[Federal Register Volume 77, Number 167 (Tuesday, August 28, 2012)]
[Proposed Rules]
[Pages 51958-51964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20820]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2011-0012; 4500030113]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
on a Petition To List the Bay Skipper as Endangered or Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list the Bay skipper (Euphyes 
bayensis) as an endangered or threatened species under the Endangered 
Species Act of 1973, as amended, and to designate critical habitat. 
After review of the best available scientific and commercial 
information, we find that listing the Bay skipper is not warranted at 
this time. However, we ask the public to submit to us any new 
information that becomes available concerning the threats to the Bay 
skipper or its habitat at any time.

DATES: The finding announced in this document was made on August 28, 
2012.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2011-0012. Supporting 
documentation we used in preparing this finding is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service, Mississippi Field Office, 6578 Dogwood View 
Parkway, Jackson, MS 39213. Please submit any new information, 
materials, comments, or questions concerning this finding to the above 
address.

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Mississippi Field 
Office (see ADDRESSES); by telephone 601-321-1122, or by facsimile 601-
965-4340 If you use a telecommunications device for the deaf (TDD), 
please call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION: 

Background

    Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.), requires 
that, for any petition to revise the Federal Lists of Endangered and 
Threatened Wildlife and Plants that contains substantial scientific or 
commercial information that listing the species may be

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warranted, we make a finding within 12 months of the date of receipt of 
the petition. In this finding, we will determine that the petitioned 
action is: (1) Not warranted, (2) warranted, or (3) warranted, but the 
immediate proposal of a regulation implementing the petitioned action 
is precluded by other pending proposals to determine whether species 
are threatened or endangered, and expeditious progress is being made to 
add or remove qualified species from the Federal Lists of Endangered 
and Threatened Wildlife and Plants. We must publish these 12-month 
findings in the Federal Register.

Previous Federal Actions

    The Bay skipper was identified as a candidate for protection under 
the Act in the November 21, 1991, Federal Register (56 FR 58804). It 
was assigned a Category 2 status designation, which was given to those 
species for which there was some evidence of vulnerability, but for 
which additional biological information was needed to support a 
proposed rule to list as an endangered or threatened species. Assigning 
categories to candidate species was discontinued in 1996 (Notice of 
Candidate Review; February 28, 1996; 61 FR 7596), and only species for 
which the Service has sufficient information on biological 
vulnerability and threats to support issuance of a proposed rule are 
now regarded as candidate species. Due to a lack of information on the 
Bay skipper, it was no longer considered as a candidate species as of 
1996.
    On January 4, 2010, we received a petition dated December 29, 2009, 
from WildEarth Guardians and Xerces Society for Invertebrate 
Conservation requesting that the Bay skipper be listed as an endangered 
or threatened species and critical habitat be designated under the Act. 
The petition clearly identified itself as such and included the 
requisite identification information for the petitioners, as required 
by 50 CFR 424.14(a). In a January 25, 2010, letter to the petitioners, 
we acknowledged receipt of the petition, and stated that due to prior 
workload and limited funding, we would not be able to address the 
petition at that time, but would complete the action when workload and 
funding allowed. On May 6, 2010, we received a 60-day notice of intent 
(NOI) to sue under the provisions of the Act from petitioners for our 
alleged failure to make a finding within 90 days of receipt of the 
petition. In a June 11, 2010, letter to the petitioners, we 
acknowledged receipt of the NOI and stated that a publication date for 
the 90-day finding could not be predicted at that time. Funding became 
available during fiscal year 2011, and on July 12, 2011, we published a 
90-day finding (76 FR 40868) that the petition presented substantial 
scientific or commercial information indicating that listing this 
species may be warranted, and requested scientific and commercial data 
and other information regarding this species. This notice constitutes 
the 12-month finding on the January 4, 2010, petition to list the Bay 
skipper as an endangered species.

