[Federal Register Volume 73, Number 88 (Tuesday, May 6, 2008)]
[Proposed Rules]
[Pages 24911-24915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9835]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0045; 1111-FY07-MO-B2]


Endangered and Threatened Wildlife and Plants; Petition To List 
the San Francisco Bay-Delta Population of the Longfin Smelt (Spirinchus 
thaleichthys) as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status 
review.

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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 Francisco Bay-Delta 
population of the longfin smelt (Spirinchus thaleichthys) (longfin 
smelt) as endangered under the Endangered Species Act of 1973, as 
amended (Act). We find that the petition presents substantial 
scientific or commercial information indicating that listing the 
longfin smelt may be warranted. We, therefore, are initiating a status 
review to determine if listing this species under the Act is warranted. 
To ensure that the status review is comprehensive, we are soliciting 
scientific and commercial data and other information regarding this 
species. We will make a determination on critical habitat for this 
species if, and when, we initiate a listing action.

DATES: To allow us adequate time to conduct this review, we request 
that information be submitted on or before July 7, 2008.

ADDRESSES: You may submit information by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2008-0045; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    We will not accept email or faxes. We will post all information 
received on http://www.regulations.gov. This generally means that we 
will post any personal information you provide us (see the Information 
Solicited section below for more information).

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, or 
Arnold Roessler, Listing Branch Chief, Sacramento Fish and Wildlife 
Office, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825; telephone 
(916) 414-6600; facsimile (916) 414-6712. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800/877-8339.

SUPPLEMENTARY INFORMATION: 

Information Solicited

    When we make a finding that a petition presents substantial 
information to indicate that listing a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting 
information concerning the status of the longfin smelt. We request any 
additional

[[Page 24912]]

information from the public, other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning the status of the longfin smelt, 
including:
    (1) Information on taxonomy, genetics (especially regarding 
distinct population segments), distribution, habitat selection, food 
habits, population density and trends, habitat trends, and effects of 
management on longfin smelt;
    (2) Information on the effects of climate change, sea level change, 
and change in water temperatures on the distribution and abundance of 
longfin smelt and their principal prey over the short and long term;
    (3) Information on the effects of other potential threat factors, 
including water diversions in the Sacramento-San Joaquin River Delta 
(Delta), contaminants, invasive species, and changes of the 
distribution and abundance of longfin smelt and their principal prey 
over the short and long term;
    (4) Information on management programs for longfin smelt 
conservation, including mitigation measures related to water diversions 
and development, habitat conservation programs, invasive species 
control programs, and any other private, tribal, or governmental 
conservation programs which benefit longfin smelt; and
    (5) Information relevant to whether the San Francisco Bay-Delta 
population of the species may qualify as a distinct population segment 
(DPS).
    You may submit your information concerning this finding by one of 
the methods listed in the ADDRESSES section. We will not consider 
submissions sent by email or fax or to an address not listed in the 
addresses section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
view. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Information and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

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 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 are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files at 
the time we make the determination. To the maximum extent practicable, 
we are to make this finding within 90 days of our 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.
    On August 8, 2007, we received a petition from the Bay Institute, 
Center for Biological Diversity, and Natural Resources Defense Council 
to list the longfin smelt as endangered within the San Francisco Bay-
Delta estuary in California, and to designate critical habitat 
concurrently with the listing. The petition clearly identified itself 
as a petition and included the identification information required in 
50 CFR 424.14(a). The petition contained detailed information on the 
natural history and biology of the longfin smelt, and the current 
status and distribution of the species. It also contained information 
on what the petitioners reported as potential threats to the species. 
In response to the petition, we sent a letter to the petitioners dated 
September 25, 2007, stating that we had secured funding and that we 
would begin evaluation of the petition on October 1, 2007. We also 
concluded in our September 25, 2007, letter that emergency listing of 
the longfin smelt was not warranted at the time, based on the imminence 
of threats and because we would be working on the finding within the 
timeframe of routine listing processes.

