[Federal Register: March 22, 2004 (Volume 69, Number 55)]
[Page 13326-13329]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition To Delist the Pacific Coast Population of the Western Snowy 
Plover and Initiation of a 5-Year Review

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding and initiation of status 
review for the 12-month finding and 5-year review.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
90-day finding on a petition to remove the Pacific coast population of 
the western snowy plover (Charadrius alexandrinus nivosus) from the 
Federal List of Threatened and Endangered Wildlife and Plants (List) 
pursuant to the Endangered Species Act (Act) [16 U.S.C. 1531 et seq.]. 
We find that the petition presents substantial information that 
delisting the Pacific coast population of the western snowy plover may 
be warranted, and are initiating a status review. We are requesting 
submission of any new information on the Pacific coast population of 
the western snowy plover since its original listing as a threatened 
species in 1993. Following this status review, we will issue a 12-month 
finding on the petition to delist. Because a status review is also 
required for the 5-year review of listed species under section 
4(c)(2)(A) of the Act, we are electing to prepare these reviews 
simultaneously. At the conclusion of these simultaneous reviews, we 
will issue the 12-month finding on the petition, as provided in section 
4(b)(3)(B) of the Act, and make the requisite finding under section 
4(c)(2)(B) of the Act based on the results of the 5-year review.

DATES: The finding announced in this document was made on February 20, 
2004. To be considered in the 12-month finding on this petition or the 
5-year review, comments and information

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should be submitted to us by May 21, 2004.

ADDRESSES: Comments, material, information, or questions concerning 
this petition and finding should be sent to Field Supervisor, 
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 
2800 Cottage Way, Sacramento, California 95825-1846. The petition, 
finding, and supporting information are available for public inspection 
by appointment during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Glen Tarr or Arnold Roessler, Fish and 
Wildlife Biologists, at the above Sacramento address (telephone: (916) 



    Section 4(b)(3)(A) of the Endangered Species Act (Act) [16 U.S.C. 
1531 et seq.] requires that we make a finding on whether a petition to 
list, delist, or reclassify a species presents substantial information 
to indicate the petitioned action may be warranted. To the maximum 
extent practicable, we must make the finding within 90 days of 
receiving the petition, and must promptly publish the finding in the 
Federal Register. If we find substantial information exists to support 
the petitioned action, we are required to promptly commence a status 
review of the species (50 CFR 424.14). ``Substantial information'' is 
defined in 50 CFR 424.14(b) as ``that amount of information that would 
lead a reasonable person to believe that the measure proposed in the 
petition may be warranted.'' Petitioners need not prove that the 
petitioned action is warranted to support a ``substantial'' finding; 
instead, the key consideration in evaluating a petition for 
substantiality involves demonstration of the reliability and adequacy 
of the information supporting the action advocated by the petition.
    The factors for listing, delisting, or reclassifying a species are 
described at 50 CFR 424.11. We may delist a species only if the best 
scientific and commercial data available substantiate that it is 
neither endangered nor threatened. Delisting may be warranted as a 
result of: (1) Extinction; (2) recovery; and/or (3) a determination 
that the original data used for classification of the species as 
endangered or threatened were in error.
    On March 5, 1993, we listed the Pacific Coast population of the 
western snowy plover (58 FR 12864). Critical habitat for the species 
was designated on December 7, 1999 (64 FR 68508). On June 19, 2003, the 
U.S. District Court for the District of Oregon found that our critical 
habitat designation was not consistent with the requirements of section 
4(b)(2) of the Act, and remanded the designation to us; the Court 
partially vacated the 1999 critical habitat designation.

