[Federal Register Volume 69, Number 20 (Friday, January 30, 2004)]
[Notices]
[Pages 4491-4494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1978]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 040114019-4019-01; I.D. 121903C]


Endangered and Threatened Wildlife and Plants; 90-Day Finding for 
a Petition to List Winter Flounder and Cunner as Threatened or 
Endangered

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration, Commerce.

ACTION: Notice of petition finding.

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SUMMARY: NMFS has received a petition to add winter flounder 
(Pseudopleuronectes americanus) and cunner (Tautogolabrus adspersus) 
from western Long Island Sound to the list of threatened and endangered 
wildlife under the Endangered Species Act (ESA) of 1973, as amended. 
NMFS has determined that the petition does not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted at this time.

DATES: This finding becomes effective on March 1, 2004.

ADDRESSES: Comments or questions concerning this petition finding 
should be sent to Mary Colligan, NMFS, Protected Resources Division, 
One Blackburn Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Kim Damon-Randall, NMFS Northeast 
Region, 978-281-9328 ext. 6535, or Marta Nammack, NMFS Office of 
Protected Resources, 301-713-1401, ext. 180.

SUPPLEMENTARY INFORMATION:

Background and Analysis of Petition

    Under Section 4(b)(3)(A) of the ESA, to the maximum extent 
practicable, within 90 days after receiving a petition to list a 
species under the ESA, the Secretary of Commerce (Secretary) must make 
a finding whether the petition presents substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted. This finding must be promptly published in the Federal 
Register. In determining whether a petition contains substantial 
information, NMFS takes into account information submitted with and 
referenced in the petition and all other information readily available 
in NMFS' files. NMFS' ESA implementing regulations at 50 CFR 
424.14(b)(1) define ``substantial information'' as the amount of 
information that would lead a reasonable person to believe that the 
measure proposed in the petition may be warranted. If the petition is 
found to present such information, the Secretary must conduct a status 
review of the involved species and make a determination whether the 
petitioned action is warranted within 12 months of receipt of the 
petition. In making a finding on a petition to list a species, the 
Secretary must consider whether such a petition (i) clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (ii) contains detailed narrative 
justification for the recommended measure, describing, based on 
available information, past and present numbers and distribution of the 
species involved and any threats faced by the species;

[[Page 4492]]

(iii) provides information regarding the status of the species over all 
or a significant portion of its range; and (iv) is accompanied by the 
appropriate supporting documentation in the form of bibliographic 
references, reprints of pertinent publications, copies of reports or 
letters from authorities, and maps (50 CFR 424.14(b)(2)).
    On May 27, 2003, the Assistant Administrator received a petition 
dated May 15, 2003, from Arthur Glowka to list the western Long Island 
Sound populations of winter flounder and cunner as endangered or 
threatened under the ESA. The information contained in the petition 
focuses on the results of the Environmental Protection Agency's (EPA) 
efforts to restore water quality in the Sound. It is the petitioner's 
contention that EPA's efforts to reduce nutrient loading through the 
implementation of Total Maximum Daily Loads (TMDL) for various 
pollutants has starved the plankton in the Sound, thereby affecting the 
entire food web and resulting in declines in the number, size, and 
robustness of many sport fish.
    Under the ESA, a listing determination can address a species, 
subspecies, or distinct population segment (DPS) of a species (16 
U.S.C. 1532(15)). A DPS is, in short, a vertebrate population that is 
discrete in relation to the remainder of the species to which it 
belongs and significant to the species to which it belongs (61 FR 4722; 
February 7, 1996). The petitioner requested listing both winter 
flounder and cunner from western Long Island Sound only. The petitioner 
states, ``we feel that the population of winter flounder and cunner in 
western Long Island Sound have decreased to such low numbers that they 
may never recover and are good candidates for endangered/threatened 
status.'' The information contained in the petition focuses on impacts 
to these species that occur in the western portion of the Sound. As 
such, NMFS first attempted to identify the boundary or boundaries of 
the population that includes the fish from western Long Island Sound 
and assess whether available information indicated that the population 
may warrant listing under the ESA.
    NMFS evaluated whether the information provided or cited in the 
petition met the ESA's standard for ``substantial information.'' We 
reviewed information that is readily available to NMFS scientists and 
consulted fisheries experts from the state of Connecticut to determine 
whether the petitioned action may be warranted and if available 
information supports the identification of DPSs for these species in 
western Long Island Sound.