Previous Federal Actions

    On November 5, 1992, we received a petition from Mr. Gregory A. 
Thomas of the Natural Heritage Institute to add the Sacramento 
splittail (Pogonichthys macrolepidotus) and longfin smelt to the List 
of Endangered and Threatened Wildlife and designate critical habitat 
for each species. On July 6, 1993, we published a 90-day finding in the 
Federal Register that the petition contained substantial information 
indicating that the requested action may be warranted, and that we 
would proceed with a status review of both species. On January 4, 1994, 
we published a notice of a 12-month finding on a petition to list the 
longfin smelt. We determined that the petitioned action was not 
warranted, based on the lack of population trend data for estuaries in 
Oregon and Washington, although the southernmost populations were found 
to be declining. Furthermore, we found the listing of a Sacramento-San 
Joaquin River estuary DPS was also not warranted because we determined 
that the population was not biologically significant to the species as 
a whole, and did not appear to be sufficiently reproductively isolated.

Species Information

Description and Taxonomy

    The longfin smelt (Spirinchus thaleichthys), a member of the true 
smelt family Osmeridae, can be distinguished from other smelts 
occurring in California by its weak or absent striations on the 
operculum (bony plates which supports the gill cover), incomplete 
lateral line, low number of lateral line scales, and long maxillary 
bones (McAllister 1963, p. 10; Moyle 2002, pp. 234-235). The pectoral 
fins often extend as far as the base of the pelvic fins, and the 
maxillary bones reach underneath the eyes. This fish, which often 
reaches 6 inches (in) (15 centimeters (cm)) in length, has translucent 
silver sides and an olive to iridescent pink back.
    The longfin smelt is one of three species in its genus; the night 
smelt (Spirinchus starksi) occurs in California, and the shishamo (S. 
lanceolatus)

[[Page 24913]]

occurs in northern Japan (McAllister 1963, pp. 10 and 15). Because of 
its distinctive characteristics, the Delta population of longfin smelt 
was once described as a species separate from more northern populations 
(Moyle 2002, p. 235). McAllister (1963, p. 12) merged the two species 
because differences in characteristics represented a north-south 
gradient of variation in these characteristics rather than a discrete 
set; subsequent studies showed that populations from Washington State 
and the San Francisco Bay-Delta are similar genetically (Stanley et al. 
1995, p. 390). However, the San Francisco Bay population is 
geographically distant from the nearest northern sustainable population 
and differs in gene frequencies from populations in Washington State 
(Stanley et al. 1995, p. 390). As presently described, this species' 
range extends from the San Francisco Bay-Delta, California, to Prince 
William Sound, Alaska (Moyle 2002, pp. 235-236).

Habitat and Life History

    The longfin smelt is an anadromous euryhaline species (i.e., 
tolerant to a wide range of salinities, from freshwater to pure sea 
water), with a 2-year life cycle (Moyle 2002, p. 236). Spawning occurs 
in freshwater over sandy-gravel substrate, rocks, or aquatic plants. 
Spawning may take place as early as November and extend into June, 
although the peak spawning period is from February to April. Eggs 
adhere to the bottom substrate, but the larvae inhabit open ocean. Once 
hatched, the larvae are transported by flows from spawning areas to 
nursery habitat. The principal nursery habitats for larvae are the 
productive waters of Suisun and San Pablo Bays, where freshwater 
outflow and saltwater mixes. Adults are found mainly in Suisun, San 
Pablo, and San Francisco Bays, although their distribution is shifted 
upstream in years of low river outflows. Sacramento-San Joaquin River 
outflow into the bays has been positively correlated with longfin smelt 
recruitment; the possible mechanism behind this relationship is unclear 
(Stevens and Miller 1983, p. 432; Kimmerer 2002a, p. 48; Kimmerer 
2002b, pp. 1275 and 1283).

Population Trends

    The petition cites the California Department of Fish and Game 
(CDFG) Fall Midwater Trawl (FMWT) survey as a measure of longfin smelt 
abundance. The average abundance index from 1967 to 1986 was 17,616, 
and 17,485 from 1980 to 1986. However, the petition reports that the 
average abundance index declined to 537 from 1987 to 1994, possibly as 
a result of extended drought conditions and increased water exports. 
During the following 5 years (1995 to 2000), the average abundance 
index increased to 4,343, and from 2001 to 2006 the average abundance 
index declined to 569. The petition states the average abundance index 
from 2001 to 2006 is 87 percent lower than the average abundance index 
from 1995 to 2000.