Biology and Distribution

    Snowy plovers are small shorebirds, about 16 centimeters (6 inches) 
long, with pale brown upperparts, buff colored bellies, and darker 
patches on their shoulders and heads. Their dark gray to black legs are 
a useful distinguishing feature when comparing to other plover species 
(Page et al. 1995a). Two subspecies of snowy plover nest in North 
America: the western snowy plover (WSP) and the Cuban snowy plover.
    The nesting range of the first subspecies, the western snowy plover 
(Charadrius alexandrinus nivosus), includes sites in Baja California, 
California, Oregon, Washington, Nevada, Utah, Arizona, Colorado, New 
Mexico, Kansas, Oklahoma, Texas, and central and northeastern Mexico, 
as well as irregularly visited sites in Saskatchewan, Wyoming, and 
Montana (Page et al. 1995a). In 1993, we determined that the coastal 
population of the western snowy plover (Pacific Coast WSP) was a 
separate distinct population segment from the interior populations and 
defined the Pacific Coast WSP as only those western snowy plovers 
``that nest adjacent to or near tidal waters'' of the Pacific Ocean (58 
FR 12864).
    The second North American subspecies, the Cuban snowy plover 
(Charadrius alexandrinus tenuirostris), nests generally east of 
Louisiana at various locations along the Gulf of Mexico, including 
Florida, the Bahamas, the Yucatan Peninsula, and Puerto Rico. The Cuban 
snowy plover is distinguished primarily by paler plumage, and some 
accounts consider it to be simply a paler version of the western snowy 
plover rather than a separate subspecies (Page et al. 1995a).
    With the exception of individuals in the Pacific Coast WSP, and in 
southern California, Arizona, New Mexico, and Texas, western snowy 
plovers in the United States migrate between winter and summer ranges 
(Page et al. 1995a, 1995b). Breeding takes place only at the summer 
location. Some Pacific Coast WSP individuals migrate to other Pacific 
coast sites for breeding, while others remain resident year round. 
Plovers hatched at interior sites west of the Rocky Mountains migrate 
to wintering locations on the Pacific coast and in the Gulf of 
California, where they may mix with birds from the Pacific Coast WSP 
(Page et al. 1995a, 1995b). However, evidence from several banding 
studies indicates the two populations separate out again to nest (Gary 
Page, et al., Point Reyes Bird Observatory, in litt. 2002.).
    The timing of the nesting season varies with location, but in 
coastal California it tends to run from March through September (Page 
et al. 1995a). Breeding locations tend to be sandy areas close to 
water, including beaches, salt pans, and alkaline playas. Clutches, 
which most commonly consist of three eggs, are laid in shallow scrapes 
or depressions in the sand. Snowy plovers generally form monogamous 
pair bonds and share incubation duties, but western snowy plover 
females typically desert the brood shortly after hatching, and may 
renest with a new male if time remains in the season to do so. Males 
typically care for the young until they fledge, which takes about a 
month, and may then also renest with a new partner if sufficient time 
remains in the season (Stenzel et al. 1994). This results in a serially 
polygamous breeding system in which males may double clutch and females 
triple clutch during a single season (Page et al. 1995a).

Review of Petition

    We received a petition dated July 29, 2002, from the Surf-Ocean 
Beach Commission of Lompoc, California, to delist the Pacific Coast WSP 
pursuant to the Act. We also received a similar petition dated May 30, 
2003, from the City of Morro Bay, California. As explained in our 1996 
Petition Management Guidance (Service 1996), subsequent petitions are 
treated separately only when they are greater in scope or broaden the 
area of review of the first petition. The City of Morro Bay petition 
repeats the same information provided in the Surf-Ocean Beach 
Commission petition and will therefore be treated as a comment on the 
first petition received.
    The petition states that the original decision to list the Pacific 
Coast WSP was in error on the grounds that it fails to meet any of the 
three elements (discreteness, significance, and conservation status) of 
our policy regarding the recognition of distinct vertebrate population 
segments (DPS policy) (61 FR 4722). The Act defines listable 
``species'' to include taxonomic species, subspecies, and ``any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature'' (16 U.S.C. 1532(16)). Because 
the Pacific Coast

[[Page 13328]]

WSP is not a taxonomic species or subspecies, it must be a distinct 
vertebrate population segment (DPS) in order to qualify for listing. 
Although we had not yet published our DPS policy when we listed the 
Pacific Coast WSP, the policy states that ``[a]ny DPS of a vertebrate 
taxon that was listed prior to implementation of this policy will be 
reevaluated on a case-by-case basis as recommendations are made to 
change the listing status * * *'' (61 FR 4722 at 4725). The petition's 
application of the DPS policy to the Pacific Coast WSP is addressed 
    To qualify for listing under the DPS policy, a population must 
demonstrate both discreteness and significance in relation to the 
remainder of the species (61 FR 4722). The petition states that the 
Pacific Coast WSP does not meet the discreteness criterion. The 
relevant condition for satisfying this criterion requires the 
population to be ``markedly separated from other populations of the 
same taxon as a consequence of physical, physiological, ecological, or 
behavioral factors. Quantitative measures of genetic or morphological 
discontinuity may provide evidence of this separation'' (61 FR 4725).
    The petition cites an unpublished master's thesis that found no 
significant genetic differences between the Pacific Coast WSP and other 
populations of snowy plover (Gorman 2000). This study was designed to 
provide a broad overview of genetic differences in western and Cuban 
snowy plovers across the western hemisphere, rather than to 
differentiate between the Pacific Coast WSP and its inland neighbor 
populations (S. Haig, U.S. Geological Survey, in litt. 2002). For 
example, the study only sampled from two highly separated sites within 
the coastal population (southern Oregon and southern California), and 
two highly separated sites outside the coastal population west of the 
Rockies (Abert Lake in eastern Oregon and the Great Salt Lake in Utah). 
It also compared segments of mitochondrial DNA that varied little 
across the entire range of subjects studied.
    In the final listing rule (58 FR 12864), we determined that the 
Pacific Coast WSP is isolated based on numerous banding studies and 
surveys conducted on coastal and interior birds (Spear 1979; Stenzel 
and Peaslee 1979; Henderson and Page 1979; Widrig 1980; Page and 
Stenzel 1981; Page et al. 1983; Wilson-Jacobs and Meslow 1984; Warriner 
et al. 1986; Herman et al. 1988; Page and Bruce 1989; Stern et al. 
1990a, 1990b, 1991a, 1991b; Page et al. 1991). This determination has 
been supported by additional banding studies and surveys (Oregon 
Department of Fish and Wildlife (ODFW) 1994; Palacios and Alfaro 1994; 
Paton 1994; Persons 1994, 1995; Stenzel et al. 1994; Page et al. 1995b; 
Gary Page, et al., Point Reyes Bird Observatory, in litt. 2002; Steve 
Henry, Service, in litt. 2003). These banding studies and surveys 
documented numerous examples of coastal and interior birds changing 
breeding sites within their respective populations (e.g., Stenzel, et 
al. 1994), but only showed two definite cases of interbreeding across 
populations. Both of these were females that hatched or had bred in the 
coastal population and had then nested at inland California sites (Page 
et al., in litt. 1989; 58 FR 12864; Stenzel et al. 1994).
    However, although the banding studies and surveys on which we based 
our isolation determination showed only two definite instances of 
interbreeding, they also produced several sightings of birds that might 
possibly have interbred. For instance: (1) Stenzel et al. (1994) 
mentions four coastal females and four males at inland nesting sites; 
(2) the Service's draft recovery plan for the species (Service 2001) 
mentions three coastal females and one male at interior nesting sites; 
and (3) a letter from G. Page, Point Reyes Bird Observatory (PRBO), 
(1989) refers to a male ``born on the coast'' and ``found nesting in 
the interior.'' According to PRBO notes, this last bird, which was also 
mentioned in Stern (1990a), was actually first banded on the coast in 
November and so may have hatched inland (L. Stenzel, pers. comm. 2003). 
Additionally, while the number of banded birds and survey coverage of 
nesting sites has been extensive, we have not closely examined the 
extent to which the greatest banding efforts may have coincided with 
the most comprehensive survey efforts. We also have not looked closely 
at the extent to which bands may have been overlooked or improperly 
documented by the surveys.
    The Gorman thesis and the information in our files regarding 
possible interbreeding raise issues relevant to a DPS determination 
that we conclude should be examined more closely in a status review. 
During this review, we will reevaluate our DPS determination for this 
population in accordance with our DPS policy (61 FR 4722). The petition 
also presents information regarding the significance of the Pacific 
Coast WSP under the DPS policy, and regarding the extent to which the 
population may actually be threatened. We will address that information 
more thoroughly in the status review.


