[Federal Register: April 7, 2010 (Volume 75, Number 66)]
[Proposed Rules]
[Page 17667-17680]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap10-23]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2008-0067]
[MO 92210-0-0008-B2]
Endangered and Threatened Wildlife and Plants; 12-Month Finding
on a Petition to Reclassify the Delta Smelt From Threatened to
Endangered Throughout Its Range
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 reclassify the delta smelt (Hypomesus
transpacificus) under the Endangered Species Act of 1973, as amended.
After review of all available scientific and commercial information, we
find that reclassifying the delta smelt from a threatened to an
endangered species is warranted, but precluded by other higher priority
listing actions. We will develop a proposed rule to reclassify this
species as our priorities allow.
DATES: The finding announced in this document was made on April 7,
2010.
ADDRESSES: This finding is available on the Internet at http://
www.regulations.gov at Docket Number FWS-R8-ES-2008-0067. 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, Sacramento Fish and Wildlife Office, 2800
Cottage Way, W-2605, Sacramento, CA 95825. Please submit any new
information, materials, comments, or questions concerning this finding
to the above address.
FOR FURTHER INFORMATION CONTACT: Mary Grim, San Francisco Bay-Delta
Fish and Wildlife Office, 650 Capitol Mall, 5\th\ Floor, Sacramento, CA
95814; by telephone at 916-930-5634; or by facsimile at 916-414-6462.
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 Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.) requires that, for any petition
to add a species to, remove a species from, or reclassify a species on
one of the Lists of Endangered and Threatened Wildlife and Plants, we
first make a determination whether the petition presents substantial
scientific or commercial information indicating that the petitioned
action may be warranted. To the maximum extent practicable, we make
this determination within 90 days of receipt of the petition, and
publish the finding promptly in the Federal Register.
If we find the petition presents substantial information, section
4(b)(3)(A) of the Act requires us to commence a status review of the
species, and section 4(b)(3)(B) of the Act requires us to make a second
finding, this one within 12 months of the date of receipt of the
petition, on whether the petitioned action is: (a) Not warranted, (b)
warranted, or (c) warranted, but the immediate proposal of a regulation
implementing the petitioned action is precluded by other pending
proposals to determine whether any species is threatened or endangered,
and expeditious progress is being made to add or remove qualified
species from the Lists of Endangered and Threatened Wildlife and
Plants. We must publish these 12-month findings in the Federal
Register.
Species for which listing is warranted but precluded are considered
to be ``candidates'' for listing. Section 4(b)(3)(C) of the Act
requires that a petition for which the requested action is found to be
warranted but precluded be treated as though resubmitted on the date of
such finding, i.e., requiring a subsequent finding to be made within 12
months. Each subsequent 12-month finding is also to be published in the
Federal Register. We typically publish these findings in our Candidate
Notice of Review (CNOR). Our most recent CNOR was published on November
9, 2009 (74 FR 57804).
Previous Federal Action
We were originally petitioned to list the delta smelt as endangered
on June 26, 1990. We proposed the species as threatened and proposed
the designation of critical habitat on October 3, 1991 (56 FR 50075).
We listed the species as threatened on March 5, 1993 (58 FR 12854), and
we designated critical habitat on December 19, 1994 (59 FR 65256). The
delta smelt was one of eight fish species addressed in the November 26,
1996, Recovery Plan for the Sacramento-San Joaquin Delta Native Fishes
(Service 1996, pp. 1-195). We completed a 5-year status review of the
delta smelt on March 31, 2004 (Service 2004, pp. 1-50).
On March 9, 2006, we received a petition to reclassify the listing
status of the delta smelt, a threatened species, to endangered on an
emergency basis. We sent a letter to the petitioners dated June 20,
2006, stating that we would not be able to address their petition at
that time because further action on the petition was precluded by court
orders and settlement agreements for other listing actions that
required us to use nearly all of our listing funds for fiscal year
2006. We also stated in our June 20, 2006, letter that we had evaluated
the immediacy of possible threats to the delta smelt, and had
determined that an emergency reclassification was not warranted at that
time.
On July 10, 2008, we published a 90-day finding that the petition
presented substantial scientific information to indicate that
reclassifying the delta smelt may be warranted (73 FR 39639). We
announced the initiation of a status review at that time, and requested
comments and information from the public on or before September 8,
2008. We reopened the comment period on December 9, 2008, and that
comment period closed February 9, 2009 (73 FR 74674).
Species Information
Description and Taxonomy
Delta smelt are slender-bodied fish, generally about 60 to 70
millimeters (mm) (2 to 3 inches (in)) long, although they may reach
lengths of up to 120 mm (4.7 in) (Moyle 2002, p. 227). Delta smelt are
in the Osmeridae family (smelts) (Stanley et al. 1995, p. 390). Live
fish are nearly translucent and have a steely blue sheen to their sides
(Moyle 2002, p. 227). Delta smelt feed primarily on small planktonic
(free-floating) crustaceans, and occasionally on insect larvae (Moyle
2002, p. 228). Delta smelt usually aggregate into loose schools, but
their discontinuous stroke-and-glide swimming behavior likely makes
schooling difficult (Moyle 2002, p. 228).
The delta smelt is one of six species currently recognized in the
Hypomesus genus (Bennett 2005, p. 8). Within the genus, delta smelt is
most closely related to surf smelt (H. pretiosis), a species common
along the western coast of North America. In contrast, delta smelt is a
comparatively distant relation to the wakasagi (H. nipponensis), which
was introduced into Central Valley
[[Page 17668]]
reservoirs in 1959, and may be seasonally sympatric with delta smelt in
the estuary (Trenham et al. 1998, p. 417). Allozyme studies have
demonstrated that wakasagi and delta smelt are genetically distinct and
presumably derived from different marine ancestors (Stanley et al.
1995). Genetic characterization of delta smelt, longfin smelt, and
wakasagi is presently under investigation, using contemporary
methodologies.
Distribution and Abundance
Delta smelt are endemic to (native and restricted to) the San
Francisco Bay and Sacramento-San Joaquin Delta Estuary (Delta) in
California, found only from the San Pablo Bay upstream through the
Delta in Contra Costa, Sacramento, San Joaquin, Solano, and Yolo
Counties (Moyle 2002, p. 227). Their historical range is thought to
have extended from San Pablo Bay upstream to at least the city of
Sacramento on the Sacramento River and the city of Mossdale on the San
Joaquin River. They were once one of the most common pelagic (living in
open water away from the bottom) fish in the upper Sacramento-San
Joaquin Estuary (Moyle 2002, p. 230).
Population estimates are not possible to obtain for this species
(Herbold 1996, p. 1). A relative abundance index has been developed
using various net surveys as well as counts of individuals entrained by
(drawn into) Federal and State water export facilities (Bennett 2005,
p. 5), and population assessments have been based on abundance index
trends. Based on those indices, significant changes in delta smelt
abundance occurred in 1975-76, 1980-81, and 1998-99 (Manly and
Chotkowski 2006, p. 602). The 1980-1981 abundance index decline was one
of the factors that resulted in listing delta smelt as a threatened
species in 1993 (58 FR 12854; Moyle 2002, p. 230; CDFG 2008, p. 1).
From 1991 to 2001, abundance index trends fluctuated wildly. In 2002,
delta smelt and three other pelagic Delta fishes seemed to decline
significantly, with delta smelt abundance indices trending to record
lows from 2002 through 2008 (Armor et al. 2005, p. 3; CDFG 2008, p. 2).
In March of 2004, we completed a 5 year review of the species that
recommended against changing the listing status of the delta smelt. At
that time there was no indication that the decreasing trend of 2002 was
outside of the range of expected variability, similar to those in 1992,
1994, and 1996 (Service 2004, unpaginated App. B Midwater Trawl
Abundance Index table). However, the delta smelt index continues a
decreasing trend and is now estimated at the lowest level ever
measured-roughly one and a half percent of the 1980 index level (CDFG
2008, p. 2).
Habitat and Life History
Studies indicate that delta smelt require specific environmental
conditions (freshwater flow, water quality) and habitat types (shallow
open waters) within the estuary for migration, spawning, egg
incubation, rearing, and larval and juvenile transport from spawning to
rearing habitats (Moyle 2002, pp. 228-229). Delta smelt are a
euryhaline (tolerate a wide range of salinities) species; however, they
rarely occur in water with more than 10-12 parts per thousand salinity
(about one-third seawater). Delta smelt tolerate temperatures ranging
from 7.5 \0\C to 25.4 \0\C (45 to 78 \0\F) in the laboratory (Swanson
et al. 2000, p. 386, Table 1), but may be found in warmer waters in the
Delta. Feyrer at al. (2007, p. 728) found that relative abundance of
delta smelt was related to fall salinity and turbidity (water clarity).
