[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Proposed Rules]
[Pages 49412-49417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20335]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 17 and 224

[Docket No. 110110016-1039-01]
RIN 0648-XA144


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List the Saltmarsh Topminnow as Threatened or Endangered Under the 
Endangered Species Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce; United States Fish and 
Wildlife Service (USFWS), Interior.

ACTION: 90-day petition finding; request for comments, and initiation 
of a status review.

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SUMMARY: We (NMFS and USFWS; also collectively referred to as the 
Services) announce a 90-day finding on a petition to list the saltmarsh 
topminnow (topminnow; Fundulus jenkinsi) as threatened or endangered 
under the Endangered Species Act (ESA). We find that the petition 
presents substantial scientific information indicating that the 
petitioned action may be warranted. We will conduct a status review of 
the species to determine if the petitioned action is warranted. To 
ensure that the status review is comprehensive, we are soliciting 
scientific and commercial data on the species (see below).

DATES: Information and comments on the subject action must be received 
by October 11, 2011.

ADDRESSES: You may submit information by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. In the box 
that reads ``Enter Keyword or ID,'' enter the Docket number for this 
finding, which is 110110016-1039-01. Check the box that reads ``Open 
for Comment/Submission,'' and then click the Search button. You should 
then see an icon that reads ``Submit a Comment.'' Please ensure that 
you have found the correct rulemaking before submitting your comment.
    U.S. mail or hand-delivery: Public Comments Processing, Attn: 
110110016-1039-01; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; 
Arlington, VA 22203.
    We will post all information we receive on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us.
    Copies of the petition and related materials are available upon 
request from the Assistant Regional Administrator, Protected Resources 
Division, Southeast Regional Office, NMFS, 263 13th Avenue South, St. 
Petersburg, FL 33701; Project Leader, USFWS, Panama City Ecological 
Services Office, 1601 Balboa Ave., Panama City, FL 32405; or online at: 
http://www.nmfs.noaa.gov/pr/species/esa/other.htm

FOR FURTHER INFORMATION CONTACT: Jason Rueter, NMFS Southeast Region, 
(727) 824-5312, Dwayne Meadows, NMFS Office of Protected Resources, 
(301) 713-1401, or Catherine Phillips, FWS, Panama City Ecological 
Services Office, (850) 769-0552.

SUPPLEMENTARY INFORMATION:

Background

    On September 7, 2010, we received a petition from WildEarth 
Guardians and Ms. Sarah Felsen to list the saltmarsh topminnow 
(Fundulus jenkinsi) as threatened or endangered under the ESA and to 
list the species under the emergency listing provisions of the ESA (16 
U.S.C. 1533(b)(7)) owing to perceived threats from the Deepwater 
Horizon oil spill. Copies of this petition are available from us (see 
ADDRESSES, above).
    Since the petition was sent to both NMFS and USFWS, and we both had 
information in our files concerning the species, we are jointly 
responding to the 90-day finding. The species' salt marsh, estuarine 
habitat falls within an area where both NMFS and FWS manage species. 
USFWS will be responsible for conducting the 12-month finding and 
determining if listing the saltmarsh topminnow is warranted and has 
agreed to assume sole jurisdiction from this point forward.

ESA Statutory, Regulatory, and Policy Provisions and Evaluation 
Framework

    Section 4(b)(3)(A) of the ESA, as amended (16 U.S.C. 1531 et seq.), 
requires that, to the maximum extent practicable, within 90 days of 
receipt of a petition to list a species as threatened or endangered the 
Services make a finding on whether that petition presents substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted, and to promptly publish such finding in the 
Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that 
substantial scientific or commercial information in a petition 
indicates the petitioned action may be warranted (a ``positive 90-day 
finding''), we are required to promptly commence a review of the status 
of the species concerned during which we will conduct a comprehensive 
review of the best available scientific and commercial information. In 
such cases, we shall conclude the review with a finding as to whether, 
in fact, the petitioned action is warranted. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``may be warranted'' finding does not prejudge the outcome of 
the status review.
    Under the ESA, a listing determination may address a ``species,'' 
which is defined to also include subspecies and, for any vertebrate 
species, any distinct population

