[Federal Register Volume 72, Number 29 (Tuesday, February 13, 2007)]
[Proposed Rules]
[Pages 6703-6707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2292]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To List the San Felipe Gambusia as Threatened or Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to list the San Felipe gambusia (Gambusia 
clarkhubbsi) as threatened or endangered under the Endangered Species 
Act of 1973, as amended (Act). We find that the petition does not 
present substantial information indicating that listing the San Felipe 
gambusia may be warranted. Therefore, we will not initiate a further 
status review in response to this petition. We ask the public to submit 
to us any new information that becomes available

[[Page 6704]]

concerning the status of the San Felipe gambusia or threats to it or 
its habitat at any time. This information will help us monitor and 
encourage the conservation of this species.

DATES: The finding announced in this document was made on February 13, 
2007. You may submit new information concerning this species for our 
consideration at any time.

ADDRESSES: The complete supporting file for this finding is available 
for public inspection, by appointment, during normal business hours at 
the Austin Ecological Services Field Office, U.S. Fish and Wildlife 
Service, 10711 Burnet Road, Suite 200, Austin, TX 78758. Submit new 
information, materials, comments, or questions concerning this 
subspecies to us at the above address.

FOR FURTHER INFORMATION CONTACT: Robert Pine, Field Supervisor, Austin 
Ecological Services Field Office (see ADDRESSES) (telephone 512/490-
0057; facsimile 512/490-0974). Persons who use a telecommunications 
device for the deaf (TDD) may 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 (16 U.S.C. 1531 et seq.), requires that we make a finding on 
whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information to indicate that the 
petitioned action may be warranted. We base this finding on information 
submitted with the petition, referenced in the petition, and determined 
to be reliable after review, as well as information available in our 
files or otherwise available to us at the time of the petition review. 
To the maximum extent practicable, we make this finding within 90 days 
of receipt of the petition, and publish our notice of this finding 
promptly in the Federal Register.
    Our standard for substantial information within the Code of Federal 
Regulations (CFR) with regard to a 90-day petition finding is ``that 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted'' (50 CFR 
424.14(b)). If we find that substantial information was presented, we 
are required to promptly commence a review of the status of the 
species.
    We base this finding on information provided by the petitioner that 
we determined to be reliable after reviewing sources referenced in the 
petition and information available in our files at the time of the 
petition review. We evaluated that information in accordance with 50 
CFR 424.14(b). Our process for making this 90-day finding under section 
4(b)(3)(A) of the Act and section 424.14(b) of our regulations is 
limited to a determination of whether the information in the petition 
meets the ``substantial information'' threshold. The substantiality 
test is applied only to the reliable information supporting the 
petition.
    On June 13, 2005, we received a formal petition, dated June 10, 
2005, from Save Our Springs Alliance (SOSA) requesting that the San 
Felipe gambusia (Gambusia clarkhubbsi) be listed as an endangered 
species in accordance with section 4 of the Act. The West Texas Springs 
Alliance was also listed as a petitioner, but did not provide a 
representative's signature. The petition is available at http://www.fws.gov/southwest/es/Library/.
    Action on this petition was precluded by court orders and 
settlement agreements for other listing actions that required all of 
our listing funds for fiscal year 2005 and a substantial portion of our 
listing funds for fiscal year 2006. On September 29, 2005, we received 
a 60-day notice of intent to sue from SOSA for failing to make a timely 
90-day finding. On December 1, 2005, we sent a letter to SOSA informing 
them that we would likely not make a petition finding during the fiscal 
year 2006 due to funding limitations. Subsequently, funding became 
available to act on the petition. On August 10, 2006, SOSA filed a 
complaint against the Service for failure to issue a 90-day petition 
finding on the San Felipe gambusia under section 4 of the Act. In our 
December 18, 2006, motion for summary judgment, we informed the court 
that, based on current funding and workload projections, we believed 
that we could complete a 90-day finding by February 6, 2007, and if we 
determined in the 90-day finding that the petition provided substantial 
scientific and commercial information, we could make a 12-month finding 
by February 6, 2008. This notice constitutes our 90-day finding for the 
petition to list the San Felipe gambusia.