Delta smelt probably evolved within the naturally turbid (silt and
particulate-laden) environment of the Delta and likely rely on certain
levels of background turbidity at different life stages and for certain
behaviors. Laboratory studies found that delta smelt larval feeding
increased with increased turbidity (Baskerville-Bridges et al. 2004, p.
222).
Although spawning has not been observed in the wild, spawning
location and timing has been inferred from the collection of larvae in
sloughs and shallow edge-waters of channels in the upper Delta and in
Montezuma Slough near Suisin Bay (Wang 1991, pp. 11-12). Spawning is
believed to occur from late January through late June or early July at
water temperatures ranging from 7 to 15 \0\C (45 to 59 \0\F) (Moyle
2002, p. 229). In the laboratory, spawning has been observed to occur
between 12 and 22 \0\C (54 and 72 \0\F ) (Bennett 2005, p. 13). In
laboratory conditions, eggs typically hatch after 9 to 14 days and
larvae begin feeding 5 to 6 days later (Mager et al. 2004, p. 172,
Table 1). Larvae are generally most abundant in the Delta from mid-
April through May (Bennett 2005, p. 13). After several weeks of
development, larval surveys indicate that larvae move downstream until
they reach nursery habitat in the ``low salinity zone'' (LSZ) where the
salinity ranges from approximately 2 to 7 parts per thousand (ppt)
(Moyle 2002, p. 228). Juvenile smelt rear and grow in the LSZ for
several months, preferring relatively shallow open water (Dege and
Brown 2004, pp. 56-58). In September or October, delta smelt reach
adulthood and begin a gradual migration back into freshwater areas
where spawning is thought to occur. Most delta smelt die after
spawning, but a small contingent of adults survives and can spawn in
their second year (Moyle 2002, p. 228).
Foraging Ecology
Delta smelt feed primarily on small planktonic (free-floating)
crustaceans, and occasionally on insect larvae (Moyle 2002, p. 228).
Historically, the main prey of delta smelt was the copepod Eurytemora
affinis and the mysid shrimp Neomysis mercedis. The slightly larger
copepod Pseudodiaptomus forbesi has replaced E. affinis as a major prey
source of delta smelt since its introduction into the San Francisco
Bay-Delta. Two other copepod species, Limnoithona tetraspina and
Acartiella sinenisi, have become abundant since their introduction to
the San Francisco Bay-Delta in the mid 1990s. Delta smelt eat these
introduced copepods, but P. forbesi remains a dominant prey item
(Baxter et al. 2008, p. 22). The diets of larval delta smelt are
limited to larval copepods (Nobriga 2002, p. 156). As mentioned
previously, delta smelt are thought to require a turbid environment for
efficient, successful foraging.
Summary of Factors Affecting the Species
Section 4 of the Act (16 U.S.C. 1533), and implementing regulations
(50 CFR part 424), set forth the procedures for adding species to 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
endangered or threatened based on any of the following five factors:
(1) The present or threatened destruction, modification, or curtailment
of its 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. In
making this finding, information pertaining to the delta smelt, in
relation to the five factors provided in section 4(a)(1) of the Act, is
discussed below.
Numerous threats to delta smelt could be addressed either as
habitat modifications or as falling under another of the five listing
factors. We will consider habitat modifications (Factor A) to include
alterations of salinity and turbidity (water clarity). We address
issues of direct entrainment, contaminants, invasive species, and
effects of small populations under Factor E, Other Natural or Manmade
Factors.
[[Page 17669]]
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
From late spring through fall and early winter, delta smelt are
located at the LSZ, which moves depending upon San Francisco Bay-Delta
water outflow (Dege and Brown 2004, pp. 56-58; Service 2008, pp. 147,
150). Reduced Delta water outflow causes the LSZ to move upstream,
which seems to concentrate delta smelt in a smaller area along with
other competing planktivorous fishes (Bennett 2005, pp. 11, 20). Causes
of such reduced outflows include smaller upstream releases from dams,
increased water exports from the State and Federal facilities, and
upstream water diversions for flooding rice fields (Feyrer 2007, p.
731; Service 2008, p. 153). Low freshwater outflows in the fall have
been correlated with a reduced abundance index for young delta smelt
the following summer (Feyrer et al. 2007, pp. 727, 728).
Delta smelt are also believed to require relatively turbid (not
clear) waters to capture prey and avoid predators (Feyrer 2007, p.
731). Increased water clarity during the summer and fall has been shown
to be negatively correlated with subsequent summer delta smelt
abundance indices (Feyrer 2007, p. 728; Nobriga et al. 2008, p. 8).
Since 1978, delta smelt have become increasingly rare in summer and
fall surveys of the San Joaquin region of the San Francisco Bay-Delta
(Nobriga et al. 2008, p. 9). The primary reason appears to be the
comparatively high water clarity in the region, although high water
temperatures are also likely a contributing factor (Nobriga et al.
2008, pp. 8, 9). The increased water clarity in delta smelt rearing
habitat is attributed to the interruption of sediment transport by
upstream dams (Arthur and Ball 1979, p. 157; Wright and Schoellhamer
2004, pp. 7, 10) and the spread of the exotic invasive water plant
Egeria densa (Brazilian waterweed), which traps suspended sediments
(Feyrer et al. 2007, p. 731).
Summary for Factor A
Based on a review of the best scientific and commercial information
available, we find that destruction, modification, or curtailment of
habitat poses a current and future threat to delta smelt. Operation of
upstream reservoirs, increased water exports, and upstream water
diversions have altered the location and extent of the low salinity
zone, concentrating smelt in an area with competing fish species.
Upstream reservoirs and the increased presence of Egeria densa have
also reduced turbidity levels in rearing habitat, which may reduce
foraging efficiency.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
Delta smelt monitoring surveys are conducted throughout the year,
including the Fall Mid-Winter Trawl (FMWT), Summer Townet Survey (TNS),
20-mm Survey, and Spring Kodiak Trawl Survey (SKT). Overall take by
survey collection is believed to be low compared to estimated relative
abundances (Bennett 2005, p. 7); however, considering the concern for
reduced abundance based on trend assessment, questions arise as to
whether these and other surveys pose a concern to the delta smelt.
Because of low abundance and a high level of sampling mortality, survey
methods have been modified to minimize potential impacts to delta smelt
(K. Souza 2009, pers. comm.). Based on the low number of delta smelt
collected in sampling surveys and the modified methods employed to
further reduce these collections, we find that the amount of take
expected to occur from sampling surveys does not reach a level
substantial enough to be considered a threat. There is no evidence of
use of the species for other commercial, recreational, scientific, or
educational purposes.
Based on a review of the best scientific information available, we
find that overutilization for commercial, recreational, or educational
purposes is not likely to be a significant threat to the delta smelt in
any portion of its range. Overutilization for scientific purposes may
pose an increased concern to delta smelt, but survey protocols have
been modified to minimize that concern.
C. Disease or Predation
Disease
Studies have not found evidence of significant disease infestations
in wild delta smelt (Teh 2007, p. 8; Baxter et al. 2008, p. 14). Based
on the best scientific and commercial information available, we
conclude that disease does not threaten the delta smelt in any portion
of its range.
Predation
At least three species of nonnative fish with the potential to prey
on delta smelt occur within the Delta: striped bass (Morone saxatilis),
largemouth bass (Micropterus salmoides), and inland silversides
(Menidia beryllina) (Bennett 2005, p. 49; Baxter et al. 2008, p. 17).
Striped bass are widely distributed in pelagic areas of the San
Francisco Bay-Delta, and thus have wide areas of overlap with delta
smelt juveniles and adults. They also tend to aggregate in the vicinity
of water diversion structures, where delta smelt are frequently
entrained (Nobriga and Feyrer 2007, p. 9). Thus, striped bass are
likely to be the most significant predator of delta smelt (Nobriga and
Feyrer 2007, p. 9), although the rarity of delta smelt would presumably
make them a relatively unusual prey item. Delta smelt are not commonly
found as prey for striped bass (Bennett 2005, p. 49; Nobriga and Feyrer
2007, p. 9); however, smelt may be taken opportunistically since both
striped and largemouth bass have highly diverse diets (Nobriga and
Feyrer 2007, p. 6).
Largemouth bass are freshwater fish that prefer shoreline
(littoral) habitat with relatively dense water plants (Nobriga and
Feyrer 2007, pp. 4, 8; Baxter et al. 2008, p. 17). Increases in the
Delta's largemouth bass population since the early 1990s is believed to
have been facilitated by the spread of the invasive plant Egeria densa,
which provides bass habitat (Baxter 2008, p. 17). Despite increases in
largemouth bass populations and habitat, Nobriga and Feyrer (2007, p 6)
did not find delta smelt as largemouth bass prey.
