Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List a Stonefly (Isoperla jewetti, 17363-17367 [2010-7550]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 65 (Tuesday, April 6, 2010)]
[Proposed Rules]
[Pages 17363-17367]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7550]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2010-0022]
[MO 92210-0-0008]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List a Stonefly (Isoperla jewetti) and a Mayfly (Fallceon 
eatoni) as Threatened or Endangered with Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list a stonefly (Isoperla jewetti) and 
a mayfly (Fallceon eatoni) as threatened or endangered under the 
Endangered Species Act of 1973, as amended. Based on our review, we 
find that the petition does not present substantial information 
indicating that listing either of the species may be warranted at this 
time. However, we ask the public to submit to us any new information 
that becomes available concerning the status of, or threats to, the 
stonefly or the mayfly or their habitat at any time.

DATES: The finding announced in this document was made on April 6, 
2010.

ADDRESSES: This finding is available on the Internet at https://www.regulations.gov at Docket No. FWS-R2-ES-2010-0022. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Southwest Regional Ecological Services 
Office, 500 Gold Avenue SW, Albuquerque, NM 87102. Please submit any 
new information, materials, comments, or questions concerning this 
finding to the above address.

FOR FURTHER INFORMATION CONTACT: Nancy Gloman, Assistant Regional 
Director, Southwest Regional Ecological Services Office; telephone 505/
248-6920; facsimile 505/248-6788. If you use a telecommunications 
device for the deaf (TDD), please call the Federal Information Relay 
Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that we

[[Page 17364]]

make a finding on whether a petition to list, delist, or reclassify a 
species presents substantial scientific or commercial information 
indicating that a petitioned action may be warranted. We base this 
finding on information provided in the petition, supporting information 
submitted with the petition, and information otherwise readily 
available in our files. The Act requires that, to the maximum extent 
practicable, we make this finding within 90 days of our receipt of the 
petition, and publish our notice of this finding promptly in the 
Federal Register.
    Our standard for substantial 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, the Act requires that we promptly review the 
status of the species (status review), which is subsequently summarized 
in our 12-month finding.

Petition History

    On June 25, 2007, we received a formal petition dated June 18, 
2007, from Forest Guardians (now WildEarth Guardians), requesting that 
we, the U.S. Fish and Wildlife Service (Service), do the following: (1) 
Consider all full species in our Southwest Region ranked as G1 or G1G2 
by the organization NatureServe, except those that are currently 
listed, are proposed for listing, or are candidates for listing; and 
(2) list each species under the Act as either endangered or threatened 
with critical habitat. The petition stated that it was incorporating by 
reference all analyses, references, and documentation provided by 
NatureServe in its online database at https://www.natureserve.org/. The 
petition clearly identified itself as a petition and included the 
appropriate identification information, as required in 50 CFR 
424.14(a). In a July 11, 2007, letter to petitioner, we acknowledged 
receipt of the petition and stated that the petition was under review 
by staff in our Southwest Regional Office.
    We received a second petition, dated June 12, 2008, from WildEarth 
Guardians on June 18, 2008, requesting emergency listing of 32 species 
under the Act, including this stonefly and mayfly. We provided a 
response to this petition on July 22, 2008, indicating that we had 
reviewed the information presented in the petition and the immediacy of 
possible threats, and had determined that issuing an emergency 
regulation temporarily listing the species under section 4(b)(7) of the 
Act was not warranted. We also noted that we would continue to review 
these species through the petition process.
    On March 19, 2008, WildEarth Guardians filed a complaint alleging 
that the Service failed to comply with its mandatory duty to make a 
preliminary 90-day finding on the June 18, 2007, petition to list 475 
southwestern species. We subsequently published an initial 90-day 
finding for 270 of the 475 petitioned species on January 6, 2009, 
concluding that the petition did not present substantial information 
that listing of those species may be warranted (74 FR 419). The 
stonefly and mayfly were included in the January 6, 2009, finding with 
the conclusion that the petition did not present substantial 
information indicating that listing may be warranted.
     On May 26, 2009, and May 12, 2009, WildEarth Guardians filed 
complaints challenging the negative 90-day findings for the stonefly 
and mayfly, respectively. We agreed pursuant to a stipulated settlement 
agreement to reassess the petition with respect to the stonefly and 
mayfly and issue new 90-day findings. This finding fulfills our 
obligations under the petition.

