With respect to any claim before
him, the Director, as appropriate, may—
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§ 32.55
Dated: July 7, 2008.
Jeffrey L. Sedgwick,
Acting Assistant Attorney General.
[FR Doc. E8–15730 Filed 7–9–08; 8:45 am]
BILLING CODE 4410–18–P
DEPARTMENT OF THE INTERIOR
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[Amended]
12. Amend § 32.29(a)(1)(ii) by
removing ‘‘The’’ and adding in its place
‘‘Consistent with § 32.42(c), the’’.
§ 32.41
the United States)’’ and adding in its
place ‘‘pursuant to the Act, at 42 U.S.C.
3796c–2’’.
[Amended]
18. Amend § 32.55(a) by removing
‘‘under 28 U.S.C. 1491(a) (claims against
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50 CFR Part 17
[FWS–R8–ES–2008–0067; 1111–FY08–MO–
B2]
Endangered and Threatened Wildlife
and Plants; 90-Day Finding on a
Petition To Reclassify the Delta Smelt
(Hypomesus transpacificus) From
Threatened to Endangered
Fish and Wildlife Service,
Interior.
ACTION: Notice of 90-day petition
finding and initiation of status review.
AGENCY:
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce a
90-day finding on a petition to reclassify
the delta smelt (Hypomesus
transpacificus) from threatened to
endangered under the Endangered
Species Act of 1973, as amended (Act).
We find that the petition presents
substantial scientific or commercial
information indicating that
reclassification of the delta smelt from
threatened to endangered may be
warranted. Therefore, we are initiating a
status review to determine if
reclassifying this species as endangered
under the Act is warranted. To ensure
that the status review is comprehensive,
we are soliciting scientific and
commercial data and other information
regarding this species.
DATES: To allow us adequate time to
conduct this review, we request that
information be submitted to us on or
before September 8, 2008.
ADDRESSES: You may submit
information by one of the following
methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R8–
ES–2008–0067, Division of Policy and
Directives Management, U.S. Fish and
Wildlife Service, 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
We will not accept e-mail or faxes. We
will post all information at https://
www.regulations.gov. This generally
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39639
means that we will post any personal
information you provide us (see the
Information Solicited section below for
more details).
FOR FURTHER INFORMATION CONTACT:
Susan Moore, Sacramento Fish and
Wildlife Office, 2800 Cottage Way, W–
2605, Sacramento, CA 95825; telephone
916–414–6600; facsimile 916–414–6712.
If you use a telecommunications device
for the deaf (TDD), call the Federal
Information Relay Service at 800–877–
8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that
substantial information is presented to
indicate that listing, delisting, or
reclassifying a species may be
warranted, we are required to promptly
commence a review of the status of the
species. To ensure that the status review
is complete and based on the best
available scientific and commercial
information, we are soliciting
information concerning the status of the
delta smelt. We request information
from the public, other concerned
governmental agencies, Native
American tribes, the scientific
community, industry, or any other
interested parties concerning the status
of the delta smelt, including but not
limited to information on:
(1) The effects of potential threat
factors that are the basis for a listing
determination under section 4(a) of the
Act (16 U.S.C. 1531 et seq.), which are:
(a) Present or threatened destruction,
modification, or curtailment of the
species’ habitat or range;
(b) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(c) Disease or predation;
(d) The inadequacy of existing
regulatory mechanisms; or
(e) Other natural or manmade factors
affecting its continued existence.
(2) Population abundance,
distribution, trends, and dynamics;
habitat selection and trends; food habits;
and effects of disease, competition, and
predation on delta smelt.
(3) The effects of climate change, sea
level change, and change in water
temperatures on the distribution and
abundance of delta smelt and their
principal prey.
(4) The effects of other potential threat
factors, including water diversions in
the Sacramento-San Joaquin River Delta
(Delta), contaminants, invasive species,
and changes of the distribution and
abundance of delta smelt and their
principal prey.
(5) Management programs for delta
smelt conservation, including mitigation
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measures related to water diversions
and development, habitat conservation
programs, invasive species control
programs, and any other private, tribal,
or governmental conservation programs
which benefit delta smelt.
Please note that submissions merely
stating support for or opposition to the
action under consideration without
providing supporting information,
although noted, will not be considered
in making a determination, as section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is an endangered or threatened
species must be made ‘‘solely on the
basis of the best scientific and
commercial data available.’’ Based on
the status review, we will issue the 12month finding on the petition, as
provided in section 4(b)(3)(B) of the Act.
You may submit your information
concerning this finding by one of the
methods listed in the ADDRESSES
section. We will not consider
submissions sent by e-mail or fax or to
an address not listed in the ADDRESSES
section.
If you submit information via https://
www.regulations.gov, your entire
submission—including your personal
identifying information—will be posted
on the Web site. 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 https://www.regulations.gov.
Information and materials we receive,
as well as supporting documentation we
used in preparing this finding, will be
available for public inspection on
https://www.regulations.gov, or by
appointment, during normal business
hours, at the U.S. Fish and Wildlife
Service, Sacramento Fish and Wildlife
Office (see FOR FURTHER INFORMATION
CONTACT).
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Background
Section 4(b)(3)(A) of the Act requires
that we make a finding on whether a
petition to list, delist, or reclassify a
species presents substantial scientific or
commercial information to indicate that
the petitioned action may be warranted.
We are to base this finding on
information provided in the petition,
supporting information submitted with
the petition, and information otherwise
available in our files at the time we
make the determination. To the
maximum extent practicable, we are to
make this finding within 90 days of our
receipt of the petition and publish our
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notice of the finding promptly in the
Federal Register.
Our standard for substantial scientific
or commercial information within the
Code of Federal Regulations (CFR) with
regard to a 90-day petition finding is
‘‘that amount of information that would
lead a reasonable person to believe that
the measure proposed in the petition
may be warranted’’ (50 CFR 424.14(b)).
If we find that substantial scientific or
commercial information was presented,
we are required to promptly commence
a status review of the species.
We were originally petitioned to list
the delta smelt as endangered on June
26, 1990. We proposed the species as
threatened and proposed the
designation of critical habitat on
October 3, 1991 (56 FR 50075). We
listed the species as threatened on
March 5, 1993 (58 FR 12854), and we
designated critical habitat on December
19, 1994 (59 FR 65256). The delta smelt
was one of eight fish species addressed
in the November 26, 1996, Recovery
Plan for the Sacramento-San Joaquin
Delta Native Fishes (Service 1996, pp.