Inland silversides may be predators and competitors with delta
smelt (Bennett 2005, pp. 49, 50). Inland silversides were first
introduced to the San Francisco Bay-Delta in the mid 1970s, and have
increased dramatically in numbers since the mid-1980s. They forage in
schools around the shoreline habitats of the San Francisco Bay-Delta,
where delta smelt larvae and eggs occur. They readily consume delta
smelt larvae in aquarium tests. Bennett (2005, p. 50) concluded that
``delta smelt are at high risk if eggs or larvae co-occur with schools
of foraging silversides.'' We have no information regarding the extent
to which this is likely to occur in the wild.
Based on a review of the best available scientific and commercial
information, we find that predation likely constitutes a low-to-
moderate threat. Although we have no empirical evidence to indicate
predation has significantly increased since the time of listing, other
factors, such increasing water clarity, could increase the risk of
predation.
Summary for Factor C
Based on a review of the best available scientific and commercial
information available, we conclude that disease is not likely to be a
significant threat, and that predation is likely a
[[Page 17670]]
low-to-moderate threat, to the species at this time.
D. The Inadequacy of Existing Regulatory Mechanisms
State Laws
California Endangered Species Act: The delta smelt was listed as
threatened under the California Endangered Species Act (CESA) in 1993
(CDFG 2008, p. 5), and was reclassified as endangered under the CESA in
2010 (14 CCR 670.5). The CESA prohibits unpermitted possession,
purchase, sale, or take of listed species. However, the CESA definition
of take does not include harm, which under the Act can include
destruction of habitat that actually kills or injures wildlife by
significantly impairing essential behavioral patterns (50 CFR 17.3).
The CESA does require consultation between the California Department of
Fish and Game (CDFG) and other State agencies to ensure that activities
of State agencies will not jeopardize the continued existence of State-
listed species (CERES 2009, p. 1).
Porter Cologne Water Quality Control Act: The Porter Cologne Water
Quality Control Act establishes the State Water Resources Control Board
(SWRCB) and nine Regional Water Quality Control Boards that are
responsible for the regulation of activities and factors that could
degrade California water quality and for the allocation of surface
water rights (California Water Code Division 7). In 1995, the SWRCB
developed the Bay-Delta Water Quality Control Plan to establish water
quality objectives for the Delta. This plan is implemented by Water
Rights Decision 1641, which imposes flow and water quality standards on
State and Federal water export facilities to assure protection of
beneficial uses in the Delta (Service 2008, pp. 21-27). The various
flow objectives and export restraints are designed, in part, to protect
fisheries. These objectives include specific outflow requirements
throughout the year, specific water export restraints in the spring,
and water export limits based on a percentage of estuary inflow
throughout the year. The water quality objectives are designed to
protect agricultural, municipal, industrial, and fishery uses; they
vary throughout the year and by the wetness of the year.
Federal Laws
National Environmental Policy Act: The National Environmental
Policy Act (NEPA) (42 U.S.C. 4321 et seq.) requires all Federal
agencies to formally document, consider, and publicly disclose the
environmental impacts of major Federal actions and management decisions
significantly affecting the human environment. NEPA documentation is
provided in an environmental impact statement, an environmental
assessment, or a categorical exclusion, and may be subject to
administrative or judicial appeal. However, the Federal agency is not
required to select an alternative having the least significant
environmental impacts, and may select an action that will adversely
affect sensitive species provided that these effects are known and
identified in a NEPA document. Therefore, we do not consider the NEPA
process in itself is to be a regulatory mechanism that is certain to
provide significant protection for the delta smelt.
Endangered Species Act: The delta smelt is currently listed as a
threatened species under the Endangered Species Act of 1973, as amended
(Act). By general regulation under sections 4(d) and 7(a) of the Act,
threatened fish or wildlife species are afforded all the regulatory
protections that endangered fish or wildlife species have. However, in
order to provide those measures necessary and advisable for the
conservation of a species listed as threatened, we can issue a special
rule under section 4(d) of the Act to allow different restrictions on
``take'' as defined in section 3(19) of the Act and regulated under
section 9 of the Act. No special rules for delta smelt currently exist.
The Act defines a ``threatened species'' as ``any species which is
likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range'' (section 3(20)
of the Act). An ``endangered species'' is ``any species which is in
danger of extinction throughout all or a significant portion of its
range'' (section 3(6) of the Act). Section 6 of the Act authorizes us
to enter into conservation agreements with States, and to allocate
funds for conservation programs to benefit threatened or endangered
species. Neither section 6 of the Act nor Service policy gives higher
priority to endangered vs. threatened species for conservation funding.
The Central Valley Project (CVP), operated by the Bureau of
Reclamation (Reclamation), and State Water Project (SWP), operated by
the California Resources Agency Department of Water Resources (DWR),
are currently operating under a Biological Opinion (BO) issued December
15, 2008, under section 7 of the Act (Service 2008, pp. 1-396). The BO
includes a reasonable and prudent alternative (RPA), according to which
water export facility operations could proceed without jeopardizing the
continued existence of the species or destroying or adversely modifying
its designated critical habitat. It also includes an incidental take
statement (ITS) specifying reasonable and prudent measures necessary to
minimize the incidental take of the species resulting from CVP and SWP
operations. Reclamation has accepted the RPA provisionally, but may
decide to reinitiate consultation (Reclamation 2008, p. 1). The ITS and
BO replace a previous ITS and BO issued in 2005 (Service 2005, p. 1),
and also replace flow restrictions instituted by the District Court in
the case of NRDC v. Kempthorne (Wanger 2007, pp. 1-11), which found the
2005 BO inadequate to conserve the species.
Central Valley Project Improvement Act: The Central Valley Project
Improvement Act (Pub. L. 102-575)(CVPIA) amends the previous Central
Valley Project (CVP) authorizations to include fish and wildlife
protection, restoration, and mitigation as project purposes having
equal priority with irrigation and domestic uses, and fish and wildlife
enhancement as having an equal priority with power generation (Public
Law 102-575, October 30, 1992; Reclamation 2009). Included in CVPIA was
a provision to dedicate 800,000 acre-feet of CVP yield annually for
fish, wildlife, and habitat restoration, referred to as (b)(2) water.
Since 1993, (b)(2) water has been used, supplemented with acquired
environmental water (Environmental Water Account and CVPIA (b)(3)
water), to protect delta smelt and their habitat by increasing stream
flows and reducing CVP export pumping in the Delta (Guinee 2009, pers.
comm.).
Summary for Factor D
In summary, although regulatory mechanisms are in place to address
direct and indirect adverse effects to delta smelt and conserve smelt
habitat, not all activities impacting delta smelt are subject to
regulatory review and comment. The continued decline in delta smelt
trend indicators suggest that existing regulatory mechanisms, as
currently implemented, are not adequate to reduce threats to the
species. Therefore, based on a review of the best scientific
information available, we find existing regulatory mechanisms are
either not sufficient or may not be addressing the most significant
threat to the species.
[[Page 17671]]
E. Other Natural or Manmade Factors Affecting the Species' Continued
Existence
Other factors affecting the continued existence of the species
include direct entrainment into water diversions, introduced species,
contaminants, and increased vulnerabilities of small populations.
Direct Entrainment
Agricultural Diversions for Irrigation: There are 2,209 known
agricultural diversions in the San Francisco Bay-Delta and an
additional 366 diversions in Suisun Marsh used to enhance waterfowl
habitat (Service 2008, p. 172). Most of these diversions do not have
fish screens to protect fish from entrainment (trapping). The amount of
entrainment that may occur at these diversions is not well-known, and
efforts to determine the effect of this entrainment have been limited
because previous studies either (1) did not quantify the volumes of
water diverted, or (2) did not sample at times when, or locations
where, delta smelt were abundant. Delta smelt may not be vulnerable to
agricultural diversions for several reasons. First, adult delta smelt
move into the Delta to spawn during winter to early spring when
agricultural diversion operations are at a minimum. Second, larval
delta smelt avoid the South Delta during summer when diversion demand
peaks. Third, delta smelt are often distributed offshore, away from
agricultural diversions (Nobriga et al. 2004, p. 293). Therefore, we do
not consider entrainment by agricultural or waterfowl habitat
diversions to be a significant threat to delta smelt.
Power Plant Diversions: Two power plants located near the
confluence of the Sacramento and San Joaquin Rivers pose an entrainment
risk to delta smelt: the Contra Costa Power Plant and the Pittsburg
Power Plant (Service 2008, pp. 173-174). The maximum combined non-
consumptive intake of cooling water for the two facilities is 3,240
cubic feet per second (cfs), which can exceed 10 percent of the total
net outflow of the Sacramento and San Joaquin rivers. In 1979, average
annual entrainment at the two power plants was estimated to be 86
million smelt (delta and longfin smelt combined). Power plant
operations have been substantially reduced since that time, and are now
either kept offline, or operating at very low levels, except as
necessary to meet peak power needs. The owner of the power plants,
Mirant, is monitoring entrainment at the two power plants to determine
how many delta smelt may be affected by operation of the two plants.