[[Page 49413]]

segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A 
species, subspecies, or DPS is ``endangered'' if it is in danger of 
extinction throughout all or a significant portion of its range, and 
``threatened'' if it is likely to become endangered within the 
foreseeable future throughout all or a significant portion of its range 
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and 
(20)). Pursuant to the ESA and our implementing regulations, we 
determine whether species are threatened or endangered because of any 
one or a combination of the following five section 4(a)(1) factors: (1) 
The present or threatened destruction, modification, or curtailment of 
habitat or range; (2) overutilization for commercial, recreational, 
scientific, or educational purposes; (3) disease or predation; (4) 
inadequacy of existing regulatory mechanisms; and/or (5) any other 
natural or manmade factors affecting the species' existence (16 U.S.C. 
1533(a)(1), 50 CFR 424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and the USFWS 
(50 CFR 424.14(b)) define ``substantial information'' in the context of 
reviewing a petition to list, delist, or reclassify a species as the 
amount of information that would lead a reasonable person to believe 
that the measure proposed in the petition may be warranted. In 
evaluating whether substantial information is contained in a petition, 
the Secretary must consider whether the petition: (1) Clearly indicates 
the administrative measure recommended and gives the scientific and any 
common name of the species involved; (2) 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; (3) provides 
information regarding the status of the species over all or a 
significant portion of its range; and (4) 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)).
    Court decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination that a petitioned action ``may be'' 
warranted. As noted in the discussion of 12-month findings above, these 
decisions hold that a petition need not establish a ``strong 
likelihood'' or a ``high probability'' that a species is either 
threatened or endangered to support a positive 90-day finding.
    We evaluate the petitioner's request based upon the information in 
the petition including its references, and the information readily 
available in our files. We do not conduct additional research, and we 
do not solicit information from parties outside the agency to help us 
in evaluating the petition. We will accept the petitioner's sources and 
characterizations of the information presented, if they appear to be 
based on accepted scientific principles, unless we have specific 
information in our files that indicates the petition's information is 
incorrect, unreliable, obsolete, or otherwise irrelevant to the 
requested action. Information that is susceptible to more than one 
interpretation or that is contradicted by other available information 
will not be dismissed at the 90-day finding stage, so long as it is 
reliable and a reasonable person would conclude it supports the 
petitioner's assertions. In other words, conclusive information 
indicating the species may meet the ESA's requirements for listing is 
not required to make a positive 90-day finding. We will not conclude 
that a lack of specific information alone negates a positive 90-day 
finding, if a reasonable person would conclude that the unknown 
information itself suggests an extinction risk of concern for the 
species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First we evaluate 
whether the information presented in the petition, along with the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species at issue faces extinction risk that is cause for concern; this 
may be indicated in information expressly discussing the species' 
status and trends, or in information describing impacts and threats to 
the species. We evaluate any information on specific demographic 
factors pertinent to evaluating extinction risk for the species at 
issue (e.g., population abundance and trends, productivity, spatial 
structure, age structure, sex ratio, diversity, current and historical 
range, habitat integrity or fragmentation), and the potential 
contribution of identified demographic risks to extinction risk for the 
species. We then evaluate the potential links between these demographic 
risks and the causative impacts and threats identified in section 
4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information that listing may be warranted. We look for 
information indicating that not only is the particular species exposed 
to a factor, but that the species may be responding in a negative 
fashion; then we assess the potential significance of that negative 
response.
    Many petitions identify risk classifications made by other 
organizations or agencies, as evidence of extinction risk for a 
species. Risk classifications of the petitioned species by other 
organizations or made under other Federal or state statutes may be 
informative, but the classification alone may not provide the rationale 
for a positive 90-day finding under the ESA. For example, as explained 
by NatureServe, a non-profit conservation organization spun-off from 
state natural heritage programs and The Nature Conservancy that 
provides scientific status rankings and assessments for at-risk 
species, its assessments of a species' conservation status do ``not 
constitute a recommendation by NatureServe for listing under the U.S. 
Endangered Species Act'' because NatureServe assessments ``have 
different criteria, evidence requirements, purposes and taxonomic 
coverage than government lists of endangered and threatened species, 
and therefore these two types of lists should not be expected to 
coincide.'' (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such 
classifications, we will evaluate the source information upon which the 
classification is based in light of the standards on extinction risk 
and impacts or threats discussed above.