Cunner

    Cunner are widespread along the Atlantic coast and offshore banks 
of North America, from the eastern coast of Northern Newfoundland, 
southward in abundance to New Jersey, and as far south as the mouth of 
the Chesapeake Bay (Collette and Klein-MacPhee 2002). While the 
petitioner presents some anecdotal evidence which suggests that there 
may have been a decline in the number of cunner in Long Island Sound, 
there is not sufficient scientific or commercial information available 
to support the petition. There is little to no information available 
about the population structure and genetics of the species. As such, 
NMFS finds that the petition does not present substantial scientific or 
commercial information indicating that listing of cunner in western 
Long Island Sound may be warranted.

Winter Flounder

    Winter flounder are managed federally as three separate stocks the 
Gulf of Maine, southern New England/Middle Atlantic, and Georges Bank. 
The petitioner defines western Long Island Sound as ``a line drawn 
north to south from Norwalk, CT to Eaton's Neck, Long Island, NY and 
the waters which lie to the west to the Throgs Neck Bridge in New York 
City.'' Winter flounder from this area are currently included in the 
southern New England/Middle Atlantic stock.
    Genetic, morphometric, and life history information support these 
broad-scale divisions. Dr. Isaac Wirgin from the Nelson Institute of 
Environmental Medicine, New York University School of Medicine, used 
microsatellite analysis of nuclear DNA in an attempt to verify that 
these stock divisions were appropriate (Wirgin 2003). According to 
Wirgin (2003), the overall results showed that stocks south of Cape Cod 
were usually genetically distinct from the stock at Georges Bank. Two 
of the three areas sampled north of Cape Cod exhibited significant 
genetic differences from fish sampled from Georges Bank. Therefore, 
preliminary evidence suggests genetic discreteness for fish from the 
Gulf of Maine, Georges Bank, and Southern New England/Middle Atlantic 
regions. Also, according to Collette and Klein-MacPhee (2002), winter 
flounder may be separated into different local races based on varying 
characteristics such as fin ray counts and maximum size. Fish from 
Georges Bank have been documented to have a greater number of dorsal 
and anal fin rays, larger maximum sizes, different coloration, and 
different spawning seasons as fish from other parts of this species' 
range. The best available information supports the broad scale stock 
divisions currently employed by Federal fishery managers.
    Available data also indicate the possibility of smaller divisions 
within the New England/Middle Atlantic stock. Most, but not all, 
collections that were taken south of Cape Cod were genetically distinct 
from those sampled in nearby areas to the south and north (Wirgin 
2003). According to Dr. Wirgin (2003), collections from Peconic Bay, NY 
were significantly different from samples taken in Mt. Hope Bay, RI, 
and Jamaica Bay, NY. Highly significant genetic differences were also 
found among many, but not all, estuaries south of Cape Cod. In many 
cases, significant differences were found between geographically 
adjacent collections.
    However, no significant differences were found among the three 
estuaries sampled in Long Island Sound the Connecticut River, New Haven 
Harbor, and Manhasset Bay. Samples from the collection from Mt. Hope 
Bay, Rhode Island (the nearest sampling site to the north) were 
significantly different from those samples from the Connecticut River. 
According to Dr. Wirgin, ``this suggests that reproductive isolation 
among estuaries in western Long Island Sound (west of the Connecticut) 
may be weak and that young life stages may mix or that homing fidelity 
in the area is not great.'' This information is preliminary and, 
according to Dr. Wirgin, more areas should be sampled and larger sample 
sizes should be taken before a definitive conclusion regarding the 
genetic distinctness of fish from western Long Island Sound can be 
proven. Also, in order to determine if most individual estuaries are 
genetically distinct or if fish in estuaries in different geographic 
regions are separate genetic units, it is necessary to sample more 
immediately contiguous estuaries (Wirgin 2003).
    The petition asserts that the winter flounder populations in 
western Long Island Sound should be listed as either threatened or 
endangered. By specifying the populations in western Long Island Sound, 
the petitioner attempts to distinguish between fish from the western 
portion of the Sound and the remainder of Long Island Sound, which is 
all part of the southern New England/Middle Atlantic stock. However, 
current scientific data do not suggest that fish from the western 
portion of the Sound are discrete from fish from the remainder of the 
Sound because, as discussed above, the samples taken near the 
Connecticut River were genetically

