[Federal Register Volume 66, Number 160 (Friday, August 17, 2001)]
[Proposed Rules]
[Pages 43145-43150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20713]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH73


Endangered and Threatened Wildlife and Plants; Re-opening of 
Comment Period on the Sacramento Splittail Final Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule; re-opening of comment period.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
re-opening of the comment period for the final rule on the Sacramento 
splittail (Pogonichthys macrolepidotus). Comments previously submitted 
need not be resubmitted as they will be incorporated into the public 
record as part of this re-opened comment period, and will be fully 
considered in the final rule. We are re-opening the comment period to 
invite comments and to obtain peer-review on the statistical analysis 
completed by the Service to re-analyze the available splittail 
abundance data. We are also inviting additional comments on the status 
of the species, as first solicited in the January 12, 2001 to February 
12, 2001 (66 FR 2828) comment period and in the May 7, 2001 to June 7, 
2001 reopening of same.

DATES: We will accept public comments until October 1, 2001.

ADDRESSES: Comment Submission: If you wish to comment, you may submit 
your comments and materials concerning this proposal by any one of 
several methods:
    1. You may submit written comments and information by mail to the 
Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, 
California 95825.
    2. You may send comments by electronic mail (e-mail) to: 
[email protected]. See the Public Comments Solicited section below 
for file format and other information about electronic filing.
    3. You may hand-deliver comments to our Sacramento Fish and 
Wildlife Office, during normal business hours, at the address given 
above.
    Comments and materials received will be available for inspection, 
by appointment, during normal business hours at the address under (1) 
above.

FOR FURTHER INFORMATION CONTACT: For general information, Stephanie 
Brady, at the above address (telephone 916/414-6600; facsimile 916/414-
6713).

[[Page 43146]]


SUPPLEMENTARY INFORMATION:

Background

    The Sacramento splittail (hereafter splittail) represents the only 
extant species in its genus in North America. For a detailed 
description of the species, see the Recovery Plan for the Sacramento/
San Joaquin Delta Native Fishes (Service 1996) and references within 
that plan.
    Splittail are endemic to certain waterways in California's Central 
Valley, where they were once widely distributed (Moyle 1976). 
Sacramento splittail occur in Suisun Bay, Suisun Marsh, the San 
Francisco Bay-Sacramento-San Joaquin River Estuary (Estuary), the 
Estuary's tributaries (primarily the Sacramento and San Joaquin 
rivers), the Napa River and Marsh, and the Petaluma River and Marsh. 
The Sacramento splittail no longer occurs throughout a significant 
portion of its former range.
    Pursuant to the Endangered Species Act of 1973, as amended (Act), 
the splittail was listed as a threatened species on February 8, 1999 
(64 FR 5963). In this previous listing determination, the Service found 
that changes in water flows and water quality resulting from export of 
water from the Sacramento and San Joaquin rivers, periodic prolonged 
drought, loss of shallow water habitat, and the effect of agricultural 
and industrial pollutants were significant factors in the species 
decline.
    Subsequent to the publication of the final rule, plaintiffs in the 
cases San Luis & Delta-Mendota Water Authority v. Anne Badgley, et al. 
and State Water Contractors, et al. v. Michael Spear, et al. commenced 
action in Federal Eastern District Court of California, challenging the 
listing of the splittail as threatened, alleging various violations of 
the Act and of the Administrative Procedure Act (5 U.S.C 551 et seq.). 
The Service, as directed by the court, and pursuant to the Act, 
provided notice of the opening of a comment period regarding the 
threatened status for the splittail, from January 12, 2001 to February 
12, 2001 (66 FR 2828). In addition, the Service re-opened the comment 
period again from May 7, 2001 to June 7, 2001. The Service is now re-
opening the comment period to obtain peer-review and public comment on 
the statistical analysis used to analyze the abundance data available 
for splittail, and to seek public comment on the status of the species 
(see 66 FR 2828). Upon the close of this comment period, the Service 
will make its determination whether the splittail warrants the 
continued protection of the Act.
    The approach used by the Service to analyze the best scientifically 
and commercially available splittail data differs from methods employed 
previously. Within the context of gaining insights into the ``status'' 
of a species' abundance, the fundamental statistical issue is one of 
temporal pattern recognition. Two central statistical questions are 
posed: (1) Are there any permutations of the data for which the 
independent variable of time (in any one or more of its common units) 
explains a significant proportion of the variation in abundance 
measures, and (2) are there any statistically distinct directional 
trends?
    Two recent attempts to statistically examine trends in splittail 
abundance (Meng and Moyle 1995; Sommer et al. 1997) relied primarily on 
Mann-Whitney U-tests for the nonparametric comparison of two 
``independent'' samples. The two samples in each case were defined by 
temporal cut points (pre-1985 vs post-1984 for Meng and Moyle (1995); 
pre-1987 vs post-1986 in Sommer et al. 1997) that made sense based on 
water management (Meng and Moyle 1995) or climatological (Sommer et al. 
1997) criteria, but are nonetheless statistically arbitrary. 
Remembering that the basic statistical issue here is temporal pattern 
recognition, simply dividing a continuous temporal data set at some 
statistically arbitrary point in order to recast the data as 
categorical data with two categories (``before'' and ``after'') is a 
statistically crude way to approach temporal pattern recognition. 
Therefore, the Mann-Whitney U-test approach has low statistical power.
    However, even if one were committed to the Mann-Whitney U-test 
approach owing to considerations of prior precedence (e.g., a final 
rule on a species listing) and maintaining direct comparability between 
different studies across time, there are at least two ways the Mann-
Whitney U-testing done by Meng and Moyle (1995) and by Sommer et al. 
(1997) can be improved upon. First, the test statistic probabilities 
known as ``p-values'' can be derived via exact probability methods such 
as permutation tests as opposed to relying on asymptotic inference (as 
all nonparametric textbooks do). Second, stratified Mann-Whitney U-
testing can be employed to account for the major influence of water 
year type on splittail abundance, independent of time. Especially for 
small sample statistical testing with unbalanced sample sizes, 
asymptotic estimates of p-values are just that, estimates, and 
sometimes crucially poor estimates (StatXact-4 User Manual, Cytel 
Software Corp., 1998). To remedy the mismatch between statistical 
testing of small, unbalanced samples using p-values derived from an 
assumption of very large, balanced samples, exact p-value permutation 
methods only recently available through advances in computer technology 
can be utilized (StatXact-4; Cytel Corp., 1998).
    Two objectives are addressed below: (1) To present updated and 
statistically improved Mann-Whitney U-testing results through the 
application of stratified analyses, exact p-values; and (2) to present 
a statistical pattern recognition analysis that does not try to force 
the inherently continuous temporal abundance data into statistically 
arbitrarily defined categories established as ``before'' and ``after'' 
some chosen temporal cut point used to separate data.

Updated and Improved Mann-Whitney U-Testing

Background

    The Mann-Whitney U-testing conducted by Meng and Moyle (1995) was 
based on measures of total abundance (i.e., all age classes), for sets 
of data that covered the time span of 1980-1992. The Mann-Whitney U-
testing conducted by Sommer et al. (1997) was conducted separately for 
``age 0'' splittail and ``adult'' splittail for sets of data that 
covered variable time spans within the overall time span of 1975 to 
1995. The analyses presented here are updated to include data that 
cover variable time spans within the overall time span of 1975 to 2000.
    The analyses presented here focus on five sets of splittail 
abundance data, (1) CDFG fall midwater trawl, (2) UCD Suisun Marsh 
Survey, (3) USFWS Chipps Island Survey, (4) CDFG Bay Study midwater 
trawl, and (5) CDFG Bay Study otter trawl. These sources of data have 
been described in detail in the draft Sacramento splittail ``White 
Paper'' (Moyle et al.) as well as more briefly in Meng and Moyle (1995) 
and in Sommer et al. (1997). These are the core data sets that were 
previously included in both the Meng and Moyle paper and the Sommer et 
al. paper (although Meng and Moyle pooled data from the two CDFG Bay 
Study data sets and treated it as a single set of data).
    Additionally, here, the abundance data within each data set are 
also standardized to a 0.0-1.0 scale, by dividing all abundance 
measures within a particular data set by the maximum value for that 
data set. The ``standardized'' scores were summed across data sets to 
produce a new composite score data set reflecting the entirety of the 
various different survey programs. For example, if all the