1–195). We completed a 5-year status
review of the delta smelt on March 31,
2004 (Service 2004, pp. 1–50).
On March 9, 2006, we received a
petition, dated March 8, 2006, from the
Center for Biological Diversity, the Bay
Institute, and Natural Resources Defense
Council (CBD et al. 2006, pp. 1–33) to
reclassify the listing status of the delta
smelt, a threatened species, to
endangered status on an emergency
basis. The petition clearly identified
itself as a petition and included the
requisite identification information for
the petitioners, as required at 50 CFR
424.14(a). The Service has the authority
to promulgate an emergency listing rule
for a species when an emergency exists
that poses a significant risk to the wellbeing of that species (50 CFR 424.20).
The petition contained information on
changes in the status and distribution of
the species, and on increased threats to
the species.
In response to the petition, we sent a
letter to the petitioners dated June 20,
2006, stating that we would not be able
to address their petition at that time
because further action on the petition
was precluded by court orders and
settlement agreements for other listing
actions that required us to use nearly all
of our listing funds for fiscal year 2006.
We also stated in our June 20, 2006,
letter that we had evaluated the
immediacy of possible threats to the
delta smelt, and had determined that an
emergency reclassification was not
warranted at that time.
This notice constitutes our 90-day
finding on the March 8, 2006, petition
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to reclassify the delta smelt from
threatened to endangered.
Species Information
The petitioners presented a summary
of the known information on the
description, taxonomy, distribution,
habitat requirements, life history, and
natural mortality of the delta smelt.
They also described recent changes in
the fish’s distribution and abundance,
and summarized recent delta smelt
population trend and extinction risk
analyses.
Description and Taxonomy
Delta smelt are slender-bodied fish,
generally about 60 to 70 millimeters
(mm) (2 to 3 inches (in)) long, although
they may reach lengths of up to 120 mm
(4.7 in) (Moyle 2002, p. 227). Delta
smelt are in the Osmeridae family
(smelts) (Stanley et al. 1995, p. 390).
Live fish are nearly translucent and
have a steely blue sheen to their sides
(Moyle 2002, p. 227). Delta smelt feed
primarily on small planktonic (free
floating) crustaceans, and occasionally
on insect larva (Moyle 2002, p. 228).
Delta smelt usually aggregate but do not
appear to be strongly shoaling, and their
swimming behavior likely makes
schooling difficult (Moyle 2002, p. 228).
The delta smelt is one of six species
currently recognized in the Hypomesus
genus (Bennett 2005, p. 8), and genetic
analyses have confirmed that it is a
well-defined species with a single
intermixing population (Stanley et al.
1995, p. 391; Trenham et al. 1998, p.
418). Within the genus, delta smelt is
most closely related to surf smelt (H.
pretiosis), a species common along the
western coast of North America. In
contrast, delta smelt is a comparatively
distant relation to the wakasagi (H.
nipponensis), which was introduced
into Central Valley reservoirs in 1959
and is now sympatric with delta smelt
in the estuary (Trenham et al. 1998, p.
417).
Distribution and Abundance
Delta smelt are endemic to (native and
restricted to) the San Francisco Bay/
Sacramento-San Joaquin Delta Estuary
(Delta) in California, found only from
the San Pablo Bay upstream through the
Delta in Contra Costa, Sacramento, San
Joaquin, Solano, and Yolo counties
(Moyle 2002, p. 227). Their historical
range is thought to have extended from
San Pablo Bay upstream to at least the
city of Sacramento on the Sacramento
River and Mossdale on the San Joaquin
River. They were once one of the most
common pelagic (living in open water
away from the bottom) fish in the upper
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Sacramento-San Joaquin Estuary (Moyle
2002, p. 230).
Although exact population estimates
are not possible to obtain for this
species (Moyle 2002, p. 230), relative
population levels have been monitored
for several decades using various net
surveys and counts of adults entrained
by Federal and State water export
facilities (Bennett 2005, p. 5). Based on
those surveys, delta smelt population
levels declined precipitously in 1982,
leading to very low numbers from 1982
to 1991, and to their listing as a
threatened species in 1993 (58 FR
12854; Moyle 2002, p. 230; CBD et al.
2006, p. 9). From 1992 to 2001,
abundance levels stabilized, remaining
generally low but within the bounds of
pre-1980 levels. Recent surveys have
shown another substantial drop,
however, with record low abundance
figures from 2002 through 2007 (Armor
et al. 2005, p. 3; Bennett 2005, p. 2;
CDFG 2008, p. 1). Bennett (2005, pp. 53,
54) conducted a population viability
analysis based on known population
trends, and found a 55 percent chance
that the smelt population would reach
a ‘‘point of no return’’ (quasi-extinction,
estimated at 8,000 fish) within 20 years.
Habitat and Life History
The species requires specific
environmental conditions (freshwater
flow, water temperature, salinity) and
habitat types (shallow open waters)
within the estuary for migration,
spawning, egg incubation, rearing, and
larval and juvenile transport from
spawning to rearing habitats (Moyle
2002, pp. 228–229). Delta smelt are a
moderately euryhaline species (tolerant
of a wide salinity range), and most
individual fish live only one year
(Moyle 2002, p. 228). Although they are
restricted to a relatively small
geographic range, delta smelt use
different parts of the estuary at different
life history stages. They hatch, typically
around May, from eggs laid 9 to 13 days
earlier in the slow-moving, freshwater
spawning grounds of the upper Delta
and lower Sacramento River, and in
Montezuma Slough near Suisun Bay
(Moyle 2002, pp. 228, 229). After several
weeks of development, larvae are swept
downstream until they reach a point
(typically in Suisun Bay) where the
salinity reaches about 2 to 7 parts per
thousand (ppt). This is the beginning of
the ‘‘mixing zone’’ where fresh and
brackish water meet. Juvenile smelt tend
to seek out that salinity level, and will
rear and grow there for several months,
preferring relatively shallow open water
(Moyle 2002, p. 228). The mixing zone
is typically located in Suisun Bay, but
moves farther upstream when
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freshwater outflows are reduced (Moyle
2002, p. 230). Federal and State water
pumps can affect outflows by exporting
large amounts of fresh water from the
southern portion of the Delta for
agricultural and municipal uses.