Distribution and Life History of Saltmarsh Topminnow

    The saltmarsh topminnow is one of the smallest members of the 
Fundulidae family; individuals are typically smaller than 45 mm long. 
The topminnow has cross-hatching on its back and sides that may be 
gray-green. Most individuals have 12 to13 dark round spots arranged in 
rows along their sides from above the pectoral fin to the base of the 
caudal fin. Sexual dimorphism amongst topminnows includes a longer 
median

[[Page 49414]]

fin length in males and a lemon-yellow color on the anterior base of 
the male's anal fin. The male's dorsal fin develops a deep orange over 
the entire fin, a slight orange tint to the caudal fin, and a bright 
yellow on the pelvic fins. Mature females have a sheath on the anterior 
base of the anal fin used to position eggs during spawning. There is no 
chromatic coloring in females (Thompson, 1980; 1999).
    Topminnows' average lifespan is only 1 to 2 years. Individuals are 
relatively isolated and live their lives in a small physical area. The 
reproductive biology of the topminnow is not well studied, but current 
research shows the topminnow to be in reproductive condition from March 
through August, but spawning may also occur earlier (Peterson and 
Lopez, 2008). Spawning probably occurs only once in an individual's 
lifetime, but females produce several hundred eggs during that 
reproductive cycle (Thompson, 1999).
    The topminnow prefers the brackish environment of Spartina 
alterniflora and Juncus roemerianus saltmarsh habitats. The fish are 
most common in small, shallow tidal meanders of the saltmarsh with 
salinities of 1-4 parts per thousand (ppt); while marsh habitats that 
appear appropriate, but had mean salinities of 17 ppt did not contain 
topminnows (Thompson, 1980; Peterson et al., 2003). In addition to 
salinity, water depth, bank slope, and plant stem density may influence 
distribution of the topminnow. Topminnows are found in this type of 
saltmarsh habitat along the northern Gulf of Mexico from the Escambia 
River (Florida) to Galveston Bay (Texas) (Gilbert and Relyea, 1992).

Analysis of the Petition

    We evaluated whether the petition presented the information 
indicated in 50 CFR 424.14(b)(2). The petition states the 
administrative measures recommended, and provides the scientific and 
common name of the species. The petition includes a detailed narrative 
justification for the recommended measure, including some information 
on numbers of the species, historical geographic occurrences of the 
species, and threats faced by the species. The petition provides 
information relevant to the status of the species as well as supporting 
references and documentation. The saltmarsh topminnow is taxonomically 
a species and thus is an eligible entity for listing under the ESA. The 
petition states that the saltmarsh topminnow is imperiled, extremely 
rare, and that the primary threat contributing to the saltmarsh 
topminnow's endangerment is habitat degradation. The petition also 
asserts that the species' biological constraints, such as small 
population size and its reproductive traits, increase its risk of 
extinction. The petition cites coastal development, levee and canal 
construction, and pollution as the threats cumulatively leading to the 
decline of saltmarsh habitat. According to the petition, at least three 
of the five causal factors in section 4(a)(1) of the ESA are, in 
combination, adversely affecting the continued existence of the 
saltmarsh topminnow, as follows: (A) present or threatened destruction, 
modification, or curtailment of its habitat or range; (D) inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors, particularly the fish's low reproductive rate.

