[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Proposed Rules]
[Pages 49412-49417]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20335]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 17 and 224
[Docket No. 110110016-1039-01]
RIN 0648-XA144
Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To List the Saltmarsh Topminnow as Threatened or Endangered Under the
Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce; United States Fish and
Wildlife Service (USFWS), Interior.
ACTION: 90-day petition finding; request for comments, and initiation
of a status review.
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SUMMARY: We (NMFS and USFWS; also collectively referred to as the
Services) announce a 90-day finding on a petition to list the saltmarsh
topminnow (topminnow; Fundulus jenkinsi) as threatened or endangered
under the Endangered Species Act (ESA). We find that the petition
presents substantial scientific information indicating that the
petitioned action may be warranted. We will conduct a status review of
the species to determine if the petitioned action is warranted. To
ensure that the status review is comprehensive, we are soliciting
scientific and commercial data on the species (see below).
DATES: Information and comments on the subject action must be received
by October 11, 2011.
ADDRESSES: You may submit information by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. In the box
that reads ``Enter Keyword or ID,'' enter the Docket number for this
finding, which is 110110016-1039-01. Check the box that reads ``Open
for Comment/Submission,'' and then click the Search button. You should
then see an icon that reads ``Submit a Comment.'' Please ensure that
you have found the correct rulemaking before submitting your comment.
U.S. mail or hand-delivery: Public Comments Processing, Attn:
110110016-1039-01; Division of Policy and Directives Management; U.S.
Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM;
Arlington, VA 22203.
We will post all information we receive on http://www.regulations.gov. This generally means that we will post any
personal information you provide us.
Copies of the petition and related materials are available upon
request from the Assistant Regional Administrator, Protected Resources
Division, Southeast Regional Office, NMFS, 263 13th Avenue South, St.
Petersburg, FL 33701; Project Leader, USFWS, Panama City Ecological
Services Office, 1601 Balboa Ave., Panama City, FL 32405; or online at:
http://www.nmfs.noaa.gov/pr/species/esa/other.htm
FOR FURTHER INFORMATION CONTACT: Jason Rueter, NMFS Southeast Region,
(727) 824-5312, Dwayne Meadows, NMFS Office of Protected Resources,
(301) 713-1401, or Catherine Phillips, FWS, Panama City Ecological
Services Office, (850) 769-0552.
SUPPLEMENTARY INFORMATION:
Background
On September 7, 2010, we received a petition from WildEarth
Guardians and Ms. Sarah Felsen to list the saltmarsh topminnow
(Fundulus jenkinsi) as threatened or endangered under the ESA and to
list the species under the emergency listing provisions of the ESA (16
U.S.C. 1533(b)(7)) owing to perceived threats from the Deepwater
Horizon oil spill. Copies of this petition are available from us (see
ADDRESSES, above).
Since the petition was sent to both NMFS and USFWS, and we both had
information in our files concerning the species, we are jointly
responding to the 90-day finding. The species' salt marsh, estuarine
habitat falls within an area where both NMFS and FWS manage species.
USFWS will be responsible for conducting the 12-month finding and
determining if listing the saltmarsh topminnow is warranted and has
agreed to assume sole jurisdiction from this point forward.
ESA Statutory, Regulatory, and Policy Provisions and Evaluation
Framework
Section 4(b)(3)(A) of the ESA, as amended (16 U.S.C. 1531 et seq.),
requires that, to the maximum extent practicable, within 90 days of
receipt of a petition to list a species as threatened or endangered the
Services make a finding on whether that petition presents substantial
scientific or commercial information indicating that the petitioned
action may be warranted, and to promptly publish such finding in the
Federal Register (16 U.S.C. 1533(b)(3)(A)). When it is found that
substantial scientific or commercial information in a petition
indicates the petitioned action may be warranted (a ``positive 90-day
finding''), we are required to promptly commence a review of the status
of the species concerned during which we will conduct a comprehensive
review of the best available scientific and commercial information. In
such cases, we shall conclude the review with a finding as to whether,
in fact, the petitioned action is warranted. Because the finding at the
12-month stage is based on a more thorough review of the available
information, as compared to the narrow scope of review at the 90-day
stage, a ``may be warranted'' finding does not prejudge the outcome of
the status review.