Thousands of smaller water diversions
throughout the Delta also export water
for local agriculture. Additionally, two
power plants located in Antioch and
Pittsburg, California, use Delta water for
cooling (Bennett 2005, p. 34; Armor
2005, p. 2)
Around September or October, delta
smelt reach adulthood and begin a
gradual migration back upstream to the
spawning areas. Spawning can occur
any time between February and July, but
most spawning takes place from early
April to mid-May, in water temperatures
ranging from 7 to 15 degrees Celsius (45
to 59 degrees Fahrenheit) (Moyle 2002,
p. 229). Although spawning has not
been observed in the wild, the eggs are
thought to attach to substrates such as
cattails, tules, tree roots, and submerged
branches, and the spawning areas most
likely contain gravel, sand, or other
submerged material that is washed by
gentle currents close to the main river
channel (Wang 1991, p. 11; Moyle 2002,
p. 229). Most delta smelt die after
spawning, but a small contingent of
adults survive and can spawn in their
second year (Moyle 2002, p. 228).
The petitioners referred to the
Service’s December 19, 1994, critical
habitat determination (59 FR 65256) for
descriptions of the specific habitat
conditions required for spawning, larval
and juvenile transport, rearing, and
adult migration.
Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533),
and implementing regulations at 50 CFR
424, set forth the procedures for adding
species to the Federal Lists of
Endangered and Threatened Wildlife
and Plants. A species may be
determined to be an endangered or
threatened species due to one or more
of the five factors described in section
4(a)(1) of the Act: (A) Present or
threatened destruction, modification, or
curtailment of habitat or range; (B)
overutilization for commercial,
recreational, scientific, or educational
purposes; (C) disease or predation; (D)
inadequacy of existing regulatory
mechanisms; or (E) other natural or
manmade factors affecting its continued
existence. In making this 90-day
finding, we evaluated whether
information on threats to the delta smelt
presented in the March 2006 petition,
and other information available in our
files at the time of the petition review,
constitute substantial scientific or
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commercial information such that
reclassification from threatened to
endangered under the Act may be
warranted. A brief evaluation of this
information is presented below.
A. The Present or Threatened
Destruction, Modification, or
Curtailment of Its Habitat or Range
The petition notes that water
diversions, particularly from the large
Federal and State pumping stations in
the southern portion of the Delta, can
modify the smelt’s habitat in three ways.
First, they remove planktonic food
organisms out of the water. Second, they
diminish freshwater outflows, causing
the mixing zone to move upstream and
away from Suisun Bay where the best
rearing habitat is located. Third, the
large Federal and State pumps can
actually halt and reverse flows in the
southern Delta, potentially interfering
with both the transport of plankton and
smelt larvae downstream and with the
spawning migration of adult smelt
upstream (CBD et al. 2006, pp. 13, 14).
The petition also notes that the
diversions entrain and kill smelt
directly. This is not technically a habitat
alteration, but we consider it here
because the direct effects of freshwater
diversions are intertwined with their
impacts to habitat. The petition states
that the State and Federal pumping
stations have shown an increase in
recent years in number of delta smelt
entrained relative to their abundance
(CBD et al. 2006, p. 16). The increase is
concurrent with recent increases in
water pumped from the facilities,
particularly during the winter when
migrating adult smelt are most likely to
be in the vicinity (CBD et al. 2006, p.
15). Additionally, because the Federal
and State pumps only monitor impacts
to smelt longer than 20 mm (0.8 in.),
direct impacts to smaller smelt remain
unknown. The petition does note,
however, that summer trawl net surveys
showed a serious drop in juvenile smelt
in the south Delta in the mid-1970s,
during which time Federal and State
exports from the Delta were increased
(CBD et al. 2006, pp. 15, 16). Monitoring
of direct impacts is absent at the 1,800
smaller agricultural diversions
throughout the Delta, and at the two
power plants that use Delta water for
cooling (CBD et al. 2006, p. 14).
The combined habitat destruction or
modification (Factor A) and direct
impacts from water diversions are
difficult to quantify, but potentially
serious. The petition cites a 2005
analysis showing a significant inverse
correlation between smelt population,
winter water export rates, and numbers
of adult and juvenile smelt sampled
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later in the year (CBD et al. 2006, p. 17).
Armor (et al. 2005, p. 39) supports this,
noting that the data on wintertime
entrainment ‘‘reveal a consistent pattern
across species that corresponds with the
period of fish declines.’’
In summary, habitat destruction and
modification (Factor A), as well as
direct impacts from water diversions,
threaten the continued existence of
delta smelt, as they did at the time of
the original listing of the species.
Record or near record low delta smelt
abundance indices from 2002 through
2007 (Armor et al. 2005, p. 3; Bennett
2005, p. 2; CDFG 2008, pp. 1–2),
indicate that these existing threats may
now be more imminent than at the time
of listing. The delta smelt abundance
indices for 2002 and 2003 are at or
slightly above the 1994 low, and indices
for 2004 to 2007 are less than half to
near a quarter of the 1994 low (CDFG
2008, p. 2). As a consequence, we
conclude that substantial information is
provided to indicate that reclassification
of delta smelt from threatened to
endangered due to destruction,
modification, or curtailment of its
habitat may be warranted.
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B. Overutilization for Commercial,
Recreational, Scientific, or Educational
Purposes
The petition provides no information
documenting current or future threats
under this factor, and we do not have
any information in our files to indicate
that overutilization for commercial,
recreational, scientific, or educational
purposes threaten delta smelt. Therefore
we conclude that there is no substantial
scientific or commercial information to
indicate that reclassifying delta smelt
from threatened to endangered may be
warranted due to overutilization for
commercial, recreational, scientific, or
educational purposes. However, all
factors, including threats from
commercial, recreational, scientific, or
educational activities, will be evaluated
when we conduct our status review.
C. Disease or Predation
The petition acknowledges a lack of
evidence to indicate that delta smelt
populations have declined due to
disease or predation (CBD et al. 2006, p.
20). It does note, however, that striped
bass (Morone saxatilis, a nonnative
predatory species) may have been
maintained at artificially high levels
relative to potential prey species, such
as the delta smelt, under a stocking
program carried out until 2004 by the
California Department of Fish and Game
(Service 2004, p. 6; CBD et al. 2006, p.
20). The petition also notes that inland
silverside (Menidia beryllina, a
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nonnative species feeding primarily on
plankton) may prey on delta smelt eggs
and larvae, as well as compete with
delta smelt for planktonic food. Other
introduced species that may be preying
on eggs or larvae of delta smelt include
the chameleon goby (Tridentiger
trigonocephalus) and the yellowfin goby
(Acanthogobius fiavimanus).