[[Page 4493]]

similar to those from areas farther west in the Sound. Also, current 
information is insufficient to conclude whether fish from Long Island 
Sound as a whole represent a discrete population and, therefore, should 
be considered separate from fish from the remainder of the Southern New 
England/Middle Atlantic stock. As such, we will consider the Southern 
New England/Middle Atlantic stock to be a separate stock for the 
purposes of this petition. Information on the status of the Southern 
New England/Middle Atlantic stock will be considered to determine 
whether it should be listed as threatened or endangered under the ESA. 
If the available information were to indicate that the status of this 
stock may be threatened or endangered, NOAA Fisheries would need to do 
a thorough analysis in the status review to show that this stock meets 
the criteria for a DPS because under the ESA, only species, subspecies, 
and DPSs of vertebrate species can be listed.

Southern New England/Middle Atlantic Population

    To assess whether there is sufficient information to indicate that 
listing this stock may be warranted, NMFS will consider available 
information on threats and status of winter flounder from the New 
England/Middle Atlantic region.
    The petitioner asserts that EPA's program to reduce nutrient 
loading to the Sound has resulted in significant reductions in primary 
production resulting in declines in abundance and size of once numerous 
sport fish, including winter flounder and cunner. Available information 
does not indicate that the New England/Middle Atlantic stock of cunner 
and winter flounder are limited by primary production. In fact the 
EPA's program has most likely benefited the species. According to the 
EPA, total nitrogen loads from point sources to the waters of the Sound 
have decreased significantly over the last ten years as sewage 
treatment plants (STPs) have implemented more stringent controls. In 
the summer, hypoxia has had a significant adverse impact on the aquatic 
habitat and residents of the Sound. Hypoxia is generally most severe in 
bottom waters. Winter flounder are demersal and as such, they may 
encounter areas with depleted oxygen concentrations. A reduction in 
hypoxia would result in an increase in the amount of habitat available 
for this and other demersal species.
    EPA has indicated that although there has been a reduction in the 
areal extent and duration of hypoxic events since the late 1980s in 
Long Island Sound, summer hypoxia still represents a significant 
impairment to the water quality of the Sound and still continues to 
adversely affect the living marine resources present (EPA 2002). As 
such, the states of Connecticut and New York have completed and the EPA 
has approved a TMDL plan for nitrogen. It is assumed that this program 
will result in a reduction in anthropogenic inputs of nitrogen to the 
Sound (EPA 2002).
    The Magnuson-Stevens Fishery Conservation and Management Act 
(MSFCMA), as amended by the Sustainable Fisheries Act in 1996, requires 
that the regional fishery management councils describe and identify 
essential fish habitat (EFH), identify actions to conserve and enhance 
that EFH, and minimize the adverse effects of fishing on EFH to the 
extent practicable. EFH has been defined by Congress as ``those waters 
and substrate necessary to fish for spawning, breeding, feeding or 
growth to maturity.'' EFH has been identified for all life stages of 
winter flounder in Long Island Sound and many other bays and estuaries 
located in the Southern New England/Middle Atlantic region. As such, 
actions that affect the habitat in these areas are subject to EFH 
consultation. The available information suggests that the regulatory 
mechanisms to conserve existing habitat and restore areas within this 
region are sufficient to protect this species.
    The petitioner asserts that predation has not had a significant 
role in the decline in winter flounder in western Long Island Sound. 
Available information and that contained in the petition is not 
sufficient to conclude that an increase in predation has resulted in 
the decline in winter flounder abundance.
    According to the Connecticut Department of Environmental Protection 
(CT DEP), the new winter flounder index for the spring obtained from 
the 2003 Long Island Sound Trawl Survey is 21.12 fish/tow which is down 
from 25.5 fish/tow in 2002. However, the geometric mean increased from 
6.31 kg/ tow in 2002 to 6.56 kg/tow in 2003 (Pers. Comm. Kurt 
Gottschall, CT DEP 2003). This indicates that the average size of 
winter flounder in Long Island may be increasing.
    According to the information in the petition, winter flounder 
historically were the basis of a significant spring and fall 
recreational fishery. However, currently, there are no spring or fall 
winter flounder fishing tournaments due to the decline in abundance and 
size of fish caught. The 2002 stock assessment for winter flounder 
states that the Southern New England/Mid-Atlantic winter flounder stock 
complex is overfished and overfishing is occurring. According to the 
2002 stock assessment for winter flounder, ``spawning stock biomass 
declined substantially from 13,000-14,000 metric tons (mt) during the 
early 1980s to only 2,700 mt during 1994-1996, but has increased since 
the mid 1990s to about 7,600 mt in 2001 due to reduced fishing 
mortality rates since 1997. The arithmetic average recruitment from 
1981 to 2001 is 23.9 million age-1 fish, with a median of 18.9 million 
fish. Recent recruitment to the stock has been below average since 
1989. The 2001 year class, at only 5.6 million fish, is the smallest in 
the 22-year time series.'' Therefore, while recruitment may be 
decreasing, the spawning stock biomass of the New England/Middle 
Atlantic stock of winter flounder seems to be increasing.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available to NMFS' scientists, NMFS has 
determined that the petition does not present substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted. For cunner, sufficient scientific or commercial information 
to support conducting a status review of cunner in western Long Island 
Sound is not currently available. For winter flounder, recent studies 
on nuclear DNA are not sufficient to support the contention that winter 
flounder from western Long Island Sound are a DPS, or that winter 
flounder from Long Island Sound are a DPS. While the petition states 
that winter flounder catches have declined in western Long Island Sound 
to such an extent that the population will not recover, NMFS does not 
believe that the information presented is substantial enough to warrant 
a status review at this time. This finding is supported by information 
contained within the 2002 stock assessment for winter flounder, which 
has shown an increase in spawning stock biomass of the Southern New 
England/Mid-Atlantic stock as a result of reduced fishing mortality 
rates. If new information becomes available to suggest that cunner and 
winter flounder may in fact warrant listing under the ESA, NMFS will 
reconsider conducting species status reviews.

