Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition to Reclassify the Delta Smelt From Threatened to Endangered Throughout Its Range, 17667-17680 [2010-7904]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 75, Number 66 (Wednesday, April 7, 2010)]
[Proposed Rules]
[Pages 17667-17680]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-7904]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2008-0067]
[MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition to Reclassify the Delta Smelt From Threatened to 
Endangered Throughout Its Range

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to reclassify the delta smelt (Hypomesus 
transpacificus) under the Endangered Species Act of 1973, as amended. 
After review of all available scientific and commercial information, we 
find that reclassifying the delta smelt from a threatened to an 
endangered species is warranted, but precluded by other higher priority 
listing actions. We will develop a proposed rule to reclassify this 
species as our priorities allow.

DATES: The finding announced in this document was made on April 7, 
2010.

ADDRESSES: This finding is available on the Internet at https://www.regulations.gov at Docket Number FWS-R8-ES-2008-0067. 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, Sacramento Fish and Wildlife Office, 2800 
Cottage Way, W-2605, Sacramento, CA 95825. Please submit any new 
information, materials, comments, or questions concerning this finding 
to the above address.

FOR FURTHER INFORMATION CONTACT: Mary Grim, San Francisco Bay-Delta 
Fish and Wildlife Office, 650 Capitol Mall, 5\th\ Floor, Sacramento, CA 
95814; by telephone at 916-930-5634; or by facsimile at 916-414-6462. 
If you use a telecommunications device for the deaf (TDD), 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, for any petition 
to add a species to, remove a species from, or reclassify a species on 
one of the Lists of Endangered and Threatened Wildlife and Plants, we 
first make a determination whether the petition presents substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted. To the maximum extent practicable, we make 
this determination within 90 days of receipt of the petition, and 
publish the finding promptly in the Federal Register.
    If we find the petition presents substantial information, section 
4(b)(3)(A) of the Act requires us to commence a status review of the 
species, and section 4(b)(3)(B) of the Act requires us to make a second 
finding, this one within 12 months of the date of receipt of the 
petition, on whether the petitioned action is: (a) Not warranted, (b) 
warranted, or (c) warranted, but the immediate proposal of a regulation 
implementing the petitioned action is precluded by other pending 
proposals to determine whether any species is threatened or endangered, 
and expeditious progress is being made to add or remove qualified 
species from the Lists of Endangered and Threatened Wildlife and 
Plants. We must publish these 12-month findings in the Federal 
Register.
    Species for which listing is warranted but precluded are considered 
to be ``candidates'' for listing. Section 4(b)(3)(C) of the Act 
requires that a petition for which the requested action is found to be 
warranted but precluded be treated as though resubmitted on the date of 
such finding, i.e., requiring a subsequent finding to be made within 12 
months. Each subsequent 12-month finding is also to be published in the 
Federal Register. We typically publish these findings in our Candidate 
Notice of Review (CNOR). Our most recent CNOR was published on November 
9, 2009 (74 FR 57804).

Previous Federal Action

    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 to reclassify the listing 
status of the delta smelt, a threatened species, to endangered on an 
emergency basis. 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.
    On July 10, 2008, we published a 90-day finding that the petition 
presented substantial scientific information to indicate that 
reclassifying the delta smelt may be warranted (73 FR 39639). We 
announced the initiation of a status review at that time, and requested 
comments and information from the public on or before September 8, 
2008. We reopened the comment period on December 9, 2008, and that 
comment period closed February 9, 2009 (73 FR 74674).

Species Information

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 larvae (Moyle 
2002, p. 228). Delta smelt usually aggregate into loose schools, but 
their discontinuous stroke-and-glide 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). 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

[[Page 17668]]

reservoirs in 1959, and may be seasonally sympatric with delta smelt in 
the estuary (Trenham et al. 1998, p. 417). Allozyme studies have 
demonstrated that wakasagi and delta smelt are genetically distinct and 
presumably derived from different marine ancestors (Stanley et al. 
1995). Genetic characterization of delta smelt, longfin smelt, and 
wakasagi is presently under investigation, using contemporary 
methodologies.

Distribution and Abundance

    Delta smelt are endemic to (native and restricted to) the San 
Francisco Bay and 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 the city of 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 Sacramento-San 
Joaquin Estuary (Moyle 2002, p. 230).
    Population estimates are not possible to obtain for this species 
(Herbold 1996, p. 1). A relative abundance index has been developed 
using various net surveys as well as counts of individuals entrained by 
(drawn into) Federal and State water export facilities (Bennett 2005, 
p. 5), and population assessments have been based on abundance index 
trends. Based on those indices, significant changes in delta smelt 
abundance occurred in 1975-76, 1980-81, and 1998-99 (Manly and 
Chotkowski 2006, p. 602). The 1980-1981 abundance index decline was one 
of the factors that resulted in listing delta smelt as a threatened 
species in 1993 (58 FR 12854; Moyle 2002, p. 230; CDFG 2008, p. 1). 
From 1991 to 2001, abundance index trends fluctuated wildly. In 2002, 
delta smelt and three other pelagic Delta fishes seemed to decline 
significantly, with delta smelt abundance indices trending to record 
lows from 2002 through 2008 (Armor et al. 2005, p. 3; CDFG 2008, p. 2). 
In March of 2004, we completed a 5 year review of the species that 
recommended against changing the listing status of the delta smelt. At 
that time there was no indication that the decreasing trend of 2002 was 
outside of the range of expected variability, similar to those in 1992, 
1994, and 1996 (Service 2004, unpaginated App. B Midwater Trawl 
Abundance Index table). However, the delta smelt index continues a 
decreasing trend and is now estimated at the lowest level ever 
measured-roughly one and a half percent of the 1980 index level (CDFG 
2008, p. 2).