The petitioner cites a lack of evidence
that disease and predation threaten
delta smelt, and we do not have
substantial information in our files to
suggest that disease and predation
threaten delta smelt. Therefore, we
conclude that there is no substantial
scientific or commercial information to
indicate that threats from disease or
predation may warrant reclassification
of delta smelt from threatened to
endangered. However, all factors,
including threats from disease or
predation, will be evaluated when we
conduct our status review.
D. The Inadequacy of Existing
Regulatory Mechanisms
The petition presents information
regarding existing and planned
regulatory mechanisms and their
perceived inadequacy, stating that the
current export criteria in the water
rights permits issued under the State
Water Resources Control Board
regulations allow export operations at
levels that exceed those necessary to
maintain healthy delta smelt
populations. The petitioners state that
dedications of water for the
environment and of money for
supplemental acquisitions of
environmental water mandated in the
1992 Central Valley Project
Improvement Act intended to reduce
the negative impacts of the Federal
water project on fish and wildlife have
not been fully or aggressively
implemented. The petition claims that
the CALFED (joint California State and
Federal government) Bay-Delta Program
has been largely ineffective in
addressing environmental problems in
the Delta, and that its future status is
uncertain. The petition states that the
Service’s most recent biological opinion
for protection of the species relied
heavily on the CALFED Environmental
Water Account, which has failed to
provide detectable benefits for delta
smelt. The petition also states that the
South Delta Improvements Program, in
the process of being approved by
Federal and State agencies at the time of
the petition, would increase Delta water
exports and install permanent tidal
barriers that further modify Delta flow
patterns and habitat.
In summary, the petition points out
that numerous changes have occurred
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since the time of the species’ listing, and
suggests that the regulatory mechanisms
governing such changes have not
provided adequate conservation for
delta smelt. Given that delta smelt
abundance indices from 2002 through
2007 have been at record lows (Armor
et al. 2005, p. 3; Bennett 2005, p. 2;
CDFG 2008, p. 1), we conclude that
substantial information is presented in
the petition to indicate that
reclassification of delta smelt from
threatened to endangered due to the
inadequacy of existing regulatory
mechanisms may be warranted.
E. Other Natural or Manmade Factors
Affecting the Species’ Continued
Existence
The petition presents information
asserting that threats from low
population size, nonnative species, and
lethal and sublethal effects of toxic
chemicals may have changed since we
listed the delta smelt as threatened. The
petition presents information
concerning the delta smelt’s population
size and extinction probability, stating
this information indicates that the delta
smelt is at risk of falling below an
effective population size and losing
genetic integrity, and is therefore in
danger of becoming extinct. The petition
also states that increased competition by
nonnative species, such as the clam
Corbula amurensis, has reduced the
availability of the delta smelt’s
planktonic food supply. Additionally,
the petition cites the threat of lethal and
sublethal effects of toxic chemicals,
such as pesticides discharged and
transported from upstream into the
Delta.
We have substantial information in
our files to indicate that the delta smelt
abundance indices from 2002 through
2007 have been at record lows (Armor
et al. 2005, p. 3; Bennett 2005, p. 2;
CDFG 2008, p. 1). According to recent
fish survey information collected by the
California Department of Fish and Game
(CDFG) (Fall Midwater Trawl (FMWT)),
the average catch of delta smelt declined
to the lowest level since the surveys
began in 1967 (CDFG 2008, p. 1). We do
not have substantial information in our
files to indicate that competition from
nonnative species has changed since the
time we listed the delta smelt as
threatened. We also do not have
substantial information in our files to
indicate that lethal and sublethal effects
of toxic chemicals have changed since
the time we listed the delta smelt as
threatened. Toxic chemicals are present
in the San Francisco Bay-Delta;
however, it is uncertain what effect
these chemicals have on delta smelt
(Bennett 2005, p. 44). For example, in
E:\FR\FM\10JYP1.SGM
10JYP1
Federal Register / Vol. 73, No. 133 / Thursday, July 10, 2008 / Proposed Rules
2008, the Pelagic Organism Decline
(POD) Working Group summarized and
provided a progress report of the studies
and information collected in 2007 by
the Interagency Ecological Program (IEP)
(Baxter et al. 2008, pp. 1–52). The
summary report did identify
contaminants as having possible effects
during flow pulses in the winter, but
there is no evidence currently available
that these pulse events cause toxicity to
delta smelt (Baxter et al. 2008, p. 29).
We conclude that the petition
presents substantial information to
indicate a significant reduction in the
population size of delta smelt since the
time of listing and that reclassification
of delta smelt from threatened to
endangered may be warranted.
mstockstill on PROD1PC66 with PROPOSALS
Finding
We have reviewed the petition and
literature cited in the petition and
evaluated that information in relation to
information available in our files. Based
on this review, we find the petition
presents substantial information that
reclassification of the delta smelt from
threatened to endangered may be
warranted.
When we listed the delta smelt as
threatened in 1993, the factors
identified that threatened the species’
continued existence included threats
such as: water diversions, inadequacy of
existing regulatory mechanisms,
introduced species, and contaminants.
For the most part, these factors continue
to threaten the species, although the
degree to which they each affect delta
smelt populations likely has changed.
Recent surveys have shown a
substantial decline in delta smelt
abundance from 2002 through 2007
(Armor et al. 2005, p. 3; Bennett 2005,
p. 2; CDFG 2008, p. 1), indicating that
the threats may be of higher magnitude
or imminence than was thought at the
time of listing.
As discussed above, we believe the
petition provides substantial
information indicating that a
reclassification from threatened to
endangered may be warranted.
Specifically, substantial information
was provided under Factor A (habitat
loss, and water diversions), Factor D
(the inadequacy of existing regulatory
mechanisms), and Factor E (low
population size). Therefore, we are
initiating a status review to determine if
reclassifying the species from
threatened to endangered is warranted.
To ensure that the status review is
comprehensive, we are soliciting
scientific and commercial data and
other information regarding this species.
VerDate Aug<31>2005
16:05 Jul 09, 2008
Jkt 214001
Significant Portion of the Species’
Range
The petitioners seek to reclassify the
delta smelt as endangered, indicating
the species is in danger of extinction
throughout all or a significant portion of
its range. During our status review we
will evaluate whether the best scientific
and commercial information available
supports reclassification and whether
there may be a portion of the delta
smelt’s range that may be significant. As
a result we will provide our analysis of
significant portion of range in the 12month finding.