Evaluation of Information for this Finding

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations at 50 CFR 424 set forth the procedures for adding a species 
to, or removing a species from, the Federal Lists of Endangered and 
Threatened Wildlife and Plants. We determine whether a species is an 
endangered or threatened species due to one or more of the five factors 
described in section 4(a)(1) of the Act: (A) The present or threatened 
destruction, modification, or curtailment of its 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.
    In making this 90-day finding, we evaluated whether information 
regarding threats to the stonefly and the mayfly, as presented in the 
June 18, 2007, and June 12, 2008, petitions and other information in 
our files, is substantial, thereby indicating that the petitioned 
action may be warranted. Our evaluation of this information is 
presented below. For each species, we fully evaluated all information 
available to us through the NatureServe website, information cited in 
NatureServe, and other information readily available in our files.
    We followed regulations at 50 CFR 424.14(b) in evaluating the 
information presented in the petitions. Paragraph (b)(1) of that 
section provides that the Service must consider whether the petition 
has presented substantial information indicating to a reasonable person 
that the petitioned action may be warranted. To determine that the 
species may warrant listing as Threatened or Endangered under the Act, 
as requested by the petitioners, the petition must present substantial 
information indicating that the species may be at risk of extinction 
now or in the foreseeable future.
Stonefly (no common name) (Isoperla jewetti)
    This stonefly is reported from three sites in Texas, Colorado, and 
New Mexico (NatureServe 2007). The species was originally described 
from specimens collected in 1939 in El Paso County, Texas (NatureServe 
2007). A single specimen was collected in 1938 in Huerfano County, 
Colorado (NatureServe 2007). NatureServe (2007) notes that no other 
specimens have been documented from either of these sites, despite 
repeated survey efforts, although the information cited in NatureServe 
(2007) only discussed additional survey efforts at the Texas site. 
Immature specimens were collected at a third site in 1978 and 1980 from 
the Rio Grande, upstream from Radium Springs, Dona Ana County, New 
Mexico (Jacobi et al. 2005).
    The petitioners claim that agriculture is a threat to the stonefly; 
however, the mechanism of agricultural impact is unclear from the 
petition and information presented by the petitioner. The petitioners 
state that the stonefly is threatened by ``habitat conversion to 
agriculture,'' but provide no citation nor support for this statement. 
NatureServe (2007) indicates that the El Paso site ``has been 
completely destroyed by agriculture,'' but again provides no citations 
nor support for this statement. Szczythoko and Stewart (1979), 
referenced in NatureServe (2007), indicate that pesticides, often 
associated with agriculture, were used heavily in irrigation ditches 
and canals in the area and may have led to extirpation of this 
population. However, Jacobi et al. (2005) indicate more survey work is 
needed to verify that the El Paso population has in fact been 
extirpated. Concerning the population near Radium Springs, New Mexico, 
Jacobi et al. (2005) note that the site is in a highly regulated river 
downstream from concentrated agriculture. Jacobi et al.

[[Page 17365]]