Habitat and Life History

    Studies indicate that delta smelt require specific environmental 
conditions (freshwater flow, water quality) 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 
euryhaline (tolerate a wide range of salinities) species; however, they 
rarely occur in water with more than 10-12 parts per thousand salinity 
(about one-third seawater). Delta smelt tolerate temperatures ranging 
from 7.5 \0\C to 25.4 \0\C (45 to 78 \0\F) in the laboratory (Swanson 
et al. 2000, p. 386, Table 1), but may be found in warmer waters in the 
Delta. Feyrer at al. (2007, p. 728) found that relative abundance of 
delta smelt was related to fall salinity and turbidity (water clarity). 
Delta smelt probably evolved within the naturally turbid (silt and 
particulate-laden) environment of the Delta and likely rely on certain 
levels of background turbidity at different life stages and for certain 
behaviors. Laboratory studies found that delta smelt larval feeding 
increased with increased turbidity (Baskerville-Bridges et al. 2004, p. 
222).
    Although spawning has not been observed in the wild, spawning 
location and timing has been inferred from the collection of larvae in 
sloughs and shallow edge-waters of channels in the upper Delta and in 
Montezuma Slough near Suisin Bay (Wang 1991, pp. 11-12). Spawning is 
believed to occur from late January through late June or early July at 
water temperatures ranging from 7 to 15 \0\C (45 to 59 \0\F) (Moyle 
2002, p. 229). In the laboratory, spawning has been observed to occur 
between 12 and 22 \0\C (54 and 72 \0\F ) (Bennett 2005, p. 13). In 
laboratory conditions, eggs typically hatch after 9 to 14 days and 
larvae begin feeding 5 to 6 days later (Mager et al. 2004, p. 172, 
Table 1). Larvae are generally most abundant in the Delta from mid-
April through May (Bennett 2005, p. 13). After several weeks of 
development, larval surveys indicate that larvae move downstream until 
they reach nursery habitat in the ``low salinity zone'' (LSZ) where the 
salinity ranges from approximately 2 to 7 parts per thousand (ppt) 
(Moyle 2002, p. 228). Juvenile smelt rear and grow in the LSZ for 
several months, preferring relatively shallow open water (Dege and 
Brown 2004, pp. 56-58). In September or October, delta smelt reach 
adulthood and begin a gradual migration back into freshwater areas 
where spawning is thought to occur. Most delta smelt die after 
spawning, but a small contingent of adults survives and can spawn in 
their second year (Moyle 2002, p. 228).

Foraging Ecology

    Delta smelt feed primarily on small planktonic (free-floating) 
crustaceans, and occasionally on insect larvae (Moyle 2002, p. 228). 
Historically, the main prey of delta smelt was the copepod Eurytemora 
affinis and the mysid shrimp Neomysis mercedis. The slightly larger 
copepod Pseudodiaptomus forbesi has replaced E. affinis as a major prey 
source of delta smelt since its introduction into the San Francisco 
Bay-Delta. Two other copepod species, Limnoithona tetraspina and 
Acartiella sinenisi, have become abundant since their introduction to 
the San Francisco Bay-Delta in the mid 1990s. Delta smelt eat these 
introduced copepods, but P. forbesi remains a dominant prey item 
(Baxter et al. 2008, p. 22). The diets of larval delta smelt are 
limited to larval copepods (Nobriga 2002, p. 156). As mentioned 
previously, delta smelt are thought to require a turbid environment for 
efficient, successful foraging.

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and implementing regulations 
(50 CFR part 424), set forth the procedures for adding species to the 
Federal Lists of Endangered and Threatened Wildlife and Plants. Under 
section 4(a)(1) of the Act , a species may be determined to be 
endangered or threatened based on any of the following five factors: 
(1) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting its continued existence. In 
making this finding, information pertaining to the delta smelt, in 
relation to the five factors provided in section 4(a)(1) of the Act, is 
discussed below.
    Numerous threats to delta smelt could be addressed either as 
habitat modifications or as falling under another of the five listing 
factors. We will consider habitat modifications (Factor A) to include 
alterations of salinity and turbidity (water clarity). We address 
issues of direct entrainment, contaminants, invasive species, and 
effects of small populations under Factor E, Other Natural or Manmade 
Factors.

[[Page 17669]]

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    From late spring through fall and early winter, delta smelt are 
located at the LSZ, which moves depending upon San Francisco Bay-Delta 
water outflow (Dege and Brown 2004, pp. 56-58; Service 2008, pp. 147, 
150). Reduced Delta water outflow causes the LSZ to move upstream, 
which seems to concentrate delta smelt in a smaller area along with 
other competing planktivorous fishes (Bennett 2005, pp. 11, 20). Causes 
of such reduced outflows include smaller upstream releases from dams, 
increased water exports from the State and Federal facilities, and 
upstream water diversions for flooding rice fields (Feyrer 2007, p. 
731; Service 2008, p. 153). Low freshwater outflows in the fall have 
been correlated with a reduced abundance index for young delta smelt 
the following summer (Feyrer et al. 2007, pp. 727, 728).
    Delta smelt are also believed to require relatively turbid (not 
clear) waters to capture prey and avoid predators (Feyrer 2007, p. 
731). Increased water clarity during the summer and fall has been shown 
to be negatively correlated with subsequent summer delta smelt 
abundance indices (Feyrer 2007, p. 728; Nobriga et al. 2008, p. 8). 
Since 1978, delta smelt have become increasingly rare in summer and 
fall surveys of the San Joaquin region of the San Francisco Bay-Delta 
(Nobriga et al. 2008, p. 9). The primary reason appears to be the 
comparatively high water clarity in the region, although high water 
temperatures are also likely a contributing factor (Nobriga et al. 
2008, pp. 8, 9). The increased water clarity in delta smelt rearing 
habitat is attributed to the interruption of sediment transport by 
upstream dams (Arthur and Ball 1979, p. 157; Wright and Schoellhamer 
2004, pp. 7, 10) and the spread of the exotic invasive water plant 
Egeria densa (Brazilian waterweed), which traps suspended sediments 
(Feyrer et al. 2007, p. 731).
Summary for Factor A
    Based on a review of the best scientific and commercial information 
available, we find that destruction, modification, or curtailment of 
habitat poses a current and future threat to delta smelt. Operation of 
upstream reservoirs, increased water exports, and upstream water 
diversions have altered the location and extent of the low salinity 
zone, concentrating smelt in an area with competing fish species. 
Upstream reservoirs and the increased presence of Egeria densa have 
also reduced turbidity levels in rearing habitat, which may reduce 
foraging efficiency.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Delta smelt monitoring surveys are conducted throughout the year, 
including the Fall Mid-Winter Trawl (FMWT), Summer Townet Survey (TNS), 
20-mm Survey, and Spring Kodiak Trawl Survey (SKT). Overall take by 
survey collection is believed to be low compared to estimated relative 
abundances (Bennett 2005, p. 7); however, considering the concern for 
reduced abundance based on trend assessment, questions arise as to 
whether these and other surveys pose a concern to the delta smelt. 
Because of low abundance and a high level of sampling mortality, survey 
methods have been modified to minimize potential impacts to delta smelt 
(K. Souza 2009, pers. comm.). Based on the low number of delta smelt 
collected in sampling surveys and the modified methods employed to 
further reduce these collections, we find that the amount of take 
expected to occur from sampling surveys does not reach a level 
substantial enough to be considered a threat. There is no evidence of 
use of the species for other commercial, recreational, scientific, or 
educational purposes.
    Based on a review of the best scientific information available, we 
find that overutilization for commercial, recreational, or educational 
purposes is not likely to be a significant threat to the delta smelt in 
any portion of its range. Overutilization for scientific purposes may 
pose an increased concern to delta smelt, but survey protocols have 
been modified to minimize that concern.

