[Federal Register: October 27, 2009 (Volume 74, Number 206)]
[Proposed Rules]
[Page 55177-55180]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc09-32]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R6-ES-2009-0064]
[MO 922105 0083-B2]
Endangered and Threatened Wildlife and Plants; 90-day Finding on
a Petition To List the American Dipper in the Black Hills of South
Dakota as Threatened or Endangered
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of 90-day petition finding.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
90-day finding on a petition to list the distinct population segment
(DPS) of American dipper (Cinclus mexicanus unicolor) in the Black
Hills of South Dakota as threatened or endangered and designate
critical habitat under the Endangered Species Act of 1973, as amended
(Act). For the purposes of this finding, we evaluated whether the
petition presents substantial information to indicate whether the
petitioned entity (the American dipper in the Black Hills of South
Dakota) is a listable entity. Based on our review of the best available
scientific and commercial information, we conclude that the American
dipper in the Black Hills of South Dakota is not a listable entity
under the Act. Because the petition did not present substantial
information that the American dipper in the Black Hills of South Dakota
is a DPS, we did not evaluate whether the information contained in the
petition regarding threats was substantial. Therefore, we will not
initiate a status review to determine if listing this subspecies is
warranted in response to this petition. However, the public may submit
to us new information concerning the subspecies, its status, or threats
to it at any time.
DATES: You may submit new information concerning this subspecies for
our consideration at any time.
ADDRESSES: This finding is available on the Internet at http://
www.regulations.gov. Supporting documentation we used in preparing this
finding is available for public inspection, by appointment, during
normal business hours at the South Dakota Ecological Services Office,
U.S. Fish and Wildlife Service, 420 South Garfield Avenue, Suite 400,
Pierre, SD 57501. Please submit any new information, materials,
comments, or questions concerning this finding to the above address.
FOR FURTHER INFORMATION CONTACT: Pete Gober, Field Supervisor, South
Dakota Ecological Services Office (see ADDRESSES section) (telephone
605-224-8693). If you use a telecommunications device for the deaf
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.
SUPPLEMENTARY INFORMATION:
Background
Section 4(b)(3)(A) of the Act (16 U.S.C. 1531 et seq.) requires
that we make a finding on whether a petition to list, delist, or
reclassify a species presents substantial scientific or commercial
information indicating that the petitioned action may be warranted. We
are to base this finding on information provided in the petition,
supporting information submitted with the petition, and information
otherwise available in our files at the time we make the determination.
To the
[[Page 55178]]
maximum extent practicable, we are to make this finding within 90 days
of our receipt of the petition and publish our notice of this finding
promptly in the Federal Register.
Our standard for substantial scientific or commercial information
within the Code of Federal Regulations (CFR) with regard to a 90-day
petition finding is ``that amount of information that would lead a
reasonable person to believe that the measure proposed in the petition
may be warranted'' (50 CFR 424.14(b)). If we find that substantial
scientific or commercial information was presented, we are required to
promptly review the status of the species (status review).
We base this 90-day finding on information provided by the
petitioners and our evaluation of that information in relation to
information available in our files at the time of the petition review.
This finding summarizes the information included in the petition and
information available to us at the time of the petition review. Under
section 4(b)(3)(A) of the Act and our regulations at 50 CFR 424.14(b),
our review of a 90-day finding is limited to a determination of whether
the information in the petition meets the ``substantial [scientific or
commercial] information'' threshold.
Previous Federal Actions
On March 28, 2003, the Biodiversity Conservation Alliance, Center
for Native Ecosystems, and Jeremy Nichols petitioned the Service to
list the Black Hills American dipper distinct population segment (DPS)
as an endangered or threatened species. We received a Notice of Intent
to sue from the petitioners on July 21, 2003, who subsequently filed a
complaint with the U.S. District Court for the District of Columbia on
August 20, 2004. On January 24, 2005, we reached a settlement agreement
to publish a 90-day finding in the Federal Register by January 20,
2006. On January 26, 2006, we determined in a 90-day finding that the
Black Hills American dipper did not meet the elements for being a DPS
and, therefore, was not a listable entity under the Act (71 FR 4341).
Petition
On October 2, 2008, we received a petition dated September 29,
2008, requesting that we list the DPS of American dipper in the Black
Hills of South Dakota as threatened or endangered under the Act and
designate critical habitat for that DPS. In addition, the petition
requested emergency listing of the DPS. The petition, submitted by the
Biodiversity Conservation Alliance, Center for Native Ecosystems,
Native Ecosystems Council, and Prairie Hills Audubon Society, was
clearly identified as a petition for a listing rule, and it contained
the names, signatures, and addresses of the requesting parties.