(2005) provide no additional discussion as to whether they interpret 
occurrence in a regulated river or proximity to agriculture to be a 
threat to this species. No information regarding any threats to the 
site in Colorado was presented.
    The petitioners cite the New Mexico Department of Game and Fish's 
(NMDGF) Comprehensive Wildlife Conservation Strategy for New Mexico. 
The conservation strategy identifies Species of Greatest Conservation 
Need (SGCN) and identifies conservation actions intended to conserve 
the species and their habitats. The conservation strategy states that, 
``New Mexico's SGCN are species that are indicative of the diversity 
and health of the State's wildlife that are associated with key 
habitats, including low and declining populations and species of high 
recreational, economic, or charismatic value (NMDGF 2005).'' The 
petitioners claim that the stonefly's inclusion in this list of SGCN is 
evidence that the species meets the definition of a threatened species 
under the Act. The conservation strategy notes that the specific 
factors influencing the integrity of this species are ``hydrologic 
modification, streamflow regulations and manipulation, water quality 
(NMDGF 2005);'' however, they provide no citations nor explanation for 
how these factors may have affected or may be affecting the species or 
its habitat. In fact, the conservation strategy acknowledges multiple 
information gaps including that the ``life history of most of the SGCN, 
including distribution, abundance, status and trends, habitat 
requirements, and movement information is poorly understood (NMDGF 
2005).''
    In considering what factors (e.g., agricultural impacts, water 
issues) might constitute threats, we must look beyond the mere exposure 
of the species to the factor to determine whether the species responds 
to the factor in a way that may cause actual impacts to the species. If 
there is exposure to a factor, but no response is observed, or only a 
positive response is observed, that factor is not considered to be a 
threat. If there is exposure and the species responds negatively, the 
factor is considered to be a threat to some degree, and we then attempt 
to determine how significant a threat it may be. The mere 
identification of factors that could affect a species negatively is not 
sufficient to allow us to find that listing under the Act may be 
appropriate; we interpret the Act to require that the petition include 
information that these factors are likely operative threats that act on 
the species to the point that the species may meet the definition of 
endangered or threatened under the Act. We have determined that the 
information reviewed concerning agricultural impacts and water issues 
does not meet the substantial-information standard. We do not consider 
the assertion of possible extirpation of a historical site due to the 
past use of pesticides to constitute a current or future threat to the 
species as a whole, because no information was provided to suggest that 
the pesticide threat is still affecting the species or is likely to do 
so in the future. This is particularly so given the conclusory nature 
of the reference to pesticides (i.e., there was no indication of what 
agricultural practices the pesticide use was tied to, what pesticides 
were used, how the pesticides got to the habitat in question, or how 
they may have affected the species or its habitat). Presentation of 
some information along these lines would have allowed the Service to 
evaluate the likelihood that the threat was continuing or was likely to 
occur in the future. Similarly, we do not consider the information 
presented concerning water issues to be significant because there is no 
information to indicate how these factors may be affecting the species 
and its habitat or are expected to affect the species and its habitat 
in the future.
    Szczythoko and Stewart (1979), cited in NatureServe (2007), note 
that the stonefly is a rare species. The petitioners assert that, given 
the restricted known occurrence, a single event (e.g., drought, flood, 
habitat destruction, pollution, exotic species), could result in 
extinction. However, in order to determine that there is substantial 
information that a species may be endangered or threatened, we have to 
determine that the species actually may be subject to threats (such as 
the single events listed above). Those threats may be based on 
environmental or biological factors. In this case, we have no 
substantial information on threats that we can link to the status of 
the species in order to make a substantial finding.
    When determining whether a species may warrant listing under the 
Act, it is important to distinguish between the mere presence of 
threats either now or in the foreseeable future, and the susceptibility 
of a species to those threats, in order to determine whether those 
threats may likely impact the species and potentially cause it to be in 
danger of extinction now or in the foreseeable future. Because rare 
species may be vulnerable to single event occurrences, as suggested 
above, it is important to have information on how likely it is such an 
event may occur (such as referencing historical frequency of that 
event), whether the specific event might impact the species (for 
example, whether flooding would actually impact the stonefly), what 
form that impact would take and by what mechanism it might affect the 
species (in other words, what specific life history function, habitat 
requirement, or other need of the species might be impacted and how), 
and whether the possible impact would likely result in a significant 
threat to the species (to what extent might the event be a negative 
impact on the species). In order to determine that there is substantial 
information that the species may be in danger of extinction now or in 
the foreseeable future due to the above factors, available information 
should be specific to the species and should reasonably suggest that 
these factors may be operative threats that act on the species to the 
point that it may warrant protection under the Act. Broad statements 
about a generalized threat to rare species do not constitute 
substantial information that listing may be warranted. Rather, to raise 
a substantial question as to whether a species may be threatened with 
extinction now or in the foreseeable future, information specific to 
the species and situation (such as life-history characteristics and 
measures of rarity) should be linked to potential threats. It is not 
sufficient to say that because a species is rare it is threatened by 
general stochastic events such as natural catastrophes. There must be 
some likely stressor acting on the species or its habitat that may 
affect a species' status such that the species may be threatened now or 
within the foreseeable future.
    Information on a species' rarity is relevant to the conservation 
status of a species. Generally speaking, a species that has a 
geographically restricted range is likely to be more susceptible to 
environmental threats (e.g., fire, flood, drought, human land use), 
should they occur, than a species that is not rare because one fire or 
flood could affect a larger total percentage of the range of a rare 
species than of a widespread species. However, we have no substantial 
information in this case to evaluate whether any environmental threats 
are currently acting upon this potentially rare species in a negative 
way, or are reasonably likely to act on it in the future. Stochastic 
threats (e.g., catastrophic fire and flood) are unpredictable by 
nature; however, there must be some information to indicate that the 
habitats are at least susceptible to catastrophic fire, flood, etc., 
and that