C. Disease or Predation

Disease
    Studies have not found evidence of significant disease infestations 
in wild delta smelt (Teh 2007, p. 8; Baxter et al. 2008, p. 14). Based 
on the best scientific and commercial information available, we 
conclude that disease does not threaten the delta smelt in any portion 
of its range.
Predation
    At least three species of nonnative fish with the potential to prey 
on delta smelt occur within the Delta: striped bass (Morone saxatilis), 
largemouth bass (Micropterus salmoides), and inland silversides 
(Menidia beryllina) (Bennett 2005, p. 49; Baxter et al. 2008, p. 17). 
Striped bass are widely distributed in pelagic areas of the San 
Francisco Bay-Delta, and thus have wide areas of overlap with delta 
smelt juveniles and adults. They also tend to aggregate in the vicinity 
of water diversion structures, where delta smelt are frequently 
entrained (Nobriga and Feyrer 2007, p. 9). Thus, striped bass are 
likely to be the most significant predator of delta smelt (Nobriga and 
Feyrer 2007, p. 9), although the rarity of delta smelt would presumably 
make them a relatively unusual prey item. Delta smelt are not commonly 
found as prey for striped bass (Bennett 2005, p. 49; Nobriga and Feyrer 
2007, p. 9); however, smelt may be taken opportunistically since both 
striped and largemouth bass have highly diverse diets (Nobriga and 
Feyrer 2007, p. 6).
    Largemouth bass are freshwater fish that prefer shoreline 
(littoral) habitat with relatively dense water plants (Nobriga and 
Feyrer 2007, pp. 4, 8; Baxter et al. 2008, p. 17). Increases in the 
Delta's largemouth bass population since the early 1990s is believed to 
have been facilitated by the spread of the invasive plant Egeria densa, 
which provides bass habitat (Baxter 2008, p. 17). Despite increases in 
largemouth bass populations and habitat, Nobriga and Feyrer (2007, p 6) 
did not find delta smelt as largemouth bass prey.
    Inland silversides may be predators and competitors with delta 
smelt (Bennett 2005, pp. 49, 50). Inland silversides were first 
introduced to the San Francisco Bay-Delta in the mid 1970s, and have 
increased dramatically in numbers since the mid-1980s. They forage in 
schools around the shoreline habitats of the San Francisco Bay-Delta, 
where delta smelt larvae and eggs occur. They readily consume delta 
smelt larvae in aquarium tests. Bennett (2005, p. 50) concluded that 
``delta smelt are at high risk if eggs or larvae co-occur with schools 
of foraging silversides.'' We have no information regarding the extent 
to which this is likely to occur in the wild.
    Based on a review of the best available scientific and commercial 
information, we find that predation likely constitutes a low-to-
moderate threat. Although we have no empirical evidence to indicate 
predation has significantly increased since the time of listing, other 
factors, such increasing water clarity, could increase the risk of 
predation.
Summary for Factor C
    Based on a review of the best available scientific and commercial 
information available, we conclude that disease is not likely to be a 
significant threat, and that predation is likely a

[[Page 17670]]

low-to-moderate threat, to the species at this time.