Species Information

    The Bay skipper, a small butterfly, was described as Euphyes 
bayensis by Shuey (1989) from Bay St. Louis, Hancock County, 
Mississippi. Shuey (1993) reported on the phylogeny (the history of the 
evolution of a species) within the Euphyes genus, finding that E. 
bayensis is a species in the Euphyes dion complex. During our status 
review, we received comments from Texas Parks and Wildlife Department 
(TPWD) questioning the taxonomic validity of the Bay skipper, 
particularly the lack of quantitative morphological studies of Texas 
populations (TPWD 2011). While we agree that additional studies would 
be useful, the species has been appropriately described, and all 
subsequent peer-reviewed taxonomic treatments and collection accounts 
consider the taxon as valid (e.g., Gatrelle 2000, p. 4; Pelham 2008, p. 
93; Marks 2011a, pp. 92-94).
    The Bay skipper has a wingspan of 1.5 to 1.75 inches (in) (3.7 to 
4.4 centimeters (cm)). Males are black with a large orange patch on the 
top of the wings, and have a prominent black stigma (defined mark) on 
the forewing. The females are dark brown with yellow spots on their 
forewing and a yellow streak on their hindwing. The ventral (bottom) 
sides of both front and hind wings of the females are a shade of brown 
that is paler than the dorsal (upper) side, and have pale yellow spots 
on the forewing, with two yellow streaks from the base to the margin 
(Shuey 1989, p. 165; Vaughan and Shepherd 2005, pp. 1-2; Butterflies 
and Moths of North America (BMNA) 2009, p. 1). The Bay skipper is 
similar in appearance to the Dion skipper (Euphyes dion), but is 
distinguished by a brighter shade of orange and narrower black borders 
on the dorsal (top) side of the wings (Shuey 1989, p. 166).
    The life history and habitat requirements of the Bay skipper are 
poorly known. Bay skippers appear to have two major flight periods 
(late spring and fall), and the potential to produce two generations 
per year. The gap between the flight periods suggests that the larvae 
produced during the spring flight period may aestivate (become dormant) 
in the summer. The species may overwinter (hibernate) in the larval 
form. Aestivating and hibernating larvae are probably in the third or 
fourth instar (period between molts) (Vaughan and Shepherd 2005, p. 2).
    Bay skippers have been observed only in association with estuarine 
herbaceous marsh, including brackish and freshwater marshes. The larval 
food plant is unknown, but Cladium sp. (sawgrass), Phragmites sp. 
(reeds), and Schoenopletus sp. (bulrush) are potential larval host 
plants (NatureServe 2009 as cited in WildEarth Guardians and Xerces 
Society for Invertebrate Conservation, p. 7; Salvato 2011, p. 14). 
Adults have been observed feeding on a variety of nectar-producing 
plants adjacent to wetlands, including Solidago sp. (goldenrod), 
Verbena brasiliensis (Brazilian vervain), and Lippia sp. (frog fruit) 
(Marks 2011a, pp. 92-94; Marks 2011b).
    Until recently, the Bay skipper was considered to occur in only two 
locations: Bay St. Louis, Hancock County, Mississippi, and the Anahuac 
National Wildlife Refuge (NWR) (part of the Texas Chenier Plains NWR 
Complex), Chambers and Jefferson Counties, Texas. The lack of records 
suggested that the species had a very limited range and was very rare 
(Vaughan and Shepherd 2005, p. 2; NatureServe 2009, 2011). The Bay St. 
Louis locality was severely damaged by Hurricane Katrina in 2005, and 
it was unknown if the species continued to survive in that locality. 
The Anahuac NWR and surrounding areas were inundated by Hurricane Ike 
in 2008, and no Bay skippers had since been reported at that location 
(NatureServe 2011, WildEarth Guardians and Xerces Society for 
Invertebrate Conservation 2009, p. 9).
    As part of the status review following the 90-day finding, we 
contacted lepidopterists along the Gulf Coast for additional records, 
photographs, specimens, and other information on the distribution and 
abundance of the Bay skipper. We also conducted a 1-week survey for the 
Bay skipper at the two known localities, and other potentially suitable 
habitat along the Gulf Coast between Galveston Bay, Texas, and 
Sandestin, Florida (Salvato 2011 pp. 1-28). No Bay skippers were found 
on the Anahuac NWR, or at the type locality in Bay St. Louis. However, 
we were able to identify seven additional localities where Bay skippers 
have been recently sighted, two in Texas and five in Cameron Parish, 
Louisiana. These new

[[Page 51960]]

localities were documented by publication (Gatrelle 2000, p. 4; Marks 
2011a, pp. 92-94; Marks 2011b; Salvato 2011, p. 15), photographs, 
pinned specimens, and observation of the species during the 2011 survey 
(Salvato 2011 pp. 1-14). Recent sightings at an additional three 
locations in Cameron Parish, Louisiana, were unconfirmed (Salvato 2011, 
pp. 1-3). All of the new confirmed sites are within or adjacent to 
wildlife refuges (Texas Point NWR, Sabine NWR, Cameron Prairie NWR, 
Rockefeller Wildlife Refuge), a State park (Sea Rim State Park), or a 
nature center (Baytown Nature Center) (Salvato 2011, pp. 1-14).
    Our survey and our review of the best available scientific and 
commercial information demonstrates that efforts to document the Bay 
skipper have been limited and localized, and the Bay skipper is more 
widely distributed than previously believed (Salvato 2011, pp. 1-14; 
Marks 2011a, pp. 92-94). It is likely that additional populations occur 
along the Gulf Coast, as extensive and apparently suitable estuarine 
marsh habitats with appropriate nectar and potential host plants were 
observed at numerous sites on both public and private lands (Salvato 
2011, pp. 1-14). Within the currently known range of the Bay skipper 
(East Texas to Mississippi), there are 10 national wildlife refuges, 
seven State wildlife refuges, two State parks, one State wetland 
conservation area, and one national park that contain, protect, and 
manage for estuarine marsh habitats known to be occupied, or 
potentially occupied, by the species. Extensive areas of privately 
owned estuarine marsh habitats are also present, and such habitats are 
not conducive to development, farming, or other land use practices 
potentially detrimental to Bay skipper habitat.