Information on Extinction Risk and Status

    The petition cites classifications made by NMFS, the states of 
Florida, Louisiana, and Mississippi, and NatureServe to support its 
assertion that the saltmarsh topminnow is imperiled. In 1991, NMFS 
added the saltmarsh topminnow to our Candidate Species List. In 2004, 
NMFS created the Species of Concern list (69 FR 19975; April 15, 2004) 
to encompass species for which we have some concerns regarding their 
status and threats, but for which insufficient information is available 
to indicate a need to list the species under the ESA. Twenty-five 
candidate species, including the saltmarsh topminnow, were transferred 
to the Species of Concern list at that time because they were not being 
considered for ESA listing and were better suited for Species of 
Concern status due to some concerns and uncertainty regarding their 
biological status and threats. The Species of Concern status does not 
carry any procedural or substantive protections under the ESA. Our 
rationale for including the saltmarsh topminnow on the species of 
concern list included a potential population decline and threats from 
habitat alteration, dredging, and marsh erosion.
    The state of Florida lists the saltmarsh topminnow on its species 
of special concern list, recognizing that the saltmarsh topminnow is 
particularly vulnerable ``to habitat modification, environmental 
alteration, human disturbance, or human exploitation which, in the 
foreseeable future, may result in its becoming a threatened species 
unless appropriate or protective management techniques are initiated or 
maintained.'' However, the petition cites the species' rarity in the 
waters of Florida, claiming the State's protective measures are 
insufficient to protect the species as a whole. Mississippi lists the 
species as a Species of Greatest Conservation Need in its ``Estuarine 
Bays, Lakes, and Tidal Streams'' habitat subtype. The state identifies 
five high and five medium level threats to this habitat subtype. 
However, this listing provides no legal protection to the species. 
Finally, Louisiana also lists the saltmarsh topminnow as a Species of 
Greatest Conservation Need, though this too offers no legal protection.
    NatureServe classifies saltmarsh topminnow as ``vulnerable''. 
NatureServe's ``vulnerable'' classification category is given to 
species that are ``at moderate risk of extinction or elimination due to 
a restricted range, relatively few populations, recent and widespread 
declines, or other factors.'' NatureServe specifically cites ``patchy 
distribution within a small range along the coast of the Gulf of 
Mexico; may be declining due to pollution and habitat destruction; and 
local populations are relatively vulnerable to extirpation with a 
reduced capacity for re-colonization,'' as reasons for its vulnerable 
classification of the saltmarsh topminnow.
    The petition also describes demographic factors specific to the 
saltmarsh topminnow that could be indicative of its extinction risk, 
for which the petition provides supporting information. These include a 
declining population trend with sparse individuals in some locations 
and a contraction of the historical range. The petition also asserts 
that small sizes of adult populations of the saltmarsh topminnow are 
contributing to the species' extinction risk, citing information on the 
species rarity or absence in reports of most fish studies of the 
northern Gulf of Mexico. The petition references the generally 
understood natural rarity of the species (e.g., citing Lee et al., 
1980). However, rarity alone is not an indication that the saltmarsh 
topminnow faces an extinction risk that is cause for concern. A 
species' rarity could be cause for concern if the species was 
distributed in small, isolated populations, or had a very restricted 
geographic range and was subject to specific habitat degradation. Both 
of these conditions appear to be applicable to the saltmarsh topminnow. 
Peterson et al. (2003) cite the low relative abundance and patchy 
distribution of the species along with increased development pressure 
as reasons to quantify the habitat characteristics of the species. 
Rarity could also subject a species to heightened extinction risk if 
specific

[[Page 49415]]