D. The Inadequacy of Existing Regulatory Mechanisms

State Laws
    California Endangered Species Act: The delta smelt was listed as 
threatened under the California Endangered Species Act (CESA) in 1993 
(CDFG 2008, p. 5), and was reclassified as endangered under the CESA in 
2010 (14 CCR 670.5). The CESA prohibits unpermitted possession, 
purchase, sale, or take of listed species. However, the CESA definition 
of take does not include harm, which under the Act can include 
destruction of habitat that actually kills or injures wildlife by 
significantly impairing essential behavioral patterns (50 CFR 17.3). 
The CESA does require consultation between the California Department of 
Fish and Game (CDFG) and other State agencies to ensure that activities 
of State agencies will not jeopardize the continued existence of State-
listed species (CERES 2009, p. 1).
    Porter Cologne Water Quality Control Act: The Porter Cologne Water 
Quality Control Act establishes the State Water Resources Control Board 
(SWRCB) and nine Regional Water Quality Control Boards that are 
responsible for the regulation of activities and factors that could 
degrade California water quality and for the allocation of surface 
water rights (California Water Code Division 7). In 1995, the SWRCB 
developed the Bay-Delta Water Quality Control Plan to establish water 
quality objectives for the Delta. This plan is implemented by Water 
Rights Decision 1641, which imposes flow and water quality standards on 
State and Federal water export facilities to assure protection of 
beneficial uses in the Delta (Service 2008, pp. 21-27). The various 
flow objectives and export restraints are designed, in part, to protect 
fisheries. These objectives include specific outflow requirements 
throughout the year, specific water export restraints in the spring, 
and water export limits based on a percentage of estuary inflow 
throughout the year. The water quality objectives are designed to 
protect agricultural, municipal, industrial, and fishery uses; they 
vary throughout the year and by the wetness of the year.
Federal Laws
    National Environmental Policy Act: The National Environmental 
Policy Act (NEPA) (42 U.S.C. 4321 et seq.) requires all Federal 
agencies to formally document, consider, and publicly disclose the 
environmental impacts of major Federal actions and management decisions 
significantly affecting the human environment. NEPA documentation is 
provided in an environmental impact statement, an environmental 
assessment, or a categorical exclusion, and may be subject to 
administrative or judicial appeal. However, the Federal agency is not 
required to select an alternative having the least significant 
environmental impacts, and may select an action that will adversely 
affect sensitive species provided that these effects are known and 
identified in a NEPA document. Therefore, we do not consider the NEPA 
process in itself is to be a regulatory mechanism that is certain to 
provide significant protection for the delta smelt.
    Endangered Species Act: The delta smelt is currently listed as a 
threatened species under the Endangered Species Act of 1973, as amended 
(Act). By general regulation under sections 4(d) and 7(a) of the Act, 
threatened fish or wildlife species are afforded all the regulatory 
protections that endangered fish or wildlife species have. However, in 
order to provide those measures necessary and advisable for the 
conservation of a species listed as threatened, we can issue a special 
rule under section 4(d) of the Act to allow different restrictions on 
``take'' as defined in section 3(19) of the Act and regulated under 
section 9 of the Act. No special rules for delta smelt currently exist. 
The Act defines a ``threatened species'' as ``any species which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range'' (section 3(20) 
of the Act). An ``endangered species'' is ``any species which is in 
danger of extinction throughout all or a significant portion of its 
range'' (section 3(6) of the Act). Section 6 of the Act authorizes us 
to enter into conservation agreements with States, and to allocate 
funds for conservation programs to benefit threatened or endangered 
species. Neither section 6 of the Act nor Service policy gives higher 
priority to endangered vs. threatened species for conservation funding.
    The Central Valley Project (CVP), operated by the Bureau of 
Reclamation (Reclamation), and State Water Project (SWP), operated by 
the California Resources Agency Department of Water Resources (DWR), 
are currently operating under a Biological Opinion (BO) issued December 
15, 2008, under section 7 of the Act (Service 2008, pp. 1-396). The BO 
includes a reasonable and prudent alternative (RPA), according to which 
water export facility operations could proceed without jeopardizing the 
continued existence of the species or destroying or adversely modifying 
its designated critical habitat. It also includes an incidental take 
statement (ITS) specifying reasonable and prudent measures necessary to 
minimize the incidental take of the species resulting from CVP and SWP 
operations. Reclamation has accepted the RPA provisionally, but may 
decide to reinitiate consultation (Reclamation 2008, p. 1). The ITS and 
BO replace a previous ITS and BO issued in 2005 (Service 2005, p. 1), 
and also replace flow restrictions instituted by the District Court in 
the case of NRDC v. Kempthorne (Wanger 2007, pp. 1-11), which found the 
2005 BO inadequate to conserve the species.
    Central Valley Project Improvement Act: The Central Valley Project 
Improvement Act (Pub. L. 102-575)(CVPIA) amends the previous Central 
Valley Project (CVP) authorizations to include fish and wildlife 
protection, restoration, and mitigation as project purposes having 
equal priority with irrigation and domestic uses, and fish and wildlife 
enhancement as having an equal priority with power generation (Public 
Law 102-575, October 30, 1992; Reclamation 2009). Included in CVPIA was 
a provision to dedicate 800,000 acre-feet of CVP yield annually for 
fish, wildlife, and habitat restoration, referred to as (b)(2) water. 
Since 1993, (b)(2) water has been used, supplemented with acquired 
environmental water (Environmental Water Account and CVPIA (b)(3) 
water), to protect delta smelt and their habitat by increasing stream 
flows and reducing CVP export pumping in the Delta (Guinee 2009, pers. 
comm.).
Summary for Factor D
    In summary, although regulatory mechanisms are in place to address 
direct and indirect adverse effects to delta smelt and conserve smelt 
habitat, not all activities impacting delta smelt are subject to 
regulatory review and comment. The continued decline in delta smelt 
trend indicators suggest that existing regulatory mechanisms, as 
currently implemented, are not adequate to reduce threats to the 
species. Therefore, based on a review of the best scientific 
information available, we find existing regulatory mechanisms are 
either not sufficient or may not be addressing the most significant 
threat to the species.

[[Page 17671]]

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    Other factors affecting the continued existence of the species 
include direct entrainment into water diversions, introduced species, 
contaminants, and increased vulnerabilities of small populations.