Entrainment of delta smelt by these two major power plants has been a
significant threat in the past and could impact delta smelt in the
future. These plants are of particular concern because they are located
near, and draw cooling water from, an area where sensitive fish species
are known to occur. Additional study is needed to determine the overall
environmental impact of these power plants.
Water Export Facilities: Four major water diversion facilities
exported between 4.85 and 8.7 km\3\ (3.93 and 7.05 million acre-feet)
per year from the Delta during the years 1995 through 2005 (Kimmerer
and Nobriga 2008, p 2). Of these, the State and Federal facilities
exported between 4.7 and 8.4 km\3\ (3.81 and 6.81 million acre-feet)
per year. Operation of water export facilities directly affects fish by
entrainment into the diversion facility. The risk of entrainment varies
with the environmental and manmade effects on Delta hydrology and the
location of delta smelt in the Delta (Culberson et al. 2004, pp. 260-
262; Kimmerer and Nobriga 2008, pp. 19-20).
Entrainment of delta smelt varies among seasons and among years.
Most adults are entrained from late December through March, while most
larvae and juveniles are entrained from April through the end of June
to early July. Studies of entrainment at the State and Federal export
facilities found that entrainment rates increased with reverse flows in
the Delta, which are related to export rates (Kimmer 2008, p. 20-22).
Kimmerer (2008, p. 20, 22) estimated that from 0 to 62 percent of the
larval population and 3 to 50 percent of the adult population is
entrained annually by the State and Federal export facilities. Although
an effort is made to salvage fish entrained by the pumping facilities,
delta smelt are too fragile to do so effectively, and essentially all
delta smelt entrained by the pumping facilities, including all delta
smelt that enter the SWP's Clifton Court Forebay, do not survive
(Bennett 2005, p. 37).
Entrainment may also affect the distribution of the successfully
spawned population. Export of water by the CVP and SWP likely limits
the reproductive success of delta smelt in the San Joaquin River by
entraining most larvae during downstream transport from spawning sites
to rearing areas (Kimmerer and Nobriga et al. 2008, p. 11). Winter
entrainment of delta smelt represents a loss of pre-spawning adults and
their reproductive potential (Sommer et al. 2007).
The population-level effects of such losses are unknown. However,
increases in winter salvage of adults at the State and Federal export
facilities during the early 2000s coincide with declines in delta smelt
abundance estimates during the same time period (Baxter 2008, p.18).
The total annual pumping from the State and Federal export facilities
increased significantly in 2000, and has remained above 1990's levels
through 2007 (Service 2008, p. 125). The delta smelt Fall Midwater
Trawl (FMWT) abundance index decreased in the year 2000, and
experienced severe declines 2 years later (CDFG 2008, p. 2). While
there are many factors contributing to the declining trend in delta
smelt abundance estimates, we consider entrainment by State and Federal
water export facilities to be a significant and ongoing threat to the
delta smelt.
In summary, we do not consider entrainment by agricultural
diversions to be a significant threat due to their nearshore location.
Entrainment into power plants at Pittsburgh and Contra Costa has had a
significant impact on delta smelt in the past; however, their
operations have been modified, and further study is needed to determine
the present level of threat to delta smelt. The operation of State and
Federal export facilities constitute a significant and ongoing threat
to delta smelt through direct mortality by entrainment.
Introduced Species
Introduced species have altered the Delta food web and may have
played a role in the decline of delta smelt (Nobriga 1998, p. 20). The
overbite clam (Corbula amurensis) is a nonnative species that became
abundant in the Delta in the late 1980s. Starting in about 1987 to
1988, declines were observed in the abundance of phytoplankton (Alpine
and Cloern 1992, p. 951) and the copepod Eurytemora affinis. These
declines have been attributed to grazing by the overbite clam (Kimmerer
et al. 1994, p. 86). Because the overbite clam also consumes copepod
larvae as it feeds (Kimmerer et al. 1994, p. 87), it not only reduces
phytoplankton biomass but also competes directly with delta smelt for
food. It is believed that these changes in the estuarine food web
negatively influence pelagic fish abundance, including delta smelt
abundance.
Copepods (E. affinis, Psuedodiaptomus forbesi), a major prey item
for delta smelt, have declined in abundance in the Delta since the
1970s (Kimmerer and Orsi 1996, p. 409). Limnoithona tetraspina (no
common name) is a nonnative copepod that began increasing in numbers in
the delta in the mid 1990s - about the same time that the delta smelt's
preferred prey copepod, P. forbesi, began declining
[[Page 17672]]
(Bennett 2005, p. 18). L. tetraspina is now the most abundant copepod
species in the low salinity zone (Bouley and Kimmerer 2006, p. 219),
and is likely an inferior prey species for delta smelt because of its
smaller size and superior predator avoidance abilities when compared to
P. forbesi (Bennett 2005, p. 18; Baxter et al. 2008, p. 22).
Delta smelt may also be adversely affected by competition from
introduced fish species that use overlapping habitats, such as inland
silversides (Bennett 2005, pp. 49, 50). Laboratory studies show that
delta smelt growth is inhibited when reared with inland silversides
(Bennett 2005, p. 50). Delta smelt and inland silversides have similar
morphology, diet, and lifespan, but silversides have a broader diet,
and a generally wider ecological niche, a pattern that could give it a
competitive advantage over delta smelt (Bennett 2005, p. 50).
In summary, we find that introduced species have altered the Delta
food web and constitute a significant threat to delta smelt. It is
likely that this threat will increase in the future with the ongoing
risk of new species being introduced to the Delta.
Contaminants
There is a potential for exposure of Delta organisms to various
contaminants. Toxicity to invertebrates has been noted in water and
sediments from the Delta and associated watersheds (e.g., Werner et al.
2000, pp. 218, 223). Fish exposed to water from agricultural drains in
the San Joaquin River watershed can exhibit body burdens of selenium
exceeding the level at which reproductive failure and increased
juvenile mortality occur (Saiki et al. 2001, p. 629). Kuivila and Moon
(2004, p. 239) found that peak densities of larval and juvenile delta
smelt sometimes coincided in time and space with elevated
concentrations of dissolved pesticides in the spring. These periods of
co-occurrence lasted for up to 2 to 3 weeks. Concentrations of
individual pesticides were low and much less than would be expected to
cause acute mortality; however, the effects of exposure to the complex
mixtures of pesticides are unknown.
Several studies were initiated in 2005 to address the possible role
of contaminants and disease in the declines of San Francisco Bay-Delta
fish and other aquatic species. The primary study consists of twice-
monthly monitoring of ambient water toxicity at 15 sites in the San
Francisco Bay-Delta and Suisun Bay (Baxter et al. 2008, pp. 13, 14). In
2005 and 2006, standard bioassays using the amphipod Hyalella azteca
had low (less than 5 percent) frequency of occurrence of toxicity.
However, preliminary results from 2007, a dry year, suggest the
incidence of toxic events was higher than in the previous (wetter)
years. Testing indicated that both organophosphate and pyrethroid
pesticides may have contributed to the pulses of toxicity. Pyrethroids
are of particular interest because use of these insecticides has
increased within the San Francisco Bay-Delta watershed, as use of some
organophosphate insecticides has declined.
In conjunction with the above investigation, larval delta smelt
bioassays were conducted simultaneously with a subset of the
invertebrate bioassays (Service 2008, pp. 187-188). The water samples
for these tests were collected from six sites within the San Francisco
Bay-Delta during May-August of 2006 and 2007. Results from 2006
indicate that delta smelt are highly sensitive to high levels of
ammonia, low turbidity, and low salinity. No significant mortality of
larval delta smelt was found in the 2006 bioassays, but there were two
instances of significant mortality in June and July of 2007. In both
cases, the water samples were collected from sites along the Sacramento
River, where delta smelt larvae and juveniles are frequently collected
in routine survey sampling. Both sets of water samples had relatively
low turbidity and salinity levels and moderate levels of ammonia. It is
also important to note that no significant Hyalella azteca mortality
was detected in these water samples. While the H. azteca tests are
useful for detecting biologically relevant levels of water column
toxicity for zooplankton, interpretation of the H. azteca test results
may not be applicable to fish, and delta smelt in particular.
A histopathological examination of adult delta smelt collected
during the winter of 2005 found comparatively high levels of liver
lesions in delta smelt taken from Suisun Bay, Suisun Marsh, and the
South Delta, indicating that delta smelt in those areas had been
subjected to higher levels of stress from contaminants than delta smelt
in other areas (Teh 2007, pp. 12, 13). Although the study did not
suggest such lesions would prevent survival or reproduction directly,
it did note that such stress can leave afflicted individuals more
susceptible to mortality from other causes, such as predation and
disease. The study concluded that contaminants are unlikely to directly
affect the survival of delta smelt in the Central Delta (Teh 2007, p.