stressors are negatively affecting its status and trends. Therefore, we 
must evaluate whether information indicates the saltmarsh topminnow's 
population has declined or continues to decline, and if so whether this 
suggests extinction risk that is cause for concern. Population decline 
can result in extinction risk that is cause for concern in certain 
circumstances, for instance if the decline is rapid and/or below a 
critical minimum population threshold and the species has low 
resilience for recovery from a decline (Musick, 1999). Information 
discussed above shows that decline for these species is possible, given 
the evidence of loss of its narrowly preferred habitat, though it is 
unclear how rapid or severe this decline has been.
    The species' reliance on an apparently narrow range of habitat 
conditions makes it vulnerable to alterations and changes in marsh 
habitat. The petition states that coastal development, levee and canal 
construction, pollution, and other threats cumulatively imperil 
saltmarsh habitat, and consequently, the saltmarsh topminnow. Coastal 
development, levee and canal construction, pollution, and other threats 
may provide inferences about the status of marsh habitat and thus 
population status and trends of the saltmarsh topminnow, though such 
inferences may not be reliable in the absence of information regarding 
the level or distribution of marsh habitat over time, changes in 
development and construction practices, or changes in sampling design 
for the species that may affect abundance estimates independent of 
changes in a species' habitat and population. Wetland and marsh loss 
data described in the petition include NMFS' recent proposed ESA 
listing of largetooth sawfish (75 FR 25174): ``Wetland losses in the 
Gulf of Mexico region of the U.S. averages annual net losses of 60,000 
acres (242.8 km\2\) of coastal and freshwater habitats from 1998 to 
2004 (Stedman et al., 2008). Although wetland restoration activities 
are ongoing in this region of the U.S., the losses significantly 
outweigh the gains (Stedman et al., 2008). These losses have been 
attributed to commercial and residential development, port construction 
(dredging, blasting, and filling activities), construction of water 
control structures, modification to freshwater inflows (Rio Grande 
River in Texas), and gas and oil related activities.'' Other citations 
include the Environmental Protection Agency's estimate that ``by 2050 
one third of coastal Louisiana will have vanished into the Gulf of 
Mexico,'' and Thompson and Peterson's (2003) statement that ``coastal 
Louisiana is presently in the erosional phase of delta cycling, being 
accelerated, unfortunately in some areas, by many of man's activities 
in the coastal region.'' Thus, information about the threats to the 
species' habitat and inferences made about the species because of the 
alteration of its habitat may be indicators of the species' status and 
extinction risk. This is particularly true given the saltmarsh 
topminnow's preference for shallow water of low to moderate salinity 
saltmarsh environments, which in some cases has lost 40 percent of 
known acreage by conversion to developed land over a four decade time 
span (1950-1992; Peterson et al. 2003).
    In summary, the petition and its supporting documentation provide 
information on the status of the species and its extinction risk 
especially in light of population demographic characteristics that 
suggests the species may meet the ESA's requirements for listing.

Information on Threats to the Species

    The petition states that impacts and threats corresponding with 
three factors in section 4(a)(1) of the ESA are impacting the saltmarsh 
topminnow. Specifically, the petition states that losses of and threats 
to the species' saltmarsh habitat, inadequacy of mechanisms to protect 
the fish or its habitat, and the species' biological parameters 
including low rate of reproduction and limited individual ranges, are 
individually and synergistically causing imperilment of the saltmarsh 
topminnow.

The Present or Threatened Destruction, Modification, or Curtailment of 
Its Habitat or Range

    The petition states ``the curtailment of its historic habitat 
range, and the threats to its current habitat * * * make the saltmarsh 
topminnow especially vulnerable to extinction.'' The petition 
acknowledges the general parameters of the historical range still apply 
(from Galveston Bay, TX to Escambia Bay, FL), but goes on to assert 
that this range has become spotty, stating scientists can no longer 
locate the species between Galveston Bay and southeastern Louisiana.
    The petition also cites a number of reports on marsh loss in the 
Gulf of Mexico over varying periods of time ranging from the 1950s to 
future projections to 2050. Loss of marsh habitat ranges from 13 to 40 
percent depending on time frame, expected future impacts, and area of 
the report. Additionally, the petition states ``scientists consider the 
topminnows that live off the western Florida panhandle to be 
`threatened,' '' citing Gilbert and Relyea (1992).
    Levee and canal construction is cited as an impediment to the 
topminnow gaining access to the vegetated, flooded marsh surface during 
high tide. The petition provides examples and notes that Federal and 
state governments have worked to remedy this situation by restoring 
natural water flows in a number of large river deltas with functional 
success being accomplished. Although functional success was 
accomplished in the petition's cited restoration projects, the 
petitioners claim ``mixed success'' because of political controversy, 
not scientific feasibility. Despite these restoration projects, overall 
marsh loss is continuing as described above.
    A further factor affecting salt marsh habitat loss is the dock-side 
gaming industry of Mississippi and Louisiana. The success of the gaming 
industry in attracting tourists has led developers to create larger 
offshore casinos that drain wetlands. The amount of development has led 
to a situation where further construction cannot be undertaken without 
impacting wetlands. Compounding this problem is the human waste from 
these casinos polluting the water in remaining wetlands (NOAA CSC, 
1999).
    Another threat to the topminnow's habitat identified by the 
petition is oil and gas refining and the byproducts from such 
activities. The petition cites the Deepwater Horizon oil spill as a 
threat to habitat, and cites Cowan's (NY Times, 2010) concern for the 
spill's threat to the ``brackish water'' of the saltmarsh, in 
particular. Data are provided in the petition on the extent of damage 
caused by this unprecedented event to the marsh habitat of the 
topminnow, and on the estimated range impacted by the spill. The 
petition also discusses the long-term pollution that the oil industry 
causes to wetlands in general and to salt marshes in particular. The 
petition cites the Federal government and the state of Texas' 
acknowledgement that long-term oil refining activities have 
significantly polluted the coastal land straddling the Texas-Louisiana 
border, particularly the Port Arthur, Texas area.
    A final threat to the species identified by the petition is land 
subsidence and sea level rise caused by petroleum development and 
climate change effects. We have no information in our files to 
contradict any of these above-listed threats.