[[Page 17366]]

the species would be negatively affected by those events. The fact that 
a rare species is potentially vulnerable to stochastic processes does 
not necessarily mean that it is reasonably likely to experience, or 
have its status affected by, a given stochastic process within 
timescales that are meaningful for under the Act.
    A species that has always been rare, yet continues to survive, 
could be well-equipped to continue to exist into the future. Many 
naturally rare species have persisted for long periods within small 
geographic areas, and many naturally rare species exhibit traits that 
allow them to persist despite their small population sizes. 
Consequently, that fact that a species is rare does not necessarily 
indicate that it may be in danger of extinction in the foreseeable 
future.
    The petitioner does not provide information to indicate that the 
range or abundance of the stonefly has been significantly curtailed. In 
other words, we do not know if the species has always been rare or if 
it was once more widespread. There are many features of a species' 
biology, ecology, and habitat that will modify its vulnerability to 
each threat such as the life history, population structure, geographic 
location, and characteristics of its local landscape. Whether a given 
rare species is affected by environmental or biological factors, and 
the magnitude of the effect of these factors on the species' ability to 
persist into the foreseeable future, is species- and context-specific. 
The petitioners have not presented even minimal information about the 
biology and ecology of the species to indicate that there may be any 
substantial genetic or demographic impacts to this potentially rare 
species.
    We do not find that rarity alone, without corroborating information 
regarding threats, meets the substantial information threshold 
indicating that the species may warrant listing. In the absence of 
information identifying threats to the species and linking those 
threats to the rarity of the species, the Service does not consider 
rarity alone to be a threat. As noted above, a species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors used to evaluate threats as described in section 
4(a)(1) of the Act. We do not find substantial information regarding 
threats to the stonefly under any of the five factors.
    Based on our evaluation of the information provided in the 
petition, we have determined that the petition does not present 
substantial information to indicate that listing the stonefly may be 
warranted.
Mayfly (no common name) (Fallceon eatoni)
    This mayfly was originally known from an 1892 collection from 
northern Sonora, Mexico (McCafferty 2006). No other occurrence was 
recorded until a single specimen was identified as Fallceon eatoni from 
among various specimens of other species originally collected in Salt 
River Canyon, Gila County, Arizona in 2005 (McCafferty 2006). An 
additional occurrence from 1969 was reported recently in Cottonwood 
Canyon in the San Bernardino Mountains in Riverside County, California 
(Meyer and McCafferty 2008).
    The petitioners discuss Arizona's Comprehensive Wildlife 
Conservation Strategy (Arizona Game and Fish Department 2005) and claim 
that the species is threatened by inadequate regulatory mechanisms 
because the mayfly is not included in the conservation strategy. 
However, there must first be a potential threat acting on the species 
that requires adequate regulation in order to claim that regulation of 
that potential threat is inadequate. We do not consider the information 
presented concerning inadequate regulatory mechanisms to be substantial 
information indicating that the mayfly may warrant listing.
    The petitioners claim that the mayfly is vulnerable to extinction 
due to its known occurrence at only one site. The petitioners assert 
that, given the restricted known occurrence, a single event (e.g., 
drought, flood, habitat destruction, pollution, exotic species), could 
result in extinction. McCafferty (2006), cited in NatureServe (2007), 
notes that, ``Because of possible low numbers and restricted 
distribution, it may be considered a species of environmental 
concern.'' However, in our assessment of threats, we consider whether a 
species might be rare and whether rarity might make it more vulnerable 
to threats. In order to determine that there is substantial information 
that a species may be endangered or threatened, we have to determine 
that the species actually may be subject to threats (such as the single 
events listed above). Those threats may be based on environmental or 
biological factors. In this case, we have no substantial information on 
threats that we can link to the status of the species in order to make 
a substantial finding.
    When determining whether a species may warrant listing under the 
Act, it is important to distinguish between the mere presence of 
threats either now or in the foreseeable future, and the susceptibility 
of a species to those threats, in order to determine whether those 
threats may likely impact the species and potentially cause it to be in 
danger of extinction now or in the foreseeable future. Because rare 
species may be vulnerable to single event occurrences, as suggested 
above, it is important to have information on how likely it is such an 
event may occur (such as referencing historical frequency of that 
event), whether the specific event might impact the species (for 
example, whether flooding would actually impact the mayfly), what form 
that impact would take and by what mechanism it might affect the 
species (in other words, what specific life history function, habitat 
requirement, or other need of the species might be impacted and how), 
and whether the possible impact would likely result in a significant 
threat to the species (to what extent might the event be a negative 
impact on the species). In order to determine that there is substantial 
information that the species may be in danger of extinction now or in 
the foreseeable future due to the above factors, available information 
should be specific to the species and should reasonably suggest that 
these factors may be operative threats that act on the species to the 
point that it may warrant protection under the Act. Broad statements 
about a generalized threat to rare species do not constitute 
substantial information that listing may be warranted. Rather, to raise 
a substantial question as to whether a species may be threatened with 
extinction now or in the foreseeable future, information specific to 
the species and situation (such as life-history characteristics and 
measures of rarity) should be linked to potential threats. It is not 
sufficient to say that because a species is rare it is threatened by 
general stochastic events such as natural catastrophes. There must be 
some likely stressor acting on the species or its habitat that may 
affect a species' status such that the species may be threatened now or 
within the foreseeable future.
    Information on a species' rarity is relevant to the conservation 
status of a species because small populations are generally at greater 
risk of extinction than are large populations. Generally speaking, a 
species that is rare is likely to be more susceptible to environmental 
threats (e.g., fire, flood, drought, human land use), should they 
occur, than a species that is not rare because one fire or flood could 
affect a larger total percentage of the range of a rare species than of 
a widespread species. However, we have no substantial information in