Species Information

    The San Felipe gambusia is a fish that was first discovered in 
1997. It was described as Gambusia clarkhubbsi by Gary Garrett and 
Robert Edwards (2003, pp. 783-788) based on morphology. Genetic 
information has not been published on the San Felipe gambusia.
    The San Felipe gambusia is a member of the subgenus Gambusia and a 
member of the nobilis species group (Garrett and Edwards 2003, p. 784). 
At maturity, the San Felipe gambusia's standard length averages 1.07 
inches (in) (27.18 millimeters (mm)) for males and 1.39 in (35.22 mm) 
for females (Garrett and Edwards 2003, p. 786).
    The San Felipe gambusia is most similar morphologically to the 
spotfin gambusia (Gambusia krumholzi) from northern Mexico, but differs 
in a number of morphological characteristics. The San Felipe gambusia's 
ground color is light overall with tan overtones, whereas the spotfin 
gambusia is silvery or yellow white with blue overtones (Garrett and 
Edwards 2003, p. 784). The San Felipe gambusia has a broader lateral 
stripe with more prominent spotting along its sides. It also has a 
broader streak in front of its vertebral column on its back. In 
addition, it has no streak behind its anus. The spotfin gambusia has, 
in contrast, a distinct, thin streak behind the anus. The back and tail 
fins are dusky to colorless in the San Felipe gambusia, whereas these 
fins are blackened near the margins on spotfin gambusia. The anal fin, 
also dusky to colorless on the San Felipe gambusia, is darkened on 
female spotfin gambusia (Garrett and Edwards 2003, p. 785).
    The San Felipe gambusia is known only from San Felipe Creek, Val 
Verde County, Texas (Garrett and Edwards 2003, p. 783). San Felipe 
Creek emanates from the San Felipe Springs segment of the Edwards-
Trinity (Plateau) Aquifer. The creek is a Rio Grande tributary, which 
flows through the City of Del Rio (Garrett and Edwards 2003, p. 785). 
Preliminary observations indicate that the San Felipe gambusia's 
habitat is characterized by edge or quiet water in close association 
with significant spring flows found in the upper portions of the creek. 
Garrett and Edwards (2003, p. 787) suggest that low numbers of San 
Felipe gambusia were long present in San Felipe Creek where they are 
dependent upon rare, specific portions of spring-associated habitat. 
The Tex-Mex gambusia (Gambusia speciosa) is the only other Gambusia 
occurring in San Felipe Creek. Since its discovery, San Felipe gambusia 
``often have comprised 50 percent of the Gambusia in collections of 30 
to several hundred individuals'' (Garrett and Edwards 2003, p. 787).

Threats Analysis

    Section 4 of the Act and its implementing regulations (50 CFR 424) 
set forth the procedures for adding species to the Federal Lists of 
Endangered and Threatened Wildlife and Plants. Under section 4 of the 
Act, we may list a species, subspecies, or

[[Page 6705]]