[[Page 43147]]

abundance data sets were completely in phase with each other and peaked 
during the same year, the composite standardized score for that year 
would be 5.0. These composite scores are only calculated for years with 
entries for all five underlying data sets (only 12 of the 26 years 
between 1975 and 2000).
    The analyses presented here also focus on the abundance data for 
non-age 0 splittail. From the perspective of species persistence, age 0 
fish(YOY fish) do not really ``count'' biologically until they become 
recruited into the ``adult'' population. A species can produce an 
unlimited supply of age 0 individuals and still fail to persist if few 
or none of those individuals successfully recruit into the adult 
population. Thus, from a species persistence perspective, it is the 
temporal pattern in abundance of non-age 0 splittail that is the 
pertinent biological, and therefore statistical, issue.
    The analyses presented here are for stratified Mann-Whitney U-
testing. The stratification factor used is the intensity of flooding of 
the Yolo Bypass, as a surrogate measure of water year that is 
specifically relevant to splittail biology, e.g., Sommer et al. 1997; 
draft splittail ``White Paper''. Flooding of the Yolo Bypass was 
evaluated based on U.S. Geological Survey flow data for the lower 
Sacramento River gage at Verona. When flows exceed 55,000 cubic feet 
per second (cfs) at that gage, water is diverted from the lower 
Sacramento River into the Yolo Bypass. Flooding of the Yolo Bypass 
during the period from February through May is significant to the 
biology of the splittail (e.g., Sommer et al. 1997; draft splittail 
``White Paper''). Splittail are adapted to spawn in late winter through 
late spring. When flooded during this period, the Yolo Bypass becomes 
available as a significantly large splittail spawning area. The 
vegetated shallow water areas of the Yolo Bypass provide pre-spawn 
foraging habitat for adults, substrates for egg attachment, and shelter 
for larval fish. The rearing habitat is of high quality (Sommer et al. 
2001), provided inundation is of sufficient duration. Post-spawn adult 
and juvenile splittail emigrating from the Yolo Bypass have ready 
access to the western Delta and Suisun Marsh and Bay. The Yolo Bypass 
is likely responsible for a good portion of the juvenile splittail 
production in wet years. Three ``strata'' were designated, using years 
in which flows exceeded 55,000 cfs for: (1) less than 20 days, (2) for 
20 to 44 days, and (3) for 45 or more days, during the period of 
February through May.
    Finally, the outcomes of stratified Mann-Whitney U-testing are 
presented for both the Meng and Moyle (1995) cut point of 1984-85 and 
for the Sommer et al. (1997) cut point of 1986-87.