2). The study also found a small number of intersex (having
characteristics of both male and female sexes) delta smelt, with
immature oocytes in their testes (Teh 2007, p. 14). This can result
from exposure to endocrine-disrupting chemicals, but it can also occur
spontaneously. Teh (2007) concluded that additional laboratory
evaluation was necessary to identify the cause.
Large blooms of toxic blue-green algae, Microcystis aeruginosa,
were first detected in the San Francisco Bay-Delta during the summer of
1999 (Lehman et al. 2005, p. 87). Since then, M. aeruginosa has bloomed
each year, forming large colonies throughout most of the Delta and
increasingly down into eastern Suisun Bay (Lehman et al. 2005, p. 92).
Blooms typically occur between late spring and early fall and peak in
the summer when temperatures are above 20 \0\C (68 \0\F). Microcystis
aeruginosa can produce natural toxins that pose animal and human health
risks if contacted or ingested directly. Preliminary evidence indicates
that the toxins produced by local blooms are not toxic to fishes at
current concentrations (Baxter et al. 2008, p. 14). However, the
copepods that delta smelt eat are particularly susceptible to those
toxins (Ger 2008, pp. 12, 13). Studies are underway to determine if
zooplankton production is compromised during M. aerguinosa blooms to an
extent that is likely to adversely affect delta smelt (Service 2008, p.
186). Microcystis blooms may also decrease dissolved oxygen to lethal
levels for fish; however, the distribution of delta smelt generally
does not significantly overlap the densest M. aeruginosa
concentrations, so low levels of dissolved oxygen are not likely a
threat to delta smelt. One possible exception to non-overlapping
distribution may have occurred during September 2007, when delta smelt
were captured at higher salinity levels than normal. One possible
explanation for this was that a substantial Microcystis bloom may have
pushed delta smelt farther towards the ocean than they would normally
have gone (Baxter et al. 2008, pp. 12, 28).
Although negative impacts to individual delta smelt for
contaminants have been shown, the overall extent of such cases, and
impacts to the population as a whole, remain largely undocumented.
However, because substantial uncertainties exist and the co-occurrence
of delta smelt with contaminants has been documented, we conclude that
contaminants may constitute a significant threat to delta smelt.
Vulnerability of Small Populations
Delta smelt are relatively concentrated in their rearing habitat
during the fall,
[[Page 17673]]
making them vulnerable to normal, but damaging, environmental
conditions such as droughts, contaminant spills, and predation. Small,
isolated populations are more likely to lose genetic variability due to
genetic drift (random genetic changes over time), and to suffer
inbreeding depression due to the fixation of deleterious alleles (gene
variants) (Lande 1999, pp. 11-17). Populations at low densities are
often subject to Allee effects, which involve decreases in the ratio of
offspring to adults as the population density decreases (Dennis 2002,
p. 389). It is unknown if small population size may have contributed to
delta smelt's most apparent decline.
Summary for Factor E
Based on a review of the best scientific and commercial information
available, we find that the following additional natural or manmade
factors pose significant ongoing threats to the delta smelt:
entrainment by the State and Federal water export facilities and
introduced species. Additional threats that are potentially significant
are entrainment into power plant diversions, contaminants, and small
population effects.
Finding
As required by the Act, we considered the five factors in assessing
whether the delta smelt is threatened or endangered throughout all or a
significant portion of its range. We carefully assessed the best
scientific and commercial information available regarding whether
reclassifying delta smelt from threatened to endangered may be
warranted. We reviewed the information in our files, and information
submitted to us after the publication of our 90-day finding (73 FR
39639) and during the reopened information collection period (73 FR
74674).
We believe there are many primary threats to the species: direct
entrainments by State and Federal water export facilities (Factor E);
summer and fall increases in salinity and water clarity (Factor A), and
effects from introduced species (Factor E). Additional threats are
predation by striped and largemouth bass and inland silversides (Factor
C), entrainment into power plants (Factor E), contaminants (Factor E)
and small population size (Factor E). Existing regulatory mechanisms
(Factor D) have not proven adequate to halt the decline of delta smelt
since the time of listing as a threatened species.
In March 2004, we completed a 5-year review for delta smelt in
which we determined a change in status from threatened to endangered
was not recommended. While none of the threats discussed above, other
than apparent abundance, show significant differences from 2004, we now
have strong evidence, not available at the time of our 5-year review,
that at least some of those factors are endangering the species. The
primary evidence is the continuing downward trend in delta smelt
abundance indices since the significant decline that occurred in 2002
(CDFG 2008, p. 2). The 2002 decline was cited as a serious concern in
2004, but the delta smelt abundance indices had experienced significant
downward trends in 1992, 1994, and 1996 (Service 2004, unpaginated App.
B Midwater Trawl Abundance Index table). However, after each of those
previous declines, the abundance indices seemingly rebounded. The 2003
abundance index, the most current information available for the 5-year
review, showed a slight increase from the 2002 index. Therefore, we had
no evidence to suggest a cycle different from what had been previously
observed, and we expected that the delta smelt would improve from the
2002 decline. In the 5 years since our 5-year review, however, delta
smelt abundance indices have continued to decrease. The most recent
fall midwater trawl abundance index is the lowest ever recorded - about
one-tenth the level it was in 2003. In addition, a 2005 population
viability analysis calculated a 50 percent likelihood that the species
could reach effective extinction (8,000 individuals) within 20 years
(Bennett 2005, pp. 53-54).
We are still unable to determine with certainty which threats or
combinations of threats are directly responsible for the decrease in
delta smelt abundance. However, the apparent low abundance of delta
smelt in concert with ongoing threats throughout its range indicates
that the delta smelt is now in danger of extinction throughout its
range. Therefore, based on a review of the best scientific and
commercial information available, we find that the delta smelt meets
the definition of an endangered species under the Act, and that it
warrants reclassification from threatened to endangered. However, at
this time, the promulgation of a formal rulemaking to reclassify delta
smelt is precluded by higher priority actions.
We adopted guidelines on September 21, 1983 (48 FR 43098) to
establish a rational system for utilizing available resources for the
highest priority species when adding species to the Lists of Endangered
or Threatened Wildlife and Plants or reclassifying species listed as
threatened to endangered status. The system places greatest importance
on the immediacy and magnitude of threats, but also factors in the
level of taxonomic distinctiveness by assigning priority in descending
order to monotypic genera, full species, and subspecies (or
equivalently, distinct population segments of vertebrates). As a result
of our analysis of the best available scientific and commercial
information, we have assigned the delta smelt a Listing Priority Number
of 2, based on high magnitude and immediacy of threats. The magnitude
of the threats is considered to be high, because they occur rangewide
and result in mortality or significantly reduce the reproductive
capacity of the species. They are imminent because these threats are
ongoing and, in some cases (e.g., nonnative species), considered
irreversible. While we conclude that reclassifying the species as
endangered is warranted, an immediate proposal to reclassify this
species is precluded by other higher priority actions, which we address
below.
Preclusion and Expeditious Progress
Preclusion is a function of the listing priority of a species in
relation to the resources that are available and competing demands for
those resources. Thus, in any given fiscal year (FY), multiple factors
dictate whether it will be possible to undertake work on a proposed
listing regulation or whether promulgation of such a proposal is
warranted but precluded by higher-priority listing actions.
The resources available for listing actions are determined through
the annual Congressional appropriations process. The appropriation for
the Listing Program is available to support work involving the
following listing actions: proposed and final listing rules; 90-day and
12-month findings on petitions to add species to the Lists of
Endangered and Threatened Wildlife and Plants (Lists) or to change the
status of a species from threatened to endangered; annual
determinations on prior ``warranted but precluded'' petition findings
as required under section 4(b)(3)(C)(i) of the Act; critical habitat
petition findings; proposed and final rules designating critical
habitat; and litigation-related, administrative, and program-management
functions (including preparing and allocating budgets, responding to
Congressional and public inquiries, and conducting public outreach
regarding listing and critical habitat). The work involved in preparing
various listing documents can be extensive and may include, but is not
limited to: gathering and assessing the best scientific and commercial
data
[[Page 17674]]
available and conducting analyses used as the basis for our decisions;
writing and publishing documents; and obtaining, reviewing, and
evaluating public comments and peer review comments on proposed rules
and incorporating relevant information into final rules. The number of
listing actions that we can undertake in a given year also is
influenced by the complexity of those listing actions; that is, more
complex actions generally are more costly. For example, during the past
several years, the cost (excluding publication costs) for preparing a
12-month finding, without a proposed rule, has ranged from
approximately $11,000 for one species with a restricted range and
involving a relatively uncomplicated analysis to $305,000 for another
species that is wide-ranging and involving a complex analysis.