    We have reviewed the petition and the supporting documents, as well 
as other information in our files. We find that the petition and other 
information in our files presents substantial information that 
delisting the Pacific Coast WSP may be warranted, and are initiating a 
status review. We will issue a 12-month finding in accordance with 
section 4(b)(3)(B) of the Act as to whether or not delisting is 

Five-Year Review

    Section 4(c)(2)(A) of the Act requires that we conduct a review of 
listed species at least once every five years. We are then, under 
section 4(c)(2)(B), to determine, on the basis of such a review, 
whether or not any species should be removed from the List (delisted), 
or reclassified from endangered to threatened, or threatened to 
endangered. Our regulations at 50 CFR 424.21 require that we publish a 
notice in the Federal Register announcing those species currently under 
active review. This notice announces our active review of the Pacific 
Coast WSP.

Public Information Solicited

    We are requesting information for both the 12-month finding and the 
5-year review, as we are conducting these reviews simultaneously.
    When we make a finding that substantial information exists to 
indicate that listing or delisting a species may be warranted, we are 
required to promptly commence a review of the status of the species. To 
ensure that the status review is complete and based on the best 
available scientific and commercial information, we are soliciting any 
additional information, comments, or suggestions on the Pacific Coast 
WSP from the public, other concerned governmental agencies, Tribes, the 
scientific community, industry or environmental entities, or any other 
interested parties. Information sought includes any data regarding 
interbreeding with other populations, historical and current 
distribution, biology and ecology, ongoing conservation measures for 
the species or its habitat, and threats to the species or its habitat. 
We also request information regarding the adequacy of existing 
regulatory mechanisms.
    The 5-year review considers all new information available at the 
time of the review. This review will consider the best scientific and 
commercial data that has become available since the current listing 
determination or most recent status review, such as:

[[Page 13329]]

    A. Species biology including, but not limited to, population 
trends, distribution, abundance, demographics, and genetics;
    B. Habitat conditions including, but not limited to, amount, 
distribution, and suitability;
    C. Conservation measures that have been implemented that benefit 
the species;
    D. Threat status and trends;
    E. Other new information, data, or corrections including, but not 
limited to, taxonomic or nomenclatural changes, identification of 
erroneous information contained in the List, and improved analytical 
    If you wish to comment for either the 12-month finding or 5-year 
review, you may submit your comments and materials to the Field 
Supervisor, Sacramento Fish and Wildlife Office (see ADDRESSES 
section). Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Respondents may request that we withhold a respondent's 
identity, as allowable by law. If you wish us to withhold your name or 
address, you must state this request prominently at the beginning of 
your comment. However, we will not consider anonymous comments. To the 
extent consistent with applicable law, we will make all submissions 
from organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours at the above address.

References Cited

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


    The primary author of this document is Glen Tarr (see ADDRESSES 


    The authority for this action is section 4 of the Endangered 
Species Act of 1973 (16 U.S.C. 131 et seq.).

    Dated: February 20, 2004.
Marshall Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 04-6082 Filed 3-19-04; 8:45 am]