Included in the petition was supporting information regarding the
subspecies' taxonomy and ecology, historical and current distribution,
present status, and potential causes of decline. We acknowledged the
receipt of the petition and addressed the request for emergency listing
in a letter to Mr. Duane Short, dated December 5, 2008. The letter
stated that we determined that the Black Hills population would need to
meet our policy criteria as a DPS or a significant portion of the range
of the subspecies before we can determine if emergency listing is
necessary.
Species Information
The American dipper is a small, gray passerine bird that inhabits
western Canada, Mexico, and the western United States, including the
Black Hills (Pettingill and Whitney 1965, p. 74; Anderson 2002, p. 2)
of South Dakota. The American dipper utilizes permanent, clean, cold,
and swift mountain streams (Price and Bock 1983, p. 2; Tyler and
Ormerod 1994, p. 3; Kingery 1996, p. 4; Feck 2002, p. 2) with abundant
and healthy populations of benthic macroinvertebrates, the dipper's
prey (Ealey 1977, p. 104; Price and Bock 1983, p. 2; Tyler and Ormerod
1994, p. 38; Kingery 1996, p. 6). Dippers are usually found in streams
with rock, sand, and rubble substrates, which also are associated with
the highest abundance of aquatic invertebrates. American dippers
establish linear territories along a river in early spring (Kingery
1996, p. 11). They remain in or near their territories most of the
year, depending upon the availability of open water. Dipper nest sites
can be found on streamside rock cliffs, waterfalls, large rocks in
midstream, or under bridges (Kingery 1996, p. 14).
Distribution and Abundance
The Black Hills are the eastern edge of the American dipper's
range. The dipper is a permanent year-round resident of the Black Hills
and has historically been known to inhabit nearly all permanent, fast-
flowing streams in the area (Pettingill and Whitney 1965, p. 74). There
are few records of American dippers making long-distance flights, and
these records do not substantiate that these movements contribute to
the establishment of new populations (Kingery 1996, p. 4; Muelhausen
1970, p. 136). No instances of long-distance dispersal of dippers
between the Black Hills and the next nearest populations of American
dipper to the west in the Big Horn Mountains of north-central Wyoming
and the Laramie Range of east-central Wyoming have been documented. In
addition to the apparent lack of long distance movements, the dipper
population in the Black Hills is isolated from other populations by
geographical barriers to dispersal in the form of extensive grasslands,
poor-quality stream habitat, and the lack of water connections to
dipper populations existing west of the Black Hills (Backlund 2001, p.
1).
Verified historical American dipper reports have been recorded on
six streams or their tributaries in the Black Hills: French Creek,
Rapid Creek, Box Elder Creek, Elk Creek, Whitewood Creek, and Spearfish
Creek (Backlund 2001, pp. 2-4). Other streams are unable to support
self-sustaining populations of dipper due to habitat degradation,
erratic water flows, loss of water flow, poor water quality, and other
impacts (Backlund 2001, p. 4). Currently, nesting dippers can be found
on only two streams in the Black Hills--Spearfish Creek and Whitewood
Creek (Lovett 2008, p. 2).
Dipper nest surveys in the Black Hills were started in 1993 by
South Dakota Game, Fish and Parks, and became more extensive from 2003
to 2008. The lowest number of dippers reported on Spearfish Creek was
10 in 1997, with only two nests found (Backlund 2001, p. 4). In 2008,
the number of dippers reported on Spearfish Creek was approximately 54
adults, with 38 nest attempts (Lovett 2008, p. 12). This is the second
highest number of adults compared to 56 adults in both 2005 and 2006;
there were 42 nest attempts in 2005 and 36 nest attempts in 2006. In
2008, Whitewood Creek had six adults observed and four known nest
attempts (Lovett 2008, p. 12). Select areas of French Creek, Rapid
Creek, and Boxelder Creek were checked for dippers but neither dippers
nor active nests were found (Lovett 2008, p. 37).
Distinct Vertebrate Population Segment
The petitioners have asked us to consider listing a DPS of the
American dipper in the Black Hills of South Dakota. Under the Act, we
can consider for listing any species, subspecies, or DPS of any species
of vertebrate fish or wildlife that interbreeds when mature. To
implement the measures prescribed by the Act and its congressional
guidance, we developed a joint policy with the National Oceanic and
Atmospheric Administration entitled Policy Regarding the Recognition of
Distinct Vertebrate Population Segments
[[Page 55179]]
under the Act (61 FR 4722; February 7, 1996) (DPS Policy). Under the
DPS policy, we must consider three elements in making our decision
whether an entity qualifies as a DPS that warrants listing as
endangered or threatened under the Act. The three elements are: (1) The
population segment's discreteness in relation to the remainder of the
species to which it belongs; (2) the population segment's significance
to the species to which it belongs; and (3) the population segment's
conservation status in relation to the Act's standards for listing--
that is, when treated as if it were a species, is the population
segment endangered or threatened? For the purposes of this finding, we
evaluated whether the petition presented substantial information to
indicate whether the petitioned entity (the American dipper in the
Black Hills of South Dakota) is a listable entity.