References Cited
A complete list of all references cited
in this document is available, upon
request, from the Sacramento Fish and
Wildlife Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this notice are
staff of the California and Nevada
Regional Office, U.S. Fish and Wildlife
Service, 2800 Cottage Way, Sacramento,
CA 95825.
Authority
The authority for this action is the
Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
Dated: July 2, 2008.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife
Service.
[FR Doc. E8–15747 Filed 7–9–08; 8:45 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 080627793–8795–01]
RIN 0648–AW81
Magnuson-Stevens Fishery
Conservation and Management Act
Provisions; Fisheries of the
Northeastern United States; Monkfish
Fishery
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
AGENCY:
SUMMARY: NMFS is proposing to
implement a new management measure
for the monkfish fishery recommended
in Framework Adjustment 6
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
39643
(Framework 6) to the Monkfish Fishery
Management Plan (FMP), which has
been submitted jointly by the New
England and Mid-Atlantic Fishery
Management Councils (Councils). This
action would eliminate the backstop
provision adopted in Framework
Adjustment 4 (Framework 4) to the
FMP, which was implemented in
October 2007. This provision would
have adjusted, and possibly closed, the
directed monkfish fishery in fishing
year (FY) 2009 if the landings in FY
2007 exceeded the target total allowable
catch (TTAC). Given the most recent
information on the status of monkfish
stocks, the backstop provision is no
longer deemed necessary.
DATES: Written comments must be
received no later than 5 p.m. eastern
standard time, on August 11, 2008.
ADDRESSES: You may submit comments,
identified by RIN number 0648–AW81,
by any of the following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal e-Rulemaking portal https://
www.regulations.gov.
• Fax: (978) 281–9135, Attn: Emily
Bryant.
• Mail: Patricia A. Kurkul, Regional
Administrator, NMFS, Northeast
Regional Office, One Blackburn Drive,
Gloucester, MA 01930. Mark the outside
of the envelope: ‘‘Comments on
Monkfish Framework 6.’’
Instructions: All comments received
are part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit confidential business
information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments. Attachments to electronic
comments will be accepted via
Microsoft Word, Microsoft Excel,
WordPerfect, or Adobe PDF file formats
only. Copies of the Environmental
Assessment (EA), including the
Regulatory Impact Review (RIR) and
Initial Regulatory Flexibility Analysis
(IRFA), prepared for Framework 6 are
available upon request from Paul
Howard, Executive Director, New
England Fishery Management Council
(NEFMC), 50 Water Street,
Newburyport, MA, 01950. The
document is also available online at
www.nefmc.org.
FOR FURTHER INFORMATION CONTACT:
Emily Bryant, Fishery Management
Specialist, phone (978) 281–9244, fax
(978) 281–9135.
E:\FR\FM\10JYP1.SGM
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]]>Agencies
[Federal Register Volume 73, Number 133 (Thursday, July 10, 2008)]
[Proposed Rules]
[Pages 39639-39643]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-15747]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2008-0067; 1111-FY08-MO-B2]
Endangered and Threatened Wildlife and Plants; 90-Day Finding on
a Petition To Reclassify the Delta Smelt (Hypomesus transpacificus)
From Threatened to Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding and initiation of status
review.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to reclassify the delta smelt (Hypomesus
transpacificus) from threatened to endangered under the Endangered
Species Act of 1973, as amended (Act). We find that the petition
presents substantial scientific or commercial information indicating
that reclassification of the delta smelt from threatened to endangered
may be warranted. Therefore, we are initiating a status review to
determine if reclassifying this species as endangered under the Act is
warranted. To ensure that the status review is comprehensive, we are
soliciting scientific and commercial data and other information
regarding this species.
DATES: To allow us adequate time to conduct this review, we request
that information be submitted to us on or before September 8, 2008.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2008-0067, Division of Policy and Directives
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive,
Suite 222, Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all information at
https://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Information Solicited
section below for more details).
FOR FURTHER INFORMATION CONTACT: Susan Moore, Sacramento Fish and
Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825;
telephone 916-414-6600; facsimile 916-414-6712. If you use a
telecommunications device for the deaf (TDD), call the Federal
Information Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
When we make a finding that substantial information is presented to
indicate that listing, delisting, or reclassifying a species may be
warranted, we are required to promptly commence a review of the status
of the species. To ensure that the status review is complete and based
on the best available scientific and commercial information, we are
soliciting information concerning the status of the delta smelt. We
request information from the public, other concerned governmental
agencies, Native American tribes, the scientific community, industry,
or any other interested parties concerning the status of the delta
smelt, including but not limited to information on:
(1) The effects of potential threat factors that are the basis for
a listing determination under section 4(a) of the Act (16 U.S.C. 1531
et seq.), which are:
(a) Present or threatened destruction, modification, or curtailment
of the species' habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(2) Population abundance, distribution, trends, and dynamics;
habitat selection and trends; food habits; and effects of disease,
competition, and predation on delta smelt.
(3) The effects of climate change, sea level change, and change in
water temperatures on the distribution and abundance of delta smelt and
their principal prey.
(4) The effects of other potential threat factors, including water
diversions in the Sacramento-San Joaquin River Delta (Delta),
contaminants, invasive species, and changes of the distribution and
abundance of delta smelt and their principal prey.
(5) Management programs for delta smelt conservation, including
mitigation
[[Page 39640]]
measures related to water diversions and development, habitat
conservation programs, invasive species control programs, and any other
private, tribal, or governmental conservation programs which benefit
delta smelt.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available.'' Based on the status review, we will issue
the 12-month finding on the petition, as provided in section 4(b)(3)(B)
of the Act.
You may submit your information concerning this finding by one of
the methods listed in the ADDRESSES section. We will not consider
submissions sent by e-mail or fax or to an address not listed in the
ADDRESSES section.
If you submit information via https://www.regulations.gov, your
entire submission--including your personal identifying information--
will be posted on the Web site. 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 https://
www.regulations.gov.
Information and materials we receive, as well as supporting
documentation we used in preparing this finding, will be available for
public inspection on https://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Background
Section 4(b)(3)(A) of the Act requires that we make a finding on
whether a petition to list, delist, or reclassify a species presents
substantial scientific or commercial information to indicate that the
petitioned action may be warranted. We are to base this finding on
information provided in the petition, supporting information submitted
with the petition, and information otherwise available in our files at
the time we make the determination. To the maximum extent practicable,
we are to make this finding within 90 days of our receipt of the
petition and publish our notice of the finding promptly in the Federal
Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14(b)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly commence a status review of the species.