Under the ESA, a listing determination may address a ``species,''
which is defined to also include subspecies and, for any vertebrate
species, any distinct population
[[Page 49413]]
segment (DPS) that interbreeds when mature (16 U.S.C. 1532(16)). A
species, subspecies, or DPS is ``endangered'' if it is in danger of
extinction throughout all or a significant portion of its range, and
``threatened'' if it is likely to become endangered within the
foreseeable future throughout all or a significant portion of its range
(ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 1532(6) and
(20)). Pursuant to the ESA and our implementing regulations, we
determine whether species are threatened or endangered because of any
one or a combination of the following five section 4(a)(1) factors: (1)
The present or threatened destruction, modification, or curtailment of
habitat or range; (2) overutilization for commercial, recreational,
scientific, or educational purposes; (3) disease or predation; (4)
inadequacy of existing regulatory mechanisms; and/or (5) any other
natural or manmade factors affecting the species' existence (16 U.S.C.
1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by NMFS and the USFWS
(50 CFR 424.14(b)) define ``substantial information'' in the context of
reviewing a petition to list, delist, or reclassify a species as the
amount of information that would lead a reasonable person to believe
that the measure proposed in the petition may be warranted. In
evaluating whether substantial information is contained in a petition,
the Secretary must consider whether the petition: (1) Clearly indicates
the administrative measure recommended and gives the scientific and any
common name of the species involved; (2) contains detailed narrative
justification for the recommended measure, describing, based on
available information, past and present numbers and distribution of the
species involved and any threats faced by the species; (3) provides
information regarding the status of the species over all or a
significant portion of its range; and (4) is accompanied by the
appropriate supporting documentation in the form of bibliographic
references, reprints of pertinent publications, copies of reports or
letters from authorities, and maps (50 CFR 424.14(b)(2)).
Court decisions have clarified the appropriate scope and
limitations of the Services' review of petitions at the 90-day finding
stage, in making a determination that a petitioned action ``may be''
warranted. As noted in the discussion of 12-month findings above, these
decisions hold that a petition need not establish a ``strong
likelihood'' or a ``high probability'' that a species is either
threatened or endangered to support a positive 90-day finding.
We evaluate the petitioner's request based upon the information in
the petition including its references, and the information readily
available in our files. We do not conduct additional research, and we
do not solicit information from parties outside the agency to help us
in evaluating the petition. We will accept the petitioner's sources and
characterizations of the information presented, if they appear to be
based on accepted scientific principles, unless we have specific
information in our files that indicates the petition's information is
incorrect, unreliable, obsolete, or otherwise irrelevant to the
requested action. Information that is susceptible to more than one
interpretation or that is contradicted by other available information
will not be dismissed at the 90-day finding stage, so long as it is
reliable and a reasonable person would conclude it supports the
petitioner's assertions. In other words, conclusive information
indicating the species may meet the ESA's requirements for listing is
not required to make a positive 90-day finding. We will not conclude
that a lack of specific information alone negates a positive 90-day
finding, if a reasonable person would conclude that the unknown
information itself suggests an extinction risk of concern for the
species at issue.
To make a 90-day finding on a petition to list a species, we
evaluate whether the petition presents substantial scientific or
commercial information indicating the subject species may be either
threatened or endangered, as defined by the ESA. First we evaluate
whether the information presented in the petition, along with the
information readily available in our files, indicates that the
petitioned entity constitutes a ``species'' eligible for listing under
the ESA. Next, we evaluate whether the information indicates that the
species at issue faces extinction risk that is cause for concern; this
may be indicated in information expressly discussing the species'
status and trends, or in information describing impacts and threats to
the species. We evaluate any information on specific demographic
factors pertinent to evaluating extinction risk for the species at
issue (e.g., population abundance and trends, productivity, spatial
structure, age structure, sex ratio, diversity, current and historical
range, habitat integrity or fragmentation), and the potential
contribution of identified demographic risks to extinction risk for the
species. We then evaluate the potential links between these demographic
risks and the causative impacts and threats identified in section
4(a)(1).
Information presented on impacts or threats should be specific to
the species and should reasonably suggest that one or more of these
factors may be operative threats that act or have acted on the species
to the point that it may warrant protection under the ESA. Broad
statements about generalized threats to the species, or identification
of factors that could negatively impact a species, do not constitute
substantial information that listing may be warranted. We look for
information indicating that not only is the particular species exposed
to a factor, but that the species may be responding in a negative
fashion; then we assess the potential significance of that negative
response.