Discreteness
The DPS policy states that a population segment of a vertebrate
species may be considered discrete if it satisfies either one of the
following two conditions: (1) It must be markedly separated from other
populations of the same taxon as a consequence of physical,
physiological, ecological, or behavioral factors, or (2) it must be
delimited by international governmental boundaries within which
significant differences in control of exploitation, management of
habitat conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the Act.
Substantial information is presented in the petition to indicate
that the Black Hills population may be markedly separated from other
populations of the American dipper as a consequence of physical
factors. The Black Hills is an isolated mountain range located within
the plains of western South Dakota and northeastern Wyoming (Raventon
1994, p. 15). The Great Plains, which entirely surround the Black
Hills, create a major physical barrier separating the Black Hills
American dipper populations from other Rocky Mountain populations to
the west (Hall et al. 2002, p. 3). The Big Horn Mountains,
approximately 241 to 322 kilometers (km) (150 to 200 miles (mi)) to the
west, is the closest mountain range to the Black Hills (Froiland 1990,
p. 11). The expanse of grassland separating the Black Hills from other
mountain ranges is incapable of supporting American dippers and
represents a significant barrier to dispersal (Backlund 2001, p. 1;
Voelker 2002, p. 582). The streams and rivers of the Great Plains are
described as typically silt-laden, turbid, alkaline, and subject to
erratic flows which precludes their use by dippers (Smith and Hubert
1989, p. 27).
Information in the petition, as supported by information readily
available in our files, suggests that there is a substantial physical
isolation of the Black Hills population of the American dipper.
Therefore, the petition presents substantial information indicating
that the Black Hills population of the American dipper meets the
condition for discreteness under our DPS policy that the population is
markedly separated from other populations of the same taxon. The Black
Hills population of the American dipper is located entirely within the
United States, therefore the international governmental boundaries
provision for discreteness does not apply.
Significance
Under our DPS policy, if we determine that a population segment is
discrete, we further consider that population's biological and
ecological significance to the taxon to which it belongs, within the
context that the DPS policy be used ``sparingly'' while encouraging the
conservation of genetic diversity (61 FR 4722; February 7, 1996). This
consideration may include, but is not limited to: (1) Persistence of
the discrete population segment in an ecological setting unusual or
unique for the taxon; (2) evidence that loss of the population segment
would result in a significant gap in the range of the taxon; (3)
evidence that the discrete population segment represents the only
surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historical range; and
(4) evidence that the discrete population segment differs markedly from
other populations of the subspecies in its genetic characteristics.
These four considerations are addressed here:
(1) Persistence of the population segment in an ecological setting
that is unusual or unique for the taxon.
The American dipper occupies permanent, clean, cold, and swift
mountain streams throughout the western half of North America,
including the Black Hills (Kingery 1996, p. 2). The petition contends
that the streams in the Black Hills inhabited by dippers may be a
unique ecological setting because the Black Hills themselves are a
unique ecosystem. We recognize that the Black Hills have many unique
ecological features, but information readily available in our files
(Kingery 1996) indicates that the Black Hills are not unusual. These
mountain ecosystems share commonalities, such as clean, cold, swift
mountain streams with suitable substrate that provide the habitats for
invertebrate species used by dippers. In that respect, the Black Hills
are similar to other western mountain ecosystems that also support
American dippers.
In addition, the petition claims that Black Hills streams have
features that make them ecologically unique. Streams throughout the
Rocky Mountains vary in many features, including elevation, gradient,
substrate, parent geological material, and riparian vegetation, such
that virtually every stream could be considered ``unique.'' Information
readily available in our files (Kingery 1996) indicates that the key
features of Black Hills streams used by dippers--cold temperatures,
good water quality, suitable substrate, and swift flow--are the same
key features of dipper-utilized streams elsewhere throughout the Rocky
Mountains. Accordingly, we do not believe the petition presents
substantial information that the clean, cold, swift streams of the
Black Hills occupied by dippers are an ecological setting that is
unusual or unique for this subspecies.
(2) Evidence that loss of the discrete population segment would
result in a significant gap in the range of taxon.