[[Page 49416]]

    In summary, the petition and its references present substantial 
information that indicates the present or threatened destruction, 
modification, or curtailment of habitat or range may be causing or 
contributing to an extinction risk for the saltmarsh topminnow that is 
cause for concern.

Inadequacy of Existing Regulatory Mechanisms

    The petition argues that listing is warranted due to the inadequacy 
of existing regulatory mechanisms, stating that ``state and federal 
regulatory mechanisms have failed to protect the topminnow and its 
habitat.'' The petition cites the listing of the species under 
Louisiana, Florida, and Mississippi state programs, but states that due 
to the paucity of the species in Florida, its listing and protection 
there does not afford the species as a whole significant protection, 
while Louisiana and Mississippi listings carry no legal protections. 
Further, the Species of Concern listing by NMFS, while recognizing the 
potential for imperilment, provides no legal protection either.
    The petition cites numerous holes in protection of the saltmarsh 
topminnow's habitat. These include the limitations of the Coastal 
Wetlands Planning, Protection, and Restoration Act, 16 U.S.C. 3951 et 
seq., in slowing large-scale wetlands degradation; and the U.S. Army 
Corps of Engineers acknowledgement that the statute was not a broad 
enough approach to wetlands restoration to reverse the breakdown of a 
(wetland) ecosystem. Further, the petition notes the failure of the 
1999 Louisiana Coastal Area Ecosystem Restoration Study to implement a 
comprehensive solution to wetland loss. The petition also cites the 
failure of the Federal and state governments to regulate the dock-side 
gaming industry. Wallis (2008) shows that economic considerations are 
often weighted heavily compared to environmental concerns in analyzing 
impacts of the dock-side gaming industry by Mississippi's coastal 
programs. Finally, the petition cites the inadequacy of the Clean Water 
Act in protecting wetlands from hypoxia inducing agricultural run-off 
pollution, due to its categorization as a non-point source, which 
exempts it from many permitting requirements.
    In summary, the petition presents substantial scientific or 
commercial information indicating existing regulatory mechanisms may be 
inadequate to address threats of extinction to the saltmarsh topminnow.

Other Natural or Manmade Factors

    The petition suggests that the saltmarsh topminnow is naturally 
vulnerable to increased risk of extinction, particularly because of 
some biological constraints such as small population size and 
reproductive traits. The petition argues that the saltmarsh topminnow 
is characterized by a very low rate of reproduction and limited range 
of individuals, which limits inter-population mixing. We have no 
information to refute these claims. The petition references the USFWS 
recognition that small population size increases extinction risk, and 
specifically referenced a candidate assessment for the Langford tree 
snail in support (http://ecos.fws.gov/docs/candforms_pdf/r1/G0AI_I01.pdf). The assessment for the Langford tree snail included a 
population estimate to support the conclusions made on the species 
small population size; however, no population estimate is given for the 
saltmarsh topminnow. Thus, it is unclear whether the saltmarsh 
topminnow is susceptible to the same reproductive limitations inherent 
with a small population size like the Langford tree snail. In summary, 
there is no scientific or commercial information available that 
suggests that low rate of reproduction in the saltmarsh topminnow may 
contribute to the species' risk of extinction, alone or in combination 
with other factors.
    The petition also discusses human population growth as a factor 
that increases the saltmarsh topminnow's risk of extinction. The 
petition uses two references which estimate the expected increase in 
population along the coastal area of the Gulf of Mexico and cites 
Waddell and Clarke (2008) as support for its assertion that expanded 
human population growth will affect the saltmarsh habitat and thus the 
species, ``as the global population continues to increase and 
demographic shifts toward coastal areas persist, even greater pressures 
will be placed on nearshore resources to satisfy human desires for 
food, culture, tourism, recreation, and profit.'' The potential 
consequences of threats to the topminnow's preferred habitat are 
discussed above. Finally, the petition cites the cumulative and 
synergistic effects of the loss of habitat, low reproductive rates, and 
population isolation as factors contributing to the imperilment of the 
saltmarsh topminnow.