Many petitions identify risk classifications made by other
organizations or agencies, as evidence of extinction risk for a
species. Risk classifications of the petitioned species by other
organizations or made under other Federal or state statutes may be
informative, but the classification alone may not provide the rationale
for a positive 90-day finding under the ESA. For example, as explained
by NatureServe, a non-profit conservation organization spun-off from
state natural heritage programs and The Nature Conservancy that
provides scientific status rankings and assessments for at-risk
species, its assessments of a species' conservation status do ``not
constitute a recommendation by NatureServe for listing under the U.S.
Endangered Species Act'' because NatureServe assessments ``have
different criteria, evidence requirements, purposes and taxonomic
coverage than government lists of endangered and threatened species,
and therefore these two types of lists should not be expected to
coincide.'' (http://www.natureserve.org/prodServices/statusAssessment.jsp). Thus, when a petition cites such
classifications, we will evaluate the source information upon which the
classification is based in light of the standards on extinction risk
and impacts or threats discussed above.
Distribution and Life History of Saltmarsh Topminnow
The saltmarsh topminnow is one of the smallest members of the
Fundulidae family; individuals are typically smaller than 45 mm long.
The topminnow has cross-hatching on its back and sides that may be
gray-green. Most individuals have 12 to13 dark round spots arranged in
rows along their sides from above the pectoral fin to the base of the
caudal fin. Sexual dimorphism amongst topminnows includes a longer
median
[[Page 49414]]
fin length in males and a lemon-yellow color on the anterior base of
the male's anal fin. The male's dorsal fin develops a deep orange over
the entire fin, a slight orange tint to the caudal fin, and a bright
yellow on the pelvic fins. Mature females have a sheath on the anterior
base of the anal fin used to position eggs during spawning. There is no
chromatic coloring in females (Thompson, 1980; 1999).
Topminnows' average lifespan is only 1 to 2 years. Individuals are
relatively isolated and live their lives in a small physical area. The
reproductive biology of the topminnow is not well studied, but current
research shows the topminnow to be in reproductive condition from March
through August, but spawning may also occur earlier (Peterson and
Lopez, 2008). Spawning probably occurs only once in an individual's
lifetime, but females produce several hundred eggs during that
reproductive cycle (Thompson, 1999).
The topminnow prefers the brackish environment of Spartina
alterniflora and Juncus roemerianus saltmarsh habitats. The fish are
most common in small, shallow tidal meanders of the saltmarsh with
salinities of 1-4 parts per thousand (ppt); while marsh habitats that
appear appropriate, but had mean salinities of 17 ppt did not contain
topminnows (Thompson, 1980; Peterson et al., 2003). In addition to
salinity, water depth, bank slope, and plant stem density may influence
distribution of the topminnow. Topminnows are found in this type of
saltmarsh habitat along the northern Gulf of Mexico from the Escambia
River (Florida) to Galveston Bay (Texas) (Gilbert and Relyea, 1992).
Analysis of the Petition
We evaluated whether the petition presented the information
indicated in 50 CFR 424.14(b)(2). The petition states the
administrative measures recommended, and provides the scientific and
common name of the species. The petition includes a detailed narrative
justification for the recommended measure, including some information
on numbers of the species, historical geographic occurrences of the
species, and threats faced by the species. The petition provides
information relevant to the status of the species as well as supporting
references and documentation. The saltmarsh topminnow is taxonomically
a species and thus is an eligible entity for listing under the ESA. The
petition states that the saltmarsh topminnow is imperiled, extremely
rare, and that the primary threat contributing to the saltmarsh
topminnow's endangerment is habitat degradation. The petition also
asserts that the species' biological constraints, such as small
population size and its reproductive traits, increase its risk of
extinction. The petition cites coastal development, levee and canal
construction, and pollution as the threats cumulatively leading to the
decline of saltmarsh habitat. According to the petition, at least three
of the five causal factors in section 4(a)(1) of the ESA are, in
combination, adversely affecting the continued existence of the
saltmarsh topminnow, as follows: (A) present or threatened destruction,
modification, or curtailment of its habitat or range; (D) inadequacy of
existing regulatory mechanisms; and (E) other natural or manmade
factors, particularly the fish's low reproductive rate.