The petition claims that the Black Hills dipper population is at
the eastern edge of its global distribution and its loss would result
in a significant gap in the range of the dipper. Information readily
available in our files (Kingery 1996, NatureServe.org 2007) states that
the American dipper's breeding range extends from western Alaska
eastward across north-central Alaska; southward along the Pacific
Coast, and throughout the Rocky Mountains into New Mexico. The
subspecies is absent from the Great Basin area except for scattered
populations. The subspecies' range includes mountain streams in an area
that is approximately 5,000 km (3,107 mi) from north to south and
approximately 1,800 km (1,118 mi) from west to east at its widest
point. Within that range, there are thousands of suitable streams and
tens of thousands of kilometers of occupied streams. The Black Hills
dipper population, which occupies two streams that represent less than
80 km (50 mi) of occupied stream habitat, is a small population
relative to the entire range. Populations of dippers exist throughout
suitable streams in the Rocky Mountains. The Black Hills dipper
population is small, and there is no information in the petition or
readily available in our files to suggest that it makes a significant
contribution to the taxa. The dipper-occupied streams in the Black
Hills are on the eastern edge of the dipper's overall range in the
[[Page 55180]]
United States; however, mountain streams in the southern parts of the
subspecies' range (the i.e. front ranges of Colorado and, Mexico) are
as far or farther east than the Black Hills.
We find that the petition does not present substantial information
that loss of the population segment would result in a significant gap
in the range of the taxon because it did not provide substantial
information that the population in the Black Hills is significant to
the taxa as a whole.
(3) Evidence that the discrete population segment represents the
only surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historical range.
The petition does not address this consideration. As stated above
under ``Distribution and Abundance,'' the American dipper survives
naturally throughout much of western North America. As such, this
consideration is not applicable to the Black Hills population of the
American dipper.
(4) Evidence that the discrete population segment differs markedly
from other populations of the subspecies in its genetic
characteristics.
The petition does not address this consideration. We are aware that
a genetic analysis was conducted to determine whether the Black Hills
population of the American dipper is genetically distinct from other
American dipper populations in North America (Anderson et al. 2007).
The research analyzed samples from six populations (Black Hills, South
Dakota; Big Horn Mountains, Wyoming; and four locations in west-central
Montana and east-central Idaho). Information from this research
suggests that genetic differences could exist among the dipper
populations studied. However, the study did not address the
significance of the Black Hills population of American dipper to the
taxon as a whole. The results of the study do not lead us to believe
there are significant genetic differences to meet the criteria in our
DPS policy for significance based on genetics.
The information as provided in the petition does not meet the four
considerations for significance. Only the first two considerations are
actually addressed in the petition and do not present substantial
information in favor of significance. Little information is available
in our files to support the third and fourth considerations, and no
information was presented in the petition with respect to those
criteria.
Conservation Status
We did not need to evaluate whether the information contained in
the petition regarding the conservation status in relation to the Act's
standards for listing was substantial, because the petition does not
present substantial information that the American dipper in the Black
Hills of South Dakota is a DPS and, therefore, a listable entity under
the Act.
Finding
We have reviewed the information presented in the petition and have
evaluated that information in relation to information readily available
in our files. On the basis of our review, we find that the petition
does not present substantial scientific or commercial information to
indicate that listing the American dipper in the Black Hills of South
Dakota may be warranted. This finding is based on the lack of
substantial scientific evidence to indicate that the American dipper in
the Black Hills of South Dakota may meet the elements of being a valid
DPS and, therefore, a listable entity under the Act. Although the
population appears to meet the criteria for being discrete, neither the
information in the petition nor the information readily available in
our files suggests that the Black Hills dipper population may be
significant in relation to the remainder of the taxon. Therefore, we
conclude that the American dipper in the Black Hills of South Dakota
does not satisfy the elements of being a DPS under our 1996 policy and,
therefore, is not a listable entity under section 3(16) of the Act.
Because the petition does not present substantial information that the
American dipper in the Black Hills of South Dakota is a DPS, we did not
evaluate whether the information contained in the petition regarding
the conservation status was substantial.
Although we will not commence a status review in response to this
petition, we will continue to monitor the American dipper's population
status and trends, potential threats, and ongoing management actions
that might be important with regard to the conservation of the species
in the Black Hills of South Dakota. We encourage interested parties to
continue to gather data that will assist with these conservation
efforts. New information should be submitted to the Field Supervisor,
South Dakota Ecological Services Office (see ADDRESSES).
The petitioners also request that critical habitat be designated
for the American dipper in the Black Hills of South Dakota. Because the
petition does not present substantial information that the American
dipper in the Black Hills of South Dakota may be a DPS, we are not
required to address the designation of critical habitat, and therefore,
will not be doing so.
If you wish to provide information regarding the American dipper in
the Black Hills, you may submit your information or materials to the
Field Supervisor of the South Dakota Ecological Services Office (see
ADDRESSES) at any time.
References Cited
A complete list of all references is available upon request from
the Field Supervisor (see ADDRESSES).
Author
The primary authors of this document are staff members at the South
Dakota Ecological Services 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: October 9, 2009
Daniel M. Ashe
Acting Director, U.S. Fish and Wildlife Service
[FR Doc. E9-25524 Filed 10-26-09; 8:45 am]
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