References

    Atlantic States Marine Fisheries Commission. 2003. Public 
information document for Amendment I to the Interstate Fishery 
Management Plan for Inshore Stocks of Winter Flounder.

[[Page 4494]]

Prepared by Lydia Munger, Fishery Managment Plan Coordinator. 1444 Eye 
Street, NW, 6th Floor, Washington, DC 20005.
    Collette, B. B. and G. Klein-MacPhee, editors. 2002. Bigelow and 
Schroeder's Fishes of the Gulf of Maine. Smithsonian Institution Press, 
Washington DC.
    Connecticut Department of Environmental Protection. 2002. A study 
of marine recreational fisheries in Connecticut. Federal Aid in Sport 
Fish Restoration. F-54-R-21 Annual Performance Report. March 1, 2001-
February 28, 2002.
    Connecticut Department of Environmental Protection. 2003. Marine 
Finfish Survey. Draft report in prep.
    Environmental Protection Agency. 2002. The 2001 CCMP Implementation 
Tracking Report for January - December 2001. The Comprehensive 
Conservation and Management Plan - Long Island Sound Study.
    Gottschall, K. 2003. Personal Communication. Connecticut Department 
of Environmental Protection, Marine Fisheries Division. Old Lyme, CT 
06371.
    Meise, C., J.S. Collie, J. Widman, P. Howell. 1999. Growth and 
mortality of juvenile winter flounder in two New England estuaries. 
Estuaries 22(2A):297-303.
    Northeast Fisheries Science Center. 2003. Report of the 36th 
Northeast Regional Stock Assessment Workshop (36th SAW): Stock 
Assessment Review Committee (SARC)
    Consensus Summary of Assessments. National Marine Fisheries Serv., 
Woods Hole Lab., 166 Water St., Woods Hole, MA 02543. Pp. 139-163.
    Pereira, J.J., R. Goldberg, J.J. Ziskowski, P.L. Berrien, W.W. 
Morse, and D.L. Johnson. Essential fish habitat source document: winter 
flounder, Pseudopleuronectes americanus, life history and habitat 
characteristics. NOAA Technical Memorandum NMFS-NE-138. September 1999.
    Wirgin, I. 2003. Stock identification and mixed stock analyses of 
winter flounder (Pleuronectes americanus). NYSG Completion Report. 
Submitted March 17, 2003.

    Authority: 16 U.S.C. 1531 et seq..

    Dated: January 22, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 04-1978 Filed 1-29-04; 8:45 am]
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