Summary of Information Pertaining to the Five Factors

    Section 4 of the Act and its implementing regulations at 50 CFR 424 
set forth the procedures for adding a species to, or removing a species 
from, the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, a species may be determined 
to be an endangered or threatened species based on 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, information pertaining to the Bay skipper 
in relation to the five factors provided in section 4(a)(1) of the Act 
is discussed below. In considering what factors might constitute 
threats, we must look beyond the mere exposure of the species to the 
factor to determine whether the species responds to the factor in a way 
that causes actual impacts to the species. If there is exposure to a 
factor, but no response, or only a positive response, that factor is 
not a threat. If there is exposure and the species responds negatively, 
the factor may be a threat and we then attempt to determine how 
significant a threat it is. If the threat is significant, it may drive 
or contribute to the risk of extinction of the species such that the 
species warrants listing as threatened or endangered as those terms are 
defined by the Act. This does not necessarily require empirical proof 
of a threat. The combination of exposure and some corroborating 
evidence of how the species is likely impacted could suffice. The mere 
identification of factors that could impact a species negatively is not 
sufficient to compel a finding that listing is appropriate; we require 
evidence that these factors are operative threats that act on the 
species to the point that the species meets the definition of a 
threatened or endangered species under the Act.
    In making our 12-month finding on the petition, we considered and 
evaluated the best available scientific and commercial information.

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

    Until recently, the Bay skipper was recognized as occurring in only 
two localized areas: Bay St. Louis, Mississippi, and the Anahuac NWR, 
Texas (e.g., Vaughan and Shepherd 2005, pp. 1-2; NatureServe 2011). 
Habitat for the Bay St. Louis, Mississippi, population of the Bay 
skipper was severely damaged by Hurricane Katrina in 2005, and the 
Anahuac NWR, Texas, population was inundated by Hurricane Ike in 2008. 
There was concern that one or both of these populations of the Bay 
skipper might have been extirpated due to habitat loss or modification 
by the hurricane activity (WildEarth Guardians and Xerces Society for 
Invertebrate Conservation 2009, p. 9), and there was additional concern 
that the species could be extinct.
    Given these concerns, we conducted a 1-week survey that included 
the historical occurrence locations, as well as multiple points in 
between, during a week of the September 2011 flight period (Salvato 
2011, pp. 1-28). This limited survey failed to locate the species at 
either of the previously occupied locations of Bay St. Louis, 
Mississippi, or Anahuac NWR, Texas. However, only a few hours were 
spent searching each of the historical locations, thus neither the 
continued presence nor the extirpation of the species from these two 
sites could be confirmed, as habitat at both locations appeared to be 
suitable to sustain the species (Salvato 2011, pp. 5-6, 11). As 
discussed above, the survey did confirm seven extant site locations of 
the Bay skipper in Chambers and Jefferson Counties, Texas, and in 
Cameron Parish, Louisiana (Gatrelle 2000, p. 4; Wauer 2006; Marks 
2011a, pp. 92-94; Salvato 2011, pp. 1-14).
    Although all of the site locations are known to have experienced 
one or more severe storm events by recent hurricanes (i.e., Hurricane 
Katrina 2005, Hurricane Rita 2005, Hurricane Gustav 2008, Hurricane Ike 
2008), the Bay skipper continues to persist at the 7 newly confirmed 
locations. The Bay skipper is endemic to, and adapted to, estuarine 
marsh habitats. Such habitats in the northern Gulf of Mexico are 
frequently subject to tropical storms and hurricanes, and the area has 
experienced an increase in storm activity (Goldenberg et al. 2001, p. 
474-475). Some researchers believe the increase in tropical storm and 
hurricane intensity, duration, and frequency can be attributed to 
warming of the Gulf of Mexico's water temperatures (Karl et al. 2009, 
pp. 5-6).
    Researchers studying butterfly community response to hurricane and 
tropical storm events have documented local species declines and 
extirpations; however, this research has also found that those 
butterfly species most closely associated with the local vegetation 
survived and rapidly recovered from periodic storm impacts (Salvato and 
Salvato 2007, p. 160). Others recovered more gradually. For example, 
although the endangered Miami blue butterfly (Cyclargus thomasi 
bethunebakeri) declined on Bahia Honda following impacts from 
hurricanes Dennis, Katrina, and Wilma during 2005, the population 
returned to pre-storm abundance within 2 years following the storms 
(Salvato and Salvato 2007, p. 160).
    Estuarine plant species that are considered to be utilized by Bay 
skipper larvae include sawgrass, reeds, and bulrush (Salvato 2011, pp. 
1-14). Adult Bay skippers have been observed

