[Federal Register Volume 66, Number 2 (Wednesday, January 3, 2001)]
[Proposed Rules]
[Pages 345-347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-66]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF67


Endangered and Threatened Wildlife and Plants; Reopening of 
Comment Period on the Proposed Rule To Remove the Northern Populations 
of the Tidewater Goby From the List of Endangered and Threatened 
Wildlife

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.

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

SUMMARY: The U.S. Fish and Wildlife Service (Service) gives notice of 
the reopening of the comment period for the proposed removal of the 
northern populations of the tidewater goby (Eucyclogobius newberryi) 
from the list of endangered and threatened wildlife. The new comment 
period will allow all interested parties another opportunity to submit 
comments on our assertions, as clarified in this notice, that the 
original listing rule exaggerated the risk of extinction by 
overestimating the rate of local population extinction, and that the 
northern populations of the tidewater goby are not presently in danger 
of extinction or likely to become in danger of extinction within the 
foreseeable future. We are re-opening the comment period to clarify 
some points in our proposal and to solicit further public and peer-
review comment.

DATES: The comment period for this proposal closes on February 2, 2001. 
Comments on the proposed delisting must be received by the closing 
date.

ADDRESSES: Written comments should be sent to the Regional Director, 
Regional Office, U.S. Fish and Wildlife Service, 911 NE 11th Avenue, 
Portland, Oregon 97232-4181. Comments and materials received will be 
available for public inspection, by appointment, during normal business 
hours at the above Service address.

FOR FURTHER INFORMATION CONTACT: Catrina Martin or Steve Morey at the 
above address; telephone 503/231-6131; facsimile 503/231-6243.

SUPPLEMENTARY INFORMATION:

Background

    Shortly after the tidewater goby was listed as endangered in 1994, 
the Service initiated the recovery planning process. A contractor was 
hired to write a draft recovery plan and the product was a draft 
commonly referred to as the Swift 1995 version. This version was 
revised slightly in response to internal review and a revision under 
the authorship of Ballard and Swift was circulated among various 
experts and the applicable Service field offices in June 1996. Finally, 
in late September, 1996, a revised draft, authored by Ballard was 
forwarded to the Regional Office for review. In the 31 months since the 
listing, the Service had, in the process of drafting the recovery plan, 
compiled a fairly up-to-date record of what was known about the status 
of the goby. The goby seemed particularly responsive to climatic 
cycles, and the trend to extinction had not played out as projected in 
the 1994 listing. A number of estuaries cited in the listing rule as 
lacking gobies, symptomatic of the presumed range-wide decline, were in 
fact, inhabited by gobies. There seemed to be little actual evidence 
that the distribution and abundance, or overall risk of extinction had 
changed appreciably since 1982 when the tidewater goby was designated a 
category 2 candidate (47 FR 58454). Did the goby need a recovery plan, 
or was the original concern about extinction exaggerated? In order to 
decide whether to proceed with a recovery plan or to delist, a review 
of the merits of the original listing, and the current status of the 
species was initiated. The 1999 proposal to delist the goby summarizes 
the results of that review and concludes that delisting the tidewater 
goby north of Orange County is the most appropriate action.
    On June 24, 1999, we published a proposed rule to remove from the 
list of endangered and threatened wildlife those populations of 
tidewater goby that occur north of Orange County, California, and to 
retain a distinct population segment of tidewater goby in Orange and 
San Diego counties as an endangered species (64 FR 33816). We proposed 
to delist the northern populations because our original conclusions 
about population trends and were either in error or not adequately 
supported by the best available biological information. We believe that 
the original listing rule (59 FR 5954) overestimated the risk of 
extinction and the tidewater goby may have been mistakenly listed as 
endangered.
    The 1994 rule that listed the tidewater goby as endangered painted 
a picture of rapid local disappearances leading to extinction. The 
decline of the goby was considered to be so precipitous and the threats 
so severe that the conclusion of the summary of factors affecting the 
species was: ``The tidewater goby is in imminent danger of extinction 
throughout its range and requires the full protection of listing as 
endangered under the Act to survive'' (59 FR 5954). Our 1999 delisting 
proposal explains that the original listing inappropriately combined 
older permanent extinctions with temporary, drought-related extinctions 
to give an exaggerated impression of the rate of decline. The proposed 
delisting rule also argues that the original listing mistakenly assumes 
that because of reduced opportunities for gobies to naturally 
recolonize via dispersal, the species was headed toward extinction or 
listing under the Act. The relationship between extinction and 
dispersal is illustrated in the original listing with the following 
statement: ``The number of extirpated localities of gobies has left the 
remaining populations so widely separated throughout most of the 
species' range that recolonization is unlikely.'' The delisting 
proposal explains that gobies are now present in the majority of the 
approximately twenty estuaries where they were reported as lost between 
1984 and 1990. In most places, gobies reappeared as might have been 
expected, shortly after the end of drought conditions. These 
recolonizations confirm that the goby's well-established pattern of 
local extinction and reappearance still exists.