[[Page 17367]]

this case to evaluate whether any environmental threats are currently 
acting upon this potentially rare species in a negative way, or are 
reasonably likely to act on it in the future. Stochastic threats (e.g., 
catastrophic fire and flood) are unpredictable by nature; however, 
there must be some information to indicate that the habitats are at 
least susceptible to catastrophic fire, flood, etc. and that the 
species would be negatively affected by those events. The fact that a 
rare species is potentially vulnerable to stochastic processes does not 
necessarily mean that it is reasonably likely to experience, or have 
its status affected by, a given stochastic process within timescales 
that are meaningful under the Act.
    A species that has always been rare, yet continues to survive, 
could be well-equipped to continue to exist into the future. Many 
naturally rare species have persisted for long periods within small 
geographic areas, and many naturally rare species exhibit traits that 
allow them to persist despite their small population sizes. 
Consequently, the fact that a species is rare does not necessarily 
indicate that it may be in danger of extinction in the foreseeable 
future.
    The petitioner does not provide information to indicate that the 
range or abundance of the mayfly has been significantly curtailed. In 
other words, we do not know if the species has always been rare or if 
it was once more widespread. There are many features of a species' 
biology, ecology, and habitat that will modify its vulnerability to 
each threat such as the life history, population structure, geographic 
location, and characteristics of its local landscape. Whether a given 
rare species is affected by environmental or biological factors, and 
the magnitude of the effect of these factors on the species' ability to 
persist into the foreseeable future, is species- and context-specific. 
The petitioners have not presented even minimal information about the 
biology and ecology of the species to indicate that there may be any 
substantial genetic or demographic impacts to this potentially rare 
species.
    We do not find that rarity alone, without corroborating information 
regarding threats, meets the substantial information threshold 
indicating that the species may warrant listing. In the absence of 
information identifying threats to the species and linking those 
threats to the rarity of the species, the Service does not consider 
rarity alone to be a threat. As noted above, a species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors used to evaluate threats as described in section 
4(a)(1) of the Act. We do not find substantial information regarding 
threats to the mayfly under any of the five factors.
    Based on our evaluation of the information provided in the 
petition, we have determined that the petition does not present 
substantial information to indicate that listing the mayfly may be 
warranted.

Finding

    We reviewed and evaluated information in the petition and the 
literature cited in the petition that was readily available on the 
Internet and in local libraries. We also reviewed reliable information 
readily available in our files. On the basis of our review under 
section 4(b)(3)(A) of the Act, we have determined that the petition 
does not present substantial scientific or commercial information 
indicating that listing may be warranted for the stonefly or for the 
mayfly.

References Cited

    A complete list of references cited is available on the Internet at 
Docket No. FWS-R2-ES-2010-0020 at https://www.regulations.gov and upon 
request from the Southwest Regional Ecological Services Office (see 
ADDRESSES).

Author

    The primary authors of this document are the staff members of the 
Southwest Regional Ecological Services Offices (see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 25, 2010.
Jeffrey L. Underwood,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2010-7550 Filed 4-5-10; 8:45 am]
BILLING CODE 4310-55-S