We were originally petitioned to list the delta smelt as endangered
on June 26, 1990. We proposed the species as threatened and proposed
the designation of critical habitat on October 3, 1991 (56 FR 50075).
We listed the species as threatened on March 5, 1993 (58 FR 12854), and
we designated critical habitat on December 19, 1994 (59 FR 65256). The
delta smelt was one of eight fish species addressed in the November 26,
1996, Recovery Plan for the Sacramento-San Joaquin Delta Native Fishes
(Service 1996, pp. 1-195). We completed a 5-year status review of the
delta smelt on March 31, 2004 (Service 2004, pp. 1-50).
On March 9, 2006, we received a petition, dated March 8, 2006, from
the Center for Biological Diversity, the Bay Institute, and Natural
Resources Defense Council (CBD et al. 2006, pp. 1-33) to reclassify the
listing status of the delta smelt, a threatened species, to endangered
status on an emergency basis. The petition clearly identified itself as
a petition and included the requisite identification information for
the petitioners, as required at 50 CFR 424.14(a). The Service has the
authority to promulgate an emergency listing rule for a species when an
emergency exists that poses a significant risk to the well-being of
that species (50 CFR 424.20). The petition contained information on
changes in the status and distribution of the species, and on increased
threats to the species.
In response to the petition, we sent a letter to the petitioners
dated June 20, 2006, stating that we would not be able to address their
petition at that time because further action on the petition was
precluded by court orders and settlement agreements for other listing
actions that required us to use nearly all of our listing funds for
fiscal year 2006. We also stated in our June 20, 2006, letter that we
had evaluated the immediacy of possible threats to the delta smelt, and
had determined that an emergency reclassification was not warranted at
that time.
This notice constitutes our 90-day finding on the March 8, 2006,
petition to reclassify the delta smelt from threatened to endangered.
Species Information
The petitioners presented a summary of the known information on the
description, taxonomy, distribution, habitat requirements, life
history, and natural mortality of the delta smelt. They also described
recent changes in the fish's distribution and abundance, and summarized
recent delta smelt population trend and extinction risk analyses.
Description and Taxonomy
Delta smelt are slender-bodied fish, generally about 60 to 70
millimeters (mm) (2 to 3 inches (in)) long, although they may reach
lengths of up to 120 mm (4.7 in) (Moyle 2002, p. 227). Delta smelt are
in the Osmeridae family (smelts) (Stanley et al. 1995, p. 390). Live
fish are nearly translucent and have a steely blue sheen to their sides
(Moyle 2002, p. 227). Delta smelt feed primarily on small planktonic
(free floating) crustaceans, and occasionally on insect larva (Moyle
2002, p. 228). Delta smelt usually aggregate but do not appear to be
strongly shoaling, and their swimming behavior likely makes schooling
difficult (Moyle 2002, p. 228).
The delta smelt is one of six species currently recognized in the
Hypomesus genus (Bennett 2005, p. 8), and genetic analyses have
confirmed that it is a well-defined species with a single intermixing
population (Stanley et al. 1995, p. 391; Trenham et al. 1998, p. 418).
Within the genus, delta smelt is most closely related to surf smelt (H.
pretiosis), a species common along the western coast of North America.
In contrast, delta smelt is a comparatively distant relation to the
wakasagi (H. nipponensis), which was introduced into Central Valley
reservoirs in 1959 and is now sympatric with delta smelt in the estuary
(Trenham et al. 1998, p. 417).
Distribution and Abundance
Delta smelt are endemic to (native and restricted to) the San
Francisco Bay/Sacramento-San Joaquin Delta Estuary (Delta) in
California, found only from the San Pablo Bay upstream through the
Delta in Contra Costa, Sacramento, San Joaquin, Solano, and Yolo
counties (Moyle 2002, p. 227). Their historical range is thought to
have extended from San Pablo Bay upstream to at least the city of
Sacramento on the Sacramento River and Mossdale on the San Joaquin
River. They were once one of the most common pelagic (living in open
water away from the bottom) fish in the upper
[[Page 39641]]
Sacramento-San Joaquin Estuary (Moyle 2002, p. 230).
Although exact population estimates are not possible to obtain for
this species (Moyle 2002, p. 230), relative population levels have been
monitored for several decades using various net surveys and counts of
adults entrained by Federal and State water export facilities (Bennett
2005, p. 5). Based on those surveys, delta smelt population levels
declined precipitously in 1982, leading to very low numbers from 1982
to 1991, and to their listing as a threatened species in 1993 (58 FR
12854; Moyle 2002, p. 230; CBD et al. 2006, p. 9). From 1992 to 2001,
abundance levels stabilized, remaining generally low but within the
bounds of pre-1980 levels. Recent surveys have shown another
substantial drop, however, with record low abundance figures from 2002
through 2007 (Armor et al. 2005, p. 3; Bennett 2005, p. 2; CDFG 2008,
p. 1). Bennett (2005, pp. 53, 54) conducted a population viability
analysis based on known population trends, and found a 55 percent
chance that the smelt population would reach a ``point of no return''
(quasi-extinction, estimated at 8,000 fish) within 20 years.
Habitat and Life History
The species requires specific environmental conditions (freshwater
flow, water temperature, salinity) and habitat types (shallow open
waters) within the estuary for migration, spawning, egg incubation,
rearing, and larval and juvenile transport from spawning to rearing
habitats (Moyle 2002, pp. 228-229). Delta smelt are a moderately
euryhaline species (tolerant of a wide salinity range), and most
individual fish live only one year (Moyle 2002, p. 228). Although they
are restricted to a relatively small geographic range, delta smelt use
different parts of the estuary at different life history stages. They
hatch, typically around May, from eggs laid 9 to 13 days earlier in the
slow-moving, freshwater spawning grounds of the upper Delta and lower
Sacramento River, and in Montezuma Slough near Suisun Bay (Moyle 2002,
pp. 228, 229). After several weeks of development, larvae are swept
downstream until they reach a point (typically in Suisun Bay) where the
salinity reaches about 2 to 7 parts per thousand (ppt). This is the
beginning of the ``mixing zone'' where fresh and brackish water meet.