Summary of Section 4(a)(1) Factors

    We conclude that the petition presents substantial scientific or 
commercial information indicating that a combination of three of the 
section 4(a)(1) factors: the present or threatened destruction, 
modification or curtailment of habitat, inadequate regulatory 
mechanisms, and other natural or manmade factors, may be causing or 
contributing to extinction risk for the saltmarsh topminnow.

Petition Finding

    After reviewing the information contained in the petition, as well 
as information readily available in our files, we conclude the petition 
presents substantial scientific information indicating the petitioned 
action of listing the saltmarsh topminnow as threatened or endangered 
may be warranted. Therefore, in accordance with section 4(b)(3)(B) of 
the ESA and the Service's implementing regulations (50 CFR 
424.14(b)(2)), USFWS will commence a review of the status of the 
species and make a determination within 12 months of receiving the 
petition as to whether the petitioned listing is warranted. If listing 
the species is found to be warranted, we will publish a proposed rule 
and solicit public comments before developing and publishing a final 
rule.
    Finally, we conclude that the petition provides no justification 
for us to exercise our discretion to list the species under the 
emergency listing provisions of the ESA. While the BP Deepwater Horizon 
oil spill likely has impacted the saltmarsh topminnow or its habitat, 
petitioners failed to provide sufficient evidence or information to 
support a finding that the event caused or is continuing to cause a 
change in the species' status or habitat that requires immediate 
listing under the ESA to address a significant risk to the saltmarsh 
topminnow's well-being.

Information Solicited

    To ensure the status review is based on the best available 
scientific and commercial data, we are soliciting information on 
whether the saltmarsh topminnow is endangered or threatened (see DATES 
and ADDRESSES sections above). Specifically, we are soliciting 
information in the following areas: (1) Historical and current 
distribution and abundance of the species throughout its range; (2) 
historical and current population trends; (3) information on life 
history, (4) information related to taxonomy of the species and closely 
related forms; (5) information on any current or planned activities 
that may adversely impact the species; (6) ongoing efforts to protect 
and restore the species and its habitat, and (7) management, 
regulatory, and enforcement information. We request

[[Page 49417]]

that all information be accompanied by: (1) Supporting documentation 
such as maps, bibliographic references, or reprints of pertinent 
publications; and (2) the submitter's name, address, and any 
association, institution, or business that the person represents.
    If, after the status review, we determine that listing the 
saltmarsh topminnow is warranted, we will propose critical habitat (see 
definition in section 3(5)(A) of the ESA), under section 4 of the ESA, 
to the maximum extent prudent and determinable at the same time we 
propose to list the species. Therefore, within the geographical range 
currently occupied by the saltmarsh topminnow, we request data and 
information on:
    (1) What may constitute ``physical or biological features essential 
to the conservation of the species'';
    (2) Where such physical and biological features are currently 
found; and
    (3) Whether any of these features may require special management 
considerations or protection.
    In addition, we request data and information on ``specific areas 
outside the geographical area occupied by the species'' that are 
``essential to the conservation of the species.'' Please provide 
specific comments and information as to what, if any, critical habitat 
you think we should propose for designation if the species is proposed 
for listing, and why such habitat meets the requirements of section 4 
of the ESA.

References Cited

    A complete list of all references is available upon request from 
the Protected Resources Division of the NMFS Southeast Regional Office 
or the USFWS Panama City Ecological Office (see ADDRESSES).

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

    Dated: July 21, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
    Dated: August 5, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatoru Programs, National Marine 
Fisheries Service.
[FR Doc. 2011-20335 Filed 8-9-11; 8:45 am]
BILLING CODE 3510-22-P; 4310-55-P