Information on Extinction Risk and Status
The petition cites classifications made by NMFS, the states of
Florida, Louisiana, and Mississippi, and NatureServe to support its
assertion that the saltmarsh topminnow is imperiled. In 1991, NMFS
added the saltmarsh topminnow to our Candidate Species List. In 2004,
NMFS created the Species of Concern list (69 FR 19975; April 15, 2004)
to encompass species for which we have some concerns regarding their
status and threats, but for which insufficient information is available
to indicate a need to list the species under the ESA. Twenty-five
candidate species, including the saltmarsh topminnow, were transferred
to the Species of Concern list at that time because they were not being
considered for ESA listing and were better suited for Species of
Concern status due to some concerns and uncertainty regarding their
biological status and threats. The Species of Concern status does not
carry any procedural or substantive protections under the ESA. Our
rationale for including the saltmarsh topminnow on the species of
concern list included a potential population decline and threats from
habitat alteration, dredging, and marsh erosion.
The state of Florida lists the saltmarsh topminnow on its species
of special concern list, recognizing that the saltmarsh topminnow is
particularly vulnerable ``to habitat modification, environmental
alteration, human disturbance, or human exploitation which, in the
foreseeable future, may result in its becoming a threatened species
unless appropriate or protective management techniques are initiated or
maintained.'' However, the petition cites the species' rarity in the
waters of Florida, claiming the State's protective measures are
insufficient to protect the species as a whole. Mississippi lists the
species as a Species of Greatest Conservation Need in its ``Estuarine
Bays, Lakes, and Tidal Streams'' habitat subtype. The state identifies
five high and five medium level threats to this habitat subtype.
However, this listing provides no legal protection to the species.
Finally, Louisiana also lists the saltmarsh topminnow as a Species of
Greatest Conservation Need, though this too offers no legal protection.
NatureServe classifies saltmarsh topminnow as ``vulnerable''.
NatureServe's ``vulnerable'' classification category is given to
species that are ``at moderate risk of extinction or elimination due to
a restricted range, relatively few populations, recent and widespread
declines, or other factors.'' NatureServe specifically cites ``patchy
distribution within a small range along the coast of the Gulf of
Mexico; may be declining due to pollution and habitat destruction; and
local populations are relatively vulnerable to extirpation with a
reduced capacity for re-colonization,'' as reasons for its vulnerable
classification of the saltmarsh topminnow.
The petition also describes demographic factors specific to the
saltmarsh topminnow that could be indicative of its extinction risk,
for which the petition provides supporting information. These include a
declining population trend with sparse individuals in some locations
and a contraction of the historical range. The petition also asserts
that small sizes of adult populations of the saltmarsh topminnow are
contributing to the species' extinction risk, citing information on the
species rarity or absence in reports of most fish studies of the
northern Gulf of Mexico. The petition references the generally
understood natural rarity of the species (e.g., citing Lee et al.,
1980). However, rarity alone is not an indication that the saltmarsh
topminnow faces an extinction risk that is cause for concern. A
species' rarity could be cause for concern if the species was
distributed in small, isolated populations, or had a very restricted
geographic range and was subject to specific habitat degradation. Both
of these conditions appear to be applicable to the saltmarsh topminnow.
Peterson et al. (2003) cite the low relative abundance and patchy
distribution of the species along with increased development pressure
as reasons to quantify the habitat characteristics of the species.
Rarity could also subject a species to heightened extinction risk if
specific
[[Page 49415]]
stressors are negatively affecting its status and trends. Therefore, we
must evaluate whether information indicates the saltmarsh topminnow's
population has declined or continues to decline, and if so whether this
suggests extinction risk that is cause for concern. Population decline
can result in extinction risk that is cause for concern in certain
circumstances, for instance if the decline is rapid and/or below a
critical minimum population threshold and the species has low
resilience for recovery from a decline (Musick, 1999). Information
discussed above shows that decline for these species is possible, given
the evidence of loss of its narrowly preferred habitat, though it is
unclear how rapid or severe this decline has been.