distinct population segment of vertebrate taxa on the basis of any of 
the following five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. In making this finding, we evaluated 
whether the threats to the San Felipe gambusia presented in the 
petition may pose a concern with respect to its survival. The Act 
identifies the five factors to be considered, either singly or in 
combination, to determine whether a species may be threatened or 
endangered. In making this finding, we evaluated whether threats to the 
San Felipe gambusia presented in the petition and other information 
available in our files at the time of the petition review may pose a 
concern with respect to the San Felipe gambusia's persistence in the 
wild. Our evaluation of these threats is presented below. In the 
discussion below, we have placed the threats listed in the petition 
under the most appropriate listing factor.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    The petition claims that semi-arid climatic conditions combined 
with a local and regional desire for pumping aquifer water are probably 
the most important threats related to the destruction, modification, or 
curtailment of San Felipe gambusia's habitat. The San Felipe portion of 
the Edwards-Trinity (Plateau) Aquifer is the sole source of water for 
the City of Del Rio and Laughlin Airforce Base. The petitioner did not 
provide a citation to verify this information. Additionally, according 
to the petitioner, area ranchers and farmers use diverted water from 
San Felipe Creek, as well as water pumped from the aquifer, to irrigate 
their crops, although the petitioner presented no references for this 
statement.
    In addition to potential problems presented by a strong local 
reliance on aquifer water, rapidly growing cities elsewhere in Texas 
are in the market to transport water from Cal Verde County to sustain 
their water demands. This practice is often referred to as ``water 
ranching'' or ``water mining'' (Texas Center for Policy Studies 2001, 
p. 1). The petition states that Val Verde County's proximity to San 
Antonio and San Angelo make it ideal for the profit-generating business 
of water ranching. Both San Antonio and San Angelo have established 
plans to transport water from certain rural areas located over the 
Edwards-Trinity (Plateau) Aquifer. Readily available information in our 
files indicates that several private water development projects have 
been evaluated to mine water into San Antonio from Val Verde, Kinney, 
and Edwards counties (HDR 2001, p. 1-1).
    Sustaining spring flows in San Felipe Creek is highly dependent 
upon maintaining groundwater levels above a certain elevation within 
the San Felipe portion of the Edwards-Trinity (Plateau) Aquifer. 
Information from the Texas Center for Policy Studies (2001, p. 2), 
which was cited by the petitioner, indicates that if several large-
scale water ranchers withdraw water from this portion of the aquifer 
simultaneously, the area could experience aquifer depletion. The 
petition states that because the San Felipe gambusia occupies rare 
portions of spring outlets with significant spring flow, reduced spring 
flow could potentially eliminate much of its habitat (Edwards et al. 
2004, p. 254). Information provided by the petitioner regarding the 
semi-arid climatic conditions of the region, the local and regional 
desire to pump groundwater, and the San Felipe gambusia's dependence 
upon significant spring flows is supported by information in our files. 
However, the petitioner did not provide information to show that the 
flow levels at San Felipe Creek in particular have been or are likely 
to be reduced by groundwater pumping to an extent that may threaten the 
species. Thus, the petition does not provide scientific or commercial 
information that aquifer depletion and subsequent springflow depletion 
is threatening the San Felipe gambusia at this time.
    The majority of San Felipe Springs, which feeds San Felipe Creek, 
emanates within a golf course inside the City of Del Rio. The creek has 
been modified over the years to accommodate urban expansion, including 
activities such as the building of roads and bridges, public access, 
irrigation diversion, and bank stabilization (Garrett and Edwards 2003, 
pp. 785-786). The petition reports that the creek has been repeatedly 
exposed to pollution. A source cited in the petition (Garrett and 
Edwards 2003, p. 786) states that prior to 1994, the Texas Commission 
on Environmental Quality (TCEQ) documented elevated levels of nitrates, 
phosphates, and orthophosphates in San Felipe Creek. It is hypothesized 
that land use practices in the watershed, such as runoff from the 
municipal golf course, may have contributed to the elevated levels of 
pollutants (Garrett and Edwards 2003, p. 786). The petition also states 
that current creek management strategies employed by the San Felipe 
Country Club and the City of Del Rio have improved creek habitat, 
resulting in positive effects for the San Felipe gambusia. Information 
provided by the petitioner regarding urban expansion, subsequent water 
quality degradation, and recently implemented, creek-friendly 
management practices is supported by information in our files. Because 
the petitioner does not provide information that urban expansion and 
water quality degradation have been or are likely to affect the San 
Felipe gambusia, and provides information that current creek management 
practices are having a positive impact on the fish, we have determined 
that the petition does not present scientific or commercial information 
that urbanization is threatening the San Felipe gambusia.

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

    The petition did not contain information suggesting that 
overutilization for commercial, recreational, scientific, or 
educational purposes is a threat to the San Felipe gambusia.

C. Disease or Predation

    According to the petition, neither disease nor predation is a 
threat to the San Felipe gambusia.