Distinct Population Segment

    We consider a species for listing under the Act if available 
information indicates such an action might be warranted. ``Species'' is 
defined in section 3 of the Act to include any subspecies of fish, 
wildlife, or plant, and any distinct vertebrate population segment of 
fish or wildlife that interbreeds when mature (16 U.S.C. 1532 (16)). 
Along with the National Marine Fisheries Service (now the National 
Oceanic and Atmospheric Administration--Fisheries), we developed the 
Policy Regarding the Recognition of Distinct Vertebrate Population 
Segments (DPS Policy) (February 7, 1996; 61 FR 4722) to help determine 
what constitutes a DPS. The policy identifies three elements that we 
are to consider in making a DPS determination. These elements include: 
(1) The discreteness of the population segment in relation to the 
remainder of the species to which it belongs; (2) the significance of 
the population segment to the species to which it belongs; and (3) the 
population segment's conservation status in relation to the Act's 
standards for listing. If we determine that a population segment meets 
the discreteness and significance standards, then the level of threat 
to that population segment is evaluated based on the five listing 
factors established by the Act to determine whether listing the DPS as 
either threatened or endangered is warranted.

Discreteness

    Citing the Services' DPS policy (61 FR 4722), the August 2007 
petition asserts that the San Francisco Bay-Delta population of the 
longfin smelt qualifies as a DPS based on discreteness. The DPS policy 
states that a population may be considered discrete if it satisfies 
either one of the following conditions:
    (1) It is markedly separated from other populations of the same 
taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation.
    (2) It is delimited by international governmental boundaries within 
which differences in control of exploitation, management of habitat, 
conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the Act.
    The petitioners claim the San Francisco Bay-Delta population of 
longfin smelt is discrete based on the first criterion, because there 
is no evidence that large numbers of longfin smelt migrate between 
populations within their range in the eastern Pacific or along the 
California coast. Additionally, they cite survey data indicating 
longfin smelt populations within several hundred miles of the San 
Francisco Bay-Delta are small and possibly declining, which leads the 
petitioners to conclude that it is unlikely that longfin smelt in the 
San Francisco Bay-Delta are supplemented by immigration from other 
areas. The petitioners cite Stanley et al. (1995, p. 395), who 
concluded from gene frequency analysis and reproductive and behavioral 
analysis that the San Francisco Bay-Delta longfin smelt population and 
the Humboldt Bay population (the nearest possible reproducing 
population) differ significantly and that gene flow between the two 
populations is restricted. Additionally, the petitioners cite Moyle 
(2002, p. 235) who concluded that the longfin smelt in the San 
Francisco Bay-Delta are reproductively isolated from other population 
units.
    The Services' DPS policy requires that only one of the discreteness 
criteria be satisfied in order for a population of a vertebrate species 
to be considered discrete. After reviewing the information provided in 
the petition, we believe the petition presents substantial information 
that the San Francisco Bay-Delta longfin smelt population may be 
physically isolated from other longfin smelt populations and may be 
genetically distinct; therefore, we find that there is substantial 
information indicating the longfin smelt population in the San 
Francisco Bay-Delta may satisfy the discreteness element of the DPS 
policy.

Significance

    If we determine that a population meets the DPS discreteness 
element, we then consider if it also meets the DPS significance 
element. The DPS policy (61 FR 4722) states that if a population 
segment is considered discrete under one or more of the discreteness 
criteria, its biological and ecological significance will be considered 
in light of Congressional guidance that the authority to list DPSs be 
used ``sparingly'' while encouraging the conservation of genetic 
diversity. In