We cannot spend more than is appropriated for the Listing Program
without violating the Anti-Deficiency Act (see 31 U.S.C. Sec.
1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since
then, Congress has placed a statutory cap on funds which may be
expended for the Listing Program, equal to the amount expressly
appropriated for that purpose in that fiscal year. This cap was
designed to prevent funds appropriated for other functions under the
Act (for example, recovery funds for removing species from the Lists),
or for other Service programs, from being used for Listing Program
actions (see House Report 105-163, 105\th\ Congress, 1st Session, July
1, 1997).
Recognizing that designation of critical habitat for species
already listed would consume most of the overall Listing Program
appropriation, Congress also put a critical habitat subcap in place in
FY 2002 and has retained it each subsequent year to ensure that some
funds are available for other work in the Listing Program: ``The
critical habitat designation subcap will ensure that some funding is
available to address other listing activities'' (House Report No. 107 -
103, 107\th\ Congress, 1st Session, June 19, 2001). In FY 2002 and each
year until FY 2006, the Service has had to use virtually the entire
critical habitat subcap to address court-mandated designations of
critical habitat, and consequently none of the critical habitat subcap
funds have been available for other listing activities. In FY 2007, we
were able to use some of the critical habitat subcap funds to fund
proposed listing determinations for high-priority candidate species. In
FY 2009, while we were unable to use any of the critical habitat subcap
funds to fund proposed listing determinations, we did use some of this
money to fund the critical habitat portion of some proposed listing
determinations, so that the proposed listing determination and proposed
critical habitat designation could be combined into one rule, thereby
being more efficient in our work. In FY 2010, we are using some of the
critical habitat subcap funds to fund actions with statutory deadlines.
Thus, through the listing cap, the critical habitat subcap, and the
amount of funds needed to address court-mandated critical habitat
designations, Congress and the courts have in effect determined the
amount of money available for other listing activities. Therefore, the
funds in the listing cap, other than those needed to address court-
mandated critical habitat for already listed species, set the limits on
our determinations of preclusion and expeditious progress.
Congress also recognized that the availability of resources was the
key element in deciding, when making a 12-month petition finding,
whether we would prepare and issue a listing proposal or instead make a
``warranted but precluded'' finding for a given species. The Conference
Report accompanying Public Law 97-304, which established the current
statutory deadlines and the warranted-but-precluded finding, states (in
a discussion on 90-day petition findings that by its own terms also
covers 12-month findings) that the deadlines were ``not intended to
allow the Secretary to delay commencing the rulemaking process for any
reason other than that the existence of pending or imminent proposals
to list species subject to a greater degree of threat would make
allocation of resources to such a petition [that is, for a lower-
ranking species] unwise.''
In FY 2010, expeditious progress is that amount of work that can be
achieved with $10,471,000, which is the amount of money that Congress
appropriated for the Listing Program (that is, the portion of the
Listing Program funding not related to critical habitat designations
for species that are already listed). However these funds are not
enough to fully fund all our court-ordered and statutory listing
actions in FY 2010, so we are using $1,114,417 of our critical habitat
subcap funds in order to work on all of our required petition findings
and listing determinations. This brings the total amount of funds we
have for listing action in FY 2010 to $11,585,417. Starting in FY 2010,
we are also using our funds to work on listing actions for foreign
species since that work was transferred from the Division of Scientific
Authority, International Affair Program to the Endangered Species
Program. Our process is to make our determinations of preclusion on a
nationwide basis to ensure that the species most in need of listing
will be addressed first and also because we allocate our listing budget
on a nationwide basis. The $11,585,417 is being used to fund work in
the following categories: compliance with court orders and court-
approved settlement agreements requiring that petition findings or
listing determinations be completed by a specific date; section 4 (of
the Act) listing actions with absolute statutory deadlines; essential
litigation-related, administrative, and listing program-management
functions; and high-priority listing actions for some of our candidate
species. The allocations for each specific listing action are
identified in the Service's FY 2010 Allocation Table (part of our
administrative record).
In FY 2007, we had more than 120 species with an LPN of 2, based on
our September 21, 1983, guidance for assigning an LPN for each
candidate species (48 FR 43098). Using this guidance, we assign each
candidate an LPN of 1 to 12, depending on the magnitude of threats
(high vs. moderate to low), immediacy of threats (imminent or
nonimminent), and taxonomic status of the species (in order of
priority: monotypic genus (a species that is the sole member of a
genus); species; or part of a species (subspecies, distinct population
segment, or significant portion of the range)). The lower the listing
priority number, the higher the listing priority (that is, a species
with an LPN of 1 would have the highest listing priority). Because of
the large number of high-priority species, we further ranked the
candidate species with an LPN of 2 by using the following extinction-
risk type criteria: International Union for the Conservation of Nature
and Natural Resources (IUCN) Red list status/rank, Heritage rank
(provided by NatureServe), Heritage threat rank (provided by
NatureServe), and species currently with fewer than 50 individuals, or
4 or fewer populations. Those species with the highest IUCN rank
(critically endangered), the highest Heritage rank (G1), the highest
Heritage threat rank (substantial, imminent threats), and currently
with fewer than 50 individuals, or fewer than 4 populations, comprised
a group of approximately 40 candidate species (``Top 40''). These 40
candidate species have had the highest priority to receive funding to
work on a proposed listing determination. As we work on proposed
[[Page 17675]]
and final listing rules for these 40 candidates, we are applying the
ranking criteria to the next group of candidates with LPN of 2 and 3 to
determine the next set of highest priority candidate species.
To be more efficient in our listing process, as we work on proposed
rules for these species in the next several years, we are preparing
multi-species proposals when appropriate, and these may include species
with lower priority if they overlap geographically or have the same
threats as a species with an LPN of 2. In addition, available staff
resources are also a factor in determining high-priority species
provided with funding. Finally, proposed rules for reclassification of
threatened species to endangered are lower priority, since as listed
species, they are already afforded the protection of the Act and
implementing regulations.
We assigned the delta smelt an LPN of 2, based on our finding that
the species faces immediate and high magnitude threats from the present
or threatened destruction, modification, or curtailment of its habitat;
the inadequacy of existing regulatory mechanisms; and other natural or
manmade Factors. One or more of the threats discussed above are
occurring in each known population. These threats are ongoing and, in
some cases (e.g., nonnative species), considered irreversible. Under
the 1983 Guidelines, a ``species'' facing imminent high-magnitude
threats is assigned an LPN of 1, 2, or 3 depending on its taxonomic
status. Because the delta smelt is a species, but not a monotypic
genus, we assigned it an LPN of 2. We find that reclassification to
endangered status for the delta smelt is currently warranted but
precluded by higher priority listing actions. One of the primary
reasons that the reclassification of delta smelt is considered a lower
priority is that the species is currently listed as threatened, and
therefore already receives certain protections under the Act. The
Service promulgated regulations extending take prohibitions for
endangered species under section 9 to threatened species (50 CFR
17.31). Prohibited actions under section 9 include, but are not limited
to, take (i.e., to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or attempt to engage in such activity).
Other protections include those under section 7(a)(2) of the Act
whereby Federal agencies must insure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of any endangered or threatened species.
Given the above-mentioned funding constraints, the Service's
priority is to list as threatened or endangered all candidate species
(and thus provides protections under the Act) before reclassifying
threatened species that already receive protection under the Act.
Therefore, work on a proposed reclassification from threatened to
endangered for the delta smelt is precluded by work on: (1) listing
determinations for listing actions with absolute statutory, court-
ordered, or court-approved deadlines, and final listing determinations
for those species that have been proposed for listing; and (2)
candidate species and reclassifications of other higher priority
threatened species (i.e., species with LPN of 1). This work includes
all the actions listed in the tables below under expeditious progress.
As explained above, a determination that reclassification is
warranted but precluded must also demonstrate that expeditious progress
is being made to add or remove qualified species to and from the Lists
of Endangered and Threatened Wildlife and Plants. (Although we do not
discuss it in detail here, we are also making expeditious progress in
removing species from the list under the Recovery program, which is
funded by a separate line item in the budget of the Endangered Species
Program. As explained above in our description of the statutory cap on
Listing Program funds, the Recovery Program funds and actions supported
by them cannot be considered in determining expeditious progress made
in the Listing Program.) As with our ``precluded'' finding, expeditious
progress in adding qualified species to the Lists is a function of the
resources available and the competing demands for those funds. Given
that limitation, we find that we have made progress in FY 2009 in the
Listing Program and will continue to make progress in FY 2010. This
progress included preparing and publishing the following
determinations:
FY 2010 Completed Listing Actions
----------------------------------------------------------------------------------------------------------------
Publication Date Title Actions FR Pages
----------------------------------------------------------------------------------------------------------------
10/08/2009 Listing Lepidium Final Listing 74 FR 52013-52064
papilliferum Threatened.............