D. Inadequacy of Existing Regulatory Mechanisms

    The petition states that Texas laws regarding groundwater ownership 
and private pumping are inadequate for preventing aquifer depletion. 
The petition includes this information under listing Factor A, the 
present or threatened destruction, modification, or curtailment of its 
habitat or range, but we find that it falls under listing Factor D, the 
inadequacy of existing regulatory mechanisms. The petition states that, 
in the absence of a groundwater conservation district, the Texas ``rule 
of capture,'' established in 1904, gives landowners the right to 
withdraw unlimited amounts of water from their property for sale or 
personal use. Groundwater conservation districts (e.g., the Kinney 
County Groundwater Conservation District) provide for regulation of the 
spacing and production of water wells (Texas Center for Policy Studies 
2001, p. 1). Information in our files supports this claim and indicates 
groundwater conservation districts have a narrow ability to restrict 
the transport of groundwater outside the boundaries of

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the conservation district (House Research Organization 2006, p. 4). 
Additionally, there is no groundwater conservation district in Val 
Verde County (Marbury and Kelly 2005, p. 8). This information was 
provided by the petitioner, but the petitioner did not supply a 
reference to support the claim.
    Information provided by the petitioner regarding the inadequacy of 
existing regulatory mechanisms to protect aquifer levels is supported 
by information in our files. However, we believe that the petition does 
not present scientific or commercial information indicating that 
inadequate regulatory mechanisms to protect aquifer levels are a threat 
to the San Felipe gambusia. As stated earlier, the petition does not 
present information demonstrating that aquifer and springflow depletion 
is a threat to the species.

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

    According to the petition, there are three natural factors that 
render the San Felipe gambusia vulnerable to extinction. The first 
factor is the species' extremely limited distribution. The San Felipe 
gambusia is found only in San Felipe Creek (Garrett and Edwards 2003, 
p. 785). Thus, the petitioner suggests that localized disruptions 
affecting the San Felipe gambusia or its habitat could increase the 
species' vulnerability to extinction.
    Secondly, the petition suggests that not only is the San Felipe 
gambusia limited to San Felipe Creek, but is probably even more 
restricted to rare, specific portions of the creek and associated 
spring outlets (Garrett and Edwards 2003, p. 787). The petitioner 
contends that if this is true, the creek could appear healthy at the 
same time this specific habitat is lost. Information provided by the 
petitioner regarding the San Felipe gambusia's limited distribution and 
rare habitat requirements is supported by information in our files. 
However, the petitioner did not provide information to show that the 
limited distribution and rare habitat requirements of the San Felipe 
gambusia have been or are likely to threaten the species in terms of 
aquifer depletion and subsequent springflow depletion, as discussed in 
factor A above.
    Lastly, the petition states that because the San Felipe gambusia 
evolved sympatrically with the Tex-Mex gambusia, negative impacts to 
the San Felipe gambusia's habitat or niche could put this species at a 
competitive disadvantage. The petitioner also suggest's that either the 
introduction of nonnative Gambusia or an overlap in habitat between the 
two native, sympatrically occurring Gambusia, species could lead to 
hybridization. Sources cited in the petition document incidents of 
hybridization among co-occurring Gambusia species (Edwards et al. 2004, 
p. 258). We suspect that the new species has long been present is San 
Felipe Creek but in low numbers and perhaps associated with an as yet 
unidentified, specific, rare habitat. Information provided by the 
petitioner regarding the occurrence of co-existing Gambusia and the 
history of co-existing Gambusia to compete and hybridize when forced 
into the same habitat, is supported by information in our files. 
However, the petitioner does not provide information that co-existing 
Gambusia species are threatening the San Felipe gambusia at this time 
because there is no information indicating that aquifer depletion and 
subsequent springflow depletion will cause these species to utilize the 
same habitat, and the petitioner did not provide information about 
nonnative Gambusia occurring in the same habitats as San Felipe 
gambusia despite the fact that it has likely been long present in the 
creek.
    The petition also reports that an exotic species, Armadillo Del Rio 
(Hypostomus sp.) or ``armored catfish,'' has recently become 
established in San Felipe Creek and has expanded rapidly. The petition 
did not present references for this statement, although information in 
our files supports this claim. Readily available information in our 
files indicates that the armored catfish is a popular aquarium fish 
that feeds on algae and is known for having a dramatic impact on stream 
ecosystems. They remove algal cover, destroy aquatic plants, and alter 
bank topography. The petition stated, but did not provide a reference, 
that armored catfish are also known to directly compete with native 
fishes as well as prey upon them by accidental ingestion of their eggs. 
The petition suggests that the endangered Devils River minnow has 
become extirpated within San Felipe Creek due to the introduction of 
this catfish. Information in our files indicates that this information 
is unreliable and that the Devils River minnow is still found in San 
Felipe Creek (Lopez-Fernandez and Winemiller 2005, p. 250). We 
recognize that the armored catfish may modify the ecosystem of San 
Felipe Creek, although the petitioner does not provide information on 
the negative impacts caused by the armored catfish within the San 
Felipe Creek ecosystem, nor does the petitioner describe how such 
impacts could threaten the survival of the San Felipe gambusia despite 
the fact that the armored catfish is present and known to be abundant 
in the creek. The petitioner therefore does not provide scientific or 
commercial information that the exotic armored catfish is a threat to 
the San Felipe gambusia at this time.