The species' reliance on an apparently narrow range of habitat
conditions makes it vulnerable to alterations and changes in marsh
habitat. The petition states that coastal development, levee and canal
construction, pollution, and other threats cumulatively imperil
saltmarsh habitat, and consequently, the saltmarsh topminnow. Coastal
development, levee and canal construction, pollution, and other threats
may provide inferences about the status of marsh habitat and thus
population status and trends of the saltmarsh topminnow, though such
inferences may not be reliable in the absence of information regarding
the level or distribution of marsh habitat over time, changes in
development and construction practices, or changes in sampling design
for the species that may affect abundance estimates independent of
changes in a species' habitat and population. Wetland and marsh loss
data described in the petition include NMFS' recent proposed ESA
listing of largetooth sawfish (75 FR 25174): ``Wetland losses in the
Gulf of Mexico region of the U.S. averages annual net losses of 60,000
acres (242.8 km\2\) of coastal and freshwater habitats from 1998 to
2004 (Stedman et al., 2008). Although wetland restoration activities
are ongoing in this region of the U.S., the losses significantly
outweigh the gains (Stedman et al., 2008). These losses have been
attributed to commercial and residential development, port construction
(dredging, blasting, and filling activities), construction of water
control structures, modification to freshwater inflows (Rio Grande
River in Texas), and gas and oil related activities.'' Other citations
include the Environmental Protection Agency's estimate that ``by 2050
one third of coastal Louisiana will have vanished into the Gulf of
Mexico,'' and Thompson and Peterson's (2003) statement that ``coastal
Louisiana is presently in the erosional phase of delta cycling, being
accelerated, unfortunately in some areas, by many of man's activities
in the coastal region.'' Thus, information about the threats to the
species' habitat and inferences made about the species because of the
alteration of its habitat may be indicators of the species' status and
extinction risk. This is particularly true given the saltmarsh
topminnow's preference for shallow water of low to moderate salinity
saltmarsh environments, which in some cases has lost 40 percent of
known acreage by conversion to developed land over a four decade time
span (1950-1992; Peterson et al. 2003).
In summary, the petition and its supporting documentation provide
information on the status of the species and its extinction risk
especially in light of population demographic characteristics that
suggests the species may meet the ESA's requirements for listing.
Information on Threats to the Species
The petition states that impacts and threats corresponding with
three factors in section 4(a)(1) of the ESA are impacting the saltmarsh
topminnow. Specifically, the petition states that losses of and threats
to the species' saltmarsh habitat, inadequacy of mechanisms to protect
the fish or its habitat, and the species' biological parameters
including low rate of reproduction and limited individual ranges, are
individually and synergistically causing imperilment of the saltmarsh
topminnow.
The Present or Threatened Destruction, Modification, or Curtailment of
Its Habitat or Range
The petition states ``the curtailment of its historic habitat
range, and the threats to its current habitat * * * make the saltmarsh
topminnow especially vulnerable to extinction.'' The petition
acknowledges the general parameters of the historical range still apply
(from Galveston Bay, TX to Escambia Bay, FL), but goes on to assert
that this range has become spotty, stating scientists can no longer
locate the species between Galveston Bay and southeastern Louisiana.
The petition also cites a number of reports on marsh loss in the
Gulf of Mexico over varying periods of time ranging from the 1950s to
future projections to 2050. Loss of marsh habitat ranges from 13 to 40
percent depending on time frame, expected future impacts, and area of
the report. Additionally, the petition states ``scientists consider the
topminnows that live off the western Florida panhandle to be
`threatened,' '' citing Gilbert and Relyea (1992).
Levee and canal construction is cited as an impediment to the
topminnow gaining access to the vegetated, flooded marsh surface during
high tide. The petition provides examples and notes that Federal and
state governments have worked to remedy this situation by restoring
natural water flows in a number of large river deltas with functional
success being accomplished. Although functional success was
accomplished in the petition's cited restoration projects, the
petitioners claim ``mixed success'' because of political controversy,
not scientific feasibility. Despite these restoration projects, overall
marsh loss is continuing as described above.
A further factor affecting salt marsh habitat loss is the dock-side
gaming industry of Mississippi and Louisiana. The success of the gaming
industry in attracting tourists has led developers to create larger
offshore casinos that drain wetlands. The amount of development has led
to a situation where further construction cannot be undertaken without
impacting wetlands. Compounding this problem is the human waste from
these casinos polluting the water in remaining wetlands (NOAA CSC,
1999).