[[Page 51961]]

feeding on native and exotic flowering plants such as goldenrod, 
Brazilian vervain, and frog fruit, as well as a variety of other annual 
and perennial nectar-producing plants adjacent to wetlands (Marks 
2011a, pp. 92-94). All of these plants are common or abundant 
throughout the range of the Bay skipper. These plants are rapid 
colonizers under appropriate conditions, with seed dispersal occurring 
via water, wind, or animal transport. All of these plants will rapidly 
recover from severe storm impacts, as well as colonize new habitats as 
conditions become appropriate. The discovery of seven new site 
locations for the Bay skipper, all of which have been recently impacted 
by hurricane activity, indicates that this butterfly species, and the 
plants that it utilizes, are adapted to surviving severe storm events.
    There are concerns that Bay skipper habitats could be negatively 
affected by sea level rise (WildEarth Guardians and Xerces Society for 
Invertebrate Conservation 2009, p. 9), and that impacts from storm 
events could be compounded by projected sea level rise (Karl et al. 
2009, pp. 5-6). Since 2003, global mean sea level rise has been 
estimated at approximately 2.5 mm (0.10 in)/year (McMullen and Jabbour 
2009, p. 26). Estimates of mean sea level trends (including subsidence) 
along the Gulf of Mexico within the range currently or potentially 
occupied by Bay skipper vary from 2.1 mm (0.0827 in)/year at Pensacola, 
Florida, to 9.6 mm (0.378 in)/year at Eugene Island, Louisiana, and 
6.84 mm (0.2693 in)/year at Galveston, Texas (National Oceanographic 
and Atmospheric Administration 2012; see also Mitchum 2011 pp. 8-9). As 
noted above, during our status review, we obtained information on 
potential larval host and nectar plant species utilized by the Bay 
skipper, all of which are widely distributed, adapted to estuarine 
habitats, and capable of rapidly colonizing new habitats as conditions 
become appropriate. Additionally, the flight capability of the Bay 
skipper and its life cycle (e.g., at least two broods per year) provide 
an ability for the species to accommodate local habitat changes.
    During our survey, five of the seven newly recognized butterfly 
locations were found in Louisiana estuarine marshes. Coastal Louisiana 
contains the largest estuarine herbaceous marsh in the United States; 
however, it is also experiencing the highest rate of wetland loss in 
the country (Couvillion et al. 2011, p. 1). While it is likely that 
some Bay skipper habitats have been detrimentally affected by coastal 
marsh erosion in Louisiana, potential curtailment of range cannot be 
quantified due to the lack of information on historical range and 
specific habitat. Rates of wetland loss in Louisiana have been 
decreasing since 1978 (Couvillion et al. 2011, p. 12), and the 
estuarine herbaceous marsh habitat continues to be a dominant feature 
of the coastal landscape. In addition, multiple projects have been 
completed, are underway, or are under evaluation in Louisiana to 
further reduce losses and restore wetlands (see Other Conservation 
Efforts, below).
    There is no available information supporting concerns that land 
management actions (e.g., livestock grazing, rice farming, land 
management involving conventional farm machinery, prescribed fires, 
herbicide use, water control) (WildEarth Guardians and Xerxes Society 
2009, pp. 10-11) are negatively affecting the Bay skipper. Estuarine 
marsh habitats where the Bay skipper have been identified are low-
elevation herbaceous wetlands not suitable or utilized directly for 
grazing or farming, and are generally not subject to impacts by 
conventional farm machinery. Marshes may be periodically burned; 
however, fire is a natural component of the estuarine ecosystem, and 
managed fires are localized, seasonal, and beneficial to Bay skipper 
estuarine marsh habitats. Due to their low elevations and lack of 
agricultural potential, estuarine ecosystems are generally not subject 
to herbicide or pesticide use. As noted in the Background, above, there 
are multiple State or Federal refuges and protected areas that are 
managed for estuarine biodiversity. Herbicide and pesticide use in such 
areas is either restricted or closely managed. For example, on the 
Anahuac National Wildlife Refuge, herbicides are used only to combat 
exotic plant species (Cooper, pers. comm. 2010). While highway right-
of-ways may be periodically subject to herbicide control measures, this 
would seasonally affect only a small proportion of the nectaring plants 
available to butterflies in any given area.
Other Conservation Efforts
    Following the severe impacts of Hurricanes Katrina and Rita in 
2005, the Coastal Protection and Restoration Authority (CPRA) was 
established by the Louisiana legislature to work with other State 
agencies, Federal agencies, private industries, and other 
nongovernmental entities. One of their primary goals is to conserve and 
restore Louisiana coastal wetlands and their role in hurricane 
protection. Since 2005, over 200 restoration and protection projects 
have been constructed, are in progress, or are proposed (CPRA 2012, pp. 
22-25). Projects that protect, enhance, or restore estuarine herbaceous 
marshes include water and sediment diversions, marsh nourishment, marsh 
creation, shoreline protection, and hydrologic restoration (CPRA 2012, 
pp. 115-139).
    The National Wildlife Refuge System Improvement Act of 1997 and the 
Fish and Wildlife Service Manual (601 FW 3, 602 FW 3) require 
maintaining biological integrity and diversity, comprehensive 
conservation planning for each refuge, and set standards to ensure that 
all uses of refuges are compatible with their purposes and the Refuge 
System's wildlife conservation mission. The comprehensive conservation 
plan (plan) addresses conservation of fish, wildlife, and plant 
resources and their related habitats, while providing opportunities for 
compatible wildlife-dependent recreation uses. An overriding 
consideration reflected in these plans is that fish and wildlife 
conservation has first priority in refuge management, and that public 
use be allowed and encouraged as long as it is compatible with, or does 
not detract from, the Refuge System mission and refuge purpose(s).
    The Texas Chenier Plains National Wildlife Refuge Complex, which 
includes Anahuac and Texas Point National Wildlife Refuges, and the 
Southwest Louisiana National Wildlife Refuge Complex, which includes 
Cameron and Sabine National Wildlife Refuges, encompass most of the 
known, and much of the potential, habitat for Bay skipper in Texas and 
Louisiana (see Background, above). Both Refuge complexes have developed 
plans that prohibit, or closely control, land use management actions 
which may be harmful to maritime habitats and wildlife species, 
including the Bay skipper (U.S. Fish and Wildlife Service 2006, 2007, 
2008). Currently, the Bay skipper is not specifically named in the 
plans for each refuge; however, protection is provided to the species 
indirectly through management of potentially harmful land uses, and the 
plans can, and will be, amended to incorporate new information on 
locations and habitat management for Bay skipper (Hunter, pers. comm. 
2012).
    The Bay skipper is also found on the Rockefeller Wildlife Refuge, 
managed by the Louisiana Department of Wildlife and Fisheries, and Sea 
Rim State Park, managed by Texas Parks and Wildlife Department. 
Management activities on State Parks and Refuges are guided by State 
Wildlife Action Plans (Louisiana Department of Wildlife and Fisheries

