North Florida Ecological Services Office
Southeast Region

Frequently Asked Questions - Service 90-Day Substantial
Finding on Petition to List the
Gopher Tortoise (Gopherus polyphemus)
in the Eastern Portion of its Range

Updated: September 10, 2009

Q1: What is a petition?

A1: A petition is a request filed under the Endangered Species Act (Act) by an interested party asking that a species be listed on, delisted from, or reclassified on the Federal List of Endangered and Threatened Wildlife and Plants.

Q2: What is a 90-day Finding?

A2: Section 4(b)(3)(A) of the Act requires the Service to make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information (see Q6 below for more information on this standard) to indicate that the petitioned action may be warranted.  The Service bases this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files.  To the maximum extent practicable, the Service is to make this finding within 90 days of the receipt of the petition, and publish notice of this finding promptly in the Federal Register.

Q3: Who petitioned the Service and what did they request?

A3: On January 25, 2006, we received a petition requesting that we list the gopher tortoise in the eastern portion of its range as threatened under the Act.  The petition was submitted by Mr. Brett Paben, of Wildlaw, on behalf of Save Our Big Scrub, Inc. and Wild South, and included supporting information regarding the potential causes of decline for the gopher tortoise in the eastern United States. In September 2006, we received a 60-day notice of intent to sue from Save Our Big Scrub, Inc. and Wild South for failing to make a timely90-day finding. On February 21, 2007, we sent a letter to the plaintiffs informingthem that funding had become available to make the petition finding during fiscalyear 2007.

Q4: Why was there a delay in the issuance of a 90-day finding?

A4: Funding constraints precluded the Service from initiating the processing of the petition in a timely manner.  This notice constitutes the Service’s substantial finding in response to the petition to list the gopher tortoise in the eastern portion of its range by Mr. Paben on January 25, 2006.

Q5: What area makes up the gopher tortoise’s eastern portion of its range?

A5: The eastern portion of the gopher tortoise’s range includes Alabama (east of the Tombigbee and Mobile Rivers), Florida, Georgia, and southern South Carolina.

Q6: What did the Service conclude?

A6:  The Service found that the information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files petition did provide substantial scientific or commercial information indicating that listing the gopher tortoise in the eastern portion of its range may be warranted.

Q7: What did the Service consider in reaching its conclusion and finding?

A7:  In making this finding, the Service evaluated the information provided by the petitioners in accordance with the Code of Federal Regulations (CFR): 50 CFR 424.14(b).  The process of coming to a 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 base this finding on information provided in the petition, supporting information submitted with the petition, and information otherwise available in our files meets the “substantial information” threshold.  The Service does not conduct additional research at this point, nor does the Service subject the petition to rigorous critical review.

Q8: What is the next step?

A8: The Service will initiate a range-wide status review to determine if listing this species is warranted in response to this petition.

Q9: What options does the Service have when making a status review determination?

A9: Based on the status review, the Service will make one of three possible determinations:

  • Listing is not warranted, in which case no further action will be taken.
  • Listing as threatened or endangered is warranted. In this case, the Service will publish a proposal to list, solicit independent scientific peer review of the proposal, seek input from the public, and consider the input before a final decision about listing the species is made.  In general, there is a one-year period between the time a species is proposed and the final decision.
  • Listing is warranted but precluded by other, higher priority activities.  This means the species is added to the Federal list of candidate species, and the proposal to list is deferred while the Service works on listing proposals for other species that are at greater risk.  A warranted but precluded finding requires subsequent annual reviews of the finding until such time as either a listing proposal is published, or a not warranted finding is made based on new information.

Q10: If the Service determines listing is warranted is the species listed at that time?

A10:The status review finding itself is not a formal rulemaking.  However, if the Service determines listing is warranted it may publish a proposed listing rule in conjunction with 12-month finding.  That formal rulemaking process will include ample opportunity for stakeholder and public comment.

Q11: Is the Service seeking information from the public for the status review?

A11: Yes; see next question for details.  However, submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

Q12: What information is the Service seeking?

A12:We are seeking information regarding:

  • The historical and current status and distribution of the gopher tortoise, its biology and ecology, and ongoing conservation measures for the species and its habitat;
  • Information relevant to the factors that are the basis for making a listing determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which are:
    1. the present or threatened destruction, modification, or curtailment of the species’ habitat or range;
    2. overutilization for commercial, recreational, scientific, or educational purposes;
    3. disease or predation;
    4. the inadequacy of existing regulatory mechanisms; or
    5. other natural or manmade factors affecting its continued existence and threats to the species or its habitat;
  • Information related to the genetics and taxonomy of the gopher tortoise throughout its entire range including the federally listed western portion of the gopher tortoise’s range; and
  • Information related to whether any portion of the range should be considered for listing as a distinct population segment or a significant portion of the range.

Please include sufficient information with your submission to allow us to verify any scientific or commercial information or data you provide.

Q13: How do I submit information?

A13: You may submit information by one of the following methods:

  • Online at the Federal eRulemaking Portal: http://www.regulations.gov.  Follow the instructions for submitting comments.
  • U.S. mail or hand-delivery:  Public Comments Processing, Attn: FWS-[insert docket number]; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

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 of the Federal Register notice for more details).

In order to allow sufficient time for biologists to review and consider submitted information and conduct the review, submissions must be received on or before November 9, 2009.

Q14: Is the gopher tortoise a federally-listed species outside the eastern portion of its range?

A14: Yes. The western population of the gopher tortoise, west of the Tombigbee and Mobile Rivers in Alabama then across south Mississippi and extreme southeastern Louisiana, was federally-listed as threatened on July 7, 1987.  At the state level, the gopher tortoise is listed as Threatened throughout Florida and as Endangered in South Carolina in the following counties:  Aiken, Allendale, Colleton, Dorchester, Hampton, and Jasper.

Q15: Where can I find more information on current and future actions related to gopher tortoises outside of its eastern range?

A15: Information on the western population is available online at: http://www.fws.gov/daphne/gopher/index.htm.

Q16: Where can I find more information on the status review?

A16: Visit our web site at http://www.fws.gov/northflorida.


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Last updated: September 12, 2014