Direct Entrainment
    Agricultural Diversions for Irrigation: There are 2,209 known 
agricultural diversions in the San Francisco Bay-Delta and an 
additional 366 diversions in Suisun Marsh used to enhance waterfowl 
habitat (Service 2008, p. 172). Most of these diversions do not have 
fish screens to protect fish from entrainment (trapping). The amount of 
entrainment that may occur at these diversions is not well-known, and 
efforts to determine the effect of this entrainment have been limited 
because previous studies either (1) did not quantify the volumes of 
water diverted, or (2) did not sample at times when, or locations 
where, delta smelt were abundant. Delta smelt may not be vulnerable to 
agricultural diversions for several reasons. First, adult delta smelt 
move into the Delta to spawn during winter to early spring when 
agricultural diversion operations are at a minimum. Second, larval 
delta smelt avoid the South Delta during summer when diversion demand 
peaks. Third, delta smelt are often distributed offshore, away from 
agricultural diversions (Nobriga et al. 2004, p. 293). Therefore, we do 
not consider entrainment by agricultural or waterfowl habitat 
diversions to be a significant threat to delta smelt.
    Power Plant Diversions: Two power plants located near the 
confluence of the Sacramento and San Joaquin Rivers pose an entrainment 
risk to delta smelt: the Contra Costa Power Plant and the Pittsburg 
Power Plant (Service 2008, pp. 173-174). The maximum combined non-
consumptive intake of cooling water for the two facilities is 3,240 
cubic feet per second (cfs), which can exceed 10 percent of the total 
net outflow of the Sacramento and San Joaquin rivers. In 1979, average 
annual entrainment at the two power plants was estimated to be 86 
million smelt (delta and longfin smelt combined). Power plant 
operations have been substantially reduced since that time, and are now 
either kept offline, or operating at very low levels, except as 
necessary to meet peak power needs. The owner of the power plants, 
Mirant, is monitoring entrainment at the two power plants to determine 
how many delta smelt may be affected by operation of the two plants. 
Entrainment of delta smelt by these two major power plants has been a 
significant threat in the past and could impact delta smelt in the 
future. These plants are of particular concern because they are located 
near, and draw cooling water from, an area where sensitive fish species 
are known to occur. Additional study is needed to determine the overall 
environmental impact of these power plants.
    Water Export Facilities: Four major water diversion facilities 
exported between 4.85 and 8.7 km\3\ (3.93 and 7.05 million acre-feet) 
per year from the Delta during the years 1995 through 2005 (Kimmerer 
and Nobriga 2008, p 2). Of these, the State and Federal facilities 
exported between 4.7 and 8.4 km\3\ (3.81 and 6.81 million acre-feet) 
per year. Operation of water export facilities directly affects fish by 
entrainment into the diversion facility. The risk of entrainment varies 
with the environmental and manmade effects on Delta hydrology and the 
location of delta smelt in the Delta (Culberson et al. 2004, pp. 260-
262; Kimmerer and Nobriga 2008, pp. 19-20).
    Entrainment of delta smelt varies among seasons and among years. 
Most adults are entrained from late December through March, while most 
larvae and juveniles are entrained from April through the end of June 
to early July. Studies of entrainment at the State and Federal export 
facilities found that entrainment rates increased with reverse flows in 
the Delta, which are related to export rates (Kimmer 2008, p. 20-22). 
Kimmerer (2008, p. 20, 22) estimated that from 0 to 62 percent of the 
larval population and 3 to 50 percent of the adult population is 
entrained annually by the State and Federal export facilities. Although 
an effort is made to salvage fish entrained by the pumping facilities, 
delta smelt are too fragile to do so effectively, and essentially all 
delta smelt entrained by the pumping facilities, including all delta 
smelt that enter the SWP's Clifton Court Forebay, do not survive 
(Bennett 2005, p. 37).
    Entrainment may also affect the distribution of the successfully 
spawned population. Export of water by the CVP and SWP likely limits 
the reproductive success of delta smelt in the San Joaquin River by 
entraining most larvae during downstream transport from spawning sites 
to rearing areas (Kimmerer and Nobriga et al. 2008, p. 11). Winter 
entrainment of delta smelt represents a loss of pre-spawning adults and 
their reproductive potential (Sommer et al. 2007).
    The population-level effects of such losses are unknown. However, 
increases in winter salvage of adults at the State and Federal export 
facilities during the early 2000s coincide with declines in delta smelt 
abundance estimates during the same time period (Baxter 2008, p.18). 
The total annual pumping from the State and Federal export facilities 
increased significantly in 2000, and has remained above 1990's levels 
through 2007 (Service 2008, p. 125). The delta smelt Fall Midwater 
Trawl (FMWT) abundance index decreased in the year 2000, and 
experienced severe declines 2 years later (CDFG 2008, p. 2). While 
there are many factors contributing to the declining trend in delta 
smelt abundance estimates, we consider entrainment by State and Federal 
water export facilities to be a significant and ongoing threat to the 
delta smelt.
    In summary, we do not consider entrainment by agricultural 
diversions to be a significant threat due to their nearshore location. 
Entrainment into power plants at Pittsburgh and Contra Costa has had a 
significant impact on delta smelt in the past; however, their 
operations have been modified, and further study is needed to determine 
the present level of threat to delta smelt. The operation of State and 
Federal export facilities constitute a significant and ongoing threat 
to delta smelt through direct mortality by entrainment.
Introduced Species
    Introduced species have altered the Delta food web and may have 
played a role in the decline of delta smelt (Nobriga 1998, p. 20). The 
overbite clam (Corbula amurensis) is a nonnative species that became 
abundant in the Delta in the late 1980s. Starting in about 1987 to 
1988, declines were observed in the abundance of phytoplankton (Alpine 
and Cloern 1992, p. 951) and the copepod Eurytemora affinis. These 
declines have been attributed to grazing by the overbite clam (Kimmerer 
et al. 1994, p. 86). Because the overbite clam also consumes copepod 
larvae as it feeds (Kimmerer et al. 1994, p. 87), it not only reduces 
phytoplankton biomass but also competes directly with delta smelt for 
food. It is believed that these changes in the estuarine food web 
negatively influence pelagic fish abundance, including delta smelt 
abundance.
    Copepods (E. affinis, Psuedodiaptomus forbesi), a major prey item 
for delta smelt, have declined in abundance in the Delta since the 
1970s (Kimmerer and Orsi 1996, p. 409). Limnoithona tetraspina (no 
common name) is a nonnative copepod that began increasing in numbers in 
the delta in the mid 1990s - about the same time that the delta smelt's 
preferred prey copepod, P. forbesi, began declining