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2005, Texas Parks and Wildlife Department 2005), which provide a 
framework to recognize, manage, and conserve imperiled State wildlife. 
The Bay skipper is recognized as a species of management concern in the 
Texas Wildlife Action Plan (Texas Parks and Wildlife Department 2005, 
p. 59), and will be considered for inclusion in the upcoming revision 
of the Louisiana Wildlife Action Plan list (Bass, pers. comm. 2012). 
State Wildlife Action Plans also alert private and corporate landowners 
of the status, habitats, and general locations of wildlife species of 
concern, and help ensure consideration of the potential presence of the 
species and its habitat requirements during Federal and State permit 
review processes.
Summary of Factor A
    In summary, we find that while Bay skippers are periodically and 
locally affected by hurricanes and tropical storms, the species and 
their habitats are adapted to such events. We find no evidence that the 
Bay skipper and the maritime plant communities upon which it depends 
will be unable to shift their distributions to accommodate current 
rates of sea level rise. Their flight capability, and the production of 
two generations per year of the Bay skipper, should enable the species 
to rapidly colonize areas impacted by severe storm events, as well as 
adjust to maritime habitat shifts that may occur from sea level rise. 
We also find little evidence that land management actions are now 
having, or have in the past, had a wide negative effect on the species. 
Additionally, the magnitude of all of these potential threats to the 
species has also been reduced by the discovery and recognition of the 
Bay skipper's wider distribution, and ongoing efforts to protect and 
enhance estuarine marsh habitats. Therefore, our review of the best 
available scientific and commercial information does not provide 
evidence that the present or threatened destruction, modification, or 
curtailment of habitat and range represents an ongoing and significant 
threat to the Bay skipper now or in the future.