Outcomes

    The raw data utilized for stratified Mann-Whitney U-testing are 
contained in the Administrative Record for this project, and are 
available upon request (see Addresses section). The exact two-tailed p-
values for the various data sets and cut point are presented in Table 1 
below. Two-tailed p-values are presented for the sake of consistency 
and easy comparison with the statistical treatments presented by Meng 
and Moyle (1995) and Sommer et al. (1997). It is important to note 
here, however, that the precise statistical question of relevance to a 
``listing decision'' is whether there is statistical evidence for a 
significant decline in splittail abundance after the cut point as 
compared to before the cut point dates. Consequently, statistical 
significance is more properly evaluated for this directional 
alternative hypothesis using one-tailed p-values. For that reason, 
Table 1 also presents exact one-tailed p-values.
    The abundance data from the UCD Suisun Marsh Survey and the USFWS 
Chipps Island Survey provide statistically significant evidence for 
declines in mean abundance of adult splittail between the ``before'' 
and ``after'' temporal categories. All of the CDFG data sets (fall 
midwater trawl, bay midwater trawl, and bay otter trawl) yielded non-
significant Mann-Whitney U-test p-values and provide no statistically 
confirmable evidence for declines in mean abundance of adult splittail 
before and after the cut point dates (see Table 1 below).
    Because each set of survey data is related to overall abundance of 
adult splittail in a unique, and probably at least partially non-
overlapping manner (see draft splittail ``White Paper''), the composite 
score data set is likely the most useful set of data for decision 
making. The one-tailed stratified Mann-Whitney U-test exact p-values 
for the composite scores were 0.24 and 0.40 respectively (Table 1). 
This outcome corresponds to a 60 to76 percent chance that the 17 to18 
percent decline in mean composite scores for adult splittail since 1986 
and 1984 respectively are biologically real.
    Another factor meriting serious consideration when evaluating the 
Mann-Whitney U-test statistical outcomes is the fact that the available 
data sets have inherently low statistical power due to small sample 
sizes and high variability. For example, considering the ``composite'' 
abundance scores, and the 1984-85 cut point, the power of this data set 
to detect a ``true'' decline of 18 percent (i.e., one-tailed test) is 
only 14.5 percent (i.e., the type-II error rate associated with the 
test is excessive at 85.5 percent). In other words, while we have a 24 
percent chance (Table 1) of falsely concluding that the apparent 18 
percent decline is real, we have an 85.5 percent chance of falsely 
concluding that the apparent 18 percent decline is not real. Thus, 
despite the lack of a statistically significant Mann-Whitney test for 
the composite abundance scores, overall the statistical odds are still 
very strongly in favor of concluding that the apparent 18 percent 
decline is biologically real.
    The power analysis presented above was conducted using Statistica 
(StatSoft Corp.) software (Steiger 1999) for calculating power of a 
two-sample t-test, the parametric analog of a Mann-Whitney U-test. 
Because t-tests are categorically more powerful than U-tests (e.g., 
Siegel 1956:126), the power analysis presented above slightly over-
estimates the true power of the U-test.

  Table 1.--Exact Two-Tailed and One-Tailed p-Values for Updated, and Stratified Mann-Whitney U-Tests of Adult
                                               Splittail Abundance
     [italicized values are significant at the p0.05 level and before/after sample sizes are in parentheses]
----------------------------------------------------------------------------------------------------------------
                                                                     1984-85 Cut Point       1986-87 Cut Point
----------------------------------------------------------------------------------------------------------------
CDFG fall MWT (2-tailed)........................................            0.88 ( 9,16)            0.43 (11,14)
CDFG fall MWT (1-tailed)........................................            0.44                    0.22
UCD Suisun (2-tailed)...........................................            0.03 (6,15)             0.04 (8,13)
UCD Suisun (1-tailed)...........................................            0.014                   0.02
USFWS Chipps (2-tailed).........................................            0.004 (7,9)             0.03 (9,7)
USFWS Chipps (1-tailed).........................................            0.0035                  0.02

[[Page 43148]]

 
CDFG Bay MWT (2-tailed).........................................            0.78 (5,15)             0.90 (7,13)
CDFG Bay MWT (1-tailed).........................................            0.39                    0.45
CDFG Bay OT (2-tailed)..........................................            0.91 (5,16)             0.65 (7,14)
CDFG Bay OT (1-tailed)..........................................            0.46                    0.33
Composite Score (2-tailed)......................................            0.44 (5,7)              0.76 (7,5)
Composite Score (1-tailed)......................................            0.24                    0.40
----------------------------------------------------------------------------------------------------------------

    Note that the 1-tailed p-values are not simply one-half of the 2-
tailed p-values because the exact permutation distribution of ``U'' is 
often asymmetric for small, unbalanced data sets. This is one of the 
reasons why standard textbook tabled critical values of ``U'' can be 
substantively inaccurate.