[[Page 24914]]

making this determination, we consider available scientific evidence of 
the discrete population's importance to the taxon to which it belongs. 
Since precise circumstances are likely to vary considerably from case 
to case, the DPS policy does not describe all the classes of 
information that might be used in determining the biological and 
ecological importance of a discrete population. However, the DPS policy 
does provide four possible reasons why a discrete population may be 
significant. As specified in the DPS policy (61 FR 4722), this 
consideration of the significance may include, but is not limited to, 
the following:
    (1) Persistence of the discrete population segment in an ecological 
setting unusual or unique to the taxon;
    (2) Evidence that loss of the discrete population segment would 
result in a significant gap in the range of a taxon;
    (3) Evidence that the discrete population segment represents the 
only surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or
    (4) Evidence that the discrete population segment differs markedly 
from other populations of the species in its genetic characteristics.
    The petitioners claim the San Francisco Bay-Delta population of 
longfin smelt is significant because: (1) It inhabits an ecological 
setting unique relative to other longfin smelt populations; (2) it 
represents the southernmost spawning population of longfin smelt, and 
loss of this population would result in a significant gap in the range 
of the species; (3) Stanley et al. (1995, p. 395) found significant 
differences in gene frequency between populations in Washington State 
and the San Francisco Bay-Delta, leading them to conclude the San 
Francisco Bay-Delta population of longfin smelt are genetically 
distinct; (4) the San Francisco Bay-Delta contains a suite of predators 
and competitors not found in other populations, and this may have 
resulted in unique evolutionary characteristics; and (5) it is an 
indicator of the health of the San Francisco Bay-Delta and important 
component of the food web.
    After reviewing the information provided in the petition, we 
believe the petition presents substantial information to indicate that 
the San Francisco Bay-Delta longfin smelt population may be 
significant. We have made this determination because of (1) The species 
occurs in a unique ecological setting; (2) the San Francisco Bay-Delta 
represents the southernmost spawning population for the species, and 
the loss of the population may result in a significant gap in the range 
of the species; and (3) the genetic characteristics of the species may 
be unique from other populations of longfin smelt, and the loss of this 
population may result in the loss of potential unique adaptive or 
genetic characteristics of the species. Therefore, we find that there 
is substantial information indicating the San Francisco Bay-Delta 
population of longfin smelt may satisfy the significance element of the 
DPS policy.

DPS Conclusion

    We have reviewed the information presented in the petition, and 
have evaluated the information in accordance with 50 CFR 424.14(b). In 
a 90-day finding, the question is whether a petition presents 
substantial information that the petitioned action may be warranted. We 
do not make final determinations regarding DPSs at this stage; rather, 
we determine whether a petition presents substantial information that a 
population may be a DPS. Based on our review, we find that the August 
2007 petition presents substantial scientific or commercial information 
to indicate that the San Francisco Bay-Delta population of longfin 
smelt may be a DPS based on its separation from other populations of 
longfin smelt, the unique setting in which it occurs, and potential 
genetic differences between the San Francisco Bay-Delta population and 
other longfin smelt populations (Stanley et al. 1995, p. 395), which 
may meet both the discreteness and significance criteria of the DPS 
policy, and thus may be a listable entity under the Act. To meet the 
third element of the DPS policy, we evaluate the level of threat to the 
DPS based on the five listing factors established by the Act. We thus 
proceeded with an evaluation of information presented in the petition 
to determine whether there is substantial scientific or commercial 
information indicating that listing this population may be warranted.

Factors Affecting the Species

    The petition and supporting information describes a variety of 
factors affecting the Delta ecosystem that have led to the decline of 
the San Francisco Bay-Delta population of the longfin smelt. Principal 
among these factors are the altered hydraulics and reduced outflow of 
the Delta caused by export of freshwater from the Sacramento and San 
Joaquin Rivers by the Federal and State water diversions (Factor A). 
Additional threats to the species include entrainment at other water 
diversions within the Delta (Factor A); lethal and sub-lethal effects 
of toxic chemicals (Factor E); direct and indirect impacts of non-
native species on the longfin smelt food supply and habitat (Factors A 
and C); physical disturbance of spawning substrate and the habitat of 
their prey species from instream activities such as dredging (Factor 
A); mortality, injury, and disruption of normal behavior caused by pile 
driving (Factor A); and warming of estuary waters (Factor E). The 
petition also discussed existing regulatory mechanisms and their 
perceived inadequacy (Factor D).