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

    Rare butterflies and moths can be highly prized by collectors, and 
an international trade exists for some species for both live and 
decorative markets, as well as the specialist trade that supplies 
hobbyists, collectors, and researchers (e.g., Collins and Morris 1985, 
pp. 155-179; http://www.theinsectcollector.com/acatalog/specimens_real.htm). However, the primary reason that little is known about the 
Bay skipper, as discussed above, is a lack of scientific or educational 
collecting in the area it inhabits. While we found some information 
regarding targeted scientific collecting activity to better document 
the distribution of the Bay skipper (Salvato 2011, pp. 1-14; Marks 
2011a, pp. 92-94; Marks 2011b), our status review did not indicate that 
any commercial or recreational trade in the species is occurring. 
Therefore, our review of the best available scientific and commercial 
information does not indicate that overutilization of the Bay skipper 
for commercial, recreational, scientific, or educational purposes is a 
threat to the species now or in the future.

C. Disease or Predation

    Studies suggest that various diseases and parasites (e.g., 
baculovirus, Ophryocystis sp.) have the potential to negatively impact 
butterflies (Altizer and Oberhauser 1999, p. 76; Hesketh et al. 2010), 
and butterflies have many natural predators including frogs, lizards, 
birds, carnivorous insects, and spiders. However, the best available 
information does not indicate that disease or pathogens are 
specifically affecting Bay skippers, nor does it provide any evidence 
regarding the effect of natural predation on Bay skipper populations. 
The recently confirmed additional populations and a wider range for the 
Bay skipper reduce any potential vulnerability the species may have to 
extirpation by disease or predation in the future. Based on our 
analysis of the best available information, we have determined that 
neither disease nor predation are significant threats to the Bay 
skipper now or in the future.

D. The Inadequacy of Existing Regulatory Mechanisms

    The Bay skipper is classified as an S1 species in both Texas and 
Mississippi (NatureServe 2011). The S1 designation, based upon the 
number of occurrences within a State, is considered ``critically 
imperiled--State level'' under the NatureServe construct. However, no 
formal or regulatory consideration is provided to the species or its 
habitat in Texas or Mississippi as a result of this classification. The 
Bay skipper has only recently been discovered in Louisiana (Marks 
2011a, pp. 92-94; Salvato 2011, pp. 1-15), but receives no formal 
protections in that State. The Louisiana Natural Heritage Program has 
been informed of the discovery of the species in the State, and is 
currently working to update the NatureServe list to reflect that it has 
been found in the State (Bass pers. comm. 2012).
    As noted under ``Other Conservation Efforts,'' above, the Louisiana 
CPRA has been established to work with other State and Federal agencies 
and nongovernmental entities to protect and restore Louisiana coastal 
wetlands, which include Bay skipper herbaceous marsh habitats. In 
addition, Bay skipper populations occurring on National Wildlife 
Refuges are protected by the National Wildlife Refuge System 
Improvement Act of 1997 and its implementing regulations, which require 
maintaining biological integrity and diversity on refuge lands. Bay 
skipper populations occurring in private estuarine wetland habitats are 
generally protected under section 404 of the Clean Water Act, which 
established a project review and permitting process to avoid or 
minimize wetland impacts, and which requires mitigation of unavoidable 
impacts.
    Therefore, based on our analysis of the best available scientific 
and commercial information, there is currently no evidence that the 
inadequacy of existing regulatory mechanisms is a threat to the Bay 
skipper now or in the future.

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

Climate Change Effects
    Our analyses under the Act include consideration of ongoing and 
projected changes in climate. The terms ``climate'' and ``climate 
change'' are defined by the Intergovernmental Panel on Climate Change 
(IPCC). ``Climate'' refers to the mean and variability of different 
types of weather conditions over time, with 30 years being a typical 
period for such measurements, although shorter or longer periods also 
may be used (IPCC 2007, p. 78). The term ``climate change'' thus refers 
to a change in the mean or variability of one or more measures of 
climate (e.g., temperature or precipitation) that persists for an 
extended period, typically decades or longer, whether the change is due 
to natural variability, human activity, or both (IPCC 2007, p. 78). 
Various types of changes in climate can have direct or indirect effects 
on species. These effects may be positive, neutral, or negative and 
they may change over time, depending on the species and other relevant 
considerations, such as the effects of interactions of climate with 
other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-
19). In our