Juvenile smelt tend to seek out that salinity level, and will rear and
grow there for several months, preferring relatively shallow open water
(Moyle 2002, p. 228). The mixing zone is typically located in Suisun
Bay, but moves farther upstream when freshwater outflows are reduced
(Moyle 2002, p. 230). Federal and State water pumps can affect outflows
by exporting large amounts of fresh water from the southern portion of
the Delta for agricultural and municipal uses. Thousands of smaller
water diversions throughout the Delta also export water for local
agriculture. Additionally, two power plants located in Antioch and
Pittsburg, California, use Delta water for cooling (Bennett 2005, p.
34; Armor 2005, p. 2)
Around September or October, delta smelt reach adulthood and begin
a gradual migration back upstream to the spawning areas. Spawning can
occur any time between February and July, but most spawning takes place
from early April to mid-May, in water temperatures ranging from 7 to 15
degrees Celsius (45 to 59 degrees Fahrenheit) (Moyle 2002, p. 229).
Although spawning has not been observed in the wild, the eggs are
thought to attach to substrates such as cattails, tules, tree roots,
and submerged branches, and the spawning areas most likely contain
gravel, sand, or other submerged material that is washed by gentle
currents close to the main river channel (Wang 1991, p. 11; Moyle 2002,
p. 229). Most delta smelt die after spawning, but a small contingent of
adults survive and can spawn in their second year (Moyle 2002, p. 228).
The petitioners referred to the Service's December 19, 1994,
critical habitat determination (59 FR 65256) for descriptions of the
specific habitat conditions required for spawning, larval and juvenile
transport, rearing, and adult migration.
Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533), and implementing regulations
at 50 CFR 424, set forth the procedures for adding species to the
Federal Lists of Endangered and Threatened Wildlife and Plants. A
species may be determined to be an endangered or threatened species due
to one or more of the five factors described in section 4(a)(1) of the
Act: (A) Present or threatened destruction, modification, or
curtailment of habitat or range; (B) overutilization for commercial,
recreational, scientific, or educational purposes; (C) disease or
predation; (D) inadequacy of existing regulatory mechanisms; or (E)
other natural or manmade factors affecting its continued existence. In
making this 90-day finding, we evaluated whether information on threats
to the delta smelt presented in the March 2006 petition, and other
information available in our files at the time of the petition review,
constitute substantial scientific or commercial information such that
reclassification from threatened to endangered under the Act may be
warranted. A brief evaluation of this information is presented below.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
The petition notes that water diversions, particularly from the
large Federal and State pumping stations in the southern portion of the
Delta, can modify the smelt's habitat in three ways. First, they remove
planktonic food organisms out of the water. Second, they diminish
freshwater outflows, causing the mixing zone to move upstream and away
from Suisun Bay where the best rearing habitat is located. Third, the
large Federal and State pumps can actually halt and reverse flows in
the southern Delta, potentially interfering with both the transport of
plankton and smelt larvae downstream and with the spawning migration of
adult smelt upstream (CBD et al. 2006, pp. 13, 14).
The petition also notes that the diversions entrain and kill smelt
directly. This is not technically a habitat alteration, but we consider
it here because the direct effects of freshwater diversions are
intertwined with their impacts to habitat. The petition states that the
State and Federal pumping stations have shown an increase in recent
years in number of delta smelt entrained relative to their abundance
(CBD et al. 2006, p. 16). The increase is concurrent with recent
increases in water pumped from the facilities, particularly during the
winter when migrating adult smelt are most likely to be in the vicinity
(CBD et al. 2006, p. 15). Additionally, because the Federal and State
pumps only monitor impacts to smelt longer than 20 mm (0.8 in.), direct
impacts to smaller smelt remain unknown. The petition does note,
however, that summer trawl net surveys showed a serious drop in
juvenile smelt in the south Delta in the mid-1970s, during which time
Federal and State exports from the Delta were increased (CBD et al.
2006, pp. 15, 16). Monitoring of direct impacts is absent at the 1,800
smaller agricultural diversions throughout the Delta, and at the two
power plants that use Delta water for cooling (CBD et al. 2006, p. 14).
The combined habitat destruction or modification (Factor A) and
direct impacts from water diversions are difficult to quantify, but
potentially serious. The petition cites a 2005 analysis showing a
significant inverse correlation between smelt population, winter water
export rates, and numbers of adult and juvenile smelt sampled
[[Page 39642]]
later in the year (CBD et al. 2006, p. 17). Armor (et al. 2005, p. 39)
supports this, noting that the data on wintertime entrainment ``reveal
a consistent pattern across species that corresponds with the period of
fish declines.''
In summary, habitat destruction and modification (Factor A), as
well as direct impacts from water diversions, threaten the continued
existence of delta smelt, as they did at the time of the original
listing of the species. Record or near record low delta smelt abundance
indices from 2002 through 2007 (Armor et al. 2005, p. 3; Bennett 2005,
p. 2; CDFG 2008, pp. 1-2), indicate that these existing threats may now
be more imminent than at the time of listing. The delta smelt abundance
indices for 2002 and 2003 are at or slightly above the 1994 low, and
indices for 2004 to 2007 are less than half to near a quarter of the
1994 low (CDFG 2008, p. 2). As a consequence, we conclude that
substantial information is provided to indicate that reclassification
of delta smelt from threatened to endangered due to destruction,
modification, or curtailment of its habitat may be warranted.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The petition provides no information documenting current or future
threats under this factor, and we do not have any information in our
files to indicate that overutilization for commercial, recreational,
scientific, or educational purposes threaten delta smelt. Therefore we
conclude that there is no substantial scientific or commercial
information to indicate that reclassifying delta smelt from threatened
to endangered may be warranted due to overutilization for commercial,
recreational, scientific, or educational purposes. However, all
factors, including threats from commercial, recreational, scientific,
or educational activities, will be evaluated when we conduct our status
review.
C. Disease or Predation
The petition acknowledges a lack of evidence to indicate that delta
smelt populations have declined due to disease or predation (CBD et al.
2006, p. 20). It does note, however, that striped bass (Morone
saxatilis, a nonnative predatory species) may have been maintained at
artificially high levels relative to potential prey species, such as
the delta smelt, under a stocking program carried out until 2004 by the
California Department of Fish and Game (Service 2004, p. 6; CBD et al.