Finding

    We evaluated each of the five listing factors individually. The 
petition focuses primarily on three listing factors: The present or 
threatened destruction, modification, or curtailment of the species' 
habitat or range; the inadequacy of existing regulatory mechanisms; and 
other natural or manmade factors affecting the continued existence of 
the species. The petition and information in our files suggest that the 
combination of the species' extremely limited distribution, reliance on 
springflows within semi-arid climatic conditions, and unregulated plans 
to pump water from the Edwards-Trinity (Plateau) Aquifer may be a 
concern for the San Felipe gambusia. Because the petition does not 
provide scientific or commercial information to show that the flow 
levels at San Felipe Creek in particular have been or are likely to be 
reduced by groundwater pumping, we find that the information presented 
in the petition regarding the threat of springflow depletion was not 
substantial. The petition also presents information about water quality 
degradation due to land uses associated with urbanization. Because the 
petition does not provide evidence that land use practices have been or 
are likely to degrade water quality in San Felipe Creek, we do not 
believe that the petition presents substantial information that water 
quality degradation is a threat. In addition, the petition suggests 
that an introduced armored catfish could have a dramatic impact on the 
ecosystem of San Felipe Creek based on the effects documented on other 
aquatic systems. However, the petition does not provide scientific or 
commercial information that indicates the armored catfish is negatively 
impacting San Felipe Creek or the San Felipe gambusia. Thus, we believe 
that the petition does not present scientific or commercial information 
that the armored catfish is a threat to the species. The petition 
presents information about possible competition with other native or 
nonnative Gambusia. The petition, however, does not provide scientific 
or commercial information that

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competition with other Gambusia species is occurring or likely to 
occur.
    The petition suggests that the San Felipe gambusia's naturally 
limited distribution and habitat specificity are a threat. We find, 
however, that the petition does present substantial scientific or 
commercial information indicating that the species' limited range and 
habitat specificity are natural factors that make the species 
vulnerable, but we do not believe that this information alone indicates 
that the petitioned action may be warranted. It appears that the San 
Felipe gambusia has always been a localized species with small 
population numbers.
    We have reviewed and evaluated the petition and assessed the 
reliability of the information presented by reviewing literature cited 
in the petition and information in our files or otherwise readily 
available at the time of the petition review. On the basis of this 
review and evaluation, we find that the petition does not present 
substantial scientific or commercial information to indicate that 
listing the San Felipe gambusia may be warranted. Although we will not 
commence a status review in response to this petition, we will continue 
to monitor the San Felipe gambusia's population status and trends, 
potential threats, and ongoing management actions that might be 
important with regard to the conservation of the San Felipe gambusia 
across its range. We encourage interested parties to continue to gather 
data that will assist with the conservation of the species. If you wish 
to provide information regarding the San Felipe gambusia, you may 
submit your information or materials to the Field Supervisor, Austin 
Ecological Services Field Office (see ADDRESSES).

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Austin Ecological Services Field Office (see 
ADDRESSES).

Author

    The primary author of this notice is the Austin Ecological Services 
Field Office (see ADDRESSES).

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: February 6, 2007.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
 [FR Doc. E7-2292 Filed 2-12-07; 8:45 am]
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