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analyses, we use our expert judgment to weigh relevant information, 
including uncertainty, in our consideration of various aspects of 
climate change.
Rising Sea Levels
    As noted under Factor A (above), annual rates of sea level rise 
along the Gulf of Mexico within the range currently or potentially 
occupied by Bay skipper vary from 2.1 mm (0.0827 in)/year at Pensacola, 
Florida, to 9.6 mm (0.378 in)/year at Eugene Island, Louisiana, and 
6.84 mm (0.2693 in)/year at Galveston, Texas (National Oceanographic 
and Atmospheric Administration 2012), and the estuarine plant 
communities that support the Bay skipper are composed of species that 
have the ability to rapidly colonize new areas under appropriate 
conditions and, therefore, can shift their distributions to accommodate 
currently predicted rates of sea level rise. Additionally, the flight 
capability of the Bay skipper and its ability to produce two 
generations per year enable the species to adjust to and exploit 
estuarine habitat shifts that may occur from gradual sea level rise. 
Also noted under Factor A (above), is the resilience of estuarine-
adapted butterfly species to major storm events subjecting their 
habitats to inundation. This is supported by the discovery of new 
populations of Bay skipper (Salvato 2011, pp. 1-15) in areas that have 
recently been subjected to one or more severe tropical storms (see 
Background, above). Rising temperatures associated with climate change 
and rising sea levels may also present new host and nectaring plant 
opportunities for Bay skipper (e.g., Pateman et al. 2012, pp. 1028-
1030). Our review of the best available information does not indicate 
that sea level rise is a significant threat to the species.
Increased Intensity and Frequency of Storms
    Climate change can cause more frequent and severe storms, including 
hurricanes. This can have a number of detrimental effects on butterfly 
populations, including habitat loss, destruction of preferred food and 
host plants, flooding, and extirpation of affected populations. There 
is concern that hurricanes may have extirpated Bay skipper populations 
from Bay St. Louis, Mississippi, and Anahuac NWR, Texas, due to habitat 
damage and inundation. However, seven new populations of Bay skipper 
were discovered, all of them in locations that have experienced one or 
more recent hurricane storm events. This indicates that while severe 
storms have the potential to negatively affect Bay skipper populations, 
the species is capable of recovering from storm damage, even when 
storms occur closely spaced in time, such as Hurricanes Gustav and Ike 
in 2008. Salvato and Salvato (2007) noted that butterflies that were 
quick to recover after severe storms were those species associated with 
the local vegetation. The Bay skipper is endemic to estuarine marsh 
habitats and associated with vegetation that is quick to colonize new 
areas under appropriate conditions, so the Bay skipper is likely 
capable of recovering quickly from severe storms. The species also has 
the advantage of producing two generations per year, allowing for 
faster recolonization of damaged areas. Our review of the best 
available scientific and commercial information does not indicate that 
increased frequency and intensity of storms is a significant threat to 
the species.
Biological Vulnerability
    Species with small population sizes and restricted ranges are more 
vulnerable to random natural or human-induced events (e.g., storms, 
droughts, spills, etc.). There were concerns that the Bay skipper may 
have been extirpated after the habitat for the Bay St. Louis, 
Mississippi, population of Bay skipper was severely damaged by 
Hurricane Katrina in 2005, and the habitat for the Anahuac NWR, Texas, 
population was inundated by Hurricane Ike in 2008 (WildEarth Guardians 
and Xerces Society for Invertebrate Conservation 2009, p. 9). However, 
the discovery of additional populations, inhabiting locations which 
were not previously known to be occupied, with limited survey effort at 
the end of the September 2011 flight season, indicates that the range 
and total population size of the Bay skipper is poorly known and may 
neither be restricted, nor small (see Background). Additionally, apart 
from localized stochastic events, our review of the best available 
scientific and commercial information did not provide evidence of any 
specific threats to the known populations (see Factors A, B, C, and D, 
above), nor did it indicate that the Bay skipper is biologically 
vulnerable due to restricted range and small population size.
Pesticide Use
    Butterflies and their larvae are vulnerable to pesticides; however, 
the estuarine marsh habitats where the species occurs are not subject 
to activities requiring pesticide use (see Factor A, above), and there 
is no available evidence to indicate that the Bay skipper is being 
impacted or is likely to be impacted by pesticide or other chemical 
use.
Summary of Factor E
    The discovery of additional populations and a wider range for the 
Bay skipper reduces the species' potential vulnerability to stochastic 
events. In summary, our review of the best available scientific and 
commercial information found no evidence that other natural or manmade 
factors, such as rising sea level due to climate change, biological 
vulnerability from restricted range or small population size, or 
pesticide use are threats to the Bay skipper either now or in the 
future.

Finding

    As required by the Act, in assessing whether the Bay skipper is an 
endangered or threatened species throughout all of its range, we 
considered the five factors. We examined the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by the Bay skipper. We reviewed the petition, 
information available in our files, other available published and 
unpublished information, and we consulted with recognized butterfly 
experts and other Federal and State agencies. We also conducted a brief 
survey for the species (Salvato 2011, pp. 1-28).
    Information acquired during our review of the Bay skipper indicated 
that there has been an increase in the known range of the species, and 
an expansion of the number of known site occurrences for the species. 
Our limited survey of potential habitats between the Florida panhandle 
and Galveston, Texas, found abundant and apparently suitable habitat, 
and confirmed seven new site records in 7 days (Salvato 2011, pp. 1-
28). In addition, there is a large extent of coastal estuarine habitats 
along Texas, Louisiana, and Mississippi that have not been surveyed for 
the presence of the Bay skipper. Existing programs have been developed 
and implemented to conserve and restore the extensive estuarine wetland 
network occupied by the Bay skipper.
    Our review of the best available scientific and commercial 
information revealed that the Bay skipper is poorly known and 
additional research is needed to define range and abundance. However, 
during our status review, we did not document any significant threats 
to the species or its habitat throughout its currently known range, or 
within a significant portion of that range; instead, with minimal 
effort we increased the number of known populations (from 2 to 7), and 
extended the range of the