2006, p. 20). The petition also notes that inland silverside (Menidia
beryllina, a nonnative species feeding primarily on plankton) may prey
on delta smelt eggs and larvae, as well as compete with delta smelt for
planktonic food. Other introduced species that may be preying on eggs
or larvae of delta smelt include the chameleon goby (Tridentiger
trigonocephalus) and the yellowfin goby (Acanthogobius fiavimanus).
The petitioner cites a lack of evidence that disease and predation
threaten delta smelt, and we do not have substantial information in our
files to suggest that disease and predation threaten delta smelt.
Therefore, we conclude that there is no substantial scientific or
commercial information to indicate that threats from disease or
predation may warrant reclassification of delta smelt from threatened
to endangered. However, all factors, including threats from disease or
predation, will be evaluated when we conduct our status review.
D. The Inadequacy of Existing Regulatory Mechanisms
The petition presents information regarding existing and planned
regulatory mechanisms and their perceived inadequacy, stating that the
current export criteria in the water rights permits issued under the
State Water Resources Control Board regulations allow export operations
at levels that exceed those necessary to maintain healthy delta smelt
populations. The petitioners state that dedications of water for the
environment and of money for supplemental acquisitions of environmental
water mandated in the 1992 Central Valley Project Improvement Act
intended to reduce the negative impacts of the Federal water project on
fish and wildlife have not been fully or aggressively implemented. The
petition claims that the CALFED (joint California State and Federal
government) Bay-Delta Program has been largely ineffective in
addressing environmental problems in the Delta, and that its future
status is uncertain. The petition states that the Service's most recent
biological opinion for protection of the species relied heavily on the
CALFED Environmental Water Account, which has failed to provide
detectable benefits for delta smelt. The petition also states that the
South Delta Improvements Program, in the process of being approved by
Federal and State agencies at the time of the petition, would increase
Delta water exports and install permanent tidal barriers that further
modify Delta flow patterns and habitat.
In summary, the petition points out that numerous changes have
occurred since the time of the species' listing, and suggests that the
regulatory mechanisms governing such changes have not provided adequate
conservation for delta smelt. Given that delta smelt abundance indices
from 2002 through 2007 have been at record lows (Armor et al. 2005, p.
3; Bennett 2005, p. 2; CDFG 2008, p. 1), we conclude that substantial
information is presented in the petition to indicate that
reclassification of delta smelt from threatened to endangered due to
the inadequacy of existing regulatory mechanisms may be warranted.
E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence
The petition presents information asserting that threats from low
population size, nonnative species, and lethal and sublethal effects of
toxic chemicals may have changed since we listed the delta smelt as
threatened. The petition presents information concerning the delta
smelt's population size and extinction probability, stating this
information indicates that the delta smelt is at risk of falling below
an effective population size and losing genetic integrity, and is
therefore in danger of becoming extinct. The petition also states that
increased competition by nonnative species, such as the clam Corbula
amurensis, has reduced the availability of the delta smelt's planktonic
food supply. Additionally, the petition cites the threat of lethal and
sublethal effects of toxic chemicals, such as pesticides discharged and
transported from upstream into the Delta.
We have substantial information in our files to indicate that the
delta smelt abundance indices from 2002 through 2007 have been at
record lows (Armor et al. 2005, p. 3; Bennett 2005, p. 2; CDFG 2008, p.
1). According to recent fish survey information collected by the
California Department of Fish and Game (CDFG) (Fall Midwater Trawl
(FMWT)), the average catch of delta smelt declined to the lowest level
since the surveys began in 1967 (CDFG 2008, p. 1). We do not have
substantial information in our files to indicate that competition from
nonnative species has changed since the time we listed the delta smelt
as threatened. We also do not have substantial information in our files
to indicate that lethal and sublethal effects of toxic chemicals have
changed since the time we listed the delta smelt as threatened. Toxic
chemicals are present in the San Francisco Bay-Delta; however, it is
uncertain what effect these chemicals have on delta smelt (Bennett
2005, p. 44). For example, in
[[Page 39643]]
2008, the Pelagic Organism Decline (POD) Working Group summarized and
provided a progress report of the studies and information collected in
2007 by the Interagency Ecological Program (IEP) (Baxter et al. 2008,
pp. 1-52). The summary report did identify contaminants as having
possible effects during flow pulses in the winter, but there is no
evidence currently available that these pulse events cause toxicity to
delta smelt (Baxter et al. 2008, p. 29).
We conclude that the petition presents substantial information to
indicate a significant reduction in the population size of delta smelt
since the time of listing and that reclassification of delta smelt from
threatened to endangered may be warranted.
Finding
We have reviewed the petition and literature cited in the petition
and evaluated that information in relation to information available in
our files. Based on this review, we find the petition presents
substantial information that reclassification of the delta smelt from
threatened to endangered may be warranted.
When we listed the delta smelt as threatened in 1993, the factors
identified that threatened the species' continued existence included
threats such as: water diversions, inadequacy of existing regulatory
mechanisms, introduced species, and contaminants. For the most part,
these factors continue to threaten the species, although the degree to
which they each affect delta smelt populations likely has changed.
Recent surveys have shown a substantial decline in delta smelt
abundance from 2002 through 2007 (Armor et al. 2005, p. 3; Bennett
2005, p. 2; CDFG 2008, p. 1), indicating that the threats may be of
higher magnitude or imminence than was thought at the time of listing.
As discussed above, we believe the petition provides substantial
information indicating that a reclassification from threatened to
endangered may be warranted. Specifically, substantial information was
provided under Factor A (habitat loss, and water diversions), Factor D
(the inadequacy of existing regulatory mechanisms), and Factor E (low
population size). Therefore, we are initiating a status review to
determine if reclassifying the species from threatened to endangered is
warranted. To ensure that the status review is comprehensive, we are
soliciting scientific and commercial data and other information
regarding this species.
Significant Portion of the Species' Range
The petitioners seek to reclassify the delta smelt as endangered,
indicating the species is in danger of extinction throughout all or a
significant portion of its range. During our status review we will
evaluate whether the best scientific and commercial information
available supports reclassification and whether there may be a portion
of the delta smelt's range that may be significant. As a result we will
provide our analysis of significant portion of range in the 12-month
finding.
References Cited
A complete list of all references cited in this document is
available, upon request, from the Sacramento Fish and Wildlife Office
(see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this notice are staff of the California and
Nevada Regional Office, U.S. Fish and Wildlife Service, 2800 Cottage
Way, Sacramento, CA 95825.
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: July 2, 2008.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-15747 Filed 7-9-08; 8:45 am]
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