Temporal Pattern Recognition Analyses of Splittail Abundance Data

    If a species were experiencing a constant linear rate of increase 
or decline over time, a simple linear plot of the data would reveal a 
temporal pattern that could be described by regressing measures of 
abundance against time. The slope of such a regression would quantify 
the rate of change in abundance. Taking a similar statistical approach 
with the splittail abundance data would be the more conventional way to 
address the issue of temporal pattern recognition. Such an approach is 
relatively data intensive, so here the regression approach is applied 
first to the longest running set of abundance data, the CDFG fall 
midwater trawl.
    There are no linear regressions of the raw data that produce a 
distinctive pattern recognition. Because splittail abundance 
(especially age 0 abundance) may be related loosely to events, such as 
floods, that are periodic, polynomial regression was viewed as an 
approach worth examining. However, no significant polynomial pattern in 
the raw data for CDFG fall midwater trawl was evident (Figure 1 below).
[GRAPHIC] [TIFF OMITTED] TP17AU01.000

    Because splittail are a relatively long lived species, with a 
maximum life span of about nine years (Moyle et al. 2001 in prep.), 
temporal patterns in abundance are not necessarily going to be 
discernible based on yearly grouping of data. Given the high year to 
year variability in reproductive performance noted for splittail by 
Sommer et al. (1997), the Service explored a polynomial regression on 
transformed splittail abundance data. The

[[Page 43149]]

transformation chosen was a nine year moving average, based on the 
reasoning that it is variations in abundance over the splittail life 
span window of nine years that may be most relevant to splittail 
population dynamics. By using a nine year moving average, the 
resiliency of the species due to long life span is incorporated into 
the analysis.
    This approach resulted in a highly significant polynomial fit to 
the data. Using a fourth order polynomial fit to nine year moving 
averages of splittail abundance, time explained 78.7 percent of 
variation in abundance measures and the regression fit recognized a 
highly cyclic temporal pattern (Figure 2 below).
[GRAPHIC] [TIFF OMITTED] TP17AU01.001

    There are only enough data to illustrate one full iteration of the 
cyclicity. That iteration is from trough to trough (only one peak is 
included in the limited data set). To evaluate overall trends in cyclic 
data, the proper comparison is from peak to peak and/or from trough to 
trough in the oscillation cycles. The single trough to trough 
oscillation evident in Figure 2 suggests a nominal 72.4 percent 
increase between the nine year average centered on 1973 and the nine 
year average centered between 1991-92. However, that nominal increase 
is not enough to raise the second trough above the upper 95 percent 
confidence boundary of the first trough (see the horizontal line in 
Figure 2). Thus, statistically, the two troughs are not significantly 
different.
    Conducting a similar regression analysis of the non-age 0 data for 
the CDFG fall midwater trawl data set yields a similarly strong 
polynomial fit, this time to a 3rd order regression model (Figure 3 
below).
[GRAPHIC] [TIFF OMITTED] TP17AU01.002


[[Page 43150]]


    The temporal pattern recognized is again highly cyclic, and time 
explains 82.5 percent of the variation in abundance data for non-age 0 
(``adult'') splittail. Because even the CDFG fall midwater trawl survey 
did not separate catch data into age classes until about 1975, there is 
not enough data to illustrate either a complete trough to trough or 
peak to peak iteration of the oscillation cycle. However, if the two 
``flat'' data points at the end of the data set are indeed the top of a 
second peak, then the nominal change from the nine-year moving average 
centered on 1984 and the putative peak centered on 1994-95, is about 
negative18 percent, and the second peak would be low enough to be below 
the lower 95 percent confidence interval of the first peak (see 
horizontal dashed line in Figure 3) indicating a statistically 
significant decline between peaks. None of the other sets of abundance 
data yet cover a long enough time span to allow productive use of 
polynomial regression pattern recognition.