Determination

    The petition and supporting information have identified numerous 
factors affecting the San Francisco Bay-Delta population of the longfin 
smelt and the Delta ecosystem, including: Water diversions; entrainment 
of fish in pumping facilities; toxic chemicals; non-native species 
competition and predation; disturbance of spawning habitat through 
dredging or pile driving; and lack of regulatory mechanisms protecting 
the species and its habitat.
    The export of freshwater from the Sacramento and San Joaquin Rivers 
by the Federal and State water diversions (Factor A) alters the 
hydraulics and saline conditions of the Delta estuary and reduces 
outflow through San Francisco Bay, thereby affecting the habitat 
conditions the species requires. Entrainment at water diversion 
facilities within the Delta (Factor A) may lead to direct loss of the 
species. The effects of toxic chemicals (Factor E) within the San 
Francisco Bay-Delta may be a factor influencing habitat availability 
and quality, reproduction success, and food availability for the 
species. Non-native fish species may be causing higher levels of 
predation of the species (Factors A and C) and affecting the species' 
food supply. Habitat disturbance of longfin spawning substrate and the 
habitat of their prey species caused by instream activities such as 
dredging and pile driving (Factor A) may be a factor affecting the 
species. The warming of estuary waters (Factor E) may be affecting the 
species by altering habitat condition for spawning and influencing 
water supply conditions for the species. The petition also discussed 
existing regulatory mechanisms and their perceived inadequacy (Factor 
D). The effects of all these factors may be causing the San Francisco 
Bay-Delta population of the longfin smelt to decline. According to 
recent fish survey information collected by CDFG, the average catch 
from 2001 to 2006 was 84 to 87 percent lower than

[[Page 24915]]

the average catch from 1995 to 2000 (CDFG 2008, pp.1-4).
    Our process for making this 90-day finding under section 4(b)(3)(A) 
of the Act and 50 CFR 424.14(b) of our regulations is limited to the 
determination of whether information meets the ``substantial scientific 
and commercial information'' threshold, which is interpreted in our 
regulations as ``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). On the basis of information 
provided in the petition and other information readily available to us, 
we have determined that the petition presents substantial scientific or 
commercial information that the San Francisco Bay-Delta longfin smelt 
population may be a distinct population segment and that listing the 
San Francisco Bay-Delta longfin smelt population as endangered may be 
warranted. Therefore, we are initiating a status review to determine if 
listing the species is warranted. To ensure that the status review is 
comprehensive, we are soliciting scientific and commercial data and 
other information regarding this species.
    It is important to note that the ``substantial information'' 
standard for a 90-day finding is in contrast to the Act's ``best 
scientific and commercial data'' standard that applies to a 12-month 
finding as to whether a petitioned action is warranted. A 90-day 
finding is not a status assessment of the species and does not 
constitute a status review under the Act. Our final determination as to 
whether a petitioned action is warranted is not made until we have 
completed a thorough status review of the species, which is conducted 
following a 90-day finding. Because the Act's standards for 90-day and 
12-month findings are different, as described above, a positive 90-day 
finding does not mean that the 12-month finding will also be positive.
    The petitioners also requested that critical habitat be designated 
for this species. We always consider the need for critical habitat 
designation when listing species. If we determine in our 12-month 
finding that listing the longfin smelt is warranted, we will address 
the designation of critical habitat in a subsequent proposed rule.

Significant Portion of the Species' Range

    The Petitioner seeks to list the entire San Francisco Bay-Delta 
longfin smelt population. During our status review we will evaluate 
whether the information provided and in our files supports listing and 
whether there may be a portion of the longfin smelt's range that may be 
significant. As a result we will leave our analysis and determination 
of issues of significant portion of range to the 12-month finding.

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Sacramento Fish and Wildlife Office (see ADDRESSES 
section).

Author

    The primary authors of this notice are staff of the Sacramento Fish 
and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, 
Sacramento, CA 95825.

Authority

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

    Dated: April 28, 2008.
Kenneth Stansell,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E8-9835 Filed 5-5-08; 8:45 am]
BILLING CODE 4310-55-P