[[Page 51964]]

species into the largest estuarine herbaceous marsh in the United 
States. We found no evidence that the species has experienced 
curtailment of range or habitat or is affected by disease or predation, 
commercial or recreational harvest, the inadequacy of existing 
regulations, or any other natural or manmade factor. We documented only 
localized impacts from severe tropical storms and hurricanes; however, 
the species' potential vulnerability to local extirpations that might 
result from severe storms or any other stochastic event is offset by 
the discovery of additional populations and a wider range for the Bay 
skipper.
    Based on our review of the best available scientific and commercial 
information pertaining to the five factors, we find that the threats 
are not of sufficient severity or intensity to indicate that the Bay 
skipper is in danger of extinction (endangered), or likely to become 
endangered within the foreseeable future (threatened), throughout all 
or a significant portion of its range. Therefore, we find that listing 
the Bay skipper as an endangered or threatened species is not warranted 
throughout all of its range at this time.

Significant Portion of the Range

    Having determined that the Bay skipper does not meet the definition 
of an endangered or threatened species throughout its entire range, we 
must next consider whether there are any significant portions of the 
range where the Bay skipper is in danger of extinction or is likely to 
become endangered in the foreseeable future. A portion of a species' 
range is significant if it is part of the current range of the species 
and it contributes substantially to the representation, resiliency, or 
redundancy of the species. The contribution must be at a level such 
that its loss would result in a decrease in the ability to conserve the 
species.
    In determining whether a species is an endangered or threatened 
species in a significant portion of its range, we first identify any 
portions of the range of the species that warrant further 
consideration. The range of a species can theoretically be divided into 
portions an infinite number of ways. However, there is no purpose to 
analyzing portions of the range that are not reasonably likely to be 
both (1) significant and (2) endangered or threatened. To identify only 
those portions that warrant further consideration, we determine whether 
there is substantial information indicating that: (1) The portions may 
be significant, and (2) the species may be in danger of extinction 
there or likely to become so within the foreseeable future. In 
practice, a key part of this analysis is whether the threats are 
geographically concentrated in some way. If the threats to the species 
are essentially uniform throughout its range, no portion is likely to 
warrant further consideration. Moreover, if any concentration of 
threats applies only to portions of the species' range that are not 
significant, such portions will not warrant further consideration.
    If we identify portions that warrant further consideration, we then 
determine whether the species is endangered or threatened in these 
portions of its range. Depending on the biology of the species, its 
range, and the threats it faces, the Service may address either the 
significance question or the status question first. Thus, if the 
Service considers significance first and determines that a portion of 
the range is not significant, the Service need not determine whether 
the species is an endangered or threatened species. Likewise, if the 
Service considers status first and determines that the species is not 
an endangered or threatened species in a portion of its range, the 
Service need not determine if that portion is significant. However, if 
the Service determines that both a portion of the range of a species is 
significant and the species is an endangered or threatened species, the 
Service will specify that portion of the range as an endangered or 
threatened species under section 4(c)(1) of the Act.
    The Bay skipper is highly restricted to estuarine habitats, and 
threats to estuarine habitats are limited and localized throughout its 
range. This species' small range suggests that stressors are likely to 
affect it in a uniform manner throughout its range. However, we found 
the stressors are not of sufficient intensity or severity or 
geographically concentrated to warrant evaluating whether a portion of 
the range is significant under the Act. Accordingly, our assessment 
applies to the Bay skipper throughout its entire range.
    We do not find that the Bay skipper is in danger of extinction now, 
nor is it likely to become endangered within the foreseeable future 
throughout all or a significant portion of its range. Therefore, 
listing the Bay skipper as an endangered or threatened species under 
the Act is not warranted at this time.
    We request that you submit any new information concerning the 
status of, or threats to, the Bay skipper to the Mississippi Ecological 
Service's Fish and Wildlife Office (see ADDRESSES section) whenever it 
becomes available. New information will help us monitor the Bay skipper 
and encourage its conservation. If an emergency situation develops for 
the Bay skipper or any other species, we will act to provide immediate 
protection.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov at Docket No. FWS-R4-ES-2011-0012 and upon 
request from the Mississippi Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Author

    The primary author of this notice is the staff of the Mississippi 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authority

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

    Dated: August 9, 2012.
 Rowan W. Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2012-20820 Filed 8-27-12; 8:45 am]
BILLING CODE 4310-55-P