Summary of the Service's New Analysis

Focusing on Abundance Data for Non-age 0 Splittail

    Updated, and improved Mann-Whitney U-testing of a composite scores 
data set, that equally incorporates data from five different splittail 
survey programs, suggests a 60 to 76 percent chance that the observed 
17 to 18 percent decrease in average composite scores post-1986 and 
post-1984, respectively, are biologically real (as opposed to 
statistical artifacts). Statistical power analysis reveals that due to 
extraordinary low power, the odds (85.5 percent) of type II error 
(falsely rejecting the declining trend in the data) are much greater 
than the odds (24 percent) of type I error (falsely accepting the 
declining trend in the data).
    Temporal pattern recognition via polynomial regression reveals that 
splittail abundance data, transformed to nine year moving averages, 
strongly fit 3rd and 4th order polynomial models and are highly cyclic. 
One regression highly influenced by age 0 data exhibited a nominal 74.2 
percent trough to trough increase in splittail abundance, but that 
increase was not enough to be statistically significant, as data sets 
including age 0 fish are highly variable. Another regression, of non-
age 0 fish, putatively suggests a significant nominal 18 percent peak 
to peak decline for the same CDFG fall MWT data that did not test out 
significantly via the statistically low power Mann-Whitney U-test 
approach. If the observed pattern holds true as more data are 
collected, it would suggest a decline on the order of about 20 percent 
over about a 10 year period (e.g., a mean exponential annual rate of 
decline of about 2.2 percent).
    Perhaps the most important conclusion to note from the polynomial 
regression analyses is that although time can be shown to explain a 
very high proportion of the variability in splittail abundance, on the 
order of 80 percent, the splittail populations have not been monitored 
long enough through time (relative to the species life span) to make a 
statistically strong argument one way or the other regarding the 
presence or absence of directional temporal trends.
    In addition to the aforementioned analysis, the Service, in 
response to comments received by California Division of Water Resources 
(CDWR) and California Department of Fish and Game (CDFG) analyzed the 
data presented in their comments using a simple exponential decay model 
(i.e., Nt = N0 e-kt ; see Paveglio et 
al. (1997) for a similar application). CDWR recognizes CDFG as the pre-
eminent compilers of the ``official'' abundance indices, and CDFG's 
submitted comments revealed apparent trends of decline for adult 
splittail (age 2+) abundance in 5 of 6 surveys ranging from negative 15 
percent to negative 69 percent and averaging negative 35.8 percent 
(including data from Central Valley Project pump salvage counts 
[negative 26 percent] and State Water Project pump salvage counts 
[negative 68 percent] not considered above by the Service). Until 
enough abundance monitoring has been completed to provide adequately 
powerful statistical testing, the above apparent trends constitute best 
available information regarding splittail population status. An average 
apparent trend of negative 35.8 percent over approximately 15 years 
corresponds to an average annual exponential rate of decline of 2.9 
percent, which in turn suggests that 90 percent decline of the 
population (from mid-1980's levels) would be reached in about 63 years 
from present. Similar exponential decay rates associated with the five 
surveys reported by CDFG as exhibiting apparent declines yield times to 
90 percent decline ranging from 14 to 198 years from present with a 
median estimate of 20 years from present (i.e., 3 of the 5 projections 
estimate 90 percent decline in 20 years or less from present).
    The Service recognizes that projections based on a simple 
exponential decay model represent a fairly crude first cut at a 
``population depletion'' analysis. However, given, the relatively 
undeveloped state of available data series, the Service believes that 
simple models currently provide the best available, albeit approximate, 
guidance.

Public Comments Solicited

    We will accept written comments during this re-opened comment 
period, and comments should be submitted to the Sacramento Fish and 
Wildlife Office as found in the ADDRESSES section.
    You may send comments by electronic mail (e-mail) to: 
[email protected]. If you submit comments by e-mail, please submit 
them as an ASCII file and avoid the use of special characters and any 
form of encryption. Please also include ``Attn: [RIN number]'' and 
return address in your e-mail message. If you do not receive a 
confirmation from the system that we have received your e-mail message, 
contact us directly by calling our Sacramento Fish and Wildlife Office 
at telephone number 916/414-6600, during normal business hours.

Author(s)

    The primary authors of this notice are Joseph Skorupa and Stephanie 
Brady (see ADDRESSES section).

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

    Dated: August 9, 2001.
Mary Ellen Mueller,
Manager, California/Nevada Operations Office, Region 1, Fish and 
Wildlife Service.
[FR Doc. 01-20713 Filed 8-16-01; 8:45 am]
BILLING CODE 4310-55-P