Another threat to the topminnow's habitat identified by the
petition is oil and gas refining and the byproducts from such
activities. The petition cites the Deepwater Horizon oil spill as a
threat to habitat, and cites Cowan's (NY Times, 2010) concern for the
spill's threat to the ``brackish water'' of the saltmarsh, in
particular. Data are provided in the petition on the extent of damage
caused by this unprecedented event to the marsh habitat of the
topminnow, and on the estimated range impacted by the spill. The
petition also discusses the long-term pollution that the oil industry
causes to wetlands in general and to salt marshes in particular. The
petition cites the Federal government and the state of Texas'
acknowledgement that long-term oil refining activities have
significantly polluted the coastal land straddling the Texas-Louisiana
border, particularly the Port Arthur, Texas area.
A final threat to the species identified by the petition is land
subsidence and sea level rise caused by petroleum development and
climate change effects. We have no information in our files to
contradict any of these above-listed threats.
[[Page 49416]]
In summary, the petition and its references present substantial
information that indicates the present or threatened destruction,
modification, or curtailment of habitat or range may be causing or
contributing to an extinction risk for the saltmarsh topminnow that is
cause for concern.
Inadequacy of Existing Regulatory Mechanisms
The petition argues that listing is warranted due to the inadequacy
of existing regulatory mechanisms, stating that ``state and federal
regulatory mechanisms have failed to protect the topminnow and its
habitat.'' The petition cites the listing of the species under
Louisiana, Florida, and Mississippi state programs, but states that due
to the paucity of the species in Florida, its listing and protection
there does not afford the species as a whole significant protection,
while Louisiana and Mississippi listings carry no legal protections.
Further, the Species of Concern listing by NMFS, while recognizing the
potential for imperilment, provides no legal protection either.
The petition cites numerous holes in protection of the saltmarsh
topminnow's habitat. These include the limitations of the Coastal
Wetlands Planning, Protection, and Restoration Act, 16 U.S.C. 3951 et
seq., in slowing large-scale wetlands degradation; and the U.S. Army
Corps of Engineers acknowledgement that the statute was not a broad
enough approach to wetlands restoration to reverse the breakdown of a
(wetland) ecosystem. Further, the petition notes the failure of the
1999 Louisiana Coastal Area Ecosystem Restoration Study to implement a
comprehensive solution to wetland loss. The petition also cites the
failure of the Federal and state governments to regulate the dock-side
gaming industry. Wallis (2008) shows that economic considerations are
often weighted heavily compared to environmental concerns in analyzing
impacts of the dock-side gaming industry by Mississippi's coastal
programs. Finally, the petition cites the inadequacy of the Clean Water
Act in protecting wetlands from hypoxia inducing agricultural run-off
pollution, due to its categorization as a non-point source, which
exempts it from many permitting requirements.
In summary, the petition presents substantial scientific or
commercial information indicating existing regulatory mechanisms may be
inadequate to address threats of extinction to the saltmarsh topminnow.
Other Natural or Manmade Factors
The petition suggests that the saltmarsh topminnow is naturally
vulnerable to increased risk of extinction, particularly because of
some biological constraints such as small population size and
reproductive traits. The petition argues that the saltmarsh topminnow
is characterized by a very low rate of reproduction and limited range
of individuals, which limits inter-population mixing. We have no
information to refute these claims. The petition references the USFWS
recognition that small population size increases extinction risk, and
specifically referenced a candidate assessment for the Langford tree
snail in support (http://ecos.fws.gov/docs/candforms_pdf/r1/G0AI_I01.pdf). The assessment for the Langford tree snail included a
population estimate to support the conclusions made on the species
small population size; however, no population estimate is given for the
saltmarsh topminnow. Thus, it is unclear whether the saltmarsh
topminnow is susceptible to the same reproductive limitations inherent
with a small population size like the Langford tree snail. In summary,
there is no scientific or commercial information available that
suggests that low rate of reproduction in the saltmarsh topminnow may
contribute to the species' risk of extinction, alone or in combination
with other factors.