[[Page 17672]]

(Bennett 2005, p. 18). L. tetraspina is now the most abundant copepod 
species in the low salinity zone (Bouley and Kimmerer 2006, p. 219), 
and is likely an inferior prey species for delta smelt because of its 
smaller size and superior predator avoidance abilities when compared to 
P. forbesi (Bennett 2005, p. 18; Baxter et al. 2008, p. 22).
    Delta smelt may also be adversely affected by competition from 
introduced fish species that use overlapping habitats, such as inland 
silversides (Bennett 2005, pp. 49, 50). Laboratory studies show that 
delta smelt growth is inhibited when reared with inland silversides 
(Bennett 2005, p. 50). Delta smelt and inland silversides have similar 
morphology, diet, and lifespan, but silversides have a broader diet, 
and a generally wider ecological niche, a pattern that could give it a 
competitive advantage over delta smelt (Bennett 2005, p. 50).
    In summary, we find that introduced species have altered the Delta 
food web and constitute a significant threat to delta smelt. It is 
likely that this threat will increase in the future with the ongoing 
risk of new species being introduced to the Delta.
Contaminants
    There is a potential for exposure of Delta organisms to various 
contaminants. Toxicity to invertebrates has been noted in water and 
sediments from the Delta and associated watersheds (e.g., Werner et al. 
2000, pp. 218, 223). Fish exposed to water from agricultural drains in 
the San Joaquin River watershed can exhibit body burdens of selenium 
exceeding the level at which reproductive failure and increased 
juvenile mortality occur (Saiki et al. 2001, p. 629). Kuivila and Moon 
(2004, p. 239) found that peak densities of larval and juvenile delta 
smelt sometimes coincided in time and space with elevated 
concentrations of dissolved pesticides in the spring. These periods of 
co-occurrence lasted for up to 2 to 3 weeks. Concentrations of 
individual pesticides were low and much less than would be expected to 
cause acute mortality; however, the effects of exposure to the complex 
mixtures of pesticides are unknown.
    Several studies were initiated in 2005 to address the possible role 
of contaminants and disease in the declines of San Francisco Bay-Delta 
fish and other aquatic species. The primary study consists of twice-
monthly monitoring of ambient water toxicity at 15 sites in the San 
Francisco Bay-Delta and Suisun Bay (Baxter et al. 2008, pp. 13, 14). In 
2005 and 2006, standard bioassays using the amphipod Hyalella azteca 
had low (less than 5 percent) frequency of occurrence of toxicity. 
However, preliminary results from 2007, a dry year, suggest the 
incidence of toxic events was higher than in the previous (wetter) 
years. Testing indicated that both organophosphate and pyrethroid 
pesticides may have contributed to the pulses of toxicity. Pyrethroids 
are of particular interest because use of these insecticides has 
increased within the San Francisco Bay-Delta watershed, as use of some 
organophosphate insecticides has declined.
    In conjunction with the above investigation, larval delta smelt 
bioassays were conducted simultaneously with a subset of the 
invertebrate bioassays (Service 2008, pp. 187-188). The water samples 
for these tests were collected from six sites within the San Francisco 
Bay-Delta during May-August of 2006 and 2007. Results from 2006 
indicate that delta smelt are highly sensitive to high levels of 
ammonia, low turbidity, and low salinity. No significant mortality of 
larval delta smelt was found in the 2006 bioassays, but there were two 
instances of significant mortality in June and July of 2007. In both 
cases, the water samples were collected from sites along the Sacramento 
River, where delta smelt larvae and juveniles are frequently collected 
in routine survey sampling. Both sets of water samples had relatively 
low turbidity and salinity levels and moderate levels of ammonia. It is 
also important to note that no significant Hyalella azteca mortality 
was detected in these water samples. While the H. azteca tests are 
useful for detecting biologically relevant levels of water column 
toxicity for zooplankton, interpretation of the H. azteca test results 
may not be applicable to fish, and delta smelt in particular.
    A histopathological examination of adult delta smelt collected 
during the winter of 2005 found comparatively high levels of liver 
lesions in delta smelt taken from Suisun Bay, Suisun Marsh, and the 
South Delta, indicating that delta smelt in those areas had been 
subjected to higher levels of stress from contaminants than delta smelt 
in other areas (Teh 2007, pp. 12, 13). Although the study did not 
suggest such lesions would prevent survival or reproduction directly, 
it did note that such stress can leave afflicted individuals more 
susceptible to mortality from other causes, such as predation and 
disease. The study concluded that contaminants are unlikely to directly 
affect the survival of delta smelt in the Central Delta (Teh 2007, p. 
2). The study also found a small number of intersex (having 
characteristics of both male and female sexes) delta smelt, with 
immature oocytes in their testes (Teh 2007, p. 14). This can result 
from exposure to endocrine-disrupting chemicals, but it can also occur 
spontaneously. Teh (2007) concluded that additional laboratory 
evaluation was necessary to identify the cause.
    Large blooms of toxic blue-green algae, Microcystis aeruginosa, 
were first detected in the San Francisco Bay-Delta during the summer of 
1999 (Lehman et al. 2005, p. 87). Since then, M. aeruginosa has bloomed 
each year, forming large colonies throughout most of the Delta and 
increasingly down into eastern Suisun Bay (Lehman et al. 2005, p. 92). 
Blooms typically occur between late spring and early fall and peak in 
the summer when temperatures are above 20 \0\C (68 \0\F). Microcystis 
aeruginosa can produce natural toxins that pose animal and human health 
risks if contacted or ingested directly. Preliminary evidence indicates 
that the toxins produced by local blooms are not toxic to fishes at 
current concentrations (Baxter et al. 2008, p. 14). However, the 
copepods that delta smelt eat are particularly susceptible to those 
toxins (Ger 2008, pp. 12, 13). Studies are underway to determine if 
zooplankton production is compromised during M. aerguinosa blooms to an 
extent that is likely to adversely affect delta smelt (Service 2008, p. 
186). Microcystis blooms may also decrease dissolved oxygen to lethal 
levels for fish; however, the distribution of delta smelt generally 
does not significantly overlap the densest M. aeruginosa 
concentrations, so low levels of dissolved oxygen are not likely a 
threat to delta smelt. One possible exception to non-overlapping 
distribution may have occurred during September 2007, when delta smelt 
were captured at higher salinity levels than normal. One possible 
explanation for this was that a substantial Microcystis bloom may have 
pushed delta smelt farther towards the ocean than they would normally 
have gone (Baxter et al. 2008, pp. 12, 28).
    Although negative impacts to individual delta smelt for 
contaminants have been shown, the overall extent of such cases, and 
impacts to the population as a whole, remain largely undocumented. 
However, because substantial uncertainties exist and the co-occurrence 
of delta smelt with contaminants has been documented, we conclude that 
contaminants may constitute a significant threat to delta smelt.
Vulnerability of Small Populations
    Delta smelt are relatively concentrated in their rearing habitat 
during the fall,

[[Page 17673]]

making them vulnerable to normal, but damaging, environmental 
conditions such as droughts, contaminant spills, and predation. Small, 
isolated populations are more likely to lose genetic variability due to 
genetic drift (random genetic changes over time), and to suffer 
inbreeding depression due to the fixation of deleterious alleles (gene 
variants) (Lande 1999, pp. 11-17). Populations at low densities are 
often subject to Allee effects, which involve decreases in the ratio of 
offspring to adults as the population density decreases (Dennis 2002, 
p. 389). It is unknown if small population size may have contributed to 
delta smelt's most apparent decline.
Summary for Factor E
    Based on a review of the best scientific and commercial information 
available, we find that the following additional natural or manmade 
factors pose significant ongoing threats to the delta smelt: 
entrainment by the State and Federal water export facilities and 
introduced species. Additional threats that are potentially significant 
are entrainment into power plant diversions, contaminants, and small 
population effects.