[[Page 346]]

    Other than habitat destruction, drought, and the disruption of 
population dynamics, the original rule listed a number of threats to 
explain the rapid rate of population extinction. These included: (1) 
Indirect losses due to changes in salinity; (2) surface water and 
groundwater diversions; (3) discharge of agricultural and sewage 
effluents; (4) siltation; (5) cattle grazing and feral pig activity; 
(6) non-native predators and competitors; and (7) river flooding and 
heavy rainfall. The delisting proposal discusses the strengths and 
weaknesses of the links that were drawn in the original listing rule 
between these threats and the presumed systematic decline of the goby 
and concludes that there is not a defensible link between the threats, 
either singly or in combination, and a systematic decline of the 
tidewater goby.
    The most important argument in the delisting proposal is that 
extinction is not imminent, nor was it at the time of listing. The 
threats in the original listing are environmental perturbations that, 
at high levels throughout the range, either singly or in combination, 
could lead to systematic declines of the goby and extinction. However, 
the proposed delisting rule presents evidence that there is no 
systematic decline of gobies suggesting their extinction, and that the 
link drawn between the presumed threats and the extinction of the goby 
in the original listing is unsupported.
    Even though we concluded that the original listing rule was in 
error, the southern populations in Orange and San Diego counties were 
concurrently proposed as an endangered DPS. Three criteria had to be 
met by the southern gobies to be recognized as endangered. First, they 
had to be markedly separated from other tidewater gobies. Second, they 
had to be to significant to the rest of the species. Finally, they had 
to meet the Act's standards for listing a species as endangered. The 
first and second criteria were met on genetic and geographic grounds 
(see 64 FR 33819). The third criterion, the endangered status of the 
southern gobies, was met because so few southern populations exist that 
the risk of chance extinction is high. Under the best of conditions 
(e.g., the current wet cycle), only eight fluctuating populations 
exist, and all but one of these has declined to the point of local 
extinction in the recent past. Thus, chance demographic effects, a 
variety of natural or human-caused threats to habitat quality, or 
chance combinations of these make the extinction of gobies in Orange 
and San Diego counties a very real, and not altogether remote, 
possibility. This argument about extinction risk hinges on the small 
number of populations in the south. It cannot be applied in the north, 
where many or all of the same threats exist (see 64 FR 33820-33824), 
but where the larger number of populations makes the risk of chance 
extinction vanishingly small.
    We solicited comments from the public during two comment periods, 
June 24 to August 23, 1999 and February 15 to March 31, 2000. We 
solicited review of the delisting proposal from four outside reviewers, 
according to our policy on peer review (59 FR 34270), but received only 
one response. We also solicited comments from the California Department 
of Fish and Game pursuant to section 4(b)(5)(A)(ii) of the Endangered 
Species Act, but they did not comment. We believe, as explained below, 
that clarification of the proposal and a reopening of the comment 
period is warranted to provide the public with a meaningful opportunity 
to comment, and, because of the importance of peer review and the 
State's input, we are taking this opportunity to solicit comments from 
them again.
    The main reaction expressed in the public comment letters on the 
proposed delisting was that the Service, armed with little new 
information was, in its delisting proposal, making an unexplainable 
reversal of position on the status of the goby. The public comment 
letters also expressed concern that the delisting proposal was arguing 
that the goby was in less danger of extinction now than in 1994. We 
believe that this concern is not warranted because the delisting 
proposal argues instead that the goby was in fact not in danger of 
extinction in 1994 and is not now. We may have inadequately conveyed 
the basis for the proposed delisting when we failed to specifically ask 
for comments on the facts, arguments, interpretations, and conclusions 
in the original listing. Instead, using standard language for listing 
actions, we asked specifically for comments concerning (1) threats; (2) 
range, distribution, and population size; and (3) current or planned 
activities that could impact the species.
    Following this lead, the public observed that there is little new 
information since the 1994 listing on risk of extinction, nor has there 
been appreciable recovery. The public comments were detailed and 
uniform. The major themes are briefly summarized as follows: (1) It is 
misleading to characterize status simply in terms of numbers of 
populations--populations vary in size, and contribute in different ways 
to long-term persistence; (2) the proposal does not apply 
metapopulation dynamics to the tidewater goby metapopulation; (3) the 
potential for recolonization is inappropriately extrapolated beyond the 
observational base and undue emphasis was placed on the ability to 
recolonize; (4) regional genetic subdivisions are ignored; (5) the 
proposal confuses lack of evidence with lack of effect; (6) threats in 
the north are treated lightly while in the south they are treated 
seriously; (7) effects from alien fishes are underestimated; (8) the 
proposal incorrectly supposes that existing regulatory mechanisms are 
adequate; (9) combined effects of threats are ignored; (10) the 
proposal ignores the certainty that drought will return to the 
California coast. These comments represent a reasoned and informed set 
of suggestions for improving our analysis of current risk of 
extinction, and they will be considered in the final agency decision. 
However, none of the comments we received from the public addressed the 
basis of our proposed delisting: that the 1994 listing rule 
misinterpreted the risk of extinction so seriously that the goby was 
mistakenly listed as endangered.
    The review of this delisting proposal is incomplete because 
objective scientific review was limited to a single response, the State 
did not comment, and the public commented only on a portion of the 
determination to delist the northern populations. With this notice we 
clarify our proposal to delist the tidewater goby and reopen the public 
comment period. Reopening the comment period gives the public a more 
meaningful opportunity to comment by providing an additional 
opportunity to comment on any aspect of the proposal, but particularly 
on the assertion that the original listing was in error. This will also 
provide us the opportunity to obtain additional scientific review, and 
a review from the California Department of Fish and Game.
    It is our intent that the final action resulting from the proposal 
to delist the northern populations of the tidewater goby from the list 
of endangered and threatened wildlife, and to recognize an endangered 
population in Orange and San Diego Counties, be as accurate and 
effective as possible. Therefore, we solicit comments or suggestions 
from the public, other concerned governmental agencies, the scientific 
community, industry, or any other interested party. We have already 
accepted comments on a wide range of topics in the proposal during two 
previous comment periods. However, as explained above, we are hoping to 
generate comments on some additional