(Slickspot
Peppergrass) as a
Threatened Species
Throughout Its Range
----------------------------------------------------------------------------------------------------------------
10/27/2009 90-day Finding on a Notice of 90-day 74 FR 55177-55180
Petition To List the Petition Finding,
American Dipper in the Not substantial........
Black Hills of South
Dakota as Threatened
or Endangered
----------------------------------------------------------------------------------------------------------------
10/28/2009 Status Review of Arctic Notice of Intent to 74 FR 55524-55525
Grayling (Thymallus Conduct Status Review..
arcticus) in the Upper
Missouri River System
----------------------------------------------------------------------------------------------------------------
11/03/2009 Listing the British Proposed Listing 74 FR 56757-56770
Columbia Distinct Threatened.............
Population Segment of
the Queen Charlotte
Goshawk Under the
Endangered Species
Act: Proposed rule.
----------------------------------------------------------------------------------------------------------------
11/03/2009 Listing the Salmon- Proposed Listing 74 FR 56770-56791
Crested Cockatoo as Threatened.............
Threatened Throughout
Its Range with Special
Rule
----------------------------------------------------------------------------------------------------------------
11/23/2009 Status Review of Notice of Intent to 74 FR 61100-61102
Gunnison sage-grouse Conduct Status Review..
(Centrocercus minimus)
----------------------------------------------------------------------------------------------------------------
12/03/2009 12-Month Finding on a Notice of 12 month 74 FR 63343-63366
Petition to List the petition finding,
Black-tailed Prairie Not warranted..........
Dog as Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
[[Page 17676]]
12/03/2009 90-Day Finding on a Notice of 90-day 74 FR 63337-63343
Petition to List Petition Finding,
Sprague's Pipit as Substantial............
Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
12/15/2009 90-Day Finding on Notice of 90-day 74 FR 66260-66271
Petitions To List Nine Petition Finding,
Species of Mussels Substantial............
From Texas as
Threatened or
Endangered With
Critical Habitat
----------------------------------------------------------------------------------------------------------------
12/16/2009 Partial 90-Day Finding Notice of 90-day 74 FR 66865-66905
on a Petition to List Petition Finding,
475 Species in the Not substantial and
Southwestern United Subtantial.
States as Threatened
or Endangered With
Critical Habitat;
Proposed Rule
----------------------------------------------------------------------------------------------------------------
12/17/2009 12-month Finding on a Notice of 12 month 74 FR 66937-66950
Petition To Change the petition finding,
Final Listing of the Warranted but precluded
Distinct Population
Segment of the Canada
Lynx To Include New
Mexico
----------------------------------------------------------------------------------------------------------------
1/05/2010 Listing Foreign Bird Proposed Listing 75 FR 605-649
Species in Peru and Endangered.............
Bolivia as Endangered
Throughout Their Range
----------------------------------------------------------------------------------------------------------------
1/05/2010 Listing Six Foreign Proposed Listing 75 FR 286-310
Birds as Endangered Endangered.............
Throughout Their Range
----------------------------------------------------------------------------------------------------------------
1/05/2010 Withdrawal of Proposed Proposed rule, 75 FR 310-316
Rule to List Cook's withdrawal.............
Petrel
----------------------------------------------------------------------------------------------------------------
1/05/2010 Final Rule to List the Final Listing 75 FR 235-250
Galapagos Petrel and Threatened.............
Heinroth's Shearwater
as Threatened
Throughout Their
Ranges
----------------------------------------------------------------------------------------------------------------
1/20/2010 Initiation of Status Notice of Intent to 75 FR 3190-3191
Review for Agave Conduct Status Review..
eggersiana and Solanum
conocarpum
----------------------------------------------------------------------------------------------------------------
2/09/2010 12-month Finding on a Notice of 12-month 75 FR 6437-6471
Petition to List the petition finding,
American Pika as Not warranted..........
Threatened or
Endangered; Proposed
Rule
----------------------------------------------------------------------------------------------------------------
2/25/2010 12-Month Finding on a Notice of 12-month 75 FR 8601-8621
Petition To List the petition finding,
Sonoran Desert Not warranted..........
Population of the Bald
Eagle as a Threatened
or Endangered Distinct
Population Segment
----------------------------------------------------------------------------------------------------------------
2/25/2010 Withdrawal of Proposed Withdrawal of Proposed 75 FR 8621-8644
Rule To List the Rule to List...........
Southwestern
Washington/Columbia
River Distinct
Population Segment of
Coastal Cutthroat
Trout (Oncorhynchus
clarki clarki) as
Threatened
----------------------------------------------------------------------------------------------------------------
3/18/2010 90-Day Finding on a Notice of 90-day 75 FR 13068-13071
Petition to List the Petition Finding,
Berry Cave salamander Substantial............
as Endangered
----------------------------------------------------------------------------------------------------------------
3/23 /2010 90-Day Finding on a Notice of 90-day 75 FR 13717-13720
Petition to List the Petition Finding,
Southern Hickorynut Not substantial........
Mussel (Obovaria
jacksoniana) as
Endangered or
Threatened
----------------------------------------------------------------------------------------------------------------
3/23 /2010 90-Day Finding on a Notice of 90-day 75 FR 13720-13726
Petition to List the Petition Finding,
Striped Newt as Substantial............
Threatened
----------------------------------------------------------------------------------------------------------------
3/23/2010 12-Month Findings for Notice of 12-month 75 FR 13910-14014
Petitions to List the petition finding,
Greater Sage-Grouse Warranted but precluded
(Centrocercus
urophasianus)as
Threatened or
Endangered
----------------------------------------------------------------------------------------------------------------
3/31/2010 12-Month Finding on a Notice of 12-month 75 FR 16050-16065
Petition to List the petition finding
Tucson Shovel-Nosed Warranted but precluded
Snake (Chionactis
occipitalis klauberi)
as Threatened or
Endangered with
Critical Habitat
----------------------------------------------------------------------------------------------------------------
Our expeditious progress also includes work on listing actions that
we funded in FY 2010 but have not yet been completed to date. These
actions are listed below. Actions in the top section of the table are
being conducted under a deadline set by a court. Actions in the middle
section of the table are being conducted to meet statutory timelines,
that is, timelines required under the Act. Actions in the bottom
section of the table are high-priority listing actions. These actions
include work primarily on species with an LPN of 2, and selection of
these species is
[[Page 17677]]
partially based on available staff resources, and when appropriate,
include species with a lower priority if they overlap geographically or
have the same threats as the species with the high priority. Including
these species together in the same proposed rule results in
considerable savings in time and funding, as compared to preparing
separate proposed rules for each of them in the future.