Finding

    As required by the Act, we considered the five factors in assessing 
whether the delta smelt is threatened or endangered throughout all or a 
significant portion of its range. We carefully assessed the best 
scientific and commercial information available regarding whether 
reclassifying delta smelt from threatened to endangered may be 
warranted. We reviewed the information in our files, and information 
submitted to us after the publication of our 90-day finding (73 FR 
39639) and during the reopened information collection period (73 FR 
74674).
    We believe there are many primary threats to the species: direct 
entrainments by State and Federal water export facilities (Factor E); 
summer and fall increases in salinity and water clarity (Factor A), and 
effects from introduced species (Factor E). Additional threats are 
predation by striped and largemouth bass and inland silversides (Factor 
C), entrainment into power plants (Factor E), contaminants (Factor E) 
and small population size (Factor E). Existing regulatory mechanisms 
(Factor D) have not proven adequate to halt the decline of delta smelt 
since the time of listing as a threatened species.
    In March 2004, we completed a 5-year review for delta smelt in 
which we determined a change in status from threatened to endangered 
was not recommended. While none of the threats discussed above, other 
than apparent abundance, show significant differences from 2004, we now 
have strong evidence, not available at the time of our 5-year review, 
that at least some of those factors are endangering the species. The 
primary evidence is the continuing downward trend in delta smelt 
abundance indices since the significant decline that occurred in 2002 
(CDFG 2008, p. 2). The 2002 decline was cited as a serious concern in 
2004, but the delta smelt abundance indices had experienced significant 
downward trends in 1992, 1994, and 1996 (Service 2004, unpaginated App. 
B Midwater Trawl Abundance Index table). However, after each of those 
previous declines, the abundance indices seemingly rebounded. The 2003 
abundance index, the most current information available for the 5-year 
review, showed a slight increase from the 2002 index. Therefore, we had 
no evidence to suggest a cycle different from what had been previously 
observed, and we expected that the delta smelt would improve from the 
2002 decline. In the 5 years since our 5-year review, however, delta 
smelt abundance indices have continued to decrease. The most recent 
fall midwater trawl abundance index is the lowest ever recorded - about 
one-tenth the level it was in 2003. In addition, a 2005 population 
viability analysis calculated a 50 percent likelihood that the species 
could reach effective extinction (8,000 individuals) within 20 years 
(Bennett 2005, pp. 53-54).
    We are still unable to determine with certainty which threats or 
combinations of threats are directly responsible for the decrease in 
delta smelt abundance. However, the apparent low abundance of delta 
smelt in concert with ongoing threats throughout its range indicates 
that the delta smelt is now in danger of extinction throughout its 
range. Therefore, based on a review of the best scientific and 
commercial information available, we find that the delta smelt meets 
the definition of an endangered species under the Act, and that it 
warrants reclassification from threatened to endangered. However, at 
this time, the promulgation of a formal rulemaking to reclassify delta 
smelt is precluded by higher priority actions.
    We adopted guidelines on September 21, 1983 (48 FR 43098) to 
establish a rational system for utilizing available resources for the 
highest priority species when adding species to the Lists of Endangered 
or Threatened Wildlife and Plants or reclassifying species listed as 
threatened to endangered status. The system places greatest importance 
on the immediacy and magnitude of threats, but also factors in the 
level of taxonomic distinctiveness by assigning priority in descending 
order to monotypic genera, full species, and subspecies (or 
equivalently, distinct population segments of vertebrates). As a result 
of our analysis of the best available scientific and commercial 
information, we have assigned the delta smelt a Listing Priority Number 
of 2, based on high magnitude and immediacy of threats. The magnitude 
of the threats is considered to be high, because they occur rangewide 
and result in mortality or significantly reduce the reproductive 
capacity of the species. They are imminent because these threats are 
ongoing and, in some cases (e.g., nonnative species), considered 
irreversible. While we conclude that reclassifying the species as 
endangered is warranted, an immediate proposal to reclassify this 
species is precluded by other higher priority actions, which we address 
below.

Preclusion and Expeditious Progress

    Preclusion is a function of the listing priority of a species in 
relation to the resources that are available and competing demands for 
those resources. Thus, in any given fiscal year (FY), multiple factors 
dictate whether it will be possible to undertake work on a proposed 
listing regulation or whether promulgation of such a proposal is 
warranted but precluded by higher-priority listing actions.
    The resources available for listing actions are determined through 
the annual Congressional appropriations process. The appropriation for 
the Listing Program is available to support work involving the 
following listing actions: proposed and final listing rules; 90-day and 
12-month findings on petitions to add species to the Lists of 
Endangered and Threatened Wildlife and Plants (Lists) or to change the 
status of a species from threatened to endangered; annual 
determinations on prior ``warranted but precluded'' petition findings 
as required under section 4(b)(3)(C)(i) of the Act; critical habitat 
petition findings; proposed and final rules designating critical 
habitat; and litigation-related, administrative, and program-management 
functions (including preparing and allocating budgets, responding to 
Congressional and public inquiries, and conducting public outreach 
regarding listing and critical habitat). The work involved in preparing 
various listing documents can be extensive and may include, but is not 
limited to: gathering and assessing the best scientific and commercial 
data

[[Page 17674]]

available and conducting analyses used as the basis for our decisions; 
writing and publishing documents; and obtaining, reviewing, and 
evaluating public comments and peer review comments on proposed rules 
and incorporating relevant information into final rules. The number of 
listing actions that we can undertake in a given year also is 
influenced by the complexity of those listing actions; that is, more 
complex actions generally are more costly. For example, during the past 
several years, the cost (excluding publication costs) for preparing a 
12-month finding, without a proposed rule, has ranged from 
approximately $11,000 for one species with a restricted range and 
involving a relatively uncomplicated analysis to $305,000 for another 
species that is wide-ranging and involving a complex analysis.
    We cannot spend more than is appropriated for the Listing Program 
without violating the Anti-Deficiency Act (see 31 U.S.C. Sec.  
1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since 
then, Congress has placed a statutory cap on funds which may be 
expended for the Listing Program, equal to the amount expressly 
appropriated for that purpose in that fiscal year. This cap was 
designed to prevent funds appropriated for other functions under the 
Act (for example, recovery funds for removing species from the Lists), 
or for other Service programs, from being used for Listing Program 
actions (see House Report 105-163, 105\th\ Congress, 1st Session, July 
1, 1997).
    Recognizing that designation of critical habitat for species 
already listed would consume most of the overall Listing Program 
appropriation, Congress also put a critical habitat subcap in place in 
FY 2002 and has retained it each subsequent year to ensure that some 
funds are available for other work in the Listing Program: ``The 
critical habitat designation subcap will ensure that some funding is 
available to address other listing activities'' (House Report No. 107 - 
103, 107\th\ Congress, 1st Session, June 19, 2001). In FY 2002 and each 
year until FY 2006, the Service has had to use virtually the entire 
critical habitat subcap to address court-mandated designations of 
critical habitat, and consequently none of the critical habitat subcap 
funds have been available for other listing activities. In FY 2007, we 
were able to use some of the critical habitat subcap funds to fund 
proposed listing determinations for high-priority candidate species. In 
FY 2009, while we were unable to use any of the critical habitat subcap 
funds to fund proposed listing determinations, we did use some of this 
money to fund the critical habitat portion of some proposed listing 
determinations, so that the proposed listing determination and proposed 
critical habitat designation could be combined into one rule, thereby 
being more efficient in our work. In FY 2010, we are using some of the 
critical habitat subcap funds to fund actions with statutory deadlines.
    Thus, through the listing cap, the critical habitat subcap, and the 
amount of funds needed to address court-mandated critical habitat 
designations, Congress and the courts have in effect determined the 
amount of money available for other listing activities. Therefore, the 
funds in the listing cap, other than those needed to address court-
mandated critical habitat for already listed species, set the limits on 
our determinations of preclusion and expeditious progress.
    Congress also recognized that the availability of resources was the 
key element in deciding, when making a 12-month petition finding, 
whether we would prepare and issue a listing proposal or instead make a 
``warranted but precluded'' finding for a given species. The Conference 
Report accompanying Public Law 97-304, which established the current 
statutory deadlines and the warranted-but-precluded finding, states (in 
a discussion on 90-day petition findings that by its own terms also 
covers 12-month findings) that the deadlines were ``not intended to 
allow the Secretary to delay commencing the rulemaking process for any 
reason other than that the existence of pending or imminent proposals 
to list species subject to a greater degree of threat would make 
allocation of resources to such a petition [that is, for a lower-
ranking species] unwise.''
    In FY 2010, expeditious progress is that amount of work that can be 
achieved with $10,471,000, which is the amount of money that Congress 
appropriated for the Listing Program (that is, the portion of the 
Listing Program funding not related to critical habitat designations 
for species that are already listed). However these funds are not 
enough to fully fund all our court-ordered and statutory listing 
actions in FY 2010, so we are using $1,114,417 of our critical habitat 
subcap funds in order to work on all of our required petition findings 
and listing determinations. This brings the total amount of funds we 
have for listing action in FY 2010 to $11,585,417. Starting in FY 2010, 
we are also using our funds to work on listing actions for foreign 
species since that work was transferred from the Division of Scientific 
Authority, International Affair Program to the Endangered Species 
Program. Our process is to make our determinations of preclusion on a 
nationwide basis to ensure that the species most in need of listing 
will be addressed first and also because we allocate our listing budget 
on a nationwide basis. The $11,585,417 is being used to fund work in 
the following categories: compliance with court orders and court-
approved settlement agreements requiring that petition findings or 
listing determinations be completed by a specific date; section 4 (of 
the Act) listing actions with absolute statutory deadlines; essential 
litigation-related, administrative, and listing program-management 
functions; and high-priority listing actions for some of our candidate 
species. The allocations for each specific listing action are 
identified in the Service's FY 2010 Allocation Table (part of our 
administrative record).
    In FY 2007, we had more than 120 species with an LPN of 2, based on 
our September 21, 1983, guidance for assigning an LPN for each 
candidate species (48 FR 43098). Using this guidance, we assign each 
candidate an LPN of 1 to 12, depending on the magnitude of threats 
(high vs. moderate to low), immediacy of threats (imminent or 
nonimminent), and taxonomic status of the species (in order of 
priority: monotypic genus (a species that is the sole member of a 
genus); species; or part of a species (subspecies, distinct population 
segment, or significant portion of the range)). The lower the listing 
priority number, the higher the listing priority (that is, a species 
with an LPN of 1 would have the highest listing priority). Because of 
the large number of high-priority species, we further ranked the 
candidate species with an LPN of 2 by using the following extinction-
risk type criteria: International Union for the Conservation of Nature 
and Natural Resources (IUCN) Red list status/rank, Heritage rank 
(provided by NatureServe), Heritage threat rank (provided by 
NatureServe), and species currently with fewer than 50 individuals, or 
4 or fewer populations. Those species with the highest IUCN rank 
(critically endangered), the highest Heritage rank (G1), the highest 
Heritage threat rank (substantial, imminent threats), and currently 
with fewer than 50 individuals, or fewer than 4 populations, comprised 
a group of approximately 40 candidate species (``Top 40''). These 40 
candidate species have had the highest priority to receive funding to 
work on a proposed listing determination. As we work on proposed