[[Page 347]]

aspects of the proposed delisting rule, especially: (1) Our assertion 
that the original listing rule exaggerated the risk of extinction by 
overestimating the rate of local population extinction; (2) any 
information either supporting or contradicting the information in the 
delisting rule that suggests that the tidewater goby was not, in 1994 
when it was listed, nor is now, in danger of extinction due to a high 
rate of local extinctions; and (3) any new information that suggests a 
reasonable causal link between any of the threats, or combination of 
threats and a high risk of extinction of the tidewater goby.
    The final decision on the current proposed rule for the tidewater 
goby will take into consideration the comments and any additional 
information we receive, and such communications may lead to a final 
regulation that differs from the current proposal. Our practice is to 
make comments, including names and home addresses of respondents, 
available for public review during regular business hours. Individual 
respondents may request that we withhold their home address from the 
rulemaking record, which we will honor to the extent allowable by law. 
There also may be circumstances in which we would withhold from the 
rulemaking record a respondent's identity, as allowable by law. If you 
wish us to withhold your name and/or address, you must state this 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. The 
comment period on this proposal closes on February 2, 2001. Written 
comments should be submitted to the Service office listed in the 
ADDRESSES section.
    Author: The primary author of this notice is Steve Morey (see 
ADDRESSES section).

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

    Dated: December 27, 2000.
David L. McMullen,
Acting Regional Director, Region 1, Fish and Wildlife Service.
[FR Doc. 01-66 Filed 1-2-01; 8:45 am]
BILLING CODE 4310-55-P