The petition also discusses human population growth as a factor
that increases the saltmarsh topminnow's risk of extinction. The
petition uses two references which estimate the expected increase in
population along the coastal area of the Gulf of Mexico and cites
Waddell and Clarke (2008) as support for its assertion that expanded
human population growth will affect the saltmarsh habitat and thus the
species, ``as the global population continues to increase and
demographic shifts toward coastal areas persist, even greater pressures
will be placed on nearshore resources to satisfy human desires for
food, culture, tourism, recreation, and profit.'' The potential
consequences of threats to the topminnow's preferred habitat are
discussed above. Finally, the petition cites the cumulative and
synergistic effects of the loss of habitat, low reproductive rates, and
population isolation as factors contributing to the imperilment of the
saltmarsh topminnow.
Summary of Section 4(a)(1) Factors
We conclude that the petition presents substantial scientific or
commercial information indicating that a combination of three of the
section 4(a)(1) factors: the present or threatened destruction,
modification or curtailment of habitat, inadequate regulatory
mechanisms, and other natural or manmade factors, may be causing or
contributing to extinction risk for the saltmarsh topminnow.
Petition Finding
After reviewing the information contained in the petition, as well
as information readily available in our files, we conclude the petition
presents substantial scientific information indicating the petitioned
action of listing the saltmarsh topminnow as threatened or endangered
may be warranted. Therefore, in accordance with section 4(b)(3)(B) of
the ESA and the Service's implementing regulations (50 CFR
424.14(b)(2)), USFWS will commence a review of the status of the
species and make a determination within 12 months of receiving the
petition as to whether the petitioned listing is warranted. If listing
the species is found to be warranted, we will publish a proposed rule
and solicit public comments before developing and publishing a final
rule.
Finally, we conclude that the petition provides no justification
for us to exercise our discretion to list the species under the
emergency listing provisions of the ESA. While the BP Deepwater Horizon
oil spill likely has impacted the saltmarsh topminnow or its habitat,
petitioners failed to provide sufficient evidence or information to
support a finding that the event caused or is continuing to cause a
change in the species' status or habitat that requires immediate
listing under the ESA to address a significant risk to the saltmarsh
topminnow's well-being.
Information Solicited
To ensure the status review is based on the best available
scientific and commercial data, we are soliciting information on
whether the saltmarsh topminnow is endangered or threatened (see DATES
and ADDRESSES sections above). Specifically, we are soliciting
information in the following areas: (1) Historical and current
distribution and abundance of the species throughout its range; (2)
historical and current population trends; (3) information on life
history, (4) information related to taxonomy of the species and closely
related forms; (5) information on any current or planned activities
that may adversely impact the species; (6) ongoing efforts to protect
and restore the species and its habitat, and (7) management,
regulatory, and enforcement information. We request
[[Page 49417]]
that all information be accompanied by: (1) Supporting documentation
such as maps, bibliographic references, or reprints of pertinent
publications; and (2) the submitter's name, address, and any
association, institution, or business that the person represents.
If, after the status review, we determine that listing the
saltmarsh topminnow is warranted, we will propose critical habitat (see
definition in section 3(5)(A) of the ESA), under section 4 of the ESA,
to the maximum extent prudent and determinable at the same time we
propose to list the species. Therefore, within the geographical range
currently occupied by the saltmarsh topminnow, we request data and
information on:
(1) What may constitute ``physical or biological features essential
to the conservation of the species'';
(2) Where such physical and biological features are currently
found; and
(3) Whether any of these features may require special management
considerations or protection.
In addition, we request data and information on ``specific areas
outside the geographical area occupied by the species'' that are
``essential to the conservation of the species.'' Please provide
specific comments and information as to what, if any, critical habitat
you think we should propose for designation if the species is proposed
for listing, and why such habitat meets the requirements of section 4
of the ESA.
References Cited
A complete list of all references is available upon request from
the Protected Resources Division of the NMFS Southeast Regional Office
or the USFWS Panama City Ecological 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: July 21, 2011.
Gregory E. Siekaniec,
Acting Director, U.S. Fish and Wildlife Service.
Dated: August 5, 2011.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatoru Programs, National Marine
Fisheries Service.
[FR Doc. 2011-20335 Filed 8-9-11; 8:45 am]
BILLING CODE 3510-22-P; 4310-55-P