[[Page 17675]]

and final listing rules for these 40 candidates, we are applying the 
ranking criteria to the next group of candidates with LPN of 2 and 3 to 
determine the next set of highest priority candidate species.
    To be more efficient in our listing process, as we work on proposed 
rules for these species in the next several years, we are preparing 
multi-species proposals when appropriate, and these may include species 
with lower priority if they overlap geographically or have the same 
threats as a species with an LPN of 2. In addition, available staff 
resources are also a factor in determining high-priority species 
provided with funding. Finally, proposed rules for reclassification of 
threatened species to endangered are lower priority, since as listed 
species, they are already afforded the protection of the Act and 
implementing regulations.
    We assigned the delta smelt an LPN of 2, based on our finding that 
the species faces immediate and high magnitude threats from the present 
or threatened destruction, modification, or curtailment of its habitat; 
the inadequacy of existing regulatory mechanisms; and other natural or 
manmade Factors. One or more of the threats discussed above are 
occurring in each known population. These threats are ongoing and, in 
some cases (e.g., nonnative species), considered irreversible. Under 
the 1983 Guidelines, a ``species'' facing imminent high-magnitude 
threats is assigned an LPN of 1, 2, or 3 depending on its taxonomic 
status. Because the delta smelt is a species, but not a monotypic 
genus, we assigned it an LPN of 2. We find that reclassification to 
endangered status for the delta smelt is currently warranted but 
precluded by higher priority listing actions. One of the primary 
reasons that the reclassification of delta smelt is considered a lower 
priority is that the species is currently listed as threatened, and 
therefore already receives certain protections under the Act. The 
Service promulgated regulations extending take prohibitions for 
endangered species under section 9 to threatened species (50 CFR 
17.31). Prohibited actions under section 9 include, but are not limited 
to, take (i.e., to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture, or collect, or attempt to engage in such activity). 
Other protections include those under section 7(a)(2) of the Act 
whereby Federal agencies must insure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of any endangered or threatened species.
    Given the above-mentioned funding constraints, the Service's 
priority is to list as threatened or endangered all candidate species 
(and thus provides protections under the Act) before reclassifying 
threatened species that already receive protection under the Act. 
Therefore, work on a proposed reclassification from threatened to 
endangered for the delta smelt is precluded by work on: (1) listing 
determinations for listing actions with absolute statutory, court-
ordered, or court-approved deadlines, and final listing determinations 
for those species that have been proposed for listing; and (2) 
candidate species and reclassifications of other higher priority 
threatened species (i.e., species with LPN of 1). This work includes 
all the actions listed in the tables below under expeditious progress.
    As explained above, a determination that reclassification is 
warranted but precluded must also demonstrate that expeditious progress 
is being made to add or remove qualified species to and from the Lists 
of Endangered and Threatened Wildlife and Plants. (Although we do not 
discuss it in detail here, we are also making expeditious progress in 
removing species from the list under the Recovery program, which is 
funded by a separate line item in the budget of the Endangered Species 
Program. As explained above in our description of the statutory cap on 
Listing Program funds, the Recovery Program funds and actions supported 
by them cannot be considered in determining expeditious progress made 
in the Listing Program.) As with our ``precluded'' finding, expeditious 
progress in adding qualified species to the Lists is a function of the 
resources available and the competing demands for those funds. Given 
that limitation, we find that we have made progress in FY 2009 in the 
Listing Program and will continue to make progress in FY 2010. This 
progress included preparing and publishing the following 
determinations:

                                        FY 2010 Completed Listing Actions
----------------------------------------------------------------------------------------------------------------
           Publication Date                     Title                   Actions                  FR Pages
----------------------------------------------------------------------------------------------------------------
10/08/2009                             Listing Lepidium         Final Listing            74 FR 52013-52064
                                        papilliferum