Actions funded in FY 2010 but not yet completed
------------------------------------------------------------------------
Species Action
------------------------------------------------------------------------
Actions Subject to Court Order/Settlement Agreement
------------------------------------------------------------------------
6 Birds from Eurasia Final listing determination
------------------------------------------------------------------------
Flat-tailed horned lizard Final listing determination
------------------------------------------------------------------------
6 Birds from Peru Proposed listing
determination
------------------------------------------------------------------------
Sacramento splittail Proposed listing
determination
------------------------------------------------------------------------
Big Lost River whitefish 12-month petition finding
------------------------------------------------------------------------
White-tailed prairie dog 12-month petition finding
------------------------------------------------------------------------
Gunnison sage-grouse 12-month petition finding
------------------------------------------------------------------------
Wolverine 12-month petition finding
------------------------------------------------------------------------
Arctic grayling 12-month petition finding
------------------------------------------------------------------------
Agave eggergsiana 12-month petition finding
------------------------------------------------------------------------
Solanum conocarpum 12-month petition finding
------------------------------------------------------------------------
Mountain plover 12-month petition finding
------------------------------------------------------------------------
Hermes copper butterfly 90-day petition finding
------------------------------------------------------------------------
Thorne's hairstreak butterfly 90-day petition finding
------------------------------------------------------------------------
Actions with Statutory Deadlines
------------------------------------------------------------------------
Casey's june beetle Final listing determination
------------------------------------------------------------------------
Georgia pigtoe, interrupted rocksnail, and Final listing determination
rough hornsnail
------------------------------------------------------------------------
2 Hawaiian damselflies Final listing determination
------------------------------------------------------------------------
African penguin Final listing determination
------------------------------------------------------------------------
3 Foreign bird species (Andean flamingo, Final listing determination
Chilean woodstar, St. Lucia forest
thrush)
------------------------------------------------------------------------
5 Penguin species Final listing determination
------------------------------------------------------------------------
Southern rockhopper penguin - Campbell Final listing determination
Plateau population
------------------------------------------------------------------------
5 Bird species from Colombia and Ecuador Final listing determination
------------------------------------------------------------------------
7 Bird species from Brazil Final listing determination
------------------------------------------------------------------------
Queen Charlotte goshawk Final listing determination
------------------------------------------------------------------------
Salmon crested cockatoo Proposed listing
determination
------------------------------------------------------------------------
Black-footed albatross 12-month petition finding
------------------------------------------------------------------------
Mount Charleston blue butterfly 12-month petition finding
------------------------------------------------------------------------
Least chub\1\ 12-month petition finding
------------------------------------------------------------------------
Mojave fringe-toed lizard\1\ 12-month petition finding
------------------------------------------------------------------------
Pygmy rabbit (rangewide)\1\ 12-month petition finding
------------------------------------------------------------------------
Kokanee - Lake Sammamish population\1\ 12-month petition finding
------------------------------------------------------------------------
Cactus ferruginous pygmy-owl\1\ 12-month petition finding
------------------------------------------------------------------------
[[Page 17678]]
Northern leopard frog 12-month petition finding
------------------------------------------------------------------------
Tehachapi slender salamander 12-month petition finding
------------------------------------------------------------------------
Coqui Llanero 12-month petition finding
------------------------------------------------------------------------
Susan's purse-making caddisfly 12-month petition finding
------------------------------------------------------------------------
White-sided jackrabbit 12-month petition finding
------------------------------------------------------------------------
Jemez Mountains salamander 12-month petition finding
------------------------------------------------------------------------
Dusky tree vole 12-month petition finding
------------------------------------------------------------------------
Eagle Lake trout\1\ 12-month petition finding
------------------------------------------------------------------------
29 of 206 species 12-month petition finding
------------------------------------------------------------------------
Desert tortoise - Sonoran population 12-month petition finding
------------------------------------------------------------------------
Gopher tortoise - eastern population 12-month petition finding
------------------------------------------------------------------------
Amargosa toad 12-month petition finding
------------------------------------------------------------------------
Wyoming pocket gopher 12-month petition finding
------------------------------------------------------------------------
Pacific walrus 12-month petition finding
------------------------------------------------------------------------
Wrights marsh thistle 12-month petition finding
------------------------------------------------------------------------
67 of 475 southwest species 12-month petition finding
------------------------------------------------------------------------
9 Southwest mussel species 12-month petition finding
------------------------------------------------------------------------
14 parrots (foreign species) 12-month petition finding
------------------------------------------------------------------------
Southeastern pop snowy plover & wintering 90-day petition finding
pop. of piping plover\1\
------------------------------------------------------------------------
Eagle Lake trout\1\ 90-day petition finding
------------------------------------------------------------------------
Ozark chinquapin\1\ 90-day petition finding
------------------------------------------------------------------------
Smooth-billed ani\1\ 90-day petition finding
------------------------------------------------------------------------
Bay Springs salamander\1\ 90-day petition finding
------------------------------------------------------------------------
Mojave ground squirrel\1\ 90-day petition finding
------------------------------------------------------------------------
32 species of snails and slugs\1\ 90-day petition finding
------------------------------------------------------------------------
Calopogon oklahomensis\1\ 90-day petition finding
------------------------------------------------------------------------
42 snail species 90-day petition finding
------------------------------------------------------------------------
White-bark pine 90-day petition finding
------------------------------------------------------------------------
Puerto Rico harlequin 90-day petition finding
------------------------------------------------------------------------
Fisher - Northern Rocky Mtns. population 90-day petition finding
------------------------------------------------------------------------
Puerto Rico harlequin butterfly\1\ 90-day petition finding
------------------------------------------------------------------------
42 snail species (Nevada & Utah) 90-day petition finding
------------------------------------------------------------------------
HI yellow-faced bees 90-day petition finding
------------------------------------------------------------------------
Red knot roselaari subspecies 90-day petition finding
------------------------------------------------------------------------
Honduran emerald 90-day petition finding
------------------------------------------------------------------------
Peary caribou 90-day petition finding
------------------------------------------------------------------------
Western gull-billed tern 90-day petition finding
------------------------------------------------------------------------
[[Page 17679]]
Plain bison 90-day petition finding
------------------------------------------------------------------------
Giant Palouse earthworm 90-day petition finding
------------------------------------------------------------------------
Mexican gray wolf 90-day petition finding
------------------------------------------------------------------------
Spring Mountains checkerspot butterfly 90-day petition finding
------------------------------------------------------------------------
Spring pygmy sunfish 90-day petition finding
------------------------------------------------------------------------
San Francisco manzanita 90-day petition finding
------------------------------------------------------------------------
Bay skipper 90-day petition finding
------------------------------------------------------------------------
Unsilvered fritillary 90-day petition finding
------------------------------------------------------------------------
Texas kangaroo rat 90-day petition finding
------------------------------------------------------------------------
Spot-tailed earless lizard 90-day petition finding
------------------------------------------------------------------------
Eastern small-footed bat 90-day petition finding
------------------------------------------------------------------------
Northern long-eared bat 90-day petition finding
------------------------------------------------------------------------
Prairie chub 90-day petition finding
------------------------------------------------------------------------
10 species of Great Basin butterfly 90-day petition finding
------------------------------------------------------------------------
High Priority Listing Actions\3\
------------------------------------------------------------------------
19 Oahu candidate species\3\ (16 plants, 3 Proposed listing
damselflies) (15 with LPN = 2, 3 with LPN
= 3, 1 with LPN =9)
------------------------------------------------------------------------
17 Maui-Nui candidate species\3\ (14 Proposed listing
plants, 3 tree snails) (12 with LPN = 2,
2 with LPN = 3, 3 with LPN = 8)
------------------------------------------------------------------------
Sand dune lizard\3\ (LPN = 2) Proposed listing
------------------------------------------------------------------------
2 Arizona springsnails\3\ (Pyrgulopsis Proposed listing
bernadina (LPN = 2), Pyrgulopsis
trivialis (LPN = 2))
------------------------------------------------------------------------
2 New Mexico springsnails\3\ (Pyrgulopsis Proposed listing
chupaderae (LPN = 2), Pyrgulopsis
thermalis (LPN = 11))
------------------------------------------------------------------------
2 mussels\3\ (rayed bean (LPN = 2), Proposed listing
snuffbox No LPN)
------------------------------------------------------------------------
2 mussels\3\ (sheepnose (LPN = 2), Proposed listing
spectaclecase (LPN = 4),)
------------------------------------------------------------------------
Ozark hellbender\2\ (LPN = 3) Proposed listing
------------------------------------------------------------------------
Altamaha spinymussel\3\ (LPN = 2) Proposed listing
------------------------------------------------------------------------
5 southeast fish\3\ (rush darter (LPN = Proposed listing
2), chucky madtom (LPN = 2), yellowcheek
darter (LPN = 2), Cumberland darter (LPN
= 5), laurel dace (LPN = 5))
------------------------------------------------------------------------
8 southeast mussels (southern kidneyshell Proposed listing
(LPN = 2), round ebonyshell (LPN = 2),
Alabama pearlshell (LPN = 2), southern
sandshell (LPN = 5), fuzzy pigtoe (LPN =
5), Choctaw bean (LPN = 5), narrow pigtoe
(LPN = 5), and tapered pigtoe (LPN = 11))
------------------------------------------------------------------------
3 Colorado plants\3\ (Pagosa skyrocket Proposed listing
(Ipomopsis polyantha) (LPN = 2), Parchute
beardtongue (Penstemon debilis) (LPN =
2), Debeque phacelia (Phacelia submutica)
(LPN = 8))
------------------------------------------------------------------------
\1\ Funds for listing actions for these species were provided in
previous FYs.
\2\ We funded a proposed rule for this subspecies with an LPN of 3 ahead
of other species with LPN of 2, because the threats to the species
were so imminent and of a high magnitude that we considered emergency
listing if we were unable to fund work on a proposed listing rule in
FY 2008.
\3\ Funds for these high-priority listing actions were provided in FY
2008 or 2009.
We have endeavored to make our listing actions as efficient and
timely as possible, given the requirements of the relevant law and
regulations, and constraints relating to workload and personnel. We are
continually considering ways to streamline processes or achieve
economies of scale, such as by batching related actions together. Given
our limited budget for implementing section 4 of the Act, these actions
described above collectively constitute expeditious progress.
We intend that any proposed reclassification of the delta smelt
will be as accurate as possible. Therefore, we will continue to accept
additional information and comments from all concerned governmental
agencies, the scientific community, industry, or any
[[Page 17680]]
other interested party concerning this finding.
References Cited
A complete list of references cited is available on the Internet at
http://www.regulations.gov and upon request from the Sacramento Fish
and Wildlife Office (see ADDRESSES section).
Author
The primary authors of this notice are the staff members of the
Bay-Delta Fish and Wildlife Office (see ADDRESSES section).
Authority
The authority for this action is section 4 of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: March 26, 2010
Jeffrey L. Underwood,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2010-7904 Filed 4-6-10; 8:45 am]
